Madhya Pradesh High Court
Surtyomal vs Smt. Chandabai on 13 May, 2004
Equivalent citations: AIR2004MP225, AIR 2004 MADHYA PRADESH 225, (2004) 3 MPLJ 438
Author: Arun Mishra
Bench: Arun Mishra
JUDGMENT Arun Mishra, J.
1. This reference has been made by the learned single Judge Hon'ble Shri Justice S.K. Pandey on the question whether revision under Section 23-E of M. P. Accommodation Control Act, 1961 (hereinafter to be referred to as "The Act") lies against an interlocutory order passed in a proceeding under Section 23-A of the Act as the High Court exercises the same power and follow the same procedure as prescribed under Section 115 of Code of Civil Procedure, in view of the amendment made in Section 115 of CPC by Amendment Act of 1999 by which a proviso has been inserted in Section 115, CPC that High Court shall not, under this Section , vary or reverse an order made, or any order deciding an issue, in the course of a suit or proceeding or except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.
2. It was submitted before the Single Bench that revision against interlocutory order is not maintainable under Section 23-E considering that the question of law of immense importance has arisen, which may involve reconsideration of the decision in Smt. Tara Bai v. Second ADJ, Gwalior, AIR 1990 MP 167, hence the case has been referred.
3. It was submitted by Shri Alok Aradhe, appearing on behalf of petitioner that the provision which has been incorporated in Section 23-E of the Act is an independent provision and any amendment made in Section 115, CPC, is not going to affect the provision engrafted under Section 23-E by the Legislature. His submission is when any provision has been engrafted by reference, its repeal or amendment does hot affect as the provision has to be treated independent one. He has further submitted that there is distinction between jurisdiction, power and procedure. The jurisdiction conferred under Section 23-E, is independent whereas the jurisdiction conferred under Section 115, CPC has been curtailed. Thus revision lies against interlocutory order, which decides the rights of the parties, which is distinguishable from purely interim order. He has also submitted that power under Section 23-E is wider than the power conferred under Section 115 of CPC. Until and unless amendment is made in Section 23-E of the Act, the jurisdiction cannot be curtailed to entertain and hear the revision under Section 23-E of the Act.
4. Shri A. K. Jain, learned counsel appearing on behalf of respondents, refuting the submissions contended that the word "order" in the first part of Section 23-E means final order not an interlocutory one. It is provided in Section 23-E that High Court shall follow as far as possible the same power and procedure. He has also submitted that amendment to the CPC is applicable as it deals with the power and procedure. He has further submitted that only a facility has been granted to special category of landlords to approach the Rent Controller, thus they should be treated at par. Thus, this Court should give a purposive interpretation to Section 23-E by applying the amendment. It be held that revision against interlocutory orders is not maintainable, in case it does not finally disposes of suit or other proceedings in case it was passed in favour of revisionist.
5. In order to appreciate the rival submissions, it is necessary to consider the ambit and scope of Section 23-E of the Act to what extent it is independent and regulated by Section 115 of CPC. Section 23-E of the Act is Quoted below :--
23-E. Revision by High Court -- (1) Not-withstanding anything contained in Section 31 or Section 32, no appeal shall lie from any order passed by the Rent Controlling Authority under this Chapter.
(2) The High Court may, at any time "suo motu" or on the application of any person aggrieved, for the purpose of satisfying itself as to the legality, propriety or correctness of any order passed by or as to the regularity of the proceedings of the Rent Controlling Authority, call for and examine the record of the case pending before or disposed of by such Authority and may pass such order in revision in reference thereto as it thinks fit and save as otherwise provided by this Section in disposal of any revision under this Section , the High Court shall, as far as may be, exercise the same powers and follow the same procedure as it does for disposal of a revision under Section 115 of the Code of Civil Procedure, 1908 (V of 1908) as if any such proceeding of the Rent Controlling Authority is of a Court subordinate to such High Court :
Provided that no powers of revision at the instance of person aggrieved shall be exercised unless an application is presented within ninety days of the date of the order sought to be revised.
6. Section 115, CPC as amended by the Amendment Act of 1999 reads thus :
115. Revision -- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears --
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, The High Court may make such order in the case as it thinks fit :
Provided that the High Court shall not, under this Section , vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.
(2) The High Court shall not, under this Section , vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.
(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.
Explanation :-- In this Section , the expression, "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.
7. No appeal lies against any order passed by the Rent Controlling Authority (RCA) under Chapter III-A of the Act, which contains the provision of eviction of tenant on the ground of bona fide requirement. Thus appeal which has been provided in Section 31 or Section 32 has been excluded. Sub-section (2) of Section 23-E of the Act provides that High Court can call for examining the record of the case pending before or disposed of by such authority so as to satisfy itself as to the legality, propriety or correctness of any order passed or as to the regularity of the proceedings of the Rent Controlling Authority. The words "any order" used in the first part is wide enough to cover beyond pale of doubt the interlocutory order passed in pending proceeding. This part deals with the jurisdiction of the High Court to hear the revision. The latter part of Sub-section (2) of Section 23-E provides that High Court "as far as may be" exercise the same powers and follow the same procedure as it does for the disposal of revision under Section 115 of CPC. It is true that High Court has to follow the same power and procedure as prescribed under Section 115 of CPC but the latter part of Section 23-E(2) cannot affect the power of this Court to call for and examine the record of pending proceeding with respect to "any order" passed or as to the regularity of the pending proceedings provided in Sub-section (2) of Section 23-E of the Act. First part gives the wider power, the latter part of Sub-section (2) of Section 23-E tries to put a rider on the power and procedure of the Court. The power and procedure "as far as may be" has to be read in the context of the word used "save as otherwise provided by this Section ". There is clearly a saving provided in Section 23-E(2) of the Act as to the jurisdiction of the Court in the first part.
8. Shri Alok Aradhe has made strenuous effort while pointing out the difference between the jurisdiction, power and procedure. The power has been defined in Blacks Law dictionary to mean that "The right, ability, authority or faculty of doing something. Authority to do any act which the grantor might himself lawfully perform."
"A power is an ability on the part of a person to produce a change in a given relation by doing or not doing a given act."
9. Halsbury's Laws of England, ((4th Edn.) Vol. 10, para 715), deals with the jurisdiction and has considered the meaning of jurisdiction thus :--
"By jurisdiction is meant authority by which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by Statute or Charter or Commission under which the Court is constituted and may be extended or restricted by similar means. If no restriction or limitation is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind or nature of the actions or the matters of which a particular Court has cognizance or as to the area over which the jurisdiction extends, or it may partake both these characteristics."
10. In Anowar Hussain v. Ajoy Kumar Mukherjee, AIR 1965 SC 1651, the Apex Court has laid down, expression "jurisdiction" does not mean the power to do or order the act impugned, but generally the authority of the Judicial Officer to act in the matter. Meaning of "jurisdiction" has also been considered by the Apex Court in Official Trustee, West Bengal v. Sachindra Nath Chatterjee, AIR 1969 SC 823 to mean authority to decide the cause at all. The Apex Court has considered the matter thus :--
13. What is meant by jurisdiction ? This question is answered by Mukherjee, Acting C.J., speaking for the Full Bench of Calcutta High Court in Hirday Nath Roy v. Ramchandra Barna Sarma, ILR 48 Cal 138 : (AIR 1921 Cal 34 (FB)). At page 146 of the report ILR (Cal): (at p. 36 of AIR) the learned Judge explained what exactly is meant by jurisdiction. We can do no better than to quote his words.
"In the order of Reference to a Full Bench in the case of Sukhlal v. Tara Chand, (1905) ILR 33 Cal 68 (FB), it was stated that jurisdiction may be defined to be the power of a Court to 'hear and determine a cause, to adjudicate and exercise any judicial power in relation to it:' in other words, by jurisdiction is meant 'the authority which a "Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision." An examination of the cases in the books discloses numerous attempts to define the term 'jurisdiction', which has been stated to be 'the power to hear and determine issue of law and fact' "the authority by which the judicial officers take cognizance of and decide causes"; 'the authority to hear and decide a legal controversy'; "the power to hear and determine the subject-matter in controversy between parties to a suit and to adjudicate or exercise any judicial power over them"; "the power to hear, determine and pronounce judgment on the issues before the Court"; "the power or authority which is conferred upon a Court by the Legislature to hear and determine causes between parties and to carry the judgments into effect"; "the power to enquire into the facts, to apply the law, to pronounce the judgment and to carry it into execution".
(Emphasis (herein '') supplied).
Proceeding further the learned Judge observed :
"This jurisdiction of the Court may be qualified or restricted by a variety of circumstances. Thus, the jurisdiction may have to be considered with reference to place, value and nature of the subject-matter. The power of a Tribunal may be exercised within defined territorial limits. Its cognizance may be restricted to subject-matters of prescribed value. It may be competent to deal with controversies of a specified character, for instance, testamentary or matrimonial causes, acquisition of lands for public purposes, record of rights as between landlords and tenants. This classification into territorial jurisdiction, pecuniary jurisdiction and jurisdiction of the subject-matter is obviously of a fundamental character. Given such jurisdiction, we must be careful to distinguish exercise of jurisdiction from existence of jurisdiction; 'for fundamentally different are the consequences of failure to comply with statutory requirements in the assumption and in the exercise of jurisdiction. The authority to decide a cause at all not the decision rendered therein is what makes up jurisdiction;' and when there is jurisdiction of the person and subject-matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction. The extent to which the conditions essential for creating and raising the jurisdiction of a Court or the restraints attaching to the mode of exercise of that jurisdiction, should be included in the conception of jurisdiction itself, is sometimes a question of great nicety, as is illustrated by the decisions reviewed in the order of reference in (1905) ILR 33 Cal 68 (KB) and Khosh Mahomed v. Nazir Mohomed, (1905) ILR 33 Cal 352 (FB); see also the observation of Lord Parker in Raghunath v. Sundar Das, ILR 42 Cal 72 : (AIR 1914 PC 129) ......."We must not thus overlook the cardinal position that in order that jurisdiction may be exercised, there must be a case legally before the Court" and a hearing as well as a determination. A judgment pronounced by a Court without jurisdiction is void, subject to the well-known reservation that, when the jurisdiction of Court is challenged, the Court is competent to determine the question of jurisdiction, though the result of the enquiry may be that it has no jurisdiction to deal with the matter brought before it: Rashmoni Dasi v. Gunada Sundari Dasi, 20 Cal LJ 218 : (AIR 1915 Cal 49)."
11. The similar view has been expressed by the Apex Court in Smt. Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621.
12. Procedure is a mode, by which a le gal right is enforced. The same is distinguishable from the substantial law which gives or defines the right. Blacks Law Dictionary defines the procedure thus :--
'The mode of proceeding by which a legal right is enforced, as distinguished from the substantial law which gives of defines the right, and which, by means of the proceeding, the Court is to administer."
13. The amendment made under Section 115 of CPC means a clear departure from the provision of Section 115, CPC, which stood before Amendment inserted by Act, 1999. Proviso to Sub-section (1) of Section 115 has the effect of curtailing the jurisdiction of the High Court to hear and decide the revision under this Section , in case such an order would have finally disposed of suit, or other proceedings. Clauses (a), (b) and (c) of Sub-section (1) of Section 115 together with the proviso thereof lays down the jurisdictional condition, has been held in several decisions; in the matter of Birj Gopal Mathur v. Kishan Gopal Mathur, AIR 1973 SC 1096; Bharat Heavy Plates and Vessels Ltd., Visakhapatnam, AIR 1985 AP 207; Jai Chandra Prasad v. Bishwanath Prasad, AIR 1982 NOC 303 (Pat); in Ghewar Chand v. Gaj Singh, AIR 1980 Raj 202; in Sawal Singh v. Smt. Ramsakshi, 2003 (1) MPLJ 31 : (2003 AIHC 1737). It is clear that proviso creates an embargo in exercise of power of revision. It restricts the exercise of jurisdiction of High Court to entertain the revision.
14. A Division Bench of this Court in B. Johnson Bernard v. C.S. Naidu, 1985 MPLJ 675 : (AIR 1986 MP 72), has laid down that power of revision under Section 23-E is wider than under Section 115 of CPC, but the same is narrower than the appeal. This Court has held thus :--
24. It would be appropriate to examine briefly the scope of the revisional power of the High Court contained in Sub-section (2) of Section 23-E, since this question is bound to be of frequent occurrence. No doubt, this provision is ill-drafted wherein the first part appears to be of wide import, while the latter part attempts to limit the first part, but margin for exercise of discretion is given by using the words 'as far as may be', to connect the two parts. It is clear from Sub-section (1) that no appeal lies against an order passed by the Rent Controlling Authority and, therefore, the scope of revision provided in Sub-section (2) has to be narrower than the scope of appeal. The first part of Sub-section (2) appears to give comparatively wider power of revision by using the words 'for the purpose of satisfying itself as to legality, propriety or correctness of any order passed by or as to the regularity of the proceeding. ..... and may pass such order in revision as it thinks fit'. Thereafter, in the latter part, it says, in substance, that 'as far as may be', for the disposal of the revision, the High Court shall 'exercise the same powers and follow the same procedure, as it does for disposal of revision under Section 115, Civil Procedure Code', as if the Rent Controlling Authority is a Court subordinate to such High Court. Thus, in the latter part of Sub-section (2), the indication is that 'as far as may be' the power of revision to be exercised by the High Court is to be the same as given by Section 115, Civil Procedure Code, which is undoubtedly narrower than the wider power given by the first part of Sub-section (2)
25. The decision of the Supreme Court in Sri Raja Lakshmi Dyeing Works v. Rangaswamy, (1980) 4 SCC 259 : (AIR 1980 SC 1253) helps to construe the first part of Sub-section (2) of Section 23-E, as the decision relates to a similar provision of revision in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. It was held as follows :--
"Section 25 provides that :
The High Court may on the application of any person aggrieved by an order of the appellate authority call for and examine the record of appellate authority, to satisfy itself as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein and if, in any case it appears to the High Court that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, it may pass orders accordingly.
The language of Section 25 is indeed very wide. But we must attach some significance to the circumstance that both the expressions 'appeal' and 'revision' are employed in the statute. Quite obviously, the. expression 'revision' is meant to convey the idea of a much narrower jurisdiction than that conveyed by the expression 'appeal'. In fact it has to be noticed that under Section 25 the High Court calls for and examines the record of the appellate authority in order to satisfy itself. The dominant idea conveyed by the incorporation of the words 'to satisfy itself under Section 25 appears to be that the power conferred on the High Court under Section 25 is essentially a power of superintendence. Therefore, despite the wide language employed in Section 25, the High Court quite obviously should not interfere with findings of fact merely because it does not agree with the finding of the subordinate authority. The power conferred on the High Court under Section 25 ;of the Tamil Nadu Buildings (Lease and Rent Control) Act may not be as narrow as the revisional power of the High Court under Section 115 of the Code of Civil Procedure but in the words of Untwalia, J. in Dattonpant Gopalrao Devakare v Vithalrao Maruthirao Janagaval, (1975) 2 SCC 246 : (AIR 1975 SC 1111), 'it is not wide enough to make the High Court a second Court of first appeal'.
* * * * Merely to hold that a question is mixed question of fact and law is not sufficient to warrant the exercise of revisional power. It must, however, be shown that there was a taint of such unreasonableness resulting in a miscarriage of justice."
The first part of Sub-section (2) of Section 23-E of the M.P. Act has, therefore, to be construed similarly, as conferring a power of revision wider than that given by Section 115, Civil Procedure Code but narrower than the power of appeal which permits interference where 'there was a taint of such unreasonableness resulting in a miscarriage of justice.'
15. In Kewal Singh v. Mt. Lajwanti, AIR 1980 SC 161, the Apex Court has considered the Delhi Rent Control Act and has held that "the highest Court of the State has been given the wider power of revision where the said Court can examine the case of the tenant and landlord and the validity of order passed by the Controller". A Single Bench of this Court in Mahendra Kumar Jain v. Dharamchand Jain, 1986 MPLJ 80, has opined that power under Section 23-E is wider than under Section 115 of CPC. Another Single Bench in Bhagwan Das v. Ram Charan, 1999 (2) MPLJ 370 : (1999 AIHC 1606), has laid down that power under Section 23-E is wider than power under Section 115, CPC.
16. Shri S.D. Sanghi, learned Author, in his commentary on M.P. Accommodation Control Act, has mentioned that the power and procedure under Section 115, CPC will not affect the generality of the powers conferred upon the High Court in the first part of Sub-section (2) of Section 23-E. The learned Author has observed thus :--
(2) Additional provision with reference to Section 115, Civil P.C.--- After giving the wide powers, as mentioned above, to the High Court for revising the order of the Rent Controlling Authority, for the purpose mentioned therein and also conferring the jurisdiction to pass order as it thinks fit, the Legislature has tried to define the powers of the High Court. It starts by saying, "save as otherwise provided by this Section ", the High Court, in disposing of any revision under this Section , shall, as far as may be, exercise the same powers and follow the same procedure as it does for a revision under Section 115 Civil P.C. will not affect the generality of powers conferred upon the High Court in the first part of Sub-section (2). On the contrary, it will supplement the same."
We are in agreement with the view expressed by the learned Author. A bare reading of Sub-section 2) of Section 23-E, makes it clear that there is incorporation of Section 115 of CPC as to power and jurisdiction in the later portion of the Sub-section (2) whereas in the first part of Sub-section, which is independent provision providing revision, remains unaffected and when there is an incorporation of the part of the provision of Section 115 in Sub-section (2) of Section 23-E of the Act, we find that amendment made in Section 115 by addition of proviso to Sub-section (1) of Section 115 by 1999 Amendment Act, is not going to affect the provision of Section 23-E in any manner.
17. As no appeal is provided under M.P. Accommodation Control Act, the Legislature has given the wider power to the High Court as compared to Section 115, CPC. At the same time power and procedure 'as far as may be' save as otherwise provided in the Accommodation Control Act, has to be the same. The wide amplitude of the power under Section 23-E does not mean that even against every interim order a revision can be entertained, it has to be an interlocutory order, which affects the rights of the parties.
18. The Interlocutory Order has been denned in Halsbury's Laws of England 3rd Edn. Vol. 22 at Page 743-44 thus :--
"Interlocutory judgment or order -- An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed 'interlocutory'. An interlocutory order though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals...............
In general a judgment or order which determines the principal matter in question is termed 'final'.
Interlocutory Order has been defined in Webster's Third International Dictionary (Vol. II, p. 1179) thus :--
"Not final or definitive : made or done during the progress of an action : INTERMEDIATE, PROVISIONAL."
"Corpus Juris Secundum (Vol. 49, p. 35) has been relied upon by Shri Alok Aradhe wherein interlocutory order has been defined thus :--
"a final judgment is one which disposes of the cause both as to the subject-matter and the parties as far as the Court has power to dispose of it, while an interlocutory judgment is one which does not so dispose of the cause, but reserves or leaves some further question or direction for future determination.........The term 'interlocutory judgment' is, however, a convenient one to indicate the determination of steps or proceedings in a cause preliminary to final judgment, and in such sense the term is in constant and general use even in code states." "The word 'interlocutory', as applied to rulings and orders by the trial Court, has been variously defined. It refers to all orders, rulings, and decisions made by the trial Court from the inception of an action to its final determination. It means, not that which decides the cause, but that which only settles some intervening matter relating to the cause. An interlocutory order is an order entered pending a cause, deciding some point or matter essential to the progress of the suit and collateral to the issues formed by the pleadings and not a final decision or judgment on the matter in issue........... An intermediate order has been defined as one made between the commencement of an action and the entry of the judgment."
Shri Alok Aradhe, has further referred to Wharton's Law Lexicon (14th Edn. P. 529), wherein interlocutory order has been defined thus :--
"An interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of the parties."
Shri Aradhe, has referred to Apex Court decision in V.C. Shukla v. State through CBI, AIR 1980 SC 962, wherein in Para 23 the Apex Court has observed thus :--
23. Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decide the rights of the parties is only an interlocutory order. In other words, in ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however, conclude the trial at all.
19. The 'interim order' is one made in the meantime and until something is done, as defined in Black's Law Dictionary. The Apex Court in Shiv Shankar v. Board of Directors, UPSRTC, 1995 Supp (2) SCC 726, has observed as to the 'interim order' thus :--
5. We have heard learned counsel for the parties. We do not propose to enter into merits of the matter as we are satisfied that the case shall have to be sent back to the High Court for deciding it in accordance with law. But we consider it necessary to observe that the piquant situation arose because of the order dated 4-5-1990 passed by the High Court. Although that order is not under challenge but the Division Bench which issued notice purported to grant by way of interim order a relief to the petitioners which could not have been granted to them without adjudication on merits. The direction by the High Court to absorb within a period of 3 months amounted to disposal of the writ petition and yet the High Court had issued notice only. Once the affidavits were exchanged it would have been appropriate for the High Court to decide the dispute. The issue of notice at this stage unless there were other necessary parties to be heard was not of any purpose. Be that as it may, once the High Court issued the directions to the respondents to absorb the petitioners they had no option but to comply with the order. And once they were absorbed then the counsel could not be claimed for making a statement that the petition may be dismissed. At the same time once the petition was dismissed without any adjudication on merits the effect of dismissal was that the interim order stood merged in the final order and the order of absorption stood nullified. This anomalous situation was brought into effect as a result of the interim order granted by the High Court. An interim order is granted by the Court to protect the right or interest of a party approaching the Court till the claim is adjudicated finally. It is temporary in nature and is made in the meantime. But the order of the High Court directing the respondents to absorb the appellants could not be termed as interim order. Such order could be granted only by way of final adjudication as a result of decision on merits."
20. In Smt. Tara Bai v. Second ADJ, Gwalior, AIR 1990 MP 167, a Division Bench of this Court has held that under Section 23-E of the Act, revision lies not only against final order but against interlocutory orders also. Whether amendment affects this power, is to be discussed later. The Division Bench of this Court has observed thus :--
"When Rent Controlling Authority exercises its jurisdiction in relation to an application under Section 23-A of the Act by passing any order with respect to trial or disposal of that application and not only when the final order is rendered in the proceeding, that decision would be open only to revision by High Court under Section 23-E, indeed, all interlocutory orders passed by the R.C.A. with respect to that proceeding under Section 23-A would only be revisable by the Court. In respect of those orders appellate jurisdiction under Section 31 cannot be exercised, that, is barred under Section 23-E (1). Additional support for this view has to be read in sub-sec. (2) of Section 23 by which High Court is authorized to act even suo motu for the purpose of satisfying itself as to the legality, propriety or correctness of any order passed by or as to the regularity of the proceeding of the R.C.A., legislature's deliberate endeavour to ensure time-bound disposal of the proceedings under Section 23-A has to be judicially supported by giving due importance to the two words "any order" in both Sub-sections (1) and (2) of Section 23-E.
21. In view of the above discussion, we find ourselves unable to agree with the submission raised by the learned counsel for the respondents that the words "any order" in the first part of the Section 23-E (2) means final order, in our opinion, the revision lies under Section 23-E against an interlocutory order also, which decides a particular aspect or a particular issue or a particular matter in proceedings of suit or trial, as discussed above which does not conclude the trial, is not such an interim order, which is not of moment. Revision lies of an interlocutory order if it affects rights of the parties and cause miscarriage of justice or render trial radically defective.
22. Interference can be made in an interlocutory order in the case of miscarriage of justice. The High Court cannot re-appreciate the evidence as a Court of appeal. Its powers are confined and with rider imposed in latter part of Section 23-E(2) of Act and akin to the revisional jurisdiction. The scope of revision under Section 23-E is narrower than appeal. The latter part of Section 23-E (2), provides the power and procedure of Section 115, CPC is undoubtedly narrows the wider provision of first part of Sub-section (2). First part and latter part of Section 23-E (2) on reconciliation means that power is narrower than appeal, wider than power of revision given under Section 115, CPC.
23. Coming to the question whether amendment made in the year 1999 in the CPC by which a proviso to Sub-section (1) of Section 115 has been added curtails the jurisdiction of the High Court to entertain any revision against an order, in case it does not finally dispose of suit or other proceedings. In our opinion, the amendment, which has been made, cannot apply to the provision of Section 23-E. Consequently question of reconsideration of the Division Bench decision of this Court rendered in Suit. Tara Bai v. Second ADJ, Gwalior, AIR 1990 MP 167 (supra) does not arise. The former Chief Justice of this Court Hon'ble Shri Justice G.P. Singh in Principles of Statutory Interpretation, Ninth Edition, has dealt with the question of incorporation of earlier act into latter or reference of earlier Act. into latter. It has been observed by the learned Author that incorporation of an earlier Act into a latter Act is a legislative device adopted for the sake of convenience in order to avoid verbatim reproduction. The incorporation by reference makes provision part and parcel of the latter Act. On such incorporation it becomes independent legislation, which is not modified or repealed by modification or repeal of the earlier Act. The following is the relevant observation :--
(d) Incorporation of earlier Act into latter; Reference of earlier Act into latter Incorporation of an earlier Act into a latter Act is a legislative device adopted for the sake of convenience in order to avoid verbatim reproduction of the provisions of the earlier Act into the latter. When an earlier Act or certain of its provisions are incorporated by reference into a latter Act, the provisions so incorporated become part and parcel of the latter Act as if they had been "bodily transposed into it". The effect of incorporation is admirably stated by LORD ESHER, M.R. : "If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those Section s into the new Act as if they had been actually written in it with the pen, or printed in it." The result is to constitute the latter Act along with the incorporated provisions of the earlier Act, an independent legislation which is not modified or repealed by a modification or repeal of the earlier Act. As observed by BRETT, J.: "Where a statute is incorporated, by reference, into a second statute, the repeal of the first statute by a third does not affect the second". To the same effect is the statement by SIR GEORGE LOWNDES: "It seems to be no less logical to hold that where certain provisions from an existing Act have been incorporated into subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function, effectually without the addition." Ordinarily if an Act is incorporated in a latter Act, the intention is to incorporate the earlier Act, with all the amendments made in it up to the date of incorporation. The rule that the repeal or amendment of the Act which is incorporated by reference in a latter Act is not applicable for purposes of the latter Act is subject to qualifications and exceptions. A distinction is in this context drawn between incorporation and mere reference of an earlier Act into a latter Act. Further, a distinction is also drawn when what is referred to is not an earlier Act or any provision from it but law on a subject in general. There is, however, no controversy on the point that when any Act or rules are adopted in any latter Act or rules, such adoption normally whether by incorporation or mere reference takes in all the amendments in the earlier Act or rules till the date of adoption.
24. More or less, similar question which is involved in the instant case arose, in Secretary of State v. Hindustan Co-operative Insurance Society Ltd., AIR 1931 PC 149, wherein the question which for consideration was that in Calcutta Improvement Act, 1911 the provisions of the Land Acquisition Act (Central Act 1 of 1894) with certain modifications were incorporated by reference for purposes of acquisitions under the Bengal Act. By Central Act 19 of 1921 the Land Acquisition Act was amended and provision was made in that Act for "an appeal" to the Privy Council. It was held by the Privy Council that this amendment had not the effect of modifying the incorporated provision of the Land Acquisition Act in the Bengal Act and that it did not confer a right of appeal in relation to an award of compensation under the Bengal Act.
25. In Mahindra and Mahindra Ltd. v. Union of India, AIR 1979 SC 798, p. 811 : (1979) 2 SCC 529, the question was of applicability of the grounds of appeal which were specified by amendment made in Section 100 of the CPC, 1908. Section 100 of the CPC was substituted by a new Section in 1976 which narrowed the grounds of appeal under that Section . Section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 provides for an appeal to the Supreme Court against the orders of the Monopolies and Restrictive Trade Practices Commission on one or more of the grounds specified in Section 100 of CPC, 1908. Later on Section 100 was amended and an Appeal was provided on 'substantial question of law' and grounds of appeal were narrowed down by way of amendment made in Civil Procedure Code, 1976. In considering Section 55 of Monopolies and Restrictive Trade Practices Act, Supreme Court held that Section 100 of Code as it existed in 1969 was incorporated in Section 55 and 'substitution of new Section 100 in the CPC abridging the grounds of appeal had no effect on the appeal under Section 55 of Monopolies and Restrictive Trade Practices Act'. The Apex Court has held thus :--
9. We have no doubt that Section 55 is an instance of legislation by incorporation and not legislation by reference. Section 55 provides for an appeal to this Court on "one or more of the grounds specified in Section 100." It is obvious that the Legislature did not want to confer an unlimited right of appeal, but wanted to restrict it and turning to Section 100, if found that the grounds there set out were appropriate for restricting the right of appeal and hence it incorporated them in Section 55. The right of appeal was clearly intended to be limited to the grounds set out in the existing Section 100. Those were the grounds which were before the Legislature and to which the Legislature could have applied its mind and it is reasonable to assume that it was with reference to those specific; and known grounds that the Legislature intended to restrict the right of appeal. The Legislature could never have been intended to limit the right of appeal to any ground or grounds which might from time to time find place in Section 100 without knowing what those grounds were. The grounds specified in Section 100 might be changed from time to time having regard to the legislative policy relating to second appeals and it is difficult to see any valid reason why the Legislature should have thought it necessary that these changes should also be reflected in Section 55 which deals with the right of appeal in a totally different context. We fail to appreciate what relevance the legislative policy in regard to second appeals has to the right of appeal under Section 55 so that Section 55 should be inseparably linked or yoked to Section 100 and whatever changes take place in Section 100 must be automatically read into Section 55. It must be remembered that the Act is a self-contained Code dealing with monopolies and restrictive trade practices and it is not possible to believe that the Legislature could have made the right of appeal under such a Code dependent on the vicissitudes through which a Section in another statute might pass from time to time. The scope and ambit of the appeal could not have been intended to fluctuate or vary with every change in the grounds set out in Section 100. Apart from the absence of any rational justification for doing so, such an indissoluble linking of Section 55 with Section 100 could conceivably lead to a rather absurd and startling result. Take for example a situation where Section 100 might be repealed altogether by the Legislature -- a situation which cannot be regarded as wholly unthinkable. If the construction contended for on behalf of the respondents were accepted, Section 55 would in such a case be reduce to futility and the right of appeal would be wholly gone, because then there would be no grounds on which an appeal could lie. Could such a consequence ever have been contemplated by the Legislature? The Legislature clearly intended that there should be a right of appeal, though on limited grounds, and it would be absurd to place on the language of Section 55 an interpretation which might, in a given situation, result in denial of the right of appeal altogether and thus defeat the plain object and purpose of the Section . We must, therefore, hold that on a proper interpretation the grounds specified in the then existing Section 100 were incorporated in Section 55 and the substitution of the new Section 100 did not affect or restrict the grounds as incorporated and since the present appeal admittedly raises questions of law, it is clearly maintainable under Section 55.
We find decision of Apex Court to be of direct relevance to matter in controversy at hand.
26. The Apex Court in Narottamdas v. State of Madhya Pradesh, AIR 1964 SC 1667, has considered the question of adoption of expression defined in another Act. The Apex Court has held that adoption of expressions does not render the M.P. Minimum Wages Act, 1962, a dependent Act. The Apex Court has held thus :
(6) It is not disputed that the Madhya Pradesh Legislature had the legislative competence to make a law as regards minimum wages under Entry 24 of List III (Sch. Seventh) Mr. Setalvad contends that this power of independent legislation was not really exercised by the Legislature and that in the guise of independent legislation it has in substance passed a validating Act, after an attempt to validate the notification of the 30th December, 1958 had failed. In support of his argument that it is not independent legislation Mr. Setalvad laid stress on the language of Section 2. That Section merely says that the expressions used in this Act shall have the same meaning for the purpose of this Act as defined in the Minimum Wages Act of 1948. According to the learned counsel, this shows that this was really a dependent and not independent legislation. We can find no substance in this argument. The definition of expression used in an Act with reference to other Act is a well-known device in legislative practice generally adopted for the sake of brevity. The definition would remain effective even after the other Act with. reference to which the definition was given ceases to exist. This fact of defining expressions in an Act with reference to some other Act cannot, therefore, have the effect of making this Act dependent on such other Act.
27. The Apex Court in Bolani Ores Ltd. v. State of Orissa, AIR 1975 SC 17, has considered the question of incorporation by reference of another provision, has held that once provision is incorporated by reference, any subsequent amendment in the Act or a total repeal of the Act under a fresh legislation on that topic would not affect the definition of 'motor vehicle' in Section 2(c) pf the Taxation Act. The Apex Court has held thus:--
29.................................................. if the subsequent Orissa Motor Vehicles Taxation (Amendment) Act, 1943, incorporating the definition of 'motor vehicle' under the Act as then existing, the effect of this legislative method would, in our view, amount to an incorporation by reference of the provisions of Section 2(18) of the Act in Section 2(c) of the Taxation Act. Any subsequent amendment in the Act or a total repeal of the Act under a fresh legislation on that topic would not affect the definition of 'motor vehicle' in Section 2(c) of the Taxation Act. This is a well accepted interpretation both in this country as well as in England which has to a large extent influenced our law. This view is further reinforced by the use of the word 'has' in the expression "has the same meaning as in the Motor Vehicles Act, 1939" in Section 2(c) of the Taxation Act, which would perhaps further justify the assumption that the Legislature had intended to incorporate the definition under the Act as it then existed and not as it may exist from time to time. This method of drafting which adopts incorporation by reference to another Act whatever may have been its historical justification in England, in this country does not exhibit an activistic draftsmanship which would have adopted the method of providing its own definition. Where two Acts are complementary or interconnected, legislation by reference may be an easier method because a definition given in the one Act may be made to do as the definition in the other Act both of which being enacted by the same Legislature. At any rate, Lord Esher, M.R. dealing with legislation by incorporation, in In re : Weed's Estate said (1886) 31 Ch D 607 at p. 615 :
"If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that as has often been held, is to write those Section s into the new Act just as if they had been actually written in it with the pen, or printed in it, and, the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all."
The observations in Clarke v. Bradlaugh, (1881) 8 QBD 63, are also to the same effect. Brett, L.J., in that case had said at p. 69 :
".............there is a rule of construction that, where a statute is incorporated by reference into a second statute, the repeal of the first statute by a third statute does not affect the second."
28. In a recent decision in Nagpur Improvement Trust v. Vasantrao, AIR 2002 SC 3499, considering the question of incorporation of former statute whether it is wholly or partially incorporated therein, is a question of construction of provision. The Apex Court has further held that whether a particular legislation falls in the category of referential legislation or legislation by incorporation depends upon the language used in the statute in which reference is made to the earlier provision and other relevant circumstances. In the case of referential legislation any amendment made in the earlier legislation after enactment of subsequent legislation would also be applicable. But if it is a legislation by incorporation rule of construction is that it does not affect the operation of the subsequent statute in which it has been incorporated. The Apex Court has held thus :--
31. We shall now proceed to consider whether the provisions of the Land Acquisition Act, 1894 as modified by the State Acts stand incorporated in the State Acts or whether there is a mere reference or citation of the Land Acquisition Act in the State Acts. The law on the subject is well settled. When an earlier Act or certain of its provisions are incorporated by reference into a later Act, the provisions so incorporated become part and parcel of the later Act as if they had been bodily transposed into it. The incorporation of an earlier Act into a later Act is a legislative device adopted for the sake of convenience in order to avoid verbatim reproduction of the provisions of the earlier Act into the later. But this must be distinguished from a referential legislation which merely contains a reference or the citation of the provisions of an earlier statute. In a case where a statute is incorporated, by reference, into a second statute, the repeal of the first statute by a third does not affect the second. The later Act along with the incorporated provisions of the earlier Act constitute an independent legislation which is not modified or repealed by a modification or repeal of the earlier Act. However, where in later Act there is a mere reference to an earlier Act, the modification, repeal or amendment of the statute that is referred, will also have an effect on the statute in which it is referred. It is equally well settled that the question whether a former statute is merely referred to or cited in a later statute, or whether it is wholly or partially incorporated therein, is a question of construction.
32. In Secretary of State v. Hindustan Co-operative Insurance Society Ltd., AIR 1931 PC 149, the Privy Council observed :--
"In this country it is accepted that where a statute is incorporated by reference into a second statute, the repeal of the first statute does not affect the second : see the cases collected in "Craies on statute law." Edn. 3, pp. 349-50. This doctrine finds expression in a common form Section which regularly appears in the Amending and Repealing Acts which are passed from time to time in India. The Section runs.
The repeal by this Act of any enactment shall not affect any Act.................... in which such enactment has been applied, incorporated or referred to."
The independent existence of the two Acts is therefore, recognized; despite the death of the parent Act, its offspring survives in the incorporating Act. Though no such saving clause appears in the General Clauses Act, their Lordships think that the Principle involved is as applicable in India as it is in this country.
It seems to be no less logical to hold that where certain provisions from an existing Act has been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition".
33. In Re : Wood's Estate, Ex-Parte Works and Buildings Commrs. (1886) 31 Ch D 607 at p. 615, Lord Esher, M.R. observed :--
"If a subsequent Act brings into itself by reference to some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those Section s into the new Act as if they had been actually written in it with the pen, or printed in it".
34. In U.P. Avas Evam Vikas Parishad v. Jainul Islam, AIR 1998 SC 1028, this Court observed :--
"17. A subsequent legislation often makes a reference to the earlier legislation so as to make the provisions of the earlier legislation applicable to matters covered by the latter legislation. Such a legislation may either be (i) a referential legislation which merely contains a reference to or, the citation or the provisions of the earlier statute; or (ii) a legislation by incorporation whereunder the provisions of the earlier legislation to which reference is made are incorporated into the latter legislation by reference. If it is a referential legislation the provisions of the earlier legislation to which reference is made in the subsequent legislation would be applicable as it stands on the date of application of such earlier legislation to matters referred to in the subsequent legislation. In other words, any amendment made in the earlier legislation after the date of enactment of the subsequent legislation would also be applicable. But if it is a legislation by incorporation the rule of construction is that repeal of the earlier statute which is incorporated does not affect operation of the subsequent statute in which it has been incorporated. So also any amendment in the statute which has been so incorporated that is made after the date of incorporation of such statute does not affect the subsequent statute in which it is incorporated and the provisions of the statute which have been incorporated would remain the same as they were at the time of incorporation and the subsequent amendments are not to be read in the subsequent legislation."
36. It is also well settled that the question as to whether a particular legislation falls in the category of referential legislation or legislation by incorporation depends upon the language used in the statute in which reference is made to the earlier decision and other relevant circumstances.
29. In our opinion, on consideration of legal position made vivid by various decisions cited above, the power under the first part of Section 23-E is not affected by the amendment made in the proviso to Sub-section (1) of Section 115 of CPC as we find that part of provision of Section 115 has been incorporated in Section 23-E, hence amendment or repeal of Section 115, CPC is not going to affect Section 23-E of the M.P. Accommodation Control Act, 1961.
30. We answer the reference thus :--
"First proviso to Sub-section (1) of Section 115, CPC, as inserted by Amendment Act of 1999 is not applicable to Section 23-E. It does not curtail the jurisdiction of the High Court to hear revision as provided in Section 23-E(2) of the M.P. Accommodation Control Act."
Matter be placed before the Single Bench to deal with the matter in accordance with law.