Jammu & Kashmir High Court
Hans Raj vs Hans Raj Is Pending On The on 2 March, 2012
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. C Rev No. 32 OF 2011 Hans Raj Petitioners Jeet Ram Respondent !Mr. K.S.Johal, Advocate. ^Ms. L.K.Sharma, AdvocaTE HONBLE MR. JUSTICE MOHAMMAD YAQOOB MIR, J Date: 02.03.2012 :J U D G M E N T :
Suit captioned Jeet Ram Versus Hans Raj is pending on the file of learned Munsiff, R.S.Pura. Alongside the suit, an application under Order XXXIX Rule 1 & 2 of Code of Civil Procedure (for short C.P.C) has been filed, which has been allowed vide detailed order 14th of May 2010, in terms whereof parties have been directed to maintain status-quo vis-`-vis suit property. An appeal preferred by the petitioner has been dismissed by the Court of Additional District Judge, Jammu on 4th of February 2011. Aggrieved thereof, the instant Revision Petition has been filed.
After amendment i.e., substitution of Proviso to Section 115 C.P.C, the revisional powers have been curtailed and power is to be exercised at the behest of the revisionist only when the order, if would have been in favour of the revisionist, would result in termination of the suit proceedings. The application for injunction as disposed of in fact is an arrangement during the course of the trial of the suit. The appeal taken against such order is in continuation of the said suit proceedings so has to be termed to be an order during the course of the suit proceedings. If the order impugned would have been in favour of the petitioner, same would not result in final disposal of the suit.
Learned counsel for the petitioner would contend that an application for injunction as disposed of and then the appeal taken against such order and disposed of would mean termination of the proceedings in the application and then the appeal, therefore, the revision is maintainable. In support of his submission, relied upon the judgment rendered by the Co- ordinate Bench of this Court in case titled Darbari Lal & ors Vs. Madan Lal & ors., reported in AIR 2011 J&K 153. But, it appears that the judgment rendered by the Honble Apex Court in the case titled as Surya Dev Rai Vs. Ram Chander & Ors., reported in 2003 AIR SCW 3872 has not been brought to the notice of the Court. It shall be quite relevant to quote Para no.4 of the judgment (supra) herein:-
4. Section 115 of the Code of Civil Procedure as amended does not now permit a revision-petition being filed against an order disposing of an appeal against the order of the Trial Court whether confirming, reversing or modifying the order of injunction granted by the Trial Court. The reason is that the order of the High Court passed either way would not have the effect of finally disposing of the suit or other proceedings. The exercise of revisional jurisdiction in such a case is taken away by the proviso inserted under sub-section (1) of S. 115 of the C.P.C. The amendment is based on the Malimath Committee's recommendations. The Committee was of the opinion that the expression employed in S. 115 C.P.C, which enables interference in revision on the ground that the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made, left open wide scope for the exercise of the revisional power with all types of interlocutory orders and this was substantially contributing towards delay in the disposal of cases. The Committee did not favour denuding the High Court of the power of revision but strongly felt that the power should be suitably curtailed.
The effect of the erstwhile Cl. (b) of the proviso, being deleted and a new proviso having been inserted, is that the revisional jurisdiction, in respect of an interlocutory order passed in a trial or other proceedings, is substantially curtailed. A revisional jurisdiction cannot be exercised unless the requirement of the proviso is satisfied. The law, as has been laid down, squarely applies to the instant case, therefore, this Revision Petition being not maintainable is dismissed along with CMP; leaving it open for the petitioner to have recourse to other remedial measures, if available.
Copy of this order along with the subordinate records be sent back to the trial Court.
(Mohammad Yaqoob Mir) Judge Jammu 02-03-2012 Sanjay