Patna High Court
Jokhi Ram Mohan Lal vs Smt. Gita Devi Tulsyan on 11 July, 1977
Equivalent citations: AIR1978PAT2, 1978(26)BLJR79, AIR 1978 PATNA 2
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT Nagendra Prasad Singh, J.
1. The defendant is the petitioner in this civil revision application It is d; reeled against an order dated 12-1-1977 passed by the learned Munsiff rejecting art application filed on behalf of the petitioner under Order XXIII Rule 3 of the Civil P. C., 1908 (hereinafter to be referred to as the Code).
2. It appears that the plaintiff-opposite party filed a suit for eviction of the petitioner from a premises fully described in the plaint under the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act. 1947, which was registered as Title Suit No. 248 of 1967. During the pendency of that title suit, on 11-1-1975, the aforesaid petition under Order XXIII, Rule 3 of the Code was filed on behalf of the defendant-petitioner saying that the dispute between the parties had been settled, and, as such, the suit should be disposed of in terms of the compromise entered into between the parties. Learned Munsif heard both the parties and ultimately by the impugned order dated 12-1-1977 rejected the said petition on the finding that no compromise took place as alleged by the defendant-petitioner. As already stated above, the present revision application is directed against this order and was filed before this Court on 28-3-1977. This application was listed for hearing before learned single Judge of this Court, who has referred it to a Division Bench for a decision on the Question of maintainability of the revision application.
3. The question which is to be answered is as to whether the present revision application is barred by Sub-section (2) of Section 115 as amended by the Civil P. C. (Amendment) Act, 1976 (hereinafter to be referred to as the Act). The new Sub-section (2) is as follows:
"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."
This sub-section places a bar on the power of this Court of entertaining any revision application for reversing any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto. Prior to introduction of Sub-section (2) by amendment, there was some controversy in view of the language of Section 115 as to whether the revisional power of this Court is barred only in cases where appeal lies to this Court or even in cases where appeal lies before any court subordinate to this Court. The words "in which no appeal lies thereto" occurring in Section 115 were interpreted to mean that this bar on entertaining revision applications in cases in which an appeal lies, is only in respect of cases where appeal lies to this Court. Reference in this connection may be made to the case of Tipan Prasad Singh v. Secy. of State (AIR 1935 Pat 86) in which Fazl Ali, J., (as he then was) was of the view that Section 115 provided that High Court may act under that section in a case which has been decided by a court subordinate to it and in which no appeal lies to the High Court. According to the learned Judge, it did not provide that the High Court cannot interfere in a case where an appeal lies to an inferior court. In that case, it was found that an appeal lay before the District Judge. In that view of the matter, the revisional application to this Court was held not barred. Later, a Full Bench of this Court in the case of Maqbool Alam Khan v. Mt. Khodaija Begum (AIR 1949 Pat 133) having found that an appeal lay to the District Judge against the order in question, refused to exercise its revisional jurisdiction saying that the revision application was incompetent and the petitioner concerned should have availed of the remedy by filing an appeal before the District Judge concerned. Thus, even in absence of provision like the present Sub-section (2) of Section 115, this Court refused to exercise its revisional jurisdiction even in cases where appeal was to be filed before the District Judge. It appears, to remove this controversy, present Sub-section (2) of Section 115 has said in clear and unambiguous words that against an order if an appeal lies either to the High Court or to any court subordinate thereto the High Court shall not under this section exercise its revisional jurisdiction for reversing any order or decree. The effect of this Sub-section (2) of Section 115 will be that if an appeal lay before the District Judge against this order dated 12-1-1977, then the present revision could not have been filed on 28-3-1977 when the Amendment Act had come in force on 1-2-1977.
4. Learned counsel appearing for the petitioner, however, pointed not that the order dated 12-1-1977 was not an appealable order because the learned Munsif rejected the application under Order 23, Rule 3 of the Code without holding an enquiry. It is difficult to accept this contention. Learned Munsif has given reasons for rejecting the said application and has rightly or wrongly recorded a finding that no agreement had been arrived at between the parties That order was appealable under Order 43 Rule 1 (m) which says that an appeal shall lie from an order under Rule 3 of Order 23 recording or refusing to record an agreement, compromise or satisfaction. This Clause (m) of Order 43 Rule 1 has been deleted by the aforesaid amending Act. But, it will be deemed to have been deleted on and from 1-2-1977. The petitioner could have filed an appeal within 30 days from 12-1-1977 under this provision. We are informed that actually an appeal was filed on behalf of the petitioner before the learned District Judge, Muzaffarpur some time before 1-2-1977 and it was pending on the day the Amendment Act came in force. It was dismissed on 12-2-1977 by the learned District Judge. Learned counsel appearing for the petitioner has urged that although the appeal was filed prior to 1-2-1977, but in view of the amending Act it was not maintainable. In this connection, he has drawn our attention to Section 97 of the Amendment Act. From a bare reference to Section 97, which is a provision containing repeal and savings, it will appear that in view of Section 97 (2) (zb), the new Amendment Act was not to apply to appeals filed under Order 43 which were pending immediately before the commencement of the Amendment Act. When an appeal against the order impugned was pending, in my opinion, it had to be disposed of in accordance with Order 43, Rule 1 (m). Learned counsel appearing for the petitioner submitted that in the instant case, in view of Sub-section (3) of Section 97 of the Amendment Act, the appeal filed on behalf of the petitioner became incompetent and the court of appeal below should not have decided it on merit. Sub-section (3) of Section 97 of the Amendment Act is as follows:--
"Save as otherwise provided in Sub-section (2), the provisions of the principal Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement."
In my opinion, there is no substance in the contention. Sub-section (3) itself says that it is subject to the cases provided in Sub-section (2) of Section 97. I have already pointed out that Clause (zb) of Sub-section (2) of Section 97 provides that appeals which have been filed under Order 43 of the Code and which were pending immediately before the commencement of the Amendment Act shall be disposed of as if the Amendment Act had not come into force. In my view, in the instant case, an appeal lay before the learned District Judge, and it was actually filed which could have been legally disposed of on 12-2-1977. The result of this will be that the revision application filed on behalf of the petitioner before this Court after coming into force of the Amendment Act, will be hit by Sub-section (2) of Section 115 of the Code.
5. In the result, the revision application is held to be not maintainable, and it is, accordingly, dismissed. In the circumstances of the case, however, there will be no order as to costs.
P.S. Sahay, J.
I agree.