Calcutta High Court
Mrityunjay Sen vs Shrimati Sikha Sen on 5 February, 2003
Equivalent citations: AIR2003CAL165, (2003)1CALLT168(HC), AIR 2003 CALCUTTA 165, (2003) 8 ALLINDCAS 796 (CAL), 2003 (8) ALLINDCAS 796, (2003) 1 CAL HN 606, (2003) 1 CAL LJ 263, (2003) 1 CALLT 168, (2003) 3 RECCIVR 311, (2003) 2 ICC 427, (2003) 6 INDLD 14
Author: S.K. Mukherjee
Bench: Subhro Kamal Mukherjee
JUDGMENT S.K. Mukherjee, J.
1. In this case I am invited to decide the scope of the power of revision of the High Court under Section 115 of the Code of Civil Procedure, as amended by the Code of Civil Procedure (Amendment) Act, 1999.
2. As the point involved in this case is a matter of general importance, I requested the learned members of the Bar to appear and assist me on the question of maintainability and scope of civil revision cases in view of the amendment of the Code of Civil Procedure by the Code of Civil Procedure (Amendment) Act, 1999.
3. Mr Sudhis Dasgupta, learned senior advocate, appearing in support of this revisional application, argued that in spite of amendment of the Code of Civil Procedure by the amending Act of 1999, the High Court is not denuded of its revisional power in respect of interlocutory orders, which are not subject to appeals. Mr. Dasgupta argued that the expression "any case which has been decided" by any Court subordinate to such High Court includes part of a suit/proceeding and there cannot be any restriction on the exercise of the power of revision by the High Court. Mr. Dasgupta argued that "other proceeding" includes interlocutory proceeding in the suit. The orders passed in various proceedings in suits or other proceedings include the interlocutory orders passed therein, which are not subject to appeals, but which would affect the legal right of the parties. Mr. Dasgupta has drawn my attention to the explanation to Section 115 of the Code where the term "any case which has been decided" was explained to include any order made or any order deciding an issue in the course of a suit or other proceeding. Mr. Dasgupta, therefore, argued that it was not the legislative intention to curtail the power of the High Court to entertain revisional application under Section 115 of the Code against interlocutory orders. Mr. Dasgupta submitted that the word "proceeding" used in Section 115 contemplates exercise of revisional jurisdiction by the High Court against interlocutory orders. Mr. Dasgupta draws my attention to the decision of the Supreme Court of India in the case of Bdbu Lal v. Hazari Lal Kishori Lal and Ors., reported In and has drawn my attention to the observations of the Apex Court that the term proceeding was a very comprehensive term and generally meant a prescribed course of action for enforcing a legal right. The Apex Court observed, further, that it was a general term giving widest freedom to a Court of law so that it might do justice to the parties in a case. It marked a stage in litigation and was step in the ladder in the journey of litigation as there were various stages. Mr. Dasgupta, also, referred to the decision in the case of P.L. Kantha Rao and Ors. v. State of Andhra Pradesh and Ors., where the Apex Court held that the word proceeding would depend upon the scope of enactment wherein the expression has been used with reference to a particular context where it occurred. Mr. Dasgupta submitted that the word "proceeding" has not been defined in the Code. Mr. Dasgupta, therefore, referred to the dictionaries for the meaning. In Black's Law Dictionary (5th Edition, 1979) it was, inter alia, observed that the word proceeding has been used in a general sense, the form and manner of conducting juridical business before a Court or Judicial Officer. It includes regular and orderly progress in form of law including all possible steps in an action from its commencement to the execution of the judgment. The term proceeding might refer not only to a complete remedy, but, also, to a mere procedural step that was a part of larger action or special proceeding. Mr. Dasgupta, also, drew my attention to P. Ramanatha Aiyar's Law Lexicon (Second Edition, 1997). It has been observed that the term proceeding includes all possible steps in an action from its commencement to its execution. The word proceeding when applied to suit, it might be used to mean the suit as a whole or it might be used to express the separate steps taken in course of a suit the aggregate of which makes up the suits. Mr. Dasgupta, also, cited the well-known decisions in the cases of Major S.S. Khanna v. Brig. F.J. Dillon, and Baldevdas Shivlal and Anr. v. Filmistan Distributors (India) Pvt. Ltd. and Ors., . The Apex Court while interpreting the expression "case" referred to in Section 115 of the Code observed that the expression case included a suit, but in ascertaining the limit of jurisdiction of the High Court, there would be no warrant for equating the same with the suit alone. In Baldevdas (supra) the Apex Court observed, 'The expression 'case' is not limited in its import to the entirety of the matter in dispute in an action. The expression 'case1 is a word of comprehensive import... To interpret the expression 'case' as an entire proceeding only and not a part of the proceeding imposes an unwarranted restriction on the exercise of powers of superintendence and may result in certain cases denying relief to the aggrieved litigant where it is most needed and may result in the perpetration of gross injustice. ... A case may be said to be decided, if the Court adjudicates for the purpose of the suit some right or obligation of the parties in controversy." Mr. Dasgupta, also, cited the decision of a learned Judge of the Allahabad High Court in Ram Kishan Prajapati v. Smt. Narbda and Ors., reported in 1999 Allahabad Law Journal 1001 where the learned Judge observed that other proceeding used in Section 115 of the Code of Civil Procedure might include not only the original proceeding, but, also, interlocutory proceeding in other proceeding as well as interlocutory proceeding in a suit. Mr. Dasgupta, therefore, argued that there are various interlocutory orders in the course of a suit or other proceeding, which have direct bearing on the ultimate decision in the suit or other proceeding and yet no appeal lies against such order and as such it was not conceivable that by amending Act of 1999, the High Court is denuded of its power of revision in respect of such orders when the subordinate Court exercises 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 and with material irregularity. Mr. Dasgupta submits that the Section 115 enjoins the High Court may makes such order in exercise of its revisional power in the case as it thinks fit. Mr. Dasgupta argued that by insertion of the proviso, the effect of the main provisions of Section 115 of the Code cannot be nullified, which enables the High Court to call for the record of any case, which has been decided by the Court subordinate to such High Court in course of a suit or other proceeding with a view that the High Court may makes such order in the case as it thinks fit. According to Mr. Dasgupta there is no restriction on the power of the High Court in doing so. Mr. Dasgupta has drawn my attention to paragraph 504 (Volume 26) from Halsbury's Laws of England (Fourth Edition, 1979). The said section is quoted herein below:
"504. Final and interlocutory judgments and orders. There is no definition in the Judicature Acts or the rules of Court made under them of the terms 'final' and 'interlocutory', and a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. It is impossible to lay down principles about what is final and what is interlocutory. It is better to look at the nature of the application and not at the nature of the order eventually made. In general, orders in the nature of summary judgment where there has been no trial of the issues are interlocutory."
Mr. Dasgupta referred to the decision in the case of Amarnath and Ors. v. State of Haryana and Anr., . Mr. Dasgupta submits that a proviso or an exception to the main provision cannot be so interpreted so as to nullify or destroy the main provision. Mr. Dasgupta in this connection cited Maxwell on the Interpretation of Statutes and, particularly, he has drawn my attention to the following observations of the learned author that unless the words were clear, the Court should not so construe the proviso as to attribute an intention to the legislature to give with one hand and take away with another. A sincere attempt should be made to reconcile the enacting clause and the proviso and to avoid repugnancy between the two. Mr. Dasgupta drew my attention to Sections 254 and 255 from Crawford's the Construction of Statutes (1998 reprint, published by Pakistan Law House) and argued that the statutes, which relate to remedies and procedure, perhaps because they are remedial in character, should, also, receive a liberal construction in order to promote justice and to carry out their respective purposes, and especially so as to secure a more effective, a speedier, a simpler, and a less expensive administration of the law. Mr. Dasgupta cited the decisions in the case of Madras and Southern Mahratta Ry. Co. Ltd. v. Bezwada Municipality, where the Judicial Committee explained the proper functioning of a proviso by observing "The proper function of proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case. Whereas in the present case, the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it by implication what clearly falls within its express terms." Mr. Dasgupta, also, cited the decisions in the cases of Tahsildar Singh and Anr. v. State of Uttar Pradesh, and T. Devadasan v. Union of India and Anr., . Therefore, Mr. Dasgupta argued, when the legislature has retained the main part of the section, the High Court is competent to call for the records in any case, which has been decided by any Court subordinate to such High Court and is entitled Unmake such order as it thinks fit. Finally, Mr. Dasgupta argued that in case it is necessary for the ends of justice and to prevent abuse of the process of the Court, the High Court is entitled to exercise the inherent power to remedy the wrong. It is submitted that the proviso, which is a provision in the Code, in view of the language of Section 151 of the Code of Civil Procedure, cannot limit the inherent power of the High Court. In appropriate cases, it is submitted, that the inherent of the Civil Court can be exercised to interfere with an illegal order.
4. Mr. Prabal Kumar Mukherjee, learned advocate, appearing for the opposite parties, submitted that although he was opposing the revisional application on merits, but he was not opposing the submissions of Mr. Dasgupta on the question of the scope of the revisional jurisdiction of this Court even after the amendment of Code of Civil Procedure by the amending Act of 1999 and, in fact, Mr. Mukherjee initially adopted the submissions on the said question advanced by Mr. Dasgupta. In the second thought, however, Mr. Mukherjee disputed the contentions of Mr. Dasgupta and argued that the petitioner in this revisional application is not entitled to challenge the order impugned as the tests laid down in the proviso to Section 115 are not satisfied.
5. Mr. Ashoke Mukherjee, learned senior advocate, and Mr. Pushpendu Bikash Sahoo, learned advocate, also, advanced their submissions on this point. While adopting the arguments advanced by Mr. Dasgupta, Mr. Sahoo requested me to consider Section 298 of Crawford's Construction of Statutes and has drawn my attention to the observation of the learned author that if a proviso cannot be given sensible effect because of omissions or accidental mistakes in the use of words, it may be entirely disregarded and, further, if it cannot be reconciled with the body of the statute, it may, also, be disregarded. Mr. Sahoo referred to the Apex Court's decision in the case of Abdul Jabar Butt and Anr. v. State of Jammu and Kashmir, and has drawn my attention to the observations of the Apex Court that it has been a fundamental rule of construction that a proviso must be considered in relation to the principal matter. Therefore, the proviso in question has to be constructed harmoniously with the provisions of the main section to which it has been a proviso.
6. Mr. Partha Sarathi Sengupta, learned advocate, on the contrary, submits that in view of deletion of Clause (b) from the proviso to Section 115 of the Code of Civil Procedure by Code of Civil Procedure (Amendment) Act, 1999, no revisional application can be moved unless the tests of the present proviso is satisfied, that is, even if the tests referred to in Section 115(1) are satisfied, no civil revisional application can be moved by a petitioner for variation or reversal of any order in 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 proceeding. Mr. Sengupta submits that the intention behind the amendment is to curtail the revisional power of the High Court and in the event the contentions advanced by Mr. Dasgupta are accepted, the very purpose of amendment of Section 115 by the amending Act of 1999 will be redundant. Mr. Sengupta contradicted the contentions of Mr. Dasgupta that the expression other proceedings include interlocutory or supplemental proceeding to a suit as the expression in course of the suit takes care of interlocutory orders. The expression other proceedings, according to Mr. Sengupta, has been used by the legislature with definite intention to vest the High Court with the power of revision in respect of orders that may be passed in the proceedings, which are registered not as suits, but are entertained and decide by the Courts subordinate to High Court. Mr. Sengupta referred to the meaning of the word 'other' as explained in Black's Law Dictionary and submitted that the other proceeding indicates different and distinct proceedings from those registered as suit. Mr. Sengupta heavily relied upon the decisions in the cases of Phool Singh v. Mavla, and K.R. Subbaraju v. Vasavi Trading Company and Ors., . Mr. Sengupta seriously disputed the contentions of Mr. Dasgupta that the inherent power of the Civil Court can be invoked in spite of amendment of the Code of Civil Procedure by amending Act of 1999 as inherent power can be invoked in respect of the fields not covered expressly by the provisions of the Code. Mr. Sengupta in support of his contentions cited the decisions in the cases of Manilal Mohanlal Shah and Ors. v. Sardar Sayed Ahmed Sayed Mahmad and Anr., , Talab Haji Hussain v. Madhukar Purshottam Mondkar and Anr., reported in 1958 SCR 1226, R.P. Kapur v. The State of Punjab, , Padam Sen and Anr. v. The State of Uttar Pradesh, , The Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. The State of Delhi, reported in (1962) Suppl. (1) SCR 187 and Arjun Singh v. Mohindra Kumar and Ors., .
7. In order to appreciate the scope, in my view, it is necessary to note the history of the legislation;
The Legislative Council of India passed the Code of Civil Procedure, 1859 (Act VIII of 1859), which received the assent of the Governor General on March 22, 1859. The said Code was enacted to simplify the procedure of the Courts of Civil judicature not established by Royal Charter. The said Code did not contain any power of revision. The said Code of 1959 originally intended for application in the Courts not established by Royal Charter and it was not till the year 1862 when it was extended to the Courts in the presidency towns.
In 1862 the Supreme Courts and the Courts of Sudder Dewanny Adawlut in the three presidency towns, namely, Calcutta, Madras and Bombay were abolished. The procedure in the former had been the English procedure modified by local enactments and the local laws regulated that of the latter.
The British Parliament enacted High Courts Act (24 and 25, vic., c. 104) in the session of such Parliament for the year 1861. Under Section 1 of the said Act it was provided that it should be lawful to erect and establish a High Court of Judicature at Fort William in Bengal for the Bengal Division of the Presidency of Fort William aforesaid by Letters Patent under the seal of United Kingdom and by likely Letters Patent to erect and establish like High Courts at Madras and Bombay for those presidencies.
Under Section 9 of the said Act each of the High Courts should exercise all such civil, criminal, admiralty and vice admiralty, testamentary, intestate, matrimonial jurisdiction, original and appellate, and all such powers and authority in relation to the administration of justice in the presidency.
Under Section 15 of the said Act the High Courts would have superintendence over all Courts, which might be subject to its appellate jurisdiction and authority to frame rules of practice for subordinate Courts. This section gave to the High Courts large power over the inferior Courts to compel them to do any act, which by law they should do, and to command them to execute all powers with which they are vested and to restrain them from meddling when they have no jurisdiction.
In pursuance of the said Act, Letters Patent were issued constituting High Courts of Bengal, Madras and Bombay. The Letters Patent constituting the High Court of Judicature for the Bengal Division of the Presidency of Fort William was issued on May 14, 1862. The said Letters Patent was, however, revoked by Letters Patent dated December 28, 1865 in order to make further provision respecting the Constitution of the said High Court and the administration of justice thereby.
Therefore, for the first time, in view of the said Act, High Court was vested with the power of superintendence over all Courts subordinate to it and to frame rules for practice for subordinate Courts.
Thereafter, Code of Civil Procedure 1877 (Act X of 1877) was passed and it came into force with effect from October 1, 1877. Under Section 622 of the said Code High Court was vested with the power of revision.
Section 622 of the said Act ran as under:
"622. The High Court may call for the record of any case in which no appeal lies to the High Court, if the Court by which the case was decided appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, and may pass such order in the case as the High Court thinks fit."
The said provision of the Section 622 was amended by Act XII of 1879 by the addition of the words "or to have acted in the exercise of its jurisdiction illegally or with material irregularity" after the words "so vested".
When the Code of Civil Procedure, 1882 was enacted, which came into force on June 1, 1882, the amended provision of the said Section 622 was retained.
The said provision ran as under:
"622. The High Court may call for the record of any case in which no appeal lies to the High Court, if the Court by which the case was decided appears to have exercised a Jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity, and may pass such order in the case as the High Court thinks fit."
8. When Code of Civil Procedure, 1908 was enacted, which came into force with effect from January 1, 1909, the provision of Section 622 of the earlier Code was retained as Section 115 of the Code of Civil Procedure in the following form:
"115. Revision. 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."
9. The Law Commission studied the provisions of Section 115 of the Code of Civil Procedure and observed that the fact that the large percentage of the revision applications, particularly against interlocutory orders, are lacking in substance and were eventually dismissed was not a ground for curtailing the powers of the High Court in revision generally. Nevertheless, an amendment of the law was necessary in order to remedy the grave evil of delay arising out of revision applications against interlocutory orders. It would strengthen the hands of the revision Courts and constantly remind them of the danger of entertaining and granting stay in revision applications against interlocutory orders, if provisions be made in Section 115 of the Code that nothing therein should apply to interlocutory orders from which no appeal lies, unless the order is likely to occasion a failure of justice or cause an irreparable injury. Therefore, the Law Commission in its 14th report made the following recommendations:
"(1) The expression 'case decided' in the section should be clarified so as to include within it an interlocutory order including an order deciding an issue from which no appeal lies.
(2) Provision should, however, be made in the section, limiting the power of revision to such interlocutory orders which, if decided in favour of the petitioner would be sufficient for the final disposal of the suit or proceeding; or in which the order is likely to occasion a failure of justice or cause an irreparable injury.
(3) The words 'in which no appeal lies thereto' in the first part of the section should be altered so as to make untenable the view of the Rajasthan High Court that no revision will lie if the order could be brought before the High Court eventually in second appeal or be made the subject matter of a ground of appeal to the High Court under Section 105 of the Civil Procedure Code. Our intention is that the right of moving the High Court in revision should be denied only in cases where an appeal lies either to the High Court or to the District Court from the order in question."
10. In the 54th report, however, the Law Commission recommended deletion of Section 115 and observed:
"Section 115 deals with the High Court's power of revision. Briefly speaking, in a case not subject to appeal, it empowers the High Court to call for the records of a case decided by an inferior Court, and if the inferior Court has exercised a jurisdiction not vested in it by law of failed to exercise jurisdiction vested by law or acted with material irregularity, etc. in the exercise of its jurisdiction, the High Court can interfere.
Experience shows that often the cause of delay in the trial of suits is the entertainment of petitions for revision against interlocutory orders, which invariably result in stay of proceedings. In fact in many cases, the object of the parties in moving the High Courts under Section 115 of CPC may be to delay the progress of the proceedings.
This question has been considered in the past more than once. We have in our Questionnaire issued on the Code (Question 13} put a question as to whether the present powers should not be abolished or drastically curtailed.
Most of the replies to the above questions do not favour a change in the law. But having considered the matter carefully, we have come to the conclusion that the provision in the Code as to revision should be deleted. The discretion of the Court in granting or refusing to issue commissions, and with regard to many more miscellaneous matters, should not be open to revision under Section 115.
It is against such orders that revision are generally filed, resulting in a stay of the proceedings and consequent delay in the disposal of cases.
We may note that serious cases of injustice can be dealt with under Article 227 of the Constitution.
Having regard to the above position, and of the fact that where injustice has resulted, adequate remedy is provided for by Article 227 of the Constitution for correcting cases of excess of jurisdiction, we are of the view that it is not longer necessary to retain Section 115. Article 227, we are sure, will cover every case of serious injustice; and, in that sense, that Article is wider than Section 115.
We, therefore, recommend that Section 115 should be deleted."
11. But the Joint Committee of the Parliament did not agree with the recommendations of the Law Commission and suggested that the Section should be retained, in addition to the restrictions already contained in Section 115 an overall restriction on the scope of applications for revision against interlocutory orders should be imposed.
12. The Joint Committee of the Parliament observed:
"By Clause 45 of the Bill, Section 115 of the Code was proposed to be omitted. The question whether it is at all necessary to retain Section 115 was carefully considered by the Committee, The Law Commission has expressed the view that in view of Article 227 of the Constitution. Section 115 of the Code is no longer necessary. The Committee, however, feel that the remedy provided by Article 227 of the Constitution is likely to cause more delay and involve more expenditure. In remedy provided in Section 115 is, on the other hand, cheap and easy. The Committee, therefore, feel that Section 115, which serves a useful purpose, need not be altogether omitted particularly on the ground that an alternative remedy is available under Article 227 of the Constitution.
The Committee, however, feel that, in addition to the restrictions contained in Section 115, an overall restriction on the scope of applications for revision against interlocutory orders should be imposed. Having regard to the recommendations made by the Law Commission in its Fourteenth and Twenty-seventh Reports, the Committee recommend that Section 115 of the Code should be retained subject to the modification that no revision application shall lie against an interlocutory order unless either of the following conditions is satisfied, namely:
(i) that if the orders were made in favour of the applicant, it would finally dispose of the suit or other proceeding; or
(ii) that the order, if allowed to stand, is likely to occasion a failure of justice or cause an irreparable injury.
The Committee feel that the expression "case decided" should be defined so that the doubt as to whether Section 115 applies to an interlocutory order may be set at rest. Accordingly, the Committee has added a proviso and an Explanation to Section 115."
13. Consequently, Section 115 of the Code was amended. The original Section 115 was renumbered as Sub-section (1) and a proviso was added likewise, Sub-section (2) and an explanation, also, came to be inserted. After the amendment by the Code of Civil Procedure (Amendment) Act, 1976 (Act of 1976) Section 115 of the Code of Civil Procedure read as follows:
"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 the 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-
(a) 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
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. (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.
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."
14. Under Section 97(2)(o) of the said amending Act of 1976 it was stipulated that the amendment of Section 115 of the Principal Act by Section 43 of the amending Act of 1976 should not apply to or affect any proceeding for revision which had been admitted, after preliminary hearing, before the commencement of the said Section 43 and every such proceeding for revision should be disposed of as if the said Section 43 had not come into force.
15. By Section 12 of the Code of Civil Procedure (Amendment) Act of 1999 the Section 115 was amended. By the said Section 12 of the amending Act of 1999 in Section 115 of the Principal Act in Sub-section (1) the existing proviso was substituted by a new proviso and after Sub-section (2), subsection (3) was inserted. Under Section 32(2)(i) it has been provided that the provision of Section 115 of the Principal Act, as amended by Section 12 of the amending Act of 1999, should not apply to or affect any proceeding for revision, which had been finally disposed of.
16. The present Section 115 runs as under:
"115. Revision. (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.:
Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an Issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.
(2) The High Court shall not; under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.
(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.
Explanation: In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding."
17. The Section 12 of the amending Act of 1999 is based on the recommendation of Justice V.S. Malimath Committee, the resolution adopted in the conference of the Law Minister held in New Delhi on June 30, 1997 and July 1, 1997, 129th report of the Law Commission of India and the recommendations of the committee on subordinate legislation. It was proposed to introduce a bill for the amendments of the Code of Civil Procedure, 1908 keeping in view, inter alia, that every effort should be made to expedite the disposal of civil suits and proceedings so that justice might not be delayed. The Malimath Committee reported as under:
"We have given anxious consideration to the question as to whether Section 115 should be amended in such a way as to debar the revisional jurisdiction in respect of an interlocutory order passed in an appeal, trial or other proceeding, to prevent the delay in the proceedings of the subordinate Courts caused due to the frequent filing of revision petitions against all interlocutory orders. The committee Is of the opinion that the object sought to be achieved can more effectively be achieved by deleting Clause (b) to the proviso to Sub-section (1) of Section 115 CPC which reads:
"The order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made."
"If revision against all types of interlocutory orders is barred it will virtually denude the High Court of the power of revision. Having regard to the constraints already placed upon the exercise of the revisional powers by the existing provisions of Sub-section (1) of Section 115 CPC would, to some extent, come in conflict with the said clause which envisages interference by the High Court even with interlocutory orders which, if had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding. In fact, the retention of the existing revisional power with the restrictions contained in Clause (a) of the proviso would enable the High Court to put an end to unsustainable and protracted litigation in subordinate Courts. For example, in case a suit is clearly barred by limitation or by the principles of res judicata or is not maintainable on the ground of lack of jurisdiction and an erroneous order passed by the trial Court on an issue covering such a dispute is not corrected in revision on the ground that the decision is of interlocutory nature, there would be unnecessary protraction of the litigation in the subordinate Courts contributing to increase in arrears. At the same time, Clause (b) of the proviso to Sub-section (1) of Section 115 CPC which enable interference in revision on the ground that an order if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made, leaves wide scope for the exercise of the revisional power with all types of interlocutory orders presumably not intended.
While the Committee agrees, in principle, that the scope of interference against interlocutory orders should be restricted, it feels that object can more effectively be achieved without, at the same time, denuding the High Court of the power of revision, by deleting Clause (b) of the proviso to Sub-section (1) of Section 115 CPC the Committee, therefore, recommends that the only amendment which is required to be made in Sub-section (1) of Section 115 of the Code of Civil Procedure is to substitute the existing proviso to Sub-section (1) by the following:
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 proceeding."
"It has been noticed that often records of the lower Court in a pending proceeding are sent for reference in revision petitions. It cannot be gainsaid that once the records are sent to the High Court, the trial or the suit, proceeding or hearing of the appeal comes to a halt, even though no stay of proceedings has been granted by the High Court. It is imperative that records of proceedings pending in the subordinate Courts should not be sent unless the High Court expressly so desires. In order to effectively implement this proposal, instead of leaving the matter to the respective High Courts to make an appropriate provision in their Rules or Orders, we recommend that the following shall be added as Sub-section (3) to Section 115 of Code of Civil Procedure.
In a revisional proceeding under this section against interlocutory decisions, the subordinate Court shall not send its records unless the High Court expressly so directs."
18. It is pertinent to note here that Code of Civil Procedure (Amendment) Act of 1999 and Civil Procedure (Amendment) Act of 2002 were challenged in the Supreme Court of India and the Apex Court in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, reported in 2002 SAR (Civil) 922 upheld the vires of the said amending Acts.
19. The first ever decision on the scope of the amendment of Section 115 has been delivered by the Madhya Pradesh High Court in the case of Phool Singh (supra). In the said decision a learned Judge of the said Court held, "The Legislature has clearly intended to limit the jurisdiction of the High Court in exercising the powers under revision and now that can only be exercised in cases 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 otherwise not. Therefore, the clear meaning is that now no revision would be maitainable against any Interlocutory order if it would not have the effect of finally disposing of the suit or other proceedings......Therefore, now revision would only lie against such interlocutory orders which would finally disposed of the suit or other proceedings and no revision would lie against nay other interlocutory orders which would not finally dispose of the suit or other proceedings and no orders can be passed in pending cases in which other interlocutory orders are under challenge. Thus rightly so the scope of revision has been restricted by Legislature by substituting proviso by amendment in the Principal Section 115 of the Code of Civil Procedure by Amendment Act, 1999 (No. 46 of 1999) with effect from 1.7.2002."
20. The next decision has been delivered by the Bombay High Court in the case of Rajababu v. Dinkar, reported in 2002(3) Maharashtra Law Journal 921 where it has been held that all revisional applications, whether pending as on July 1, 2002 or filed thereafter would have to be dealt with strictly in accordance with the provisions of the amended Section 115 of the Code of Civil Procedure. It was, further, held that no revision application against an interlocutory order would be entertainable even if the order has been made prior to July 1, 2002 as moving the High Court under Section 115 of the Code has been held not to be a right.
21. The next judgment of the Bombay High Court is in the case of Nagorao v. Narayan Nagan Yerawar, reported in 2002(4) Maharashtra Law Journal 615 where it has been observed "what is contemplated by Section 115 as amended in 2002 is that the order should be such if made in favour of the revision applicant would have finally disposed of the suit or other proceedings. The Civil suit in which temporary injunction is granted or not granted is not decided finally either by grant or refusal thereof and continues to pending. Taking into consideration this aspect of the matter, therefore, it cannot be said that merely because the revision application is directed against an order passed by appellate Court finally deciding the Miscellaneous Appeal under Order 39, Rule 1 read with Order 43, Rule 1 Civil Procedure Code, the revision is maintainable. What is now necessary after July, 2002 for maintaining a revision is that the order impugned in revision must have the effect of finally disposing of the suit or proceedings in favour of the person who applies for revision. By very nature of things and the nature of Order 39 itself, such a contingency cannot occur and consequently, a revision application whether against an appellate order or original order granting or refusing injunction is not maintainable after 1.7.2002."
22. In Zahida Nizamuddin Jalal and Ors. v. Abidali Jafferali Syyed and Ors., reported in 2002(4) Maharashtra Law Journal 913 a learned Judge of the Bombay High Court held that the expression 'other proceeding' in the proviso to Section 115 of the Code of Civil Procedure, as amended by Amending Act of 1999, has to be understood in the context in which it has been used. The whole purpose behind imposing restrictions upon the exercise of revisional powers being to curtail obstruction to the speedy disposal of the suit. To interpret the expression 'other proceeding' to include supplementary proceedings in a suit would defeat the very purpose behind the incorporation of the said proviso to Section 115 of the Code of Civil Procedure.
23. Similarly, the Karnataka High Court in the case of K.R. Subbaraju (supra) held that in view of the amendment made in Section 115 of the Code, which has become operative from July 1, 2002, the revisional jurisdiction of the High Court has now been materially restricted. The effect of the amendment is that even if the order sought to be impugned suffers from jurisdictional error, it cannot be interfered with under Section 115 of the Code unless it can be shown and found that if the order impugned would have been made in favour of the party applying for revision, it would have finally disposed of the suit or other proceeding. The word 'other proceeding' used in the proviso has to be understood as speaking about proceeding divorced of the suit.
24. My reading of the present provisions of Section 115 of the Code of Civil Procedure is that with effect from July 1, 2002, when the amended provisions have come into force, the revisional jurisdiction of the High Court has been materially restricted. In order to invoke the revisional jurisdiction of the High Court, the party concerned is not only to satisfy the High Court that by the order impugned subordinate Court exercised a jurisdiction not vested in it by law or failed to exercise a jurisdiction vested in it by law or acted in the exercise of its jurisdiction illegally or with material irregularity, but, also, to satisfy the High Court that if the order had been made in his favour that would have finally disposed of the suit or other proceeding. I am not suggesting for a moment that the interlocutory orders or orders passed in supplemental proceedings cannot be challenged under present Section 115 of the Code. The section does not make any differentiation between the classes of orders, which can be challenged. It only provides that for invoking the revisional jurisdiction of the High Court, the petitioner must satisfy the requirements of the proviso to Section 115. The legislature in its wisdom introduced amendments for imposing restrictions on the powers of revision by the High Court. In view of deletion of Clause (b) from the proviso, which was introduced by 1976 Amendment, the revisional power can be exercised by the High Court only wen the order impugned, if had been made in favour or the party applying for revision, would have finally disposed of the suit or other proceeding. Now by the proposed amendment the legislature suggested that no revision would lie against such orders, which do not finally decide the lis. The High Court can, therefore, revise any order of any Court subordinate to it when it appears to the High Court that the said Court has exceeded jurisdiction vested in it by law or refused to exercise a jurisdiction vested in it by law or acted illegally and with material irregularity in the exercise of the jurisdiction, but in invoking the revisional jurisdiction it is incumbent, as required by the proviso, that the impugned order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding. The legislature consciously deleted the power of the High Court to interfere with any kind of order, which, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
25. I am unable to accept the contentions advanced before me that in exercising the revisional power, the High Court could ignore the proviso to the main section. In my view, the proviso will prevail as it speaks the last intention of the makers. Moreover, the Apex Court in the case of Prem Bakshi and Ors. v. Dharam Dey and Ors., while considering the power of the High Court under Section 115 of the Code of Civil Procedure, as it stood prior to amendment of 1999, observed as under:
"The proviso to Sub-sections (1) and (2 with Explanation was added by the amending Act of 1976. By this amendment the power of the High Court was curtailed; the intention of the legislature being that the High Court should not interfere with each and every interlocutory order passed by the trial Court so that the trial of a suit could proceed speedily and that only the interlocutory order coming under Clause (a) or (b) of the proviso would be entertained by the High Court."
26. Therefore, it can never be suggested that the High Court can interfere with each and every order passed by a Court subordinate to it only if the requirements of Sub-sections (1) of Section 115 are satisfied or for ends of justice or to prevent abuse of the process of the Court can refuse to look into the proviso to said Sub-section (1). I hold that amendment was introduced by the amending Act of 1999 to restrict the power of revision only in respect of cases where the order would have finally disposed of the suit or the proceeding if it had been made in favour of the party applying for revision.
27. Now, I proposed to consider the meaning of the expression 'other proceeding' referred to in the proviso to Sub-section (1) of section of Section 115 of the Code. My reading of the statute is it was never the intention of the makers of the law that by inclusion of the expression 'other proceeding' they intended to vest the High Court with the power of revision even in respect of order that may be passed in interlocutory or supplemental proceeding to a suit. In my view, the expression 'in the course of a suit' is sufficient to vest the High Court with the power of revision against the interlocutory orders passed by the Court subordinate to it provided, however, the requirements of the proviso are satisfied. My reading is that by insertion of the expression other proceeding the legislature intended to vest the High Court with the power of revision in respect of orders passed in the civil proceedings, which are registered other than suits. The expression 'other' indicates different and distinct proceedings from those, which are registered as suits. A Full Bench of this Court in the case of Deb Narain Dutt v. Narendra Krishna and Anr., reported in ILR 16 Calcutta 267 held that "The word 'proceeding' is a very general one, it is not limited to proceedings connected with civil suits; but includes, I suppose, proceedings other than civil proceedings, and civil proceedings other than suits."
28. If the interpretation, suggested by some of the learned members of the bar, that in view of the insertion of the expression other proceeding all types of orders passed in interlocutory or supplemental proceeding can be revised by the High Court, the very purpose of the introduction of the amendment will be frustrated inasmuch as the whole purpose behind introduction of the amendment by amending Act of 1999 in respect of the exercise of the revisional power was to curtail the power of revision in order to avoid delay in disposal of the suit or the proceeding,
29. I am unable to accept the contentions that in exercise of the inherent power the High Court, for ends of justice or to prevent abuse of the process of the Court, can invoke the revisional jurisdiction overlooking the proviso to Sub-section (1) of section 115 of the Code. Such submission does not appeal to me since it is contrary to the clear and unambiguous language of the statute. There is no ambiguity in the language of the statute. The inherent powers of the Civil Court can ordinarily be exercised when there is no legislation on a particular field or subject matter. Where there is an express provision barring a particular remedy, the Court can never resort to the exercise of inherent power, particularly, to nullify the effect of the express provision. It Is the ordinary rule of interpretation that to exercise the power the requisite condition must be fulfilled.
30. Therefore, now revisional application will only lie against such final or interlocutory order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or the proceeding.
31. The present revisional application is directed against order No. 40 dated June 8, 2001 passed by the learned Additional District Judge, Second Court at Barasat in Matrimonial Suit No. 29 of 1996. By the order impugned the learned Judge rejected an application filed by the husband for amendment of his written objection to the application filed by the wife under section 24 of Hindu Marriage Act. It can never be said that the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit. In view of my discussion hereinabove, the present revisional application under section 115 of the Code of Civil Procedure is not maintainable.
32. Mr. Dasgupta, learned senior advocate, appearing for the petitioner, prays for leave to amend the cause title of the revisional application to convert the same into an application under Article 227 of the Constitution of India.
33. In Bharatkumar Shrimannnarayan Agarwal and Ors. v. Anita Turst, reported in 2002(4) Mah LJ 597 a learned Judge of the Bombay High Court declined to accede to the request for conversion of the revisional application filed under section 115 of the Code of Civil Procedure into an application under Article 227 of the Constitution of India with the following observations:
"Viewed from any point, therefore, it is not possible for me to accede to the request that revision application filed under section 115 of the Civil Procedure Code can be converted into a writ petition. After operation of the amendment section 115, revision application must end. Proceedings must terminate as the petition is not maintainable. To entertain a not maintainable petition and say on it that it should be transposed as a writ petition to get the jurisdiction in order to nullify the legislative intent is such a course which the Supreme Court has positively disapproved in the case of State of Himachal Pradesh v. Raja Mahendra Pal, cited supra. When both the jurisdictions are co-existing and are available to the litigants, to say or to permit a litigant after six years of pendency or for that matter six days of pendency of an application which by operation of law is not maintainable, be permitted to be made a petition under Article 227 would be setting, at naught the legislative mandates. Such exercise of jurisdiction under Article 227, in my opinion, is not permissible."
34. It seems that the attention of the learned Judge was not drawn to Apex Court decision in the case of Municipal Corporation of Delhi v. R.P. Khaitan and Anr., reported in 79 (1999) Delhi Law Times 555 (SC) where the Apex Court observed as under:
"It is true that the extraordinary remedies provided under Articles 226 and 227 of the Constitution are dependent upon the High Court willing to interfere in a matter for which a large measure of discretion rests with it. Its power is so wide so as to envelope riot only all aspects of the matter but orders can be passed of such nature as the High Court thinks fit. The jurisdiction as such is not curtailed to meet questions of parameters. On the other hand, the regular remedy under section 115, CPC is hedged by the language of the provision. Only errors of jurisdiction and material irregularities in the exercise of jurisdiction bring about a cause within the ambit of that provision. All the same it is worthy of notice that the Forum for the aforementioned three remedies ordinary as well as extraordinary is with the High Court itself. We see no reason then as to why the frame of the cause be determinative. It is for the litigant to choose the remedy and it is for the High Court to grant or deny relief thereon having regard to the facts and circumstances of each case. We may, however, add that the existence of an alternative remedy can be itself be a ground for the High Court refusing to exercise jurisdiction but it is not as if jurisdiction of the High Court is ousted by such existence. The High Court's dependence on Visheh Kumar v. Shanti Prasad, in refusing to convert a petition under section 115, CPC to be one under Article 227 of the Constitution may have been justified on the facts of that case, but the same cannot be treated as a precedent to oust jurisdiction of the High Court vested in it under the law. The High Court certainly is entitled to convert any proceeding instituted before it in one manner to be that of another provided a proper cause has been made out and in he interest of justice."
35. I, therefore, accept the prayer made by Mr. Dasgupta and permit his client to convert the present revisional application under section 115 of the Code of Civil Procedure into an application under Article 227 of the Constitution of India within a week from date. The petitioner is, further directed to put in additional Court fees, if any, within the aforesaid period.
Put up the matter under the heading 'listed motion' on February 14, 2002.