Sarwan Singh And Others vs Mohar Singh on 24 November, 2016

[Cites 52, Cited by 2]

Himachal Pradesh High Court

Sarwan Singh And Others vs Mohar Singh on 24 November, 2016

Bench: Tarlok Singh Chauhan

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .

Civil Revision No.168 of 2016.

Reserved on : 11.11.2016.

Date of decision: November,24th,2016.

Sarwan Singh and others .....Petitioner s.





                                                 of
                                     Versus
     Mohar Singh                                                              .....Respondent.

     Coram
                         rt

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting?1Yes For the Petitioners : Mr.Dinesh Kumar Sharma, Advocate.

For the Respondent : Mr.N.S.Chandel, Advocate.

Tarlok Singh Chauhan, Judge.

The sole question that falls for adjudication in this case is whether the judgment and decree passed by the first appellate Court can be assailed by filing civil revision under Section 115 of the Code of Civil Procedure or under Article 227 of the Constitution of India when the second appeal against the same is specifically barred under Section 102 of the Code of Civil Procedure (for short 'Code').

2. The facts are not in dispute. The petitioners filed a suit for recovery of damages of `25,000/- which was decreed by the learned trial Court, however, in appeal, the judgment and decree passed by the learned trial Court was partly modified and the petitioners were held entitled to damages of `10,000/-.

Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 2

3. Learned counsel for the respondent has raised preliminary objection regarding the very maintainability of this petition in view of bar .

imposed by Section 102 of the Code which reads thus:-

"[102. No second appeal in certain cases:- No second appeal shall lie from any degree, when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand of rupees.]"

4. Evidently, as the subject-matter of the original suit was for recovery of money which did not exceed `25,000/-, no further appeal rt was maintainable in view of the bar imposed by Section 102 of the Code, the petitioners assailed the judgment and decree by invoking the revisional jurisdiction of this Court by filing instant petition under Section 115 of the Code.

5. During the course of arguments, the learned counsel for the petitioners requested that in case this Court comes to the conclusion that the petition under Section 115 of the Code is not maintainable, then the same be converted and treated as one having been filed under Article 227 of the Constitution of India and it is this prayer that has necessitated this Court to determine the question as framed above.

6. Before proceeding further, certain precedents on the issue may be noticed.

7. In K.Chockalingam versus K.R. Ramasamy Iyer and Jenbagam 2004 (4) LW 586, the Hon'ble High Court of Madras held that though the petition under Section 115 of the Code would be barred in such cases, however, the petition under Article 227 of the Constitution is maintainable. It is apt to reproduce the following relevant observations which read thus:-

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"8. The learned counsel for the revision petitioner submits, that the revision as such, is well maintainable under Section 115 .

C.P.C., if not, at least under Article 227 of the Constitution of India, for which there is no objection from the other side. In this view, the C.R.P. could be decided on merits. The learned counsel for the revision petitioner further submits, that the dismissal of the suit by the first appellate Court, allowing the appeal in entirety, is erroneous and at least the plaintiff is of entitled to a decree, against the first defendant, who had acknowledged the debt, periodically, the further fact being, the suit is filed within three years from the last date of rt acknowledgment.

13. This revision is filed only under Section 115 C.P.C. The suit is one for the recovery of less than a sum of Rs.25,000/- After the suit was decreed, an appeal has been preferred, which was allowed nullifying the lower courts decree and judgment. Section 102 of Code of Civil Procedure Code says, no second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money,not exceeding Rs.25,000/-.

In view of this provision, a second appeal is barred and that is why, a revision is filed under Section 115 C.P.C., which is not maintainable, according to the learned counsel for the respondents. When there is a specific bar for filing the second appeal, when the suit is for recovery of money, not exceeding Rs.25,000/-, it should be held, a revision is also not maintainable under Section 115 C.P.C. Section 115 C.P.C. empowers the High Court, to call for the record of any case which has been decided by any Court subordinate to such High Court in which no appeal lies thereto. From the wordings deployed in the above Section, it is clear, the High Court is empowered to entertain a revision, when no appeal is provided or where no appeal lies. In other words, if the code provides, an appeal provision, from the decree and judgment of the subordinate court, then ordinarily invoking Section 115 C.P.C. is not possible. In this case, against the decree and judgment passed by the District Munsif Court, in O.S.No.147/97, an appeal provision is provided, and an appeal has been preferred also. Then, considering the pecuniary jurisdiction of the suit, the second appeal is prohibited or barred. In this view, it cannot be ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 4 said, no appeal is provided against the decree and judgment, thereby to invoke Section 115 C.P.C. under the guise of .

revisional power. If the cases of this nature are allowed to be entertained under Section 115 C.P.C., it would amount to eclipsing Section 102 C.P.C., which aims the curtailment of Second appeal, in the sense, prolonged litigation. Where the subject matter is less than Rs.25,000/-, the High Court invoking Section 115 C.P.C., if maintains the revision, it would amount to of second appeal under the label of Civil Revision Petition, thereby allowing the parties, to file second appeal, indirectly, ignoring Section 102, thereby defeating the intention of the legislature, rt which should not be allowed. In this view of the matter, I am of the considered opinion, the revision petition under Section 115 is not maintainable.

14. The learned counsel for the petitioner realising this difficulty alone, as aforementioned, has filed a memo for the conversion of Cr.P.C. under Section 227 Cr.P.C. which is permissible. In Sadhana Lodh v. National Insurance Co. Ltd. , the Hon'ble Supreme Court has held, when alternative remedy is available, interference under Article 226/227 of the Constitution of India, is not permissible. It is observed:

"Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 C.P.C. Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution."

15. In this view, it is held, where a remedy for filing a revision petition under Section 115 is barred in such cases, petition under Article 227 of the Constitution of India, is maintainable. In this view, this petition could be treated, as one filed under Article 227 of the Constitution of India, and not under Section 115 C.P.C. Then, the remaining question is, whether under the power conferred upon this Court under Article 227, the orders passed by the lower court can be set aside.

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16. The only question arises in this revision is whether the suit is barred by limitation or not. Under the Limitation Act, .

irrespective of the defence raised, on the basis of the limitation, it is the bounden duty of the court to find out, whether the suit is in time or not. Thus, a duty is cast upon the court, to go into the question of limitation and decide the same according to law. As aforementioned, even as per the endorsement, as fairly conceded by the learned counsel for the respondents, except of limitation, no other dispute. Since the first appellate Court has failed in its duty, and committed in my considered view, a flagrant violation, defeating the right of the plaintiff, to grant a rt decree against the first defendant, the same has to be set right under Article 227 of the Constitution of India, for which there cannot be any grievance, from the respondents. In this view of the matter, the decree and judgment passed by the appellate Court is liable to be set aside and there shall be a decree as prayed for, against the first defendant alone. To the above said extent, the revision is to be allowed.

In the result, the revision is allowed to the above said extent, setting aside the decree and judgment of the appellate Court, in A.S.No.64/2001 and there shall be a decree as prayed for, against the first defendant alone, with costs, restricted to the trial Court alone, dismissing the suit against the second defendant, without costs."

8. In Shaik Abdul Haq versus Aiswarya Nilaya Chit Fund Pvt Limited 2005 (4) Bank Cas 70, the Hon'ble High Cour t of Andhra Pradesh held that in view of the express language engrafted in the Code, neither civil revision nor a petition under Article 227 of the Constitution is maintainable and it was observed as under:-

"8. The suit claim, which is the subject-matter of the appeal before the lower Appellate Court and the present civil revision petition, remains to be less than Rs.25,000/-precisely Rs.13,237/-.

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9. It may be noted that Section 102 of the Code of Civil Procedure provides that no second appeal would lay if the .

value of the subject-matter is less than Rs. 25,000/-.

10. The first contention of the learned Counsel for the 1st defendant is that though Section 102 of the Code of Civil Procedure explicitly prohibits filing of a second appeal if the value of the subject-matter is less than Rs.25,000/-, the of judgment and decree of the first Appellate Court can be canvassed by any party to the suit under Article 227 of the Constitution of India.

rt

11. The second contention of the learned Counsel for the first defendant that having regard to the fact that in terms of the amendment made to Section 115 of the Code of Civil Procedure by Act 46 of 1999, the High Court can entertain the revision petition against the judgment and decree of the first Appellate Court, exercising its jurisdiction under Article 227 of the Constitution of India. Thus contending he relies on the decisions of the Apex Court in Yeshwant Sakhalkar v. Hirabat Kamat Mhamai, and Babhutmal v. Laxmibai, .

12. The third contention of the learned Counsel appearing on behalf of the 1st defendant that basing on the calculation memo filed by the plaintiff, the suit was decreed in part and the other evidence was not properly appreciated by the lower Appellate Court. Therefore, this Court can invoke the supervisory jurisdiction under Article 227 of the Constitution of India and interfere with the impugned judgment and decree.

13. In other words, according to the learned Counsel for the 1st defendant since the lower Appellate Court did not exercise its jurisdiction properly, though a second appeal is explicitly barred under Section 102 of the Code of Civil Procedure, a revision petition under Article 227 of the Constitution of India is maintainable.

14. The learned Counsel appearing on behalf of the first plaintiff submits that the present civil revision petition is not maintainable inasmuch as, this Court while exercising supervisory jurisdiction cannot reappreciate the evidence or ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 7 correct the errors in drawing inferences like as is permissible to be done be the Appellate Court and hence the present revision .

petition under Article 227 of the Constitution of India is liable to be dismissed. To buttress his submissions, he placed strong reliance upon the judgment of the Apex Court in Ranjeet Singh v. Ravi Prakash, 2004 AIR SCW 4221.

15. In Yeshwant Sakhalkar v. Hirabat Kamat Mhamai (supra), of the Apex Court observed as thus:

The question as to whether the application of Article 227 rt of the Constitution of India could be maintainable or not has been answered by this Court in Surya Dev Rai v. Ram Chander Rai wherein it was held: (SCC pp.694-96, Para 38)

38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:

(1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Article 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate Court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the Subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which does not have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step into exercise its supervisory jurisdiction.

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(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are .

satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby;

(6) A patent error is an error which is self-evidence, i.e., which can be perceived or demonstrated without of involving into any lengthy or complicated argument or a long-drawn progress of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view the error cannot be called gross or patent.

rt (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court indicates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and, the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a large stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a Court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate Courts but cannot substitute its own decision in pace thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 9 order of the subordinate Court as the Court should have made in the facts and circumstances of the case."

16. It is also pertinent to notice the observations made by the Apex Court, at Paragraphs Nos. 7 and 8, in Babhutmal v. Laxmibai (supra), which run thus:

The special civil application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It well settled by the decision of this Court rt in Waryam Singh v. Amarnath, that the:

".....power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, (S.B.) to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors."

This statement of law was quoted with approval in a subsequent decision of this Court in Nagrendra Nath Bora v. The Commr. of Hills Division, and it was pointed out by Sinha, J., as he then was, speaking on behalf of the Court in that case:

"It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the Tribunal functions within the limits of its authority."

It would, therefore, be seen that the High Court cannot, while exercising jurisdiction under Article 227, interfere with findings of fact recorded by the subordinate Court or Tribunal. Its function is limited to seeing that the subordinate Court or Tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and reappreciating it. What Morris, L. J., said in Rex v. Northumberland Compensation Appeal Tribunal, 1952 (1) All.ER 122, in regard to the scope and ambit of certiorari jurisdiction must apply equally in relation to exercise of jurisdiction under Article 227. That jurisdiction cannot be exercised:

"as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issues raised in the proceedings."

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If an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ certiorari it should follow a fortiori that it is not subject to .

correction by the High Court in the exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a Superior Court can do in exercise of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a Court of appeal when the Legislature has not conferred a right of appeal and made the decision of the of subordinate Court or Tribunal final on facts.

8. Here, when we turn to the judgment of the High Court, we find that the High Court has clearly misconceived the rt scope and extent of its power under Article 227 and overstepped the limits of its jurisdiction under that Article. It has proceeded to reappreciate the evidence for the purpose of correcting errors of fact supposed to have been committed by the District Court. That was clearly impermissible to the High Court in the exercise of its jurisdiction under Article 227. The District Court was the final Court of fact and there being no appeal provided against the findings of fact reached by the District Court, it was not open to the High Court to question the propriety or reasonableness of the conclusions drawn from the evidence by the District Court. The High Court could not convert itself into a Court of appeal and examine the correctness of the findings of fact arrived at by the District Court. The limited power of interference which the High Court possessed under the Article 227 was to see that the District Court functions within the limits of its authority and so far as that was concerned, there was no complaint against the District Court that it transgressed the limits of its authority. It is true that the High Court claimed to interfere with the findings of fact reached by the District Court on the ground that the District Court had misread a part of the evidence and ignored another part of it but that was clearly outside the jurisdiction of the High Court to do under Article 227.

17. From a perusal of the judgments Yeshwant Sakhalkar v. Hirabat Kamat Mhamai and Babhutmal v. Laxmi Bhai (supra), relied upon by the learned Counsel appearing on behalf of the plaintiff, the consistent view of the Apex Court conspicuously appears to be - - firstly that when the Trial Court passes as interlocutory order, notwithstanding, an embargo under Section 115 of the Code of Civil Procedure, if patent error, which is self evident, is found under the following circumstances:

Firstly; against the interlocutory orders, passed by the Courts subordinate to the High Court, against which a remedy of revision is excluded by the Code of Civil Procedure Amendment Act 46 of 1999 are nevertheless ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 11 are open to be challenged before the High Court, which has supervisory jurisdiction.

.

Secondly; the object of exercising supervisory jurisdiction under Article 227 of the Constitution of India is to keep the subordinate Courts within the bounds of their jurisdiction or in cases where subordinate Courts refuse to exercise their jurisdiction or assume jurisdiction where there is no jurisdiction at all; and Thirdly; where a patent error is self-evident, which can be of perceived or demonstrated without going into any lengthy or complicated argument or a long-drawn process of reasoning, the same can be interfered with under Article 227 of the Constitution of India and most importantly the rt High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution will not convert itself into a Court of appeal and indulge in reappreciation or evaluation of evidence on record or to correct the errors, if any, in drawing inferences.

18. The above observations of the Apex Court, noted herein, are only few in the context of the present case among many guidelines carved out by the Apex Court.

19. Sri. V.L.N.G.K. Murthy, Amicus Curiae, appointed to assist this Court, relies on the judgment of the Apex Court in Surya Dev Rai v. Ram Chander Rai and Ors., 2003 (5) ALD 36 (SC) = 2003 (5) Supreme 390.

20. The Apex Court in Yeshwant Sakhalkar v. Hirabat Kamat Mhamai (supra), referred to the observations made by it in Surya Dev Rai v. Ram Chander Rai and Ors., Since the said observations were already extracted, the same need not be extracted once again.

21. In Ranjeet Singh v. Ravi Prakash, 2004 AIR SCW 4221, the Apex Court observed as under:

............... A perusal of the judgment of the High Court shows that the High Court has clearly exceeded its jurisdiction in setting aside the judgment of the Appellate Court. Though not specifically stated, the phraseology employed by the High Court in its judgment, goes to show that the High Court has exercised its certiorari jurisdiction for correcting the judgment of the Appellate Court. In Surya Devi Rai v. Ram Chander Rai and Ors., this Court has ruled that to be amenable to correction in certiorari jurisdiction, the error committed by the Court or authority on whose judgment the High Court was exercising jurisdiction, should be an error which is self- evident. An error which needs to be established by ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 12 lengthy and complicated arguments or by indulging into a long drawn process of reasoning, cannot possibly be an error available for correction by writ of cerliorari. If it is .

reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai (supra) that the jurisdiction was not available to be exercised for indulging into re-appreciation or evaluation of evidence or correcting the errors in drawing of inferences like a Court of appeal. The High Court has itself recorded in its judgment that "considering the evidence on record carefully" it was inclined not to sustain the judgment of the Appellate Court. On its own rt showing, the High Court has acted like an Appellate Court which was not permissible for it do under Article 226 or Article 227 of the Constitution."

22. In the instant case, it is to be seen that the value of the subject-matter of appeal, after passing of partial decree by the lower Appellate Court, is less than Rs.25,000/-. Therefore, the present civil revision petition is attracted by Section 102 of the Code of Civil Procedure, which created a clear bar postulating that no second appeal would lay from any decree, when the subject-matter of the original suit is for recovery of money not exceeding twenty five thousand rupees. The Legislature enacted Section 102 CPC with the clear and obvious object of reducing the scope of the litigation and to give quietus to the same.

23. Furthermore, if the present civil revision petition is entertained under Article 227 of the Constitution of India, it amounts to exercising the appellate jurisdiction, which was prohibited by the Apex Court by way of guidelines in the judgments referred to supra.

24. That apart, the judgment under challenge is not an interlocutory order. Further, the judgment under challenge, as already noticed, is final and rendered by the lower Appellate Court.

25. For the foregoing reasons, without going into the merits of the case, and in view of the specific and unambiguous language contained in Section 102 of the Civil Procedure Code, I have to hold that the remedy available to the petitioner is to file a second appeal, if so advised, and the present civil revision ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 13 petition filed under Article 227 of the Constitution of India is not maintainable. Therefore, this civil revision is liable to be .

dismissed."

9. In Jaswinder Singh versus Parshotam Lal Sanghi, Advocate 2005 (141) Punjab Law Reporter 368, a learned Single Judge of the Punjab & Haryana High Court though entertained a of petition under Section 115 of the Code, but dismissed the same on merits by observing as under:-

rt "4. After hearing the learned counsel, I am of the considered view that this petition is liable to be dismissed because the jurisdiction of this Court under Section 102 of the Code of Civil Procedure 1908 (for brevity of Code) to entertain a second appeal is barred when the subject matter of the original suit is for recovery of money not exceeding Rs.24,000/-. It is for this reason that the defendant-petitioner has invoked 115 of the Code. The power of this Court for reversing the findings under Section 115 of the Code is confined only to jurisdictional error. It is required to be shown that the subordinate court has exercised jurisdiction not vested in it by law or it has failed to exercise jurisdiction so vested or has acted in the exercise of jurisdiction illegally or with material irregularity. A valid inference under Section 114 of the Evidence Act 1872 has been drawn by the learned Lower Appellate Court when the defendant-

appellant failed to produce the record showing that no amount of the sale proceeds of share has been credited to his account namely the City Investment Centre which is owned by him. For that purpose, the learned lower appellate Court has rightly placed reliance on a judgment of the Supreme Court in the case of Biltu Ram v. Jainanadan Prasad, C.A. No. 941 of 1965, dated 15.4.1965 wherein it has been held that and adverse inference is justified even though no onus on a party to prove the document has been placed. Best evidence concerning the controversy before the courts must always be produced as has been observed by the Supreme Court in the case of Muntgesan Pillai v. Gnana Sambandha Pandora Sambandi, A.I.R. 1917 P.C. 6 and Ors. as well as Mt. Bilas Kunwar v. Desraj Ranjit ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 14 Singh and Ors., A.I.R. 1951 Privy Council 96. Those who withhold the best evidence from the court expose themselves to .

the danger of being subjected to an adverse inference against them. The aforementioned view has also been taken in the case of Gopal; Krishanji Ketekar v. Mohd, Hazi Latif and Ors., which has been followed in the case of City Bank N.A. v. Standard Chartered Bank, . In the case of Gopal Krishanji Ketekar the Supreme Court has clarified as to how an inference of under Section 114 of the Evidence Act, 1872 would arise. The following observations are apposite to refer:-

rt "Even if the burden of proof docs not lie on a party the court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly to furnish to the courts the best material of its decision. With regard to third parties, this may be right enough-they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the court the written evidence in their possession which would throw light upon the proposition."

5. There is no material irregularity or jurisdictional error in exercise of power by the lower appellate Court under Section 96 of the Code. As a matter of fact, the first appellate Court is the final court of fact and this court cannot admit a revision petition or an appeal unless it raises a substantive question of law. No revision would be admissible unless a jurisdictional error is found. No such jurisdictional error is shown warranting admission of the petition. Therefore, there is no merit in this petition and same is liable to be dismissed."

10. In CMPMO No. 439 of 2010, titled as Subhadra Devi versus Kishori Lal, decided on 14.12.2010, a learned Single Judge of this Court (Justice Deepak Gupta as his Lordship then was) held that ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 15 the provisions of Sections 100 and 102 of the Code cannot be circumvented by filing a petition under Article 227 of the Constitution of .

India and it is apt to reproduce the following relevant observations which read as under:-

"3. Under Section 100, CPC, a second appeal lies to the High Court only on a substantial question of law. Section 102, Code of of Civil Procedure specifically provides that no second appeal is maintainable in a suit, value whereof is less than Rs.25,000/-. The provisions of Section 100 and 102, Code of Civil Procedure rt cannot be circumvented by filing a petition under Article 227 of the Constitution of India. An appeal is the creation of a statute and the legislature in its wisdom has decided that a second appeal will not lie in a suit valuation of which is less than 25,000/-. There is no occasion to entertain a CMPMO unless it is shown that there is some illegality involved or there is some perversity in the finding of the learned Trial Court. In the present case, I have gone through the judgments of both the courts below. I find that both the judgments are based on appreciation of evidence and, therefore do not call for any interference in this petition."

11. Yet, again in CMPMO No.235 of 2006 titled as Mohan Lal versus Bahader Singh, decided on 16.12.2010, the same learned Judge (Justice Deepak Gupta as his Lordship then was) reiterated that the provisions of Article 227 of the Constitution cannot be used as a means to circumvent the bar to filing of an appeal envisaged under Sections 100 and 102 of the Code. However, it was observed that the Court would be failing in its duty if it does not exercise its supervisory jurisdiction under Article 227 of the Constitution of India when the judgment and order challenged is totally illegal or perverse, as would be evident from the following observations:-

"2.Under Section 100, CPC, a second appeal lies to the High Court only on a substantial question of law. Section 102, Code of Civil Procedure specifically provides that no second appeal is ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 16 maintainable in a suit, valuation of which is Rs.25,000/- or less. This Court has repeatedly held that the provisions of Article 227 .

of the Constitution of India cannot be used as a means to circumvent the bar to filing of an appeal. An appeal is only a creation of the statute and if the statute prohibits the filing of an appeal, the provisions of Article 227 of the Constitution of India cannot be invoked in normal course.

3. Having held so, this Court would be failing in its duty if it does of not exercise its supervisory jurisdiction under Article 227 of the Constitution of India where the judgment or order challenged is totally illegal or perverse."

12. In Masina Sriramulu versus Pasagadagula Pydaiah 2011 (8) RCR (Civ) 1565, the Hon'ble Andhra Pradesh High Court was dealing with a case where value of the suit was merely `11,500/- and while dealing with the question regarding maintainability of the petition and despite the bar under Section 102 of the Code held the revision to be maintainable by according the following reasons:-

"5. Section 115 Code of Civil Procedure has a long legislative history. It would appear that the Code of Civil Procedure, 1859 did not contain any provision relating to the revisional jurisdiction. When High Courts were constituted at the 3 Presidency Towns under the Charter Act, 1861, the 3 High Courts were conferred the power of superintendence over Courts subordinate thereto. The revisional jurisdiction of the 3 High Courts was confined to (a) failure to exercise jurisdiction and (b) exercising of jurisdiction, which did not vest in the subordinate Court, subjecting those questions alone to the revisional jurisdiction of the High Court. Subsequently, another clause relating to the exercise of the jurisdiction illegally or with material irregularity by the subordinate Court was included within the revisional jurisdiction by Amendment Act, 1879. When the Code of Civil Procedure, 1882 was enacted, Section 622 provided for the revisional jurisdiction which verbatim was incorporated as Section 115 of the present Code of Civil Procedure, 1908.

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6. In 1976, when extensive amendments were brought to the Code of Civil Procedure, Section 115 Code of Civil Procedure .

was amended bringing out an explanation and a proviso to Sub-

section (1) to the original Section 115 Code of Civil Procedure. The substantial amendments undertaken by the Amendment Acts of 1999 and 2002 drastically amended the Court of Civil Procedure. So far as Section 115 is concerned, Section 12 of the Code of Civil Procedure (Amendment) Act, 1999 of incorporated amendments to Section 115 Code of Civil Procedure. The proviso brought in through the amendment in 1976 was redrafted. A new Sub-section 3 of Section 115 Code rt of Civil Procedure was added by way of a clarification.

7. The impugned judgment in the present case was passed on 27.07.2006 in A.S. No. 59 of 2004. The amendments have come into force with effect from 01.07.2002. Hence, Section 115 Code of Civil Procedure as it stands today is liable to be considered to determine whether the revision is maintainable or not.

8. The learned Counsel for the first Defendant inter alia urged that Section 115 Code of Civil Procedure would apply to the orders in interlocutory applications only and that no revision would lie from a judgment in an appeal suit.

9. The learned Counsel for the first Defendant placed reliance upon Section 115(1) proviso, which is to the effect that the High Court shall not vary or reverse any order except where the order impugned would have finally disposed of the suit or other proceedings if the order was made in favour of the revision Petitioner. The learned Counsel for the first Defendant inter alia contended that the purport of the proviso is that the revision can be against any order in a suit or proceeding and not an order disposing of the very suit itself. He also pointed out that when a suit is disposed of, it is not an order, but is a decree and that when the proviso conspicuously did not refer to a decree, Section 115 Code of Civil Procedure cannot be invoked questioning any decree whether in a suit or an appeal.

10. In proceedings other than suits, issues are not settled. The controversies between rival claims are usually framed at the time of disposal of the matter. Even otherwise, when the controversies are crystallized before both sides let in evidence, ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 18 they are referred to usually as points for consideration and not issues. The learned Counsel for the Plaintiff drew my attention .

to reference of an issue in Section 115(1) proviso Code of Civil Procedure. For the purpose of clarity, I may extract the proviso to Section 115(1) Code of Civil Procedure. Proviso to Section 115(1) reads:

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order of 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 ?. rt Referring to the word 'issue' in the proviso, it is contended that a revision arises even from the decree in a suit. I am afraid that the whole proviso and indeed the whole section shall be read as a whole and not piecemeal. Picking out a stray word 'an issue' from the proviso, it cannot be contended that a revision is maintainable from the final orders or from the orders in a suit or an appeal.

11. A reading of the proviso points out that the Court shall examine hypothetically whether the impugned order finally disposes of the suit or proceeding. If the answer to this question is in the positive, a revision would lie and otherwise not.

12. In the present case, the Plaintiff made a monitory claim. The trial Court granted a decree for part of the monitory claim made by the Plaintiff. The appellate Court reversed the same. I may put two situations hypothetically. The order under impugnment is the judgment of the appellate Court. It was passed in favour of the first Defendant. Did it finally dispose of the suit laid by the Plaintiff? Indeed, by the judgment of the appellate Court, the suit filed by the Plaintiff was dismissed. Thus, the judgment of the appellate Court finally disposed of the suit. The other hypothetical situation is to consider as to what would happen had the appellate Court passed judgment/order in favour of the Plaintiff who laid the revision. In other words, the appellate Court must have dismissed the appeal confirming the judgment of the trial Court granting a money decree in favour of the Plaintiff. Again the judgment of the appellate Court would have finally disposed of the suit laid by the Plaintiff. Viewed either in the angle of the Plaintiff or in the angle of the first Defendant, the situation satisfies the proviso of Section 115(1) Code of Civil Procedure.

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13. In view of the language deployed in the proviso that the order must have been passed in the course of a suit or other .

proceeding, there is no bar for a revision from the judgment passed by the appellate Court. The other embargo is provided by the beginning of Section 115(1) that where no appeal lies from the impugned order/judgment, the party can resort to revision. In view of Section 102 Code of Civil Procedure, admittedly no second appeal would lie. This part of the of condition imposed by Section 115(1) Code of Civil Procedure is satisfied in the present case. So far as the other condition imposed by the proviso incorporated by 1976 amendment and rt modified by 1999 amendment is concerned, viz., where the impugned order finally disposed of the suit and would have disposed of the suit finally even if the order were in favour of the Plaintiff, the revision is maintainable. I, therefore, answer this question raised by Sri Ravi Kumar, learned Counsel for the first Defendant-first Respondent that this revision prima facie is maintainable in view of Section 115(1) Code of Civil Procedure including the proviso thereto.

14. The next question is whether the order of the appellate Court deserves to be revised. This question is a mixed question of fact and law. The law regarding the interference by the High Court under Section 115 Code of Civil Procedure is that the High Court is entitled to interfere with the order of a subordinate Court in the event of fulfillment of one of the three conditions mentioned in Section 115(1) Code of Civil Procedure only, viz., the Court exercised the jurisdiction not vested in it by law or b) the Court failed to exercise the jurisdiction which is vested in it or c) the Court acted illegally or with material irregularity in exercise of the jurisdiction vested in it. One of the old cases in respect of powers under Section 115 Code of Civil Procedure is Balakrishna Udayar v. Vasudeva Iyar,1947 AIR(PC) 71 It was reiterated with approval by the Prevy Council in N.S. Venkatagiri Ayyangar v. Hindu Religious Endowments Board, 1949 AIR(PC) 156. The Privy Council considered that the revisional powers are exercisable when the subordinate Courts irregularly exercise or did not exercise or illegally assumed powers to exercise jurisdiction and that a revision cannot be ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 20 directed against the conclusions of law and fact in which the question of jurisdiction is not involved.

15. One of the leading authorities on the powers under Section 115 Code of Civil Procedure is Major S.S. Khanna v. Brigadier F.J. Dillon, 1964 AIR(SC) 497. In that case, Shah.J as then he was held:

The section consists of two parts, the first prescribes the conditions in which jurisdiction of the High Court arises, of i.e., there is a case decided by a subordinate Court in which no appeal lies to the High Court, the second sets out the circumstances in which the jurisdiction may be exercised.

rt

16. It was clarified that if there was no question of jurisdiction, the decision could not be corrected by the High Court in the exercise of the revisional powers, since a Court has jurisdiction to decide wrongly as well as rightly.

17. Way back in Keshardo Chaneria v. Radha Kissan, 1953 AIR(SC) 23, it was observed that the judges of the subordinate Courts have perfect jurisdiction to decide the case and that even if they decided the case wrongly it could not be said that the subordinate Courts exercised the jurisdiction illegally or with material irregularity. The Himachal Pradesh High Court clarified in Ramdas v. Subhash Bakshi, 1977 AIR (HP) 18 that the revisional jurisdiction is residual jurisdiction conferred so as to ensure that errors of grave nature should be corrected when they are brought to the notice of the Court.

18. I may briefly note the march of law relating to the revisional powers of the High Court at this stage.

19. In Amir Hassan Khan v. Sheo Baksh Singh,1885 11 ILR 6 the judicial committee of the Privy Council observed that where the Court has jurisdiction to determine a question, it could not be held that the Court had acted illegally or with material irregularity in exercise of its jurisdiction by giving an erroneous decision. In Malkarjun v. Narahari,1900 27 IA 216 the Privy Council held that a Court had jurisdiction to decide wrongly as well as rightly and that if the case was wrongly decided, the wronged party could take the course prescribed by law for setting the matters right and that the jurisdiction of the High Court under Section 115 Code of Civil Procedure could not be invoked in such an event. The Privy Council's next two leading ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 21 decisions are Balakrishna Udayar (supra) and N.S. Venkatagiri Iyyangar (supra), both of which were already referred to.

.

20. After independence, one of the first cases arising before the Supreme Court relating to the powers under Section 115 Code of Civil Procedure is Keshardeo's case (supra). In Pandurang v. Maruthi Hari, 1966 AIR(SC) 153, it was observed that it was not competent for the High Court to correct errors of fact, however patent they be under Section 115 Code of Civil of Procedure and that even errors of law could not be rectified unless such errors have been in connection with the jurisdiction of the rt Court to try the dispute. It was clarified by Gajendragadkar, J. as he then was, in that case that an erroneous decision on a question of law reached by the subordinate Court which had no relation to questions of jurisdiction of the Court could not be corrected by the High Court under Section 115 Code of Civil Procedure. As already pointed out, the leading authority, however, is the decision in Major S.S. Khanna's case (supra).

21. In Baldevdas Shivlal v. Filmistan Ditributors (India) (P) Ltd, 1970 AIR(SC) 406, the Supreme Court explained the ambit and scope of Section 115 Code of Civil Procedure that the exercise of the power under Section 115 Code of Civil Procedure was broadly subject to three important conditions viz., i) that the decision must be of a Court subordinate to the High Court, ii) that there must be a case which has been decided by the subordinate Court, and iii) that the subordinate Court must appear to have exercised jurisdiction not vested in it by law or has failed to exercise the jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity.

22. In Managing Director (MIG) Hindustan Aeronautics Ltd. v.

Ajit Prasad, AIR 73 SC 76, it was held that the High Court had no jurisdiction under Section 115 Code of Civil Procedure to interfere with the order passed by the first appellate Court whether the order of the first appellate Court is right or wrong and whether the order might be in accordance with law or not in accordance with law as long as the first appellate Court has jurisdiction to make such an order.

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23. I may point out that all these decisions were passed prior to the amendment of 1999 or the amendment of 1976.

24. With reference to the powers under Section 115 Code of Civil Procedure and under Article 227 of the Indian Constitution, the Supreme Court observed in Anndai Ammal v. Sadasivan Pillai, 1987 AIR(SC) 203 that the procedure under Section 115 Code of Civil Procedure and Article 227 of the Indian Constitution are different and are not interchangeable.

25. I may, however, point out that in Hukumchand Amolikchand Longde v. Madhava Balaji Potdar,1983 AIR(SC) 504 the Supreme Court held that once a revision under Section 115 rt Code of Civil Procedure was admitted, it had to be disposed of on 'merits. In Masjid Kacha Tank, Nahan v. Tuff ail Mohammed,1991 AIR(SC) 445 even though there were concurrent findings from the trial Court and the appellate Court, the Supreme Court considered that the High Court in its revisional jurisdiction would be entitled to interfere with the findings of fact if the findings are perverse or there had been a non-appreciation or non-consideration of material evidence on record by the trial Court or the appellate Court. In Vinod Kumar Arora v. Smt. Surjit Kaur, 1987 AIR(SC) 2179, the Supreme Court held that the High Court would be justified in interfering with the orders of a subordinate Court by exercise of the revisional jurisdiction where the decision of the order under impugnment was based on conjectures and surmises and that the Court which passed the impugned order lost sight of relevant evidence. Thus, although the view of the Privy Council and the Supreme Court by and large is that the scope of a revision is very limited and that a revision can be entertained only when there is incorrect exercise of the jurisdiction conferred upon the Court, the Supreme Court also expressed the view that where the order sought to be revised is perverse and is without any basis whatsoever, such an order deserves to be revised. This view of the Supreme Court indeed is in tune with the famous maxim Ubi jus ibi remedium. The revision Petitioner herein is prevented from moving a second appeal as the amount involved is less than Rs. 25,000/-. I am afraid that the Plaintiff, who is the revision Petitioner, nevertheless, cannot be shut off if the order passed by the appellate Court is wholly ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 23 unjust. It is not as though the Plaintiff has no remedy even though his rightful claim is rejected. At any rate, the learned .

Counsel for the Plaintiff contended that the order of the appellate Court was perverse and needed to be rectified through the revision."

13. In Microll India versus Jai Durga Trading Company 2012 (165) Pun LR 368, the Hon'ble Punjab and Haryana High Court held of that the bar created under Section 102 CPC could not be bypassed by bringing the revision petition as this course was not permissible and it rt was observed as under:-

"5. Learned counsel for the petitioner has submitted that when filing of appeal in this matter has been barred by provisions of section 102 CPC, the remedy would be available by way of revision under Civil Revision No. 5704 of 2011 Article 227 of the Constitution of India. He has cited before me a decision of Hon'ble Supreme Court of India in Surya Dev Rai v. Ram Chander Rai and others (2003)6 Supreme Court Cases 675 to support his submission in this regard. Other decisions cited by learned counsel for the petitioner in this regard are Radhey Shyam and another v. Chhabi Nath and others 2009(2) RCR (Civil) 442, Johan Ram v. Steel Authority of India Ltd. 2005 AIR (Chhatisgarh) 17 and Mariamma Roy v. Indian Bank and others 2008(4) RCR (Civil) 910.

8. Learned counsel for the respondent has submitted, on the other hand, that after the provisions of section 102 CPC, barred the appeal in this matter, the judgment and decree passed by First Appellate Court could not be challenged by way of revision petition under section 115 CPC. In this regard, he has cited before me a decision of this court in Jaswinder Singh v. Parshotam Lal Sanghi and another 2005(3) RCR (Civil) 650 where in similar situation, revision under section 115 CPC was held not maintainable. He has also cited before me a decision of Hon'ble Rajasthan High Court in Municipal Council, Sawai Madhopur and others v. Civil Judge (SD) Sawai Modhopur and others 2004(1) LJR 301 where the suit for recovery of ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 24 Rs.15,360/- was dismissed by the trial court but the appeal was allowed by the appellate court. Since the second appeal was .

barred, it was held that the provisions of Article 227 of the Constitution of India cannot be used to bypass the provisions of Code of Civil Procedure.

10. In Surya Dev Rai's case (supra) , the suit has been for permanent injunction. The plaintiff filed an application therein of for ad- interim injunction under Order 39 Rules 1 and 2 CPC. His prayer was rejected by the trial court as also by the First Appellate Court. The plaintiff, who could not avail the remedy rt under section 115 CPC after its amendment filed a petition under Article 226 of the Constitution of India. The High Court dismissed the petition for the reason that the same was not maintainable as the plaintiff was seeking interim injunction against the private respondents. The decision of the High Court was reversed holding that the power of the High Court under Articles 226 and 227 of the Constitution of India is always in addition to the revisional jurisdiction conferred on it. The curtailment of revisional Civil Revision No. 5704 of 2011 jurisdiction of the High Court under section 115 CPC by Amendment Act 46 of 1999 has been held not to take away and could not have taken away the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court.

11. The facts of the case in hand are entirely different. The second appeal in this case is barred by the provisions of section 102 CPC. That bar created by section 102 CPC is sought to be bypassed by bringing a revision petition, which is not permissible. There was no such provision of second appeal in case of application under Order 39 Rules 1 and 2 CPC, which was taken away by any provision of CPC or by curtailment of revisional jurisdiction by the High Court under section 115 CPC. So the facts of the case before me are not similar to the facts of the case in Surya Dev Rai's case (supra) and, therefore, the decision in that case is not applicable to the present case. Similarly the other cases are also on different facts and none of them deal with the point involved in this case. Therefore, they are not applicable to the facts of this case. The point in controversy is directly dealt with by this court in Jaswinder ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 25 Singh's case (supra) and Hon'ble Rajasthan High Court in Municipal Council, Sawai Madhopur and others' case (supra) .

and in view of the same, I hold that the petition does not lie ."

14. In Manickam Moopan versus Lakshmi 2012 (2) LW 683, a learned Single Judge of the Madras High Court chose to follow the ratio of the earlier judgment rendered by the same Court in of K.Chockalingam (supra) and observed as under:-

"4. In the circumstances, Janab Mohamad Ihram Saibu, learned rt counsel for the respondent submitted that when an appeal was not maintainable in view of the pecuniary limit mentioned in Section 102 C.P.C., on that account an appeal cannot be dismissed, however, the court can grant leave to convert it as a revision.

5. On this aspect, the learned counsel for the appellant cited the following decisions:

                      (i) N.BANSIDHAR        Vs.    DWARAKALAL            [AIR     1974
                      KARNATAK 117].

(ii) JIWAN DASS Vs. NARAIN DASS [AIR 1981 DELHI 291].

(iii) R.S.PILLAI Vs. M.L.PERATCHI @ SELVI & OTHERS [2000 (IV) CTC 543 (DB)]

6. The learned counsel for the appellant also filed a memo that the appeals may be converted as revision petitions.

7. Since Mr.Muthukrishnan is the root cause for filing this memo, he cannot now say otherwise.

8. Now, the question arises whether in the circumstances, these Second Appeals could be converted as revisions or not?

9. As per Section 102 C.P.C. no second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty five thousand rupees.

10. So, Section 102 C.P.C. prescribes a monetary limit of Rs.25,000/- to file Second Appeal. Thus to file a second appeal, ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 26 the subject matter of the suit should be above Rs.25,000/-.

Admittedly, the subject matter of the suit in these appeals are .

below Rs.25,000/-. So, Section 102 C.P.C. is a bar to maintain these second appeals.

11. A revision is provided under Section 115 C.P.C.

12. BAN SIDHAR Vs. DWARAKALAL [AIR 1974 KARNATAKA 117] deals with a plea for conversion of a revision as an appeal of and also deals with return of that petition for presentation before proper court. That is not the situation before us. It is not applicable to the facts of our case.

13. JIWAN DASS Vs. NARAIN DASS [AIR 1981 DELHI 291] is near us. The Delhi High Court held as under:

"It is now a settled law that the label placed on a cause is not conclusive and does not ordinarily affect the jurisdiction of the court to allow the label to be corrected by treating an appeal on a revision or a revision as an appeal. Provided of course the cause of justice so demands. In cases where no appeal lies but an appeal has been wrongly preferred, the Court has the wide discretion to treat it as a revision where the conditions laid down under Section 115 C.P.C. are satisfied."

14. In R.S.PILLAI Vs. PERATCHI @ SELVI & OTHERS [2000 (IV) CTC 543] in view of the peculiar facts and circumstances of the case, a Division Bench of this Court in the interest of justice converted an appeal as a revision.

15. In K.CHOCKALINGAM vs. K.R.RAMASAMY IYER AND ANOTHER [2004 (4) L.W.586] exactly similar question as before us arose. A memo was filed seeking the leave of the court to convert the second appeal as a revision. There a controversy arose whether under such circumstances, the revision could be filed under Section 115 C.P.C. or under Article 227 of the Constitution of India.

16. It is profitable here to note the following portions of the judgment in K.CHOCKALINGAM vs. K.R.RAMASAMY IYER AND ANOTHER [2004 (4) L.W.586]:

"13. This revision is filed only under Section 115 C.P.C. The suit is one for the recovery of less than a sum of Rs.25,000/-. After the suit was decreed, an appeal has ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 27 been preferred, which was allowed nullifying the lower courts decree and judgment. Section 102 of Code of Civil Procedure Code says, no second appeal shall lie from .

any decree. When the subject matter of the original suit is for recovery of money, not exceeding Rs.25,000/-. In view of this provision, a second appeal is barred and that is why, a revision is filed under Section 115 C.P.C., which is not maintainable, according to the learned counsel for the respondents. When there is a specific bar for filing the second appeal, when the suit is for recovery of money, not exceeding Rs.25,000/-, it should be held, a of revision is also not maintainable under Section 115 C.P.C. Section 115 C.P.C. empowers the High Court, to call for the record of any case which has been decided by any Court Subordinate to such High Court in which no appeal lies thereto. From the wordings deployed in the rt above Section, it is clear, the High Court is empowered to entertain a revision, when no appeal is provided or where no appeal lies. In other words, if the code provides, an appeal provision, from the decree and judgment of the subordinate court, then ordinarily invoking Section 115 C.P.C. is not possible. In this case, against the decree and judgment passed by the District Munsif Court, in O.S.No.147/97 an appeal provision is provided, and an appeal has been preferred also. Then, considering the pecuniary jurisdiction of the suit, the second appeal is prohibited or barred. In this view, it cannot be said, no appeal is provided against the decree and judgment, thereby to invoke Section 115 C.P.C. under the guise of revisional power. If the cases of this nature are allowed to be entertained under Section 115 C.P.C., it would amount to eclipsing Section 102 C.P.C., which aims the curtailment of Second appeal, in the sense, prolonged litigation. Where the subject matter is less than Rs.25,000/-, the High Court invoking Section 115 C.P.C., if maintains the revision, it would amount to second appeal under the label of Civil Revision Petition, thereby allowing the parties, to file second appeal, indirectly, ignoring Section 102, thereby defeating the intention of the legislature, which should not be allowed. In this view of the matter, I am of the considered opinion, the revision petition under Section 115 is not maintainable.

14.The learned counsel for the petitioner realising this difficulty alone, as aforementioned, has filed a memo for the conversion of Cr.P.C. under Section 227 Cr.P.C. which is permissible. In Sadhana Lodh v. National Insurance Co. Ltd., (2003 (3) SCC 524=2003-1- L.W.815), the Hon'ble Supreme Court has held, when alternative remedy is available, interference under Article 226/227 of the Constitution of India, is not permissible. It is observed:

"Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 28 order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section .

115 C.P.C. Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution."

15. In this view, it is held, where a remedy for filing a of revision petition under Section 115 is barred in such cases, petition under article 227 of the Constitution of India, is maintainable. In this view, this petition could be treated, as one filed under Article 227 of the Constitution rt of India, and not under Section 115 C.P.C.,"

17. In the circumstances, in view of the above position of law explained and described in K.CHOCKALINGAM vs. K.R.RAMASAMY IYER AND ANOTHER [2004 (4) L.W.586], I am preferred to follow CHOCKALINGAM (supra).

18. Thus, the leave now sought for could be granted to convert the second appeal as a Civil Revision Petition under Article 227 of the Constitution of India."

15. In Uttam Chand & Anr. versus Gulab Chand Narendra Kumar & Ors. 2013 (2) Raj LW 1298, the Hon'ble Rajasthan High Court in a suit filed for recovery of `10,000/- held that the second appeal is prohibited or specifically barred under Section 102 of the Code, then it cannot be said that no appeal is provided against the judgment thereby invoking jurisdiction under Section 115 of CPC because if cases of this nature are allowed to be entertained, it would amount to eclipsing Section 102 CPC which specifically aims at ending the litigation in view of the pecuniary quantum involved in the cause and revision petition under Section 115 of Code to be not maintainable. It was held:-

"3. Learned counsel for the petitioner submits that if error of law is committed by both the Courts below and under Sec. 102 restriction is imposed upon filing second appeal in terms that no second appeal shall lie from any decree, when subject-matter of ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 29 the original suit is for recovery of money not exceeding Rs. 25,000/-, therefore, the only course is left with the petitioner to .

challenge the judgment and decree passed by the trial Court and affirmed by the appellate Court by way of filing revision petition because illegality and perversity can be seen while exercising jurisdiction under Sec. 115, C.P.C. Therefore, this revision petition is maintainable.

4. In support of his argument, learned counsel for the petitioner of invited my attention towards judgment reported in, SUNDERLAL v. PARAMSUKHDAS, 1968 AIR(SC) 366 and submits that if no appeal lay, then, revision would be competent rt and High Court was right in entertaining the revision if the appellate Court below appears to have exceeded the jurisdiction vested in it or it acted with material irregularity in exercise of its jurisdiction. Learned counsel for the petitioner further invited my attention towards, Sadhna Lodh vs. National Insurance Co. Ltd., 2003 3 SCC 524 and submits that this revision petition is maintainable.

5. After hearing learned counsel for the petitioner. I have perused the pleadings of this case.

This revision petition has been filed under Sec. 115, C.P.C. against the judgment and decree passed by the trial Court and affirmed by the first appellate Court for recovery of Rs.10,000/-, Section 102, C.P.C., provides that no second appeal lies from any decree, when the subject-matter of the original suit is for recovery of money not exceeding Rs.25,000/-; meaning thereby, although second appeal is permissible but the legislature with open eyes put a restriction under Sec. 102, C.P.C. so that matter should come to an end, therefore, it is specifically provided that notwithstanding there being appeal provision under Sec. 100, C.P.C., when the subject-matter of the original suit is for recovery of money not exceeding Rs.10,000/-, then, such second appeal shall not lie. In the opinion of this Court, the legislature in its wisdom has curtailed the right of filing second appeal by way of putting above restriction on the point of pecuniary limit of the cause. Therefore, even if any substantial question of law is involved, no second appeal shall lie against the judgment and decree if the initial suit was filed for recovery of money less than Rs. 25,000/-, If it is the intention of the legislature, then, of course, it can be said that petitioner cannot invoke jurisdiction of this Court under Sec. 115, C.P.C. because such invocation of the revisional jurisdiction will render the specific provision of Sec. 102 to nullity which is not permissible. Under Sec. 115, C.P.C. the legality and propriety as well as perversity can be seen, so also, while exercising jurisdiction of second appeal the appeal ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 30 can be admitted upon substantial question of law. Both are peri meteria, therefore, a revision petition tiled under Sec. 115, C.P.C. is not maintainable.

.

Here, in this case, recovery of suit was filed by the petitioner for Rs.10.000/- and second appeal is prohibited or specifically barred under Sec. 102, C.P.C. Therefore, it cannot be said that no appeal is provided against the judgment thereby to invoke jurisdiction under Sec. 115, C.P.C. because if cases of this nature are allowed to be entertained it would amount to eclipsing of Sec. 102, C.P.C. which specifically aims at ending the litigation in view of the pecuniary quantum involved in the cause. In this view of the matter, this revision petition under Sec. 115, C.P.C. is not maintainable. rt Consequently, this revision petition is hereby dismissed as not maintainable."

16. In Liaqat Ali versus State of U.P. 2014 Law Suit (All) 1130, the Hon'ble Allahabad High Court declined to convert a petition under Article 226 of the Constitution of India by observing that what was forbidden by law could not be permitted by invoking extraordinary remedy and that too in a petty matter involving dispute of not more than `25,000/-. The relevant observations read thus:-

"2. Petitioner filed a suit for recovery of Rs.22,685.72. The suit was dismissed vide judgment and order dated 31.8.2010. The appeal was also dismissed on 17.5.2013. The petitioner thereafter preferred second appeal and the same was dismissed as not maintainable in view of Section 102 C.P.C. Thus, the petition has invoked writ jurisdiction of this Court.

3. The right to appeal is a statutory right. Once the said right has been availed and the matter becomes conclusive between the parties, as no further appeal is provided, the same cannot be permitted to be re-opened by invoking writ jurisdiction.

4. The purpose of writ jurisdiction is to provide a remedy where there is none to undo injustice, but where the statutory remedy provided is availed and is exhausted the recourse to writ jurisdiction is limited and discretionary.

5. It is well settled that in exercise of extra ordinary jurisdiction the courts should not enter into academic issues or in realm of ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 31 affairs which are petty and for correcting errors in the judgments unless it results in grave injustice.

.

6. It is a cardinal principle of law that there must be an end to litigation. Therefore, where a judgment of the court below has been subjected to scrutiny in appeal there may not be any further judicial review of the same. If it is so permitted, it would mean that a party has unlimited right to keep agitating the matter until and unless it is decided in his favour. This cannot be of the intention of law.

7. In Mahendra Singh Vs. Haqimuddin, 2008 10 ADJ 182 in similar situation, where the second appeal was not found to be rt maintainable in view of Section 102 C.P.C., I have refused permission to convert it into a petition under Article 227 of the Constitution for the reason that what is forbidden in law cannot be permitted by invoking extra ordinary remedy and that too in a petty matter involving dispute of not more than Rs.25,000/-.

8. In view of the aforesaid facts and circumstances, in order to set at rest the controversy and to end the litigation between the parties, I refrain myself from exercising the writ jurisdiction under Article 226 of the Constitution of India."

17. In Civil Revision No.3330 of 2014 titled as Rajesh versus Bharat Lal Bhargava, decided on 11.02.2016, the Hon'ble Punjab and Haryana High Court after taking into consideration the judgment rendered by the Hon'ble Madras High Court in K. Chockalingam (supra) and taking into consideration the amended provisions of Section 102 CPC held that mere filing of revision petition in lieu of filing second appeal does not make out a case for maintainability of the matter before the High Court and likewise filing of a petition under Article 227 of the Constitution is just to frustrate the very object of such a legislation and the same was not permissible. It is apt to reproduce paras 2 to 5 which read thus:-

"2. Relevant facts of the case that respondent/plaintiff had filed suit for recovery of Rs.18,897/- and the Court of learned Civil Judge (Junior Division), Rewari decreed the said suit. Present ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 32 petitioner filed first appeal against the said judgment & decree and the same was dismissed by the Court below on 28.1.2014.

.

Learned counsel for the petitioner submitted that the said findings of both the Courts below are erroneous and are liable to be set aside.

3. Learned counsel for the respondent raised objection that as per Section 102 CPC, present petition, being second appeal in a suit for recovery of an amount not exceeding Rs.25,000/-, is not of maintainable.

4. While arguing on this point, learned counsel for the petitioner submitted that present case is a petition under Article 227 of the rt Constitution of India and not the second appeal and the same is not maintainable. In support of his arguments, learned counsel for the petitioner placed reliance upon the view taken by co- ordinate Bench of this Court in case Om Parkash v. Sardha Ram (Civil Revision No.2793 of 2012, decided on 31.8.2012).

On the same point, reliance wa s placed upon the judgment from Madras High Court in case K.Chockalingam v. K.R.Ramasamy Iyes and Jenbagam, 2004 4 LW 586 (Madras).

5. This Court has considered the submissions made by learned counsel for the parties and also gone through the view taken by the coordinate Bench of this Court in Om Parkash's case and also by the Madras High Court in K.Chockalingam's case and of the view that as per amended provisions of Section 102 CPC, there is a complete bar for second appeal in a suit for recovery of amount involving less than Rs.25,000/-. Merely filing of revision petition in lieu of filing of second appeal does not make out a case for maintainability of the matter before this Court. The very object of incorporating such an amendment in the Code of Civil Procedure is to bring an end to litigation involving petty matter and there being no dispute that the matter in controversy is based on a suit for recovery of money not exceeding Rs.25,000/- and legislature has already enacted the provisions while being conscious that there should be no second appeal in such like suits for recovery of money not exceeding Rs.25,000/-. Filing of petition under Article 227 of the Constitution is just to frustrate the very object of such a legislation which is not permissible."

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18. Similar issue came up for consideration before a Co-

ordinate Bench of this Court (Justice Dharam Chand Chaudhary, .

Judge) in Civil Revision No. 58 of 2009 titled as Managing Director H.P. State Cooperative Marketing & Consumer Federation Ltd(Him Fed), District Shimla versus Sh. Rajinder Singh and Civil Revision No.59 of 2009 titled as Managing Director H.P. State Cooperative of Marketing & Consumer Federation Ltd(Him Fed), District Shimla versus Sh.Sita Ram, decided on 30.03.2016, wherein it was held that rt this Court in exercise of its revisional jurisdiction can look into the correctness, legality or propriety of any decision or order impugned and it was held as under:-

"9. The defendant has assailed the judgment and decree passed by both Courts below in this petition as in view of the provisions contained under Section 102 of the Code of Civil Procedure, no second appeal lies from any decree, when the subject matter of the original suit for recovery of money not exceeds to Rs.25, 0000/-.

10. The legality and validity of the impugned judgment and decree has been questioned on the grounds inter-alia that both the Courts have erroneously ignored the provisions contained under Sections 76 of the H.P. Co-operative Societies Act and resumed the jurisdiction not vested with them while decreeing the suit. The legal objections were raised and demonstrated but the decree has been passed in complete departure to the objections so raised and, as such, has vitiated the findings recorded by the Courts below. Since a specific issue was framed for maintainability of the suit on the basis of the pleadings of the parties, the same otherwise should have been decided being legal in nature.

11. Mr. K.D.Sood, learned Senior Advocate has strenuously contended that the findings recorded by both the Courts below are vitiated on account of the failure of both Courts below to decide issue No.2 qua maintainability of the suit after taking into consideration the pleadings of the parties and also relevant ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 34 provisions of law. It has therefore been urged that the suit could not have been decreed.

.

12. On the other hand, Mr. Y.P.Sood ,learned counsel has contended that there being no iota of evidence to show that the transaction i.e. supply of 18 bags of apple to defendant society is touching its constitution, management or the business is not proved. Both the Courts below have rightly answered the controversy on issue No.2 against the defendant.

of

13. According to Mr. Sood, learned counsel, the defendant had merely collected the apple crop of the food growers of Rohru area in its collection centre Hanstari for and on behalf of the rt State Government and as such neither was conducting any business nor the dispute in the present lis touches the constitution, management or the business of the defendant society.

14. For the sake of convenience Section 76 of the Act is being reproduced as follows:-

Notice necessary in suits:- No suit shall be instituted against a society or any of its officers in respect of any act touching the constitution, management or the business of the society, until the expiration of two months after notice in writing has been delivered to the Registrar or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

Notwithstanding anything contained in section 72 a suit cannot be instituted against a society or any of its officers (concerning the constitution, management or business of the society) unless two months period has expired after notice in writing has been delivered to the Registrar, stating the cause of action. The object is to save the societies from unnecessary involvement in litigation and further to apprise the Registrar of the prospective disputes in which the society would be a party.

15. Now coming to the given facts and circumstances, as per own case of the plaintiff, he has supplied his 18 bags of apple under Market Intervention Scheme for sale at Hanstari in the collection centre of defendant society. Therefore, it is amply clear that the apple bags were supplied to the defendant society in the discharge of its business activity under the market intervention scheme. In preliminary objection, the defendant society has raised a specific objection qua maintainability of the ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 35 suit for want of service of notice under Section 76 of the Act, and issue was also framed in this regard. The controversy .

under issue No.2 is legal in nature and the same should have been answered after taking into consideration the pleadings of the parties and in view of the own case of the plaintiff, as discussed supra. No other and further evidence was required to be adduced to substantiate the same. In replication there is denial simplicitor without any explanation as to how the suit was of maintainable without service of notice under Section 76 of the Act. Therefore, the only inescapable conclusion would be that both the Courts below have failed to decide issue No.2 in rt accordance with law which has vitiated the findings as recorded and as such, the judgment and decree being perverse deserves to be quashed and set-aside. Otherwise also on merits, there seems to be no quarrel between the parties on both sides.

16. In the exercise of revisional jurisdiction, this Court can look into the question as to the correctness, legality or propriety of any decision or order impugned."

19. From what has been observed above, it would be noticed that the law on the subject is not at all consistent. As regards this Court, the learned Single Judge in Subhadra Devi, Mohan Lal's cases (supra) has clearly held that Article 227 of the Constitution cannot be used as a means to circumvent the bar to filing of an appeal envisaged under Section 102 of the Code and once this is a creation of the statute and if the statue prohibits filing of an appeal, the provisions of Article 227 of the Constitution of India cannot be invoked in normal course. However, another learned Single Judge in Managing Director's case (supra) has held that this Court in exercise of its revisional jurisdiction under Section 115 of the Code can look into the correctness, legality and propriety of any decision or order impugned.

20. It would be noticed that in majority of the cases, the Courts for invoking jurisdiction under Article 227 have relied upon a decision ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 36 rendered by Hon'ble two Judges' Bench in Surya Dev Rai versus Ram Chander Rai and others (2003) 6 SCC 675 which admittedly has been .

partly over-ruled and diluted by the Hon'ble three Judges' Bench in Radhey Shyam and another versus Chhabi Nath and others (2015) 5 SCC 423 wherein it has been held that all the Courts in the jurisdiction of a High Court are subordinate and subject to its control of and supervision under Article 227 of Constitution. Therefore, control of working of the subordinate Courts in dealing with their judicial orders is rt exercised by statutory appeal and revisional powers and power of superintendence under Article 227 and not by way of writ petition under Article 226 while the appellate or revisional jurisdiction is regulated by powers under Article 227 of the Constitution. It was further held that despite curtailment of revisional jurisdiction under Section 115 CPC, the jurisdiction of the High Court under Article 227 remains unaffected and has not resulted in expanding High Court's powers of superintendence.

21. Lastly, it was held that judicial orders of the Civil Court were not amenable to writ jurisdiction under Article 226 and challenge to judicial orders would lie by way of statutory appeal or revision or under Article 227. There can be no gainsaying that though the powers of superintendence under Article 227 are wide enough, yet they are only supervisory in nature. The powers under this Article cannot, therefore, be exercised to interfere with an order, if the order made by the subordinate Court or Tribunal is within bounds, or in conformity with law. However, the powers of superintendence can be invoked to remove a patent perversity in an order of the Court subordinate to the High Court or where there has been a gross or manifest failure of ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 37 justice or the basic principles of natural justice have been flouted. Yet, still the High Court cannot interfere with mere error of law or fact .

because another view than the one taken by the subordinate Court too is possible.

22. The main object of Article 227 is to keep strict and judicial control by the High Court on the administration of justice within its of territory and to ensure that the wheels of justice do not come to a halt and the foundation of justice remain pure and pristine in order to rt maintain public confidence in the functioning of the Courts subordinate to the High Court.

23. Thus, this Court has no difficulty in concurring with the view expressed by a Co-ordinate Bench of this Court in Subhadra Devi, Mohan Lal's cases (supra) whereby it has been held that the provisions under Article 227 of the Constitution of India cannot be used as a means to circumvent the bar to filing of an appeal, yet the powers under Article 227 of the Constitution of India can always be exercised where the judgment or order challenged is totally illegal or perverse.

However, while exercising such powers under Article 227 of the Constitution, the High Court shall have to bear in mind the principles as laid down in Surya Dev Rai and Chhabi Nath cases (supra).

However, this Court expresses its inability to concur with the ratio as laid down by a Co-ordinate Bench of this Court in Managing Director's case (supra) wherein it was observed that in exercise of revisional jurisdiction, this Court can look into the question as to the correctness, legality or propriety of any decision or order impugned.

24. A second appeal is not maintainable in the present case in view of Section 102 of the Code which has already been quoted above.

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Section 102 was substituted by the Code of Civil Procedure (Amendment) Act 1999 (Act 46 of 1999) wherein the amendment .

sought to be introduced was as follows:-

"102. No second appeal in certain cases:- No second appeal shall lie from any decree, when the amount or value of the subject matter of the original suit does not exceed twenty-five of thousand rupees."

25. Subsequently, by the Code of Civil Procedure rt (Amendment) Act 2002 (Act 22 of 2002) which came into force on 01.07.2002, the amendment proposed to be effected by Act 46 of 1999 was substituted with the present Section 102. As per the amendment of Act 1999, irrespective of the nature of the suit, no Second Appeal would lie against the decision in a suit where the value of the subject matter is below `25,000/-. By the amendment introduced by Act 22 of 2002, the bar under Section 102 is limited to suits where the subject matter is for recovery of money not exceeding twenty five thousand rupees. It was pursuant to the Law Commission 145th report that the amendment was carried out in Section 102 of the Code in order to ensure that trivial matters or petty claims where the money spent on litigation is far excess of the stakes involved do not enter the Courts which besides wasting the valuable time and energy of the parties, but also of the Court.

26. This was so observed by the Hon'ble Supreme Court in Nagarpalika Thakurdwara versus Khalil Ahmed & Ors. JT 2016 (9) SC 425, the relevant observations read thus:-

"14. The purpose behind enactment of Section 102 of the CPC is to reduce the quantum of litigation so that courts may not have to waste time where the stakes are very meagre and not ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 39 of much consequence. In the instant case, though apparently the amount which was sought to be recovered was .

Rs.11,006.07, looking at the prayer made in the plaint, the consequences of the final outcome of the litigation would be far- reaching."

27. A Second Appeal is maintainable only on a substantial question of law as provided under Section 100 of the Code of Civil of Procedure. A Revision under Section 115 of the Code of Civil Procedure lies where the subordinate court appears to have exercised rt jurisdiction not vested in it by law; or to have failed to exercise jurisdiction so vested; or to have acted in the exercise of its jurisdiction illegally or with material irregularity. The question is whether the High Court would be entitled to entertain a Civil Revision Petition, in a case where a Second Appeal is barred under section 102 of the Code of Civil Procedure, on any ground which is less rigorous than that provided in Section 100 of the Code of Civil Procedure.

28. Even in matters where the valuation exceed `25,000/-, a second appeal could be entertained only on a substantial question of law. When Section 102 provides that no second appeal would lie in respect of a suit where the subject matter is for recovery of money not exceeding `25,000/-, it cannot be assumed the Parliament thought it fit to take such category of cases out of the rigour of Section 100 and to provide a less rigorous remedy in such cases. If so, it is to be taken that a revision under Section 115 cannot be entertained on a ground which is less rigorous than that provided in Section 100 of the Code of Civil Procedure.

29. The purpose of substituting Section 102 C.P.C. was to restrict entertaining Second Appeals in cases where the subject matter ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 40 of the suit is for recovery of money not exceeding `25,000/-. The purpose sought to be achieved cannot be defeated by entertaining a .

revision under section 115 of the Code of Civil Procedure on a less rigorous test than that provided in Section 100 C.P.C.

30. Section 115 of CPC reads thus:-

of "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 rt 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.]"

31. In addition to the aforesaid, it would be noticed that Section 115 of the Code does not refer to a decree and further provides that revision can be invoked where no appeal lies against the impugned order/judgment. There is a marked difference as regards an order or ::: Downloaded on - 15/04/2017 21:36:53 :::HCHP 41 judgment against which no appeal lies and the judgment or order against which an appeal is prohibited or restricted by the Code.

32. Under Section 115 CPC, the legality and propriety as well as perversity can be seen, so also, while exercising jurisdiction of second appeal, appeal can be admitted only on substantial questions of law. The scope of both these provisions is quite similar and, therefore, of the petitioner s cannot invoke jurisdiction of this Court under Section 115 CPC because such invocation of revisional jurisdiction will render rt the specific provision of Section 102 of the Code to be otiose which is not permissible.

33. Accordingly, with all humility at my command, I regret my inabili ty to concur with the view expressed by a Co-ordinate Bench of this Court in Managing Director's case (supra). In view of this difference, it is necessary for me to refer the matter to a larger Bench.

Even otherwise, the issue is of great importance and the views expressed by the different High Courts on the question are otherwise not consistent and it is desirable that an authoritative pronouncement be made by a larger Bench.

34. At this stage, I may observe that though I have concurred with the expositi on of law as propounded by a Co-ordinate Bench of this Court in Subhadra Devi, Mohan Lal's cases (supra), however, since the matter is being referred to a larger Bench, it may also consider the desirability of going into the question of maintainability of the petition under Article 227 of the Constitution in cases where the second appeal against the judgment and decree is specifically barred under Section 102 of the Code.

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35. In view of the conflict in decision, the Registry is directed to place the papers before Hon'ble the Chief Justice for constituting a .

larger Bench.

November, 24th, 2016. (Tarlok Singh Chauhan), (krt) Judge.

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