Allahabad High Court
Cantonment Board And Anr. vs District Judge (Incharge) And Ors. on 27 April, 2006
Equivalent citations: 2006(4)AWC3281
Author: Devi Prasad Singh
Bench: Devi Prasad Singh
JUDGMENT Devi Prasad Singh, J.
1. Controversy relates to interpretation of Section 115 of the Code of Civil Procedure. Whether against an order issuing notice to defendants on an application for temporary injunction filed under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, a revision under Section 115 of the Code of Civil Procedure shall be maintainable is the question involved in the present writ petition?
2. Plaintiffs opposite parties No. 2 to 6 had filed a Regular Suit No. 129 of 2006 in the Court of Civil Judge, Senior Division Lucknow for permanent injunction. According to plaintiffs they are migrants from Pakistan and settled in this country during the partition years. The Government of India had rehabilitated them in various parts of the country. According to plaintiff respondents, the Cantonment Board had allotted to plaintiffs family the shops in question. They have got certain gumties on Nehru Road near Sadar Bazar Chauraha, Cantonment Lucknow, alleged to be allotted to them by the defendants. Notices were issued to them by the Cantonment Board to vacate the premises in question. The employees of Board had tried to demolish the premises in question. It has been pleaded in the plaint (Annexure-4) under Para 8 that on 4.2.2006 the defendants employees had tried to demolish the shops in question, feeling aggrieved they have preferred the suit.
3. Learned trial court by order dated 8.2.2006 issued notices to defendants including the petitioner of the present writ petition on the application for temporary injunction. In the order dated 8.2.2006 filed as Annexure-5 to the writ petition it has been observed by learned trial court that for identical dispute already a Regular Suit is pending in which a temporary injunction was granted and is in operation. The trial court had fixed 23.2.2006 for further proceeding.
4. Since, no injunction was granted by learned trial court feeling aggrieved the plaintiff respondents had preferred a revision under Section 115 of the Code of Civil Procedure against the order dated 8.2.2006 before the District Judge, Lucknow. The revision was heard by learned officiating District Judge, Lucknow on 20.2.2006. Out of eight plaintiffs three namely Ravindra Kumar Dhawan, Mamta Dhawan and Swarnkanta (plaintiff No. 2, 4 and 5) had not preferred a revision nor they were arrayed as party. Learned District Judge, at admission stage by common order admitted the revision and decided finally directing the parties to maintain status quo regarding the nature of possession of property in question. Learned Incharge District Judge, Lucknow had also directed the trial court to decide the application of temporary injunction within a period of one months with liberty to adjourn the case only in very exceptional circumstances.
5. The rival claim and material on record as discussed by learned Incharge District Judge, reveals that for the same property a regular suit No. 307 of 1991 is pending between the parties. About 72 tenants are in possession of the shops belonging to petitioner Cantonment Board. They had filed a Writ Petition No. 490 of 2006 in this Court which was dismissed on account of pendency of civil suit. It was contended by the petitioner that all the tenants including the defendants of the suit in question had entered into the compromise with the Cantonment Board and agreed to vacate the premises in question. It was agreed between the parties that after construction of new shops the tenants including the plaintiff shall be accommodated. It has also been submitted by petitioner before the learned Incharge District Judge. Lucknow that 72 occupants or tenants had availed the benefit of new shops in terms of agreement except eight persons who are the plaintiffs in suit.
During the course of hearing before learned District Judge, (Incharge) question of jurisdiction was also raised by the defendant petitioner with the submission that revision was not maintainable as the trial court had issued only notices to the defendants. Learned Counsel for the petitioner had relied upon the judgment in Venkatasubbiah Naidu v. S. Challappan and Ors. 2001 (19) LCD 548. However, the said judgment of the Apex Court was distinguished by learned District Judge, being not applicable in the following words :
I have perused this case law. But this case law is not helpful with the case of the respondent because in this case law, Hon'ble Supreme Court have been pleased to lay down the ratio in light of the intendment of object and purpose of Rule 3A of Order XXXIX, Code of Civil Procedure.
6. Learned Incharge District Judge, had further held that since regular suit No. 307 of 1981 is still pending in which the interim order is subsisting, the issuance of notice in the subsequent suit shall encourage the multifariousness of suit for similar cause of action. Accordingly, learned Incharge District Judge, had observed that petitioner suit invoke the jurisdiction of the court where the earlier regular suit No. 307 of 1981 is pending to seek fresh relief. However, inspite of recording these observation learned District Judge, had directed to maintain status quo with a request to the trial court to decide the application for temporary injunction within a month as discussed hereinabove.
7. The finding recorded by learned District Judge, though on one hand reveals that entertainment of suit in question shall amount to multiplicity of litigation but on the other hand an interim relief was also granted to the plaintiff. Learned Incharge District Judge, was seized with a controversy relating to the suit in question where the trial court had issued notice on an application for temporary injunction. It was incumbent upon him firstly to decide the question of jurisdiction and in case he was of the view that he was competent to entertain the revision under Section 115 of the Code of Civil Procedure as he has submitted in response to notice to this Court then he should have confined himself to the question relating to the grant of injunction. In case he was of the view that on account of pendency of earlier suit the present suit is not maintainable or no injunction could have been granted then there is no justification on his part to direct the parties to maintain status quo while remitting the matter to the trial court.
8. A perusal of the judgment of learned Incharge District Judge, further reveals that though he was impressed by the trial court's observation and was conscious relating to the pendency of earlier suit, and negative observation was made relating to the suit in question but simultaneously without assigning any reason he had directed the parties to maintain status quo regarding the nature of possession of the property in question. It is unfortunate that learned Incharge District Judge, had failed to consider the three ingredients namely prima Jade case, balance of convenience and irreparable loss while granting virtually a temporary injunction, directing the parties to maintain status quo. Whenever a Judicial authorities tends to exercise statutory power like power to grant temporary injunction or to pass an interim order conferred by law then it shall always be incumbent upon such judicial officers to assign reasons and discuss the argument advanced by the parties for grant of such relief. While directing the parties to maintain status quo it was incumbent upon the learned District Judge, to consider the argument advanced by defendant petitioner for denial of any interim relief or temporary injunction.
It is the settled law that it shall be necessary for the courts to record finding relating to prima facie case balance of convenience and irreparable loss vide Dalpat Kumar and Anr. v. Prahlad Singh and Ors. ; Dorab Cawasji Warden v. Coomi Sorab Warden and Ors. and Uniply Industries Ltd. v. Unicorn Plywood Put. Ltd. and Ors. , while granting temporary injunction which has not been done in the present case by learned officiating District Judge, Lucknow.
In the case of Dorab Cawasji Warden (supra), Hon'ble Supreme Court had held as under :
But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are :
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory Injunction.
(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.
9. The impugned order passed by learned officiating District Judge, while directing to maintain status quo is not only contrary to settled proposition of law enable a court to grant temporary injunction but it also does not fulfil the conditions provided under Section 115 of the Code of Civil Procedure. Learned Incharge District Judge, Lucknow had not recorded any finding after hearing the argument advanced by learned Counsel for the parties as to what miscarriage of justice or failure of justice or irreparable injury shall cause to the plaintiff in case no interim order is passed. More so when the defendants have set up a case that parties had entered into the agreement or mutual settlement to vacate the premises accepting the defendant right to construct the building over the premises in question. Assuming that the learned officiating District Judge, was having Jurisdiction to entertain the revision (though it is not for the reason discussed hereinafter) then while passing the impugned order and directing the parties to maintain status quo it was necessary for him not only to meet out the requirement provided under Section 115 of the Code of Civil Procedure but also it was necessary for him to record finding relating to prima facie case, irreparable loss and balance of convenience which is necessary concoctment of Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure.
10. Whenever a court passes an order affecting the rights of parties may be for limited period then it shall always be necessary that such orders must be reasoned and speaking one. Merely, stating that from the material on record it is necessary to pass an order to protect the right of one party or to maintain status quo shall not be sufficient. Hon'ble Supreme Court in a case in K. Urmila and Ors. v. Ram Kumar Verma . had assailed and set aside the order passed by the High Court where finding of the appellate authority was reversed by the High Court with the statement that from evidence on record bona fide of the landlord was proved. Whenever a finding of the subordinate court is set aside or modified or upheld it shall always be necessary for the higher forum to pass speaking and reasoned order and in case the order is dissenting one then reasoning given by lower forum must be discussed and assailed on the substantial cogent ground.
11. The revisional power of higher courts in its very nature is a truncked power. The width of power of revisional court cannot be equated with the power of appellate court. Mere possibility of a different view is no ground to interfere in exercise of revisional power. In Harshavardhan Chokkani v. Bhupendra N. Patel AIR 2002 SCC 1373, Hon'ble Supreme Court held that the very purpose of revisional power vesting in the High Court or in the District Judge in view of U.-P. Amendment is to keep the subordinate court within the boundary of law. Long back Hon'ble Supreme Court in a case in S. S. Khanna v. F. J. Dillon AIR 1964 SC 947, had settled the law that the word "case" used in Section 115 of the Code of Civil Procedure is of comprehensive import and it includes civil proceedings other than suit and is not restricted by anything contained in the section to the entirety of proceedings in a civil suit. The Apex Court further held in the same case that the power of revisional court is supervisory in nature and in case there is alternative remedy to file an appeal or in case alternative remedy is available against the order in question or from the ultimate order or decree in the proceeding then superior court may decline to exercise revisional jurisdiction.
For convenience relevant portion from the case of S. S. Khanna (supra) is reproduced as under :
7. The section consists of two parts, the first, prescribes the conditions in which jurisdiction of the High Court arises, Le., 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. But the power of the High Court is exercisable in respect of "any case which has been decided". The expression "case" is not defined in the Code, nor in the General Clauses Act, it is undoubtedly not restricted to a litigation in the nature of a suit in a civil court Balakrishna Udayar v. Vasudeva Aiyar, 44 Ind App 261 : AIR 1917 PC 71, it includes a proceeding in a civil court in which the Jurisdiction of the court is invoked for the determination of some claim or right legally enforceable. On the question whether an order of a court which does not finally dispose of the suit or proceeding amounts to a "case which has been decided", there has arisen a serious conflict of opinion in the High Courts in India and the question has not been directly considered by this Court. One view which is accepted by a majority of the High Courts is that the expression "case" includes an interlocutory proceeding relating to the rights and obligations of the parties, and the expression 'record of any case' includes so much oj the proceeding as relates to the order disposing of the interlocutory proceeding. The High Court has therefore power to rectify an order of a Subordinate Court at any stage of a suit or proceeding even if there be another remedy open to the party aggrieved, i.e., by reserving his right to file an appeal against the ultimate decision, and making the illegality in the order a ground of that appeal. The other view is that the expression "case" does not Include an issue or a part of a suit or proceeding and therefor the order on an issue or a part of a suit or proceeding is not a "case which has been decided", and the High Court has no power in exercise of its revisional jurisdiction to correct an error in an interlocutory order.
11. the expression "case" is a word of comprehensive import ; it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceeding in a civil court. To interpret the expression "case", as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice.
13. that is not to say that the High Court is obliged to exercise its jurisdiction when a case is decided by a subordinate court and the conditions in Clauses (a), (b), or (c) are satisfied. Exercise of the jurisdiction is discretionary; the High Court is not bound to interfere merely because the conditions are satisfied. The interlocutory character of the order, the existence of another remedy to an aggrieved party by way of an appeal, from the ultimate order or decree in the proceeding or by a suit, and the general equities of the case being served by the order made are all matters to be taken into account in considering whether the High Court, even in cases where the conditions which attract the jurisdiction exist, should exercise its jurisdiction.
Thus from the law laid down by Hon'ble Supreme Court in the case of S. S. Khanna (supra) it is clear that to attract the revisional power under Section 115, it shall be necessary that the rights and the obligation of the parties should have been decided, expressing views relating to a proceeding, which may amount to disposal of interlocutory proceeding during course of trial. Determination of an issue or controversy or an application on merit affecting the rights of parties is necessary to attract Section 115 of the Code of Civil Procedure.
Hon'ble Supreme Court has occasion to consider the revisional power of High Court under Section 115 of the Code of Civil Procedure in one another case in Pandurang Dhondi Chougule and Ors. v. Maruti Hari Jadhav and Ors. , it has been held by Apex Court that while exercising revisional power under Section 115 of the Code of Civil Procedure the High Court is not competent to correct the error of fact however gross they may be or even error of law unless it has got relation with the jurisdiction of court to try itself. Relevant portion from the case of Pandurang Dhondi (supra) is reproduced as under :
the provisions of Section 115 of the Code have been examined by judicial decision on several occasions. While exercising its jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact, however, gross they may be, or even error of law, unless the said errors have relation to the Jurisdiction of the court to try the dispute itself. As Clauses (a), (b) and (c) of Section 115 indicate, it is only in cases where the subordinate court has exercised a jurisdiction not vested in it by law, or has failed to exercise a Jurisdiction so vested or has acted in the exercise of its jurisdiction Illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceedings instituted before subordinate courts which are related to questions of jurisdiction. It is well-settled that a plea of limitation or a plea of res Judicata is a plea of law which concerns the jurisdiction of the court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the Jurisdiction of the court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of Section 115 of the Code. But an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of the Jurisdiction of that court, cannot be corrected by the High Court under Section 115.
Similar proposition of law has been reaffirmed by Hon'ble Supreme Court from time to time in some other cases in D.L.F. Housing and Construction Co. (P) Ltd. v. Sarup Singh and Ors. ; K. Balasubramania Chetty v. N. M. Sambandamoorthy Chetty ; Manick Chandra Nandy v. Debdas Nandy and Ors. ; Johri Singh v. Sukh Pal Singh and Ors. ; Harshavardhan Chokkani v. Bhupendra N. Patel and Brij Gopal Mathur and Anr. v. Kishan Gopal Mathur and Ors. .
12. In the present case learned District Judge had passed the impugned order treating the controversy pending before him like appellate court he should have confined himself to the controversy pending before him instead of making observation and virtually commanding the parties to move appropriate application keeping in view the earlier pending cases. The finding recorded by learned officiating District Judge, Lucknow seems to be an act of exceeding of jurisdiction without recording the finding over the controversy in question.
13. There is one more reason why the District Judge, should not entertain the revision or should not have passed the impugned order. In a case in Bhagwati Prasad Lohar v. State of U. P. through secretary of legal department Lucknow, 2005 RD 333. Hon'ble single Judge of this Court had held that the issuance of notice on application for temporary injunction is interlocutory order and no revision shall lie. Registrar General was directed to circulate the judgment of this Court of the case of Baghwatt Prasad (supra) to all the District Judges, of the State for compliance. Once the judgment of this Court is circulated then it shall always be incumbent upon the subordinate court to comply with it in letter and spirit unless the same is reviewed or set aside by larger Bench.
14. Now coming to next question relating to the maintainability of revision under Section 115 of the Code of Civil Procedure. Learned Officiating District Judge, while submitting reply in response to notice of this Court and as well as respondent's counsel had invited attention to two ordinance, i.e., U. P. Ordinance No. 25 of 2003 and 26 of 2003 by which second proviso has been added to Sub-section (3) of the Section 115 of the Code of Civil Procedure. According to learned standing counsel these two ordinances have been incorporated in Section 115 of the Code of Civil Procedure by Civil Procedure Code (U. P. Amendment; Act, 2003 (U. P. Act No. 14 of2003). The said amendment has received the assent of the President on 19.12.2003 and the amended Act has been published in the U. P. Gazette Extraordinary Part I, Section (Ka). dated 20.12.2003. The original text of Section 115 of the Code of Civil Procedure as stood present under the Central Act as well as after U. P. Amendment of 2003, for convenience are reproduced as under :
Original Text as per Central Act :
115. Revision. (1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto. And if such subordinate court appears :
(a) to have exercised a Jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceedings, 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.
U. P. Amendment as per Central Act:
115 Revision.(1) A Superior Court may revise an order passed in a case decided in an original suit or other proceeding by a subordinate court where the subordinate court has :
(a) exercised a jurisdiction not vested in it by law; or
(b) failed to exercise a jurisdiction so vested ; or
(c) acted in exercise of its Jurisdiction illegally or with material irregularity.
(2) A revision application under Sub-section (1), when filed in the High Court, shall contain a certificate on the first page of such application, below the title of the case, to the effect that no revision in the case lies to the district court but lies only to the High Court either because of valuation or because the order sought to be revised was passed by the district court.
(3) The superior court shall not, under this section, vary or reverse any order made except where :
(i) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding ; or
(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made.
(4) 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 superior Court.
Explanation I.In this section :
(i) The expression superior Court means :
(a) the district Court, where the valuation of a case decided by a Court subordinate to It does not exceed five lakh rupees ;
(b) the High Court, where the order sought to be revised was passed in a case decided by the district court or where the value of the original suit or other proceedings in a case decided by a Court subordinate to the district Court exceed five lakh rupees ;
(ii) the expression 'order' includes an order deciding an issue in any original suit or other proceedings.
Explanation II. The provisions of this Section shall also be applicable to orders passed, before or after the commencement of this section, in original suits or other proceedings instituted before such commencement.
A plain reading of the proviso added by U. P. Amendment added in Sub-section (3) of Section 115 reveals that an order of the subordinate court may be set aside under revisional jurisdiction apart from other grounds, on the ground that if it is allowed to stand would occasion to failure of Justice and cause irreparable injury to the party against whom it is made. The amendment done in sub-section of Section 115 cannot be read in a piecemeal but the entire section should be read as a whole. The U. P. Amendment does not affect the conditions provided by Sub-section (1) of Section 115 of the Code of Civil Procedure.
15. The statement of object and reason of Civil Procedure Code U. P. Amendment Act 2003 reveals that the Legislatures had amended Section 115 of the Code of Civil Procedure to empower the District Judge to revise the orders of courts subordinate to them arising out of original suits of the valuation up to Rs. 5,00,000.
Relevant portion from the statement of aims and object is reproduced as under :
With a view to removing the difficulties, it has been decided to amend Section 115 of the said Code in its application to Uttar Pradesh to provide for empowering the District Judges to revise the orders of the Courts subordinate to them arising out of original suits of the valuation up to Rupees Five Lakhs.
Thus the purpose of said amendment was to confer power on the District Judges to entertain the revision relating to the properties having evaluation up to Rs. 5,00,000 (Five Lakhs). U. P. amendment further adds certain additional grounds as obvious from the plain reading of Sub-sections (2), (3) and (4) of Section 115 of the Code of Civil Procedure for interference under the revisional jurisdiction.
INTERPRETATION
16. During the course of argument apart from learned Counsel for the respondents Shri Shesh Verma with the permission of court Mohd. Arif Khan as well as Shri R. S. Pandey had vehemently argued that in view of provision contained in Clause (II) of Sub-section (3) of Section 115 the District Judge has got power to entertain the revision. In case the order if allowed to stand will have occasioned to failure of justice or may cause irreparable loss and injury to the party against whom it is made. Similar reply has been submitted by learned officiating District Judge in response to notice of this Court. However, learned standing counsel Shri R. K. Srivastava had submitted that issuance of notice on an application pending under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure shall not amount to case decided. I have given my anxious consideration to the argument advanced by learned Counsel for the parties. The argument advanced by the learned Counsel for the respondents seems to be misconceived as in case their submissions is accepted it shall amount to go against the settled law relating to statutory interpretations.
17. It is settled law that every word of statute should be given a meaning. While interpreting a statutory provision the entire section or whole of the statute should be considered as the case may be. According to Maxwell on the Interpretation of Statutes (12th edition page 36) any construction which may leave without affecting any part of the language of a statute should ordinarily be rejected.
Relevant portion from Maxwell on the Interpretation of Statutes (12th edition page 36) is reproduced as under :
A construction which would leave without effect any part of the language of a statute will normally be rejected. Thus, where an Act plainly gave an appeal from one quarter sessions to another, it was observed that such a provision, though extraordinary and perhaps an oversight, could not be eliminated.
In view of above the Court should always avoid interpretation, which would leave any part of the provision to be interpreted without effect. While doing so every clause of a statute is to be construed with reference to the context and other clauses of the Act to make a consistent enactment of the whole statute. According to Maxwell (supra at page 47) statutory language should not be read in Isolation but in its context.
18. While referring a decision of House of Lord in A. G. v. H.R.H. Prince Ernest Augustus. 1957 (1) All ER 49 (HL), in a famous treatise Principles of Statutory Interpretation by Justice G. P. Singh the views of Lord Tucker has been discussed with approval as under (9th Edition page 34) :
In an appeal before the House of Lords, where the question was of the true import of a statute, the Attorney-General wanted tocall in aid the preamble in support of the meaning which he contended should be given to the enacting part, but in doing so was met by the argument on behalf of the respondent that where the enacting part of a statute is clear and unambiguous, it cannot be controlled by the preamble which cannot be read. The House of Lords rejected the objection to the reading of the preamble. Although, ultimately it came to the conclusion that the enacting part was clear and unambiguous. VISCOUNT SIMONDS (LORD TUCKER agreeing) in that connection said : "I conceive it to be my right and duty to examine every word of a statute in its context, and I use context in its widest sense as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern that the statute was intended to remedy.
19. Learned author (supra) again proceeded to consider the judgment of Australian High Court and views of Lord Steyn in a case in R v. National Asylum Support Service, 2002 (4) All ER 654, (page 35) to quote :
As rightly pointed out by the High Court of Australia, "the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses context in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means one may discern the statute was intended to remedy. LORD STEYN recently expressed the same view as follows : "The starting point is that language in all legal texts conveys meaning according to the circumstance in which it was used, it follows that context must always be identified and considered before the process of construction or during it. It is therefore wrong to say that the court may only resort to evidence of the contextual scene when an ambiguity has arisen.
20. Thus the exposition exvisceribus actus is a long recognised rule of construction. Words in a statute often taken their meaning from the context of the statute as a whole. They are therefore not to be considered in isolation. Hon'ble Supreme Court in a case in Mohan Kumar Singhania v. Union of India. , has proceeded to hold as under:
However, it is suffice to say that while interpreting a statute the consideration of inconvenience and hardships should be avoided and that when the language is clear and explicit and the words used are plain and unambiguous, were/are bound to construe them in their ordinary sense with reference to other clauses of the Act or Rules as the case may be, so far as possible, to make a consistent enactment of the whole statute or series of statute/Rules/regulations relating to the subject matter. Added to this, in construing statute, the court has to ascertain the intention of the law making authority in the backdrop of the dominant purpose and underlying intendment of the said statute and that every statute is to be interpreted about any violence to its language and applied as far as its explicit language admits consistent with the established rules of interpretation.
The aforesaid settled rule of Interpretation has been affirmed by the Apex Court from time to time in various cases including Gammon India Ltd. and Ors. v. Union of India and Ors. ; M/s Punjab Beverages Ltd., Chandigarh v. Suresh Chand and Anr. ; Kailash Chandra and Anr. v. Mukundi Lai and Ors. and Grasim Industries Ltd and Anr. v. State of M. P. .
21. Keeping in view the above settled principle of interpretation while considering the Section 115 of the Code of Criminal Procedure, Sub-sections (1), (2), (3) and (4) should be read as a whole and not in isolation. Some of the words which places dominant role while considering the power conferred by Section 115 of the Code of Civil Procedure, are "Case decided, order made in favour of the party and order deciding an issue."
Under Sub-section (1) any case decided in a suit where the subordinate court had exercised Jurisdiction not vested in it or failed to exercise jurisdiction so vested in it or acted in the exercise of Jurisdiction illegally or with material irregularity may be questioned under the revisional power. According to BLACK'S LAW DICTIONARY, SEVENTH EDITION (page 414) ; the word "decision" has been interpreted in the following manner :
Decision. A judicial determination after consideration of the fact and the law ; esp., a ruling, order, or judgment pronounced by a court when considering or disposing of a case.
The word "appealable decision" has been defined in the BLACK'S LAW DICTIONARY (supra) is as under :
Appealable Decision. A decree or order that is sufficiently final to receive appellate review (such as an order granting summary judgment), or an interlocutory decree or order that is immediately appealable, usu. by statute (such as an order denying immunity to a police officer in a civil- rights suit).
22. Hon'ble Supreme Court in S. S. Khanna's case (supra) had settled the law that the word "case" has got comprehensive import which includes civil proceedings other than suits and Is not restricted by anything contained in the section to the entirety of a proceeding in a civil court. Accordingly any decision given by the competent court at intermediary stage while disposing an issue shall amount to case decided. There must be determination of an issue or a controversy or dispute or an application or grievance raised by a party during the course of a proceeding. Unless grieuance or claim installed by a party is determined finally though it may not relate to final adjudication of the suit it cannot be said that a case has been decided. Therefore to attract the provision contained in Sub-section (1) of Section 115 of the Code of Civil Procedure it is necessary that there should be final adjudication or determination of an application or issue pending before the subordinate court and such determination can be challenged on the ground enumerated under Clauses (a), (b) or (c) Sub-section (1) of Section 115 of the Code of Civil Procedure.
23. Sub-section (2) of Section 115 relates to incorporation of a certificate in the memo of revision to the effect that no revision lies in district court in case a person approaches High Court because of its violation or for other reason given in Sub-section (2).
Under Sub-section (3) the Legislature had provided that the superior court shall not interfere under this section, means under Section 115 of the Code of Civil Procedure, to reverse or vary any order made by subordinate court except in case order stands would have finally disposed of the suit or other proceeding (Clause (I) or if it allowed to stand would occasion a failure of justice or may cause irreparable injury to the party against whom it has been made. The Legislature to their wisdom used the word "under this section" in Sub-section (3) and further magnifies the availability of right to file a revision by using the word "whenever finally disposed of suit or other proceeding". Under Clause (2) of Sub-section (3) another adjective or ground has been added providing that in case the order allowed to stand would occasion to failure of justice. In view of using the words "under this section" in Sub-section with all clarity Legislatures had provided that revisional right may be available to an aggrieved party under Clause (1) or Clause (II) of Sub-section (3) shall be subject to Sub-section (1) of Section 115 of the Code of Civil Procedure. Sub-section (3) adds additional ground for interference under Section 115 of the Code of Civil Procedure (incorporated by State amendment) to the already existing ground provided by Sub-section (1) of Section 115 of the Code of Civil Procedure. Sub-section (3) cannot be read in isolation.
This is further clear when we consider Sub-section (4) of Section 115 of the Code of Civil Procedure. Under Explanation 1 of Sub-section (4) the Legislature to their wisdom had defined the superior court as the district court where valuation of a case decided not exceeding, Rs. 5 lakhs, and High Court where valuation of cases decided of more than Rs. 5 lakhs. In Clause 1A and IB of Sub-section (4) again the words the "case decided" has been used by Legislature. A combined reading of Sub-sections (1), (2), (3) and (4) of Section 115 of the Code of Civil Procedure reveals that a revisional power is confined to decision where a controversy has been decided by the court while determining the issue or dispute in question.
24. I have occasion to interpret Section 115 of the Code of Civil Procedure in a case in Sultan Leather Finishers (Pvt.) Ltd. and Ors. v. Additional District Judge, Court No. 4, Unnao and Ors. 2005 (23) LCD 476, After considering the word issue used in Section 115 of the Code of Civil Procedure I have proceeded to observe as under :
11. Keeping in view the definition of word "issue" it can be very well inferred from the words "any order deciding an "issue" existing in the proviso of Sub-section (c) of Section 115 of the Code of Civil Procedure is comprehensive in nature and shall cover almost each and every issue or point of decision in a suit during the course of trial. Accordingly, in case an application is decided finally moved for a particular relief or order during the pendency of a suit, in pursuance to provisions contained in the Code of Civil Procedure, its final disposal shall amount to decide an issue in the course of a suit. In the absence of any remedial provision a revision shall lie against such order under Section 115 of the Code of Civil Procedure.
25. In a case in Shiu Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and Ors. , Hon'ble Supreme Court had interpreted Section 115 of the Code of Civil Procedure. Hon'ble Supreme Court had reiterated the earlier settled principle of interpretation holding that the amendment done in the Section 115 of the Code of Civil Procedure relates to procedures. It has been held by Apex Court that Court cannot read anything into statutory provision which is plain and unambiguous and a statute is the edict of the Legislature. Casus omissus cannot be supplied by the court except in the case of clear necessity and ambiguity in the statutory provisions. The power of hearing revision is generally given to superior court so that it may satisfy itself that a particular case has been decided according to law (para 17 of the judgment). It has been held by Apex Court (supra) that orders that are not appealable are generally speaking those which are processual, i.e., interlocutory or incidental orders regulating proceedings but not deciding any of the matters of controversy In the suit, (para 31). It has been further held by Apex Court (supra) that Section 115 makes it clear that the stress is on the question whether order in favour of party applying for revision whenever given finality to suit or other proceeding. If the answer is "Yes" then revision shall be maintainable. But on contrary if the answer is "No" then the revision shall not be maintainable. Therefore in case an order does not finally decide the lis, the revision shall not be maintainable. For convenience relevant portion from the judgment of Shiv Shakti (supra) is reproduced as under :
19. It is a well-settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statue is the determinative factor of legislative intent. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. (See Institute of Chartered Accountants of India v. Price Waterhouse) The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford v. Spooner courts cannot aid the Legislatures defective phrasing of an Act, we cannot add or ment, and by construction make up deficiencies which are left there. (See State of Gujarat v. Dilipbhai Nathjibhai Patel) It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. See Stock v. Frank Jones (Tipton) Ltd., Rules of interpretation do not permit courts to do so, unless the provision as it stands is meaningless or of a doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Per lord Loreburn, L.C. in Vickers Sons and Maxim Ltd. v. Evans, quoted in Jumma Masjid v. Kodimaniandra Deviah).
32. A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is "yes" then the revision is maintainable. But on the contrary, if the answer is "no" then the revision is not maintainable. Therefore, if the impugned order is interim in nature, cannot be the subject-matter of revision under Section 115.
26. A perusal of original text as per Central Act vis a vis U. P. amendment at the face of record shows that so far as Sub-section (1) is concerned it is common in both the situation. Therefore, while interpreting Sub-sections (2), (3) and (4) of Section 115 the provision contained in Sub-section 1 of Section 115 cannot be side tracked. As discussed hereinabove while interpreting the provision contained in Section 115 of the Code of Civil Procedure the entire section should be read as a whole and not only the U. P. amendment.
In one another recent judgment in Haider Abbas v. Additional District Judge. 2006 (24) LCD 452, a Division Bench of this Court after considering various Apex Court judgments held that meaning assigned to the word or phrases in the statute should not be construed otherwise than what is reflected from its plain reading. It has been further held by the Division Bench of this Court (supra) that an explanation given in the Section of a statute are being provided to explain the meaning and intendment of the Act to clarify the vagueness and to provide additional support to the dominant object of the Act or provision in question. Explanation cannot change in anyway or may interfere with the enactment or any part thereof. Accordingly, also effect of Sub-section (1) of Section 115 of the Code of Civil Procedure cannot be diluted.
In view of above settled proposition of law relating to the interpretation of an statute it may be safely held that unless an issue or controversy is determined or decided finally, it shall not be appropriate to say that "case has been decided" or the issue has been decided by the court to attract the revisional power conferred by Section 115 of the Code of Civil Procedure.
RIVAL SUBMISSIONS AND CASE LAWS
27. During the course of hearing Shri Shesh Verma learned Counsel for the respondents as well as Mohd. Arif Khan and Shri R. S. Pandey the members of Bar who had assisted the Court with prior permission had relied upon the following cases in support of their contentions that revision shall be maintainable :
(1) Urmila Devi (Smt.) and Ors. v. Nagar Nigam Lucknow, 2003 (3) AWC 2028 (LB) : 2003 (2) ARC 31 ; (2) Guru Dutt v. Anju Khatri, 2004 (2) AWC 1141 (LB) : 2004 ARC 276; (3) Arya Pratinidhi Sabha v. Manmohan Tewari, 1993 (11) LCD 595 ; (4) Devendra Kumar Misra v. Rajendra Kumar and Ors. 2005 LCD 1572 and (5) Nagar Nigam, Gorakhpur v. Gorakhpur Development Authority and Ors. 2004 (4) AWC 3058 : 2004 (57) ALR 308.
On the other hand. Shri R. K. Srivastava learned standing counsel had proceeded to assist the Court and submitted that revision shall not be maintainable. Learned standing counsel had referred the following cases in support of his contention :
(1) Bhagwati Prasad Lohar and Ors. v. State of U. P. and Ors. 2005 RD 333 ; (2) Khajan Singh v. Brijendra Singh, 2005 (2) ARC 757 ; (3) Gayatri Devi and Ors. v. Shashi Pal Singh ; (4) Major S.S. Khanna v. Brig. F. J. Dhillon. ; (5) Surya Dev Rai v. Ram Chander Rai, 2003 (21) LCD 1046 ; (6) Shiv Shakti Co-op. Housing Society Napur v. Swaraj Developers, ; (7) M/s Sultan Leather Finishers (Pvt.) Ltd. and Ors. v. Additional District Judge, Court No. 4 Unnao and Ors. 2005 (23) LCD 476 ; (8) Lucknow Diocesan Trust Association v. Sri B. C. Jain, 2006 (2) AWC 1378 : 2006 (1) ARC 153 ; (9) A . Venkatasubbiah Naidu v. S. Chellappan and Ors. ; (10) Mohd. Rais Khan v. Sri Naseeb Ullah Khan and Ors. 2006 (1) ARC 606 ; (11) Rajendra Singh and Ors. v. Brij Mohan Agarwal and Anr. and (12) Debi Das v. State of U. P., 2002 LCD 1252.
28. In the case of Debi Das (supra), Rajendra Singh (supra), Bagwati Prasad Lohar (supra), Khajan Singh (supra), Lucknow Diocesan Trust Association (supra) and Mohd Rais Khan (supra) this Court had held that against the issuing of notice by the trial court on an application filed under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure revision under Section 115 of the Code of Civil Procedure shall not be maintainable. In all these cases it has been held by this Court that issuance of notice shall not amount to final disposal of suits. While deciding the case of Bhagwati Prasad Lohar (supra) Hon'ble single Judge of this Court had directed the Registrar General to circulate the judgment to the subordinate so that revisions may not be entertained by the District Judges.
29. In a case in Neelakantan v. Mallika Begum, , while interpreting the revisional power of higher court Hon'ble Supreme Court had proceeded to hold as under :
It is well settled that the High Court while considering the matter in exercise of its jurisdiction in second appeal or civil revision would not reverse the finding of fact as recorded by the courts below. But it is not an absolute proposition. In a case where the finding is recorded without any legal evidence on the record, or on misreading of evidence or suffers from any legal infirmity, while materially prejudices the case of one of the parties or the finding is perverse, it would be open for the High Court to set side such a finding and to take a different view.
30. In a case in Riyaz Jan Mast v. Asif Javid and Anr. , the Jammu and Kashmir High Court held that order of summoning of record is interlocutory order and since no right of either of the parties is determined by such order it shall not amount to case decided.
31. In a case in A Venkatasubbiah Naidu v. S. Chellappan and Ors. , Hon'ble Supreme Court held that in case temporary injunction is passed by the trial court affecting the rights of the parties then appropriate remedy to prefer an appeal under Order XLIII, Rule 1 of the Code of Civil Procedure. It has been further held by the Apex Court that such appeal cannot be filed even during pendency of application for vacation of temporary injunction whenever an application for vacation of temporary injunction is moved the trial court shall be obliged to decide the same in accordance to law expeditiously for any inaction on the part of trial court, appellate court will have right to suggest a suitable remedy against the erring judicial officer including recommendation to take steps for making adverse entry in his ACRs. The relevant portion from the judgment of Apex Court in the case of A. Venkatasubbiah (supra) is reproduced as under :
It is the acknowledged position of law that no party can be forced to suffer for the inaction of the Court or its omissions to act according to the procedure established by law. Under the normal circumstance the aggrieved party can prefer an appeal only against an order passed under Rules 1,2, 2A, 4 or 10 of Order XXXIX of the Code in terms of Order XLIII. Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party who does not get justice due to the inaction of the Court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order XXXIX, Rule 3A of the Code is flouted, the aggrieved party shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate court in complying with the provision of Rule 3A. In appropriate cases the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring Judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the rules.
32. As discussed hereinabove in the case of Shiu Shakti (supra), the Apex Court had not only interpreted Section 115 of the Code of Civil Procedure by applying the settled rules of interpretation but in the same Judgment under-Para 32 had provided yardstick to decide whether a case has been decided or not saying that in case the order made in favour of a party applying for revision it gives finality to suit or other proceeding, only then a revision shall be maintainable. The case of Shiu Shakti (supra) has been followed by the Apex Court again in a recent judgment of Gayatri Devi (supra), Hon'ble Supreme Court had reaffirmed the principle laid down by Shiu Shakti (supra) and held that an order which is interim in nature or which does not finally decide the Us cannot be challenged by filing a revision under Section 115 of the Code of Civil Procedure. For convenience relevant portion from the judgment of Gayatri Devi (supra) is reproduced as under :
In the first place, it appears to us that the revision petition before the High Court was wholly incompetent in view of the amended provision of Section 115 Code of Civil Procedure. The revision petition was entertained at the stage of interlocutory proceedings. As laid own by this Court in Shiu Shakti Co-op. Housing Society v. Swaraj Developers, and Order interim in nature or which does not finally decide the lis, cannot he challenged by way of a revision under Section 115 of the Code of Civil Procedure.
15. In Ravinder Kaur v. Ashok Kumar a two-Judge Bench of this Court observed (SCC p. 295, para 22) Courts of law should be careful enough to see through such diabolical plans of the Judgment-debtors to deny the decree-holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing law's delay and bringing bad name to the judicial system.
33. One of the case which has been brought into the notice of this Court is in H. Bevis and Co., Kanpur v. Ram Behari and Ors. AIR (88) 1951 All 8. In the said case learned trial court had refused to pass any ex parte temporary injunction. While refusing to pass the ex parte temporary injunction the trial court had also rejected the application. Since the application was rejected by the trial court (para 3) this Court held that revision shall be maintainable.
34. The case of Urmila Devi (supra) relates to revision decided by Hon'ble single Judge of this Court without recording any finding relating to the maintainability of revision against the issuance of notice or an application filed under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure. In the case of Nagar Nigam Gorakhpur (supra) Hon'ble single Judge had not considered the subsequent judgment of this Court as well as the Apex Court judgments referred hereinabove including the cases of Shiv Shakti (supra), Gayatri Devi (supra) as well as Baldevdas (supra).
In the case of Guru Dutt (supra) an objection was raised by the respondents relating to the maintainability of revision citing the judgment of Apex Court in Shiu Shakti (supra). However, while giving a finding relating to the maintainability Hon'ble single Judge had neither distinguished the judgment of Shiv Shakti (supra) nor the finding has been recorded as to how the said judgment of Hon'ble Supreme Court shall not be applicable. No finding has been recorded by Hon'ble single Judge relating to the rules of interpretation applied by Hon'ble Supreme Court while interpreting the provision of Section 115 of the Code of Civil Procedure as well as while recording the finding under Para 32 of the judgment in the case of Shiv Shakti (supra).
35. One another case relied upon by learned Counsel for the respondents Shri Shesh Verma is the case of Devendra Kumar Mishra (supra). The controversy before this Court in the said case was relating to an order passed by Additional District and Session Judge, Kheri granting permission to the opposite parties to file a suit under Section 92 of the Code of Civil Procedure. The case of Devendra Kumar Mishra was relating to a controversy where an issue was decided by Additional District Judge Kheri finally to file a suit under Section 92 of the Code of Civil Procedure. Hon'ble single Judge had relied upon the judgment of this Court. M/s. Sultan Leather Finishers (Put.) Ltd. (supra), and the Apex Court's judgment of S. S. Khanna's case (supra) as well as one another Judgment in Baldevdas v. Filmistan Distributors AIR 1970 SC 406. In the case of Baldevda's (supra) Hon'ble Supreme Court held that if Court adjudicate a dispute while trying a suit and decide some rights and obligations of the parties in a controversy it shall amount to case decided.
Thus the case of Devendra Kumar Mishra virtually supports the argument advanced by learned standing counsel that revision shall not be maintainable against the issuance of notice on an application filed under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure.
Thus the finding recorded by Hon'ble single Judge of this Court, (Hon'ble Mr. Justice N. K. Mehrotra) in the case of Urmila Devi (supra) and Guru Dutt (supra) Is contrary to his own finding recorded In the case of Devendra Kumar Mishra (supra).
36. Mohd. Arif Khan had Invited attention of this Court towards the Full Bench judgment in Jupiter Chit Fund (Pvt.) Ltd. v. Dwarka Diesh Dayal and Ors. , where the controversy before this Court was to interpret the word "case arising out of the original suit" "any other case". While deciding controversy the Full Bench observed that these words co-relate to a proceeding of final nature.
Relevant portion from the judgment of Jupiter Chit Fund (supra) is reproduced as under :
The words "or other proceedings" in the phrase "cases arising out of original suits or other proceedings" refer to proceedings of final nature. These words have been added in order to bring within the purview of the revisional jurisdiction orders passed in proceedings of an original nature, which are not of the nature of suits, like arbitration proceedings. This phrase cannot include decisions of appeals or revisions, because then the Legislature will be deemed to have contradicted itself. The words "or other proceedings" have to be read ejusdem generis with the words "original suits." They will not Include appeals or revisions.
Accordingly even in view of Full Bench judgment in Jupiter's case (supra) a revision shall be maintainable only in case a controversy or issue has been determined by the Court of original jurisdiction and not otherwise, Issuance of notice on an application filed under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure shall not amount to an order of final nature.
37. Moreover, in view of Apex Court judgment in the case of Gayatri Devi (supra) it is not necessary to consider other Judgments. The case of Gayatri Devi (supra) puts the final seal on the issue and settled the law that merely issuance of notice by the trial court on an application filed by plaintiff shall not amount to case decided and revision shall not be maintainable. Law laid down by the Apex Court in the case of Shiv Shakti (supra) followed by Gayatri Devi (supra) is binding under Article 141 of the Constitution of India.
38 One of the argument advanced by learned Counsel for the respondents is that the doors of courts should not be closed as sometime the trial court kept the matter pending without deciding the application of temporary injunction and such situation may cause irreparable loss and injury to the litigants. Argument advanced by learned Counsel for the respondents seems to be misconceived. In the absence of any statutory provisions like revision or appeal the affected party may approach this Court under Article 227 of the Constitution of India. This fact has been noticed by Apex Court in a case in Surya Dev Rai v. Ram Chander Rai and Ors. 2003 (21) LCD 1046.
Relevant portion from the case of Surya Dev Rai (supra) for convenience is reproduced as under :
32. In Shiv Shakti Coop. Housing Society, Nagpur v. M/s Swaraj Developers and Ors. 2003 (2) SCCD 651 : 2003 (3) AWC 2198 (SC) : (2003) 4 Scale 241, another two-judges Bench of this Court dealt with Section 115 of the Code of Civil Procedure. The Court at the end of Its judgment noted the submission of the learned Counsel for a party that even if the revisional applications are held to be not maintainable, there should not be a bar on a challenge being made under Article 227 of the Constitution for which an opportunity was prayed to be allowed. The Court observed "if any remedy is available to a party, no liberty is necessary to be granted for availing the same".
33. We are of the opinion that the curtailment of revisional jurisdiction of the High Court does not 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 nor the power of superintendence conferred on the High Court under Article 227 of the Constitution is taken away or whittled down. The power exists, untrammelled by the amendment in Section 115 of the Code of Civil Procedure, and is available to be exercised subject to rules of self discipline and practice which are well settled.
39. One of the arguments advanced by Mohd. Arif Khan and Shri R. S. Pandey as well as Shri Shesh Verma was that on account of conflicting judgments the present controversy should be referred to a larger Bench. However, in view of the judgment of Apex Court, in Shiv Shakti (supra) followed by Gayatri Devi (supra), it is not necessary to refer the present controversy to larger Bench as the matter has been settled by the Apex Court. Any judgment which is rendered signally by Hon'ble Judges of this Court and is contrary to pronouncement of Apex Court referred hereinabove shall be per tncurium. Similarly, any judgment where the principle of statutory interpretation has been not applied relying upon the various Apex Court judgments referred hereinabove while considering the similar controversy under Section 115 of the Code of Civil Procedure shall also be per incurium to Apex Court judgment. Per incurium means in Ignorance of or without taking note of some statutory provisions or the judgment of Hon'ble Supreme Court or the larger Bench, vide State of Bihar v. Kalika Singh and Ors. ; State of U. P. and Anr. v. Synthetics and Chemicals Ltd. and Anr. ; Mamleshwar Prasad and Ors. v. Kanhaiya Lal ; Sunita Devi v. State of Bihar, ; Ram Copal Baheti v. Giridharilal Soni and Ors. ; Municipal Corporation of Delhi v. Gurnam Kaur ; Sarnam Singh v. Dy. Director of Consolidation and Ors. and State v. Ratan Lal Arora, .
40. In one of the recent judgment of this Court of Bhagwati Prasad Lohar (supra) Hon'ble single Judge of this Court (Hon'ble Mr. Justice Anjani Kumar) had held that against the issuance of notice on an application moved under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure revision shall not be maintainable. His Lordship had directed the Registrar General of this Court to circulate the such judgment but it appears that inspite of judgment of this Court District Judges are entertaining revision against the issuance of notice on an application filed under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure. Such act on the part of District Judges shall amount to indiscipline and they may be tried for misconduct or they may be appropriately punished as held by Hon'ble Supreme Court in the case of Venkatasubbias Naidu (supra).
41. While submitting reply in response to a notice of this Court learned officiating District Judge had relied upon judgments of Urmila Devi (supra), Lucknow Diocesan (supra), Guru Dutt (supra) Arya Pratinidhi Sabha (supra) and tried to distinguish the case of Gayatri Devi. It appears that after receipt of notice from this Court learned District Judge had tried to defend himself by relying upon certain judgments which have been neither discussed nor relied upon while passing the impugned order. It has been settled by Apex Court in the case of Mohinder Singh Gill in Mohinder Singh Gill and Anr. v. Chief Election Commissioner, New Delhi, , that every order should stand on its leg. Moreover in view of judgment of Bhagwati Prasad Lohar (supra) it was not open to learned officiating District Judge to entertain the revision on any ground whatsoever unless the said judgment would have been set aside by the larger Bench or the Apex Court. In the hierarchy of system it is the duty of presiding officer of subordinate court to follow the judgment of this Court or the Apex Court in their letter and spirit. Any action contrary to the judgment of this Court or the Apex Court may call for an action against them.
42. It has been brought into notice of this Court that sometime after issuing notice on an application filed by the plaintiff under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure matters are being kept pending by the trial courts for sufficiently long period resulting in serious miscarriage of justice. Hon'ble Supreme Court in the case of A. Venkatasubbiah Naidu (supra) had expressed that matters relating to the temporary injunction should be decided expeditiously so that parties may not suffer with adverse consequences. Accordingly it is provided that whenever a suit is filed and an application for temporary injunction under Order XXXIX, Rules 1 and 2 is moved and if Court does not grant ex parte injunction then in such cases short dates should be fixed and application for temporary injunction should be disposed of on merit and in accordance to law after providing opportunity of hearing to the parties expeditiously and preferably say within a period of three months. The trial courts having original jurisdiction to try the suits are expected to decide the applications of temporary injunction expeditiously so that parties of the suit may not suffer with irreparable injuries. It is also necessary because of the fact that against the order of grant of temporary injunction or refusal aggrieved party may prefer an appeal under Order 43, Rule 1 of the Code of Civil Procedure.
43. This Court appreciates the valuable assistance provided by Shri R. K. Srivastava learned standing counsel, Mohd. Arif Khan as well as Shri R. S. Pandey while resolving the present controversy.
In view of discussion made hereinabove, the impugned order dated 20.2.2006 passed in Civil Revision No. 65 of 2006 by officiating District Judge, Lucknow is not sustainable under law. It is clarified that while deciding the present controversy this Court had not recorded any finding on merit relating to rival claim of parties.
44. Accordingly. Writ Petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 20.2.2006 passed in Civil Revision No. 65 of 2006 with natural consequence.
45. Since it appears that District Judges are entertaining the revision against the interlocutory orders or against the issuance of notice on an application, filed under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, the Registrar General is directed to circulate the present judgment to all the District Judges of the State immediately who in turn shall communicate the judgment to their subordinates of the respective Districts for compliance keeping in view the observation made hereinabove.
46. Let a copy of this order be gent to Registrar General say within a week from today for follow up action, no costs.