Patna High Court - Orders
Durga Devi vs Vijay Kumar Poddar & Ors on 27 April, 2010
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.1067 of 2009
Durga Devi, Wife of Shri Kailash Prasad Agrawal, resident of Mohalla-
Ram Chowk, Shamsherganj, P.S.-Town, District-Darbhanga.
.... .... Intervenor-Petitioner
Versus
1. Vijay Kumar Poddar, Son of late Nagarmal Poddar, resident of
Mohalla-Bara Bazar, P.O.-Lal Bagh, Darbhanga, P.S.-Town, District-
Darbhanga.
.... .... Plaintiff-Opposite Party
2. Shri Narayan Prasad Poddar, Son of late Nagar Mal Poddar, resident of
Mohalla-Bara Bazar, P.O.-Lal Bagh, Darbhanga, P.S.-Town, District-
Darbhanga at present, Resident of Sharda Automobile, Mirzapur
Station Road, P.S.-Town, District-Darbhanga.
3. Om Prakash Poddar, Son of late Nagar Mal Poddar, resident of
Mohalla-Bara Bazar, P.O.-Lal Bagh, Darbhanga, P.S.-Town, District-
Darbhanga at present, Swastik Automobile, Mirzapur Mirzapur, Near
Maleksha Mardani Mandir, Mirzapur, District-Darbhanga.
.... Defendants-Opposite Parties
with
C.R. No. 1512 of 2009
1. Bishwanath Das
2. Suresh Prasad Das
3. Subash Das
All sons of Late Chini Das, resident of village Ahirani Tola,
Bagaha, Ward No.28, P.O.+P.S. Bagaha, District West
Champaran.
4. Kadir Mian son of Mohar Mian Resident of village Ansari tola
Bagaham, P.O.+P.S. Bagaha, District West Champaran
5. Dinanath Prasad Son of Batasa Das R/o At P.O.+P.S.-Bagaha, District-
West Champaran.
6. Subash Soni, Son of Late Sambhu Prasad resident of village-Harnatand,
P.S. Harnatand, at present Bagaha Bazar, Distt. West Champaran.
7. Amit Kumar Son of Rakesh Das, R/o Ahirani Tola P.O.+P.S. Bagaha,
District West Champaran.
8. Prakash Prasad, Son of Late Ram Das, R/o Village-Banakatawa,
P.O.+P.S. Bagaha, District West Champaran.
9. Shambhu Prasad, Son of Jagernath Prasad, Resident of village Chhotki
Patti, P.O. Rajwatia, P.S. Bagaha, District-West Champaran.
10. Rambhu Thakur, Son of Ganesh Thakur, R/o Village-Bhaisahi,
P.O.+P.S. Bagaha, District West Champaran.
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11. Ranju Bhalotia @ Ranju Devi, W/o Bimal Kumar Valotia, R/o at
P.O.+P.S. Bagaha, District West Champaran.
12. Dadul Mian, Son of Late Mohamddin Mian, Resident of Mastan Tola,
P.O.+P.S. Bagaha, District West Champaran.
13. Mohan Prasad Son of Shiv Nandan Sah, R/o AT P.O.+P.S. Bagaha,
District West Champaran.
14. Anup Kumar, Son of Birendra Prasad
15. Birendra Gupta, Son of Late Raj Kishore Prasad
Both R/o Village Bagaha Bazar, P.O.+P.S. Bagaha, District West
Champaran.
16. Sanjay Kumar son of Devaki Prasad
17. Rabindra Kumar Son of Madan Prasad
Both R/o Bagaha Bazar, P.O.+ P.S. Bagaha, District West
Champaran.
.... .... Defendants-Petitioners
Versus
1. Sushil Kumar Gupta
2. Sudhir Kumar Gupta
Both sons of Shyam Naraj Prasad Gupta, resident of Bagaha
Bazar, P.O.+P.S. Bagaha, Ward No. Bagaha Minicipality,
District West Champaran.
.... .... Plaintiff-Opposite Party 1st
3. Madan Prasad son of Shivnandan Prasad, R/o Bagaha Bazar, P.O.+P.S.
Bagaha, District West Champaran.
4. Dinesh Das, son of Late Chini Das resident of Ahirani Tola, Bagaha,
P.O.+P.S. Bagaha, District West Champaran.
5. Rakesh Das son of Late Chini Das resident of Ahirani Tola, Bagaha,
P.O.+P.S. Bagaha, District West Champaran.
6. Dinesh Prasad, Son of Sri Bachan Sah, Resident of Bagaha Tola
Ramdham Mandir, P.O.+P.S. Bagaha, District West Champaran.
7. Vishwanath Ghosh son of Late Amal Chandra Ghosh @ Man Chandra
Ghosh, resident of Bagaha Bazar, P.O.+P.S. Bagaha, District West
Champaran at present Bairackpur, P.O. Talapakur, P.S. Titagarh, Dist.
North 24 Paragana West Bengal through Dinesh Prasad, Son of Shiv
Bachan Sah, Resident of Bagaha Tola Ramdham Mandir, P.O.+P.S.
Bagaha, District West Champaran.
8. Kanchan Mukherjee Son of Late Jitendra Nath Mukherjee, R/o
Wireless Road, P.S. Bara Bahara, P.S. Uttar Para, District-Hugali, West
Bengal.
9. Aranjeet Kumar Ghosh, Son of Radha Raman Ghosh
10. Ratindra Kumar Ghosh, Son of Radha Raman Ghosh
11. Tapan Kumar Ghosh, Son of Radha Raman Ghosh
12. Rishikesh Ghosh, Son of Late Hemant Kumar Ghosh
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13. Smt. Nirmala Ghosh, W/o Late Basant Kumar Ghosh
Sl. No. 9 to 13 are R/o At+P.O. Ikshapur Nawabganj, P.S.
Nawapara, District-North 24 Pargana, West Bengal, all Sl. No. 6
to 13 through Kanchan Mukherjee, O.P. No.8 Power of attorney
holder of O.P. No. 9 to 13.
14. Kanchan Kumar Ghosh, son of Late Gopi Krishna Ghosh
15. Ketan Kumar Ghosh, son of Late Gopi Krishna Ghosh
16. Kalyan Kumar Ghosh, son of Late Gopi Krishna Ghosh
17. Manas Ghosh, S/o Late Sudhir Chandra Ghosh,
All R/o Ikshapur Nawabganj, P.S. Nawapara, District-North 24
Pargana, West Bengal.
.... .... Defendants 2nd Party-Opp. Party
2nd Set
18. Pintu Kumar Son of Vishwanath Das
19. Rajan Kumar, son of Dinesh Prasad
20. Navin Kumar, son of Dinesh Prasad
21. Mukesh Kumar Son of Uma Shankar Prasad,
All resident of At P.O.+P.S. Bagaha, District West Champaran.
22. Shankar Yadav Son of late Gujeshwar Yadav, resident of village
Bhathauda, P.S. Bagaha, District West Champaran.
........ Defendant 3rd Party-Opp. Party 3rd Set
.... .... Opposite Parties
with
C.R. No. 1727 of 2006
Ajit Kumar Shahi son of Shri Shashi Kumar Shahi, resident of village
Nayagaon, P.S. Ourai, P.O. Nayagaon, district-Muzaffarpur.
.... .... Plaintiff-Opposite Party/Petitioner
Versus
1. Keshaw Charan Verma
2. Rajeev Charan Verma
Both sons of late Mangla Charan Verma, resident of Mohalla
Mohammad Kazi Parao Pokhar Lane, Muzaffarpur, P.S. Kazi
Mohammadpur, District-Muzaffarpur.
.... Defendants-Applicants/Opposite Parties
3. Smt. Usha Verma daughter of late Mangla Charan Verma, Wife of Shri
Ashok Kumar Verma.
4. Shanjeev Charan Verma, son of late Mangla Charan Verma,
Both resident of Mohalla Mohammad Kazi Parao Pokhar Lane,
Muzaffarpur, P.S. Kazi Mohammadpur, District-Muzaffarpur.
5. The State of Bihar through Collector, Muzaffarpur, P.O., P.S. and
District-Muzaffarpur.
..... Plaintiff-Opposite Parties/Opposite Parties
with
4
C.R. No. 2214 of 2005
1. Bachiya Devi @ Sumitra Devi, wife of Jaipal Singh, D/o Ram Awatar
Bhagat, resident of village-Ghat Gaon, P.S.-Shergarh, District-Bareli
(U.P.) At present Titara, P.S. Mairwa, P.O. Mairwa, Distt-Siwan.
2. Sita Devi W/o Basistha Singh, D/o Ram Awatar Bhagat, resident of
village-Aliyadin, P.S.-Banakta, District-Deoriya (U.P.) At present
Titara, P.S. Mairwa, P.O. Mairwa, Distt-Siwan.
3. Geeta Devi Wife of Rameshwar Singh, D/o Ram Awatar Bhagat,
resident of village-Bhagwanpur, Naya Tola, P.S.-Mirganj, Distt-
Gopalganj, At present Titara, P.S. Mairwa, P.O. Mairwa, Distt-Siwan.
4. Munari Devi, W/o Late Ram Awatar Bhagat, resident of village-Titara,
P.S. Mairwa, P.O. Mairwa, Distt-Siwan.
5. Nidhi Devi, D/o Sukath Bhagat, resident of village-Bhatahi, P.S.
Banakta, P.O. Banakta, District-Deoriya (U.P.).
6. Ram Bhikhari Bhagat, S/o Sukath Bhagat, resident of village Bhatahi,
P.S.-Banakta, District-Deoriya (U.P.) At present Titara, P.S. Mairwa,
P.O. Mairwa, Distt-Siwan.
7. Basgeet Bhagat, S/o Sheo Goving Bhagat, resident of village-Naugama
Fatehganj, Paschimi, P.S. Fatehganj Paschimi, District-Bareli (U.P.) At
present Titara, P.S. Mairwa, P.O. Mairwa, Distt-Siwan.
.... .... Intervenors/Petitioners
Versus
1. Jagdish Singh
2. Ramjee Singh
3. Laxman Singh
All above 1-3 S/o Ram Awtar Bhagat, resident of village- Titara,
P.S. Mairwa, P.O. Mairwa, Distt-Siwan.
.... .... Plaintiffs/Opposite Parties
4. Balkhila Bhagat, S/o Late Ram Dayal Bhagat, resident of village Titara,
P.S. Mairwa, P.O. Mairwa, Distt-Siwan.
.... .... Opposite Parties
with
C.R. No. 1814 of 2006
1. Dr. Gaya Prasad Roy, son of late Banshi Lal Rai
2. Shri Roy Sumitra Sanjay Bhusan son of Dr. Gaya Prasad Roy
Both are resident of Mohalla-Khabra Road, P.S. Kazi
Mohammadpur, P.O. & District-Muzaffarpur.
3. Smt. Sheela Devi @ Ram Payari Devi wife of Shri Ramashish Sharma,
resident of village & P.O. Chandipatti, P.S. Samastipur, District-
Samastipur, presently residing at Khabra Road, P.S. Kazi
Mohammadpur, P.O. & District-Muzaffarpur.
5
.... .... Proposed Intervenor-Petitioners
Versus
1. Ramakant Kumar
2. Radhakant Kumar
3. Krishna Kant Kumar
4. Raghu Bansh Kumar
5. Ranbir Kumar
6. Ran Vijay Kumar
7. Chand Prakash Kumar
8. Randhir Kumar
All are sons of Late Triloknath Kumar, residents of village-
Chamarupur, Khabra Road, Town & P.S. Kazi Mohammadpur
Munsifi Muzaffarpur East, P.O. Muzaffarpur, District-Muzaffarpur.
.... .... Plaintiffs/Opposite Parties
9. Panwati Devi wife of late Khakhan Thakur, resident of Chamripur,
Khabra Road, Muzaffarpur, P.S. Town & District-Muzaffarpur.
10. Smt. Kharabi, daughter of late Khakhan Thakur, wife of Lagan Thakur,
resident of village, P.O.-Rapauli, District-Vaishali.
11. Smt. Gulabia Devi D/o Khakhan Thakur, W/o Ram Pratap Thakur,
Resident of Vill_+ P.O.-Bochhan, Distt-Muzaffarpur.
12. Smt. Shakuntala Devi, D/o Khakhan Thakur, W/o Shri Ram Sagar
Thakur, resident of village & P.O.-Samaspura, Via Mahuwa, District-
Vaishali.
13. Smt. Shaili Devi D/o Late Khakhan Thakur, W/o Shri Krishna Thakur,
resident of village-Junaida, P.O.-Motipur, District-Muzaffarpur.
14. Smt. Lalita Devi D/o Late Khakhan Thakur, W/o Manoj Thakur,
resident of Mohalla-Chandwara, P.O. Muzaffrpur, P.S. Sadar, District-
Muzaffarpur.
15. Smt. Raj Kumari Devi, D/o Late Khakhan Thakur, W/o Bechan
Thakur, resident of village+P.O.-Kalwari, District-Muzaffarpur.
16. Most. Sakhi Devi W/o Late Ganeshi Thakur,
17. Yogendra Thakur, S/o Late Khakhan Thakur,
18. Kapil Thakur, Son of Sanehi Thakur
19. Mahendra Thakur, Son of Sanehi Thakur
20. Ramjatan Thakur, S/o Late Ramchalitra Thakur
21. Rambharosh Thakur, S/o Late Ramchalitra Thakur
22. Ramsevak Thakur, S/o Late Ramchalitra Thakur
23. Rampukar Thakur, S/o Late Ramchalitra Thakur
24. Bajrangi Thakur @ Thagan Thakur, son of Late Ganeshi Thakur,
25. Raju Thakur, son of Late Ganeshi Thakur,
No.16 to 25 are residents of Mohalla-Chamarupur Khabra Road,
P.O.-Muzaffarpur, P.S. Kazimohammadpur Town, District-
Muzaffarpur.
6
26. (a) Most. Laljhari Devi, W/o Late Ram Sawarath Thakur, resident of
Chamarupur Khabra Road, P.O.-P.S.- District-Muzaffarpur.
26. (b) Smt. Sharda Devi, D/o Late Ram Sawarath Thakur, W/o Kishori
Thakur, Vill-Boaria, Barhmpur, Distt-Muzaffarpur.
26. (c) Girija Devi, D/o Late Ram Sawarath Thakur, Vill-Ratehpur, P.O.
Bikhanpur, P.S. Ahiyapur, Distt-Muzaffarpur
26. (d) Smt. Moti Devi, D/o Late Ram Sawarath Thakur,W/o Awadhesh
Thakur, Vill-Chaothua, P.S.-Kudhni, Muzaffarpur.
27. Subodh Thakur, son of Ramsogarath Thakur,
28. Pramod Thakur, son of Ramsogarath Thakur,
29. Ajai Thakur, son of Ramsogarath Thakur,
30. Bijay Thakur, son of Ramsogarath Thakur,
31. Sanjay Thakur, son of Ramsogarath Thakur,
All residents of Mohalla-Chamarupur Khabra Road, P.O.-
Muzaffarpur, P.S. Kazimohammadpur Town, District-
Muzaffarpur.
32. Shri Upendra Sharan Singh, son of Late Mahabir Sharan Singh,
resident of village Athari, P.O. Athari, P.S. Runisaidpur, District-
Sitamarhi, at present Retd. Professor of Goenka College, Sitamarhi.
.... .... Defendants-Opposite Parties
with
C.R. No. 1652 of 2006
1. Rajendra Agricultural University, Pusa, through Registrar, Rajendra
Agricultural University, Pusa, P.O. & P.S.-Pusa, District-Samastipur.
2. In-charge, Horticulture Research Centre (Under Rajendra Agricultural
University), P.O. Birauli, District-Samastipur.
.... Defendants No. 18 & 19 in the court below - Petitioners
Versus
1. Uma Rani Singh, Wife of Late Dilip Narayan Singh,
2. Gautam Singh, Son of Late Dilip Narayan Singh,
3. Kumar Gaurav Singh Son of Late Dilip Narayan Singh,
4. Hemant Kumar Singh Son of Late Rai Bahadur Sunder Singh,
5. Smt. Bibha Singh Wife of Dr. Radha Krishna Singh, daughter of late
Rai Bahadur Sunder Singh
All resident of village-Muktapur, P.O.-Muktapur, P.S.-
Kalyanpur, District-Samastipur.
6. Rashmi Singh Wife of Sumrendra Kumar Singh, resident of village-
Mahna, P.O. Mahna,P.S. Barauni Refinery, District-Begusarai.
.... .... Plaintiffs/Opposite Parties 1st set.
7. Rural Institute (Birauli) Society Birauli, P.O. Birauli, P.S. Pusa, District
Samastipur through Chairman Society.
7
8. Sri Jai Prakash Yadav, Education Minister, The State of Bihar-cum-
Chairman, Rural Institute (Birauli) Society, Bihar, Patna.
9. Development Commissioner, The State of Bihar, Patna, Member
Managing Committee, Rural Institute (Birauli) Society.
10. Commissioner, Darbhanga Division, Laheriasarai, Member Managing
Committee, Rural Institute (Birauli) Society.
11. Secretary, The State of Bihar, Finance Department, Patna, Member
Managing Committee.
12. Secretary, The State of Bihar, Agriculture Department, Patna, Member
Managing Committee.
13. Secretary, The State of Bihar, Education Department, Patna, Member
Managing Committee.
14. Secretary, The State of Bihar, Industry Department, Patna, Member
Managing Committee.
15. Dr. Rajendra Bhagat, Director, Rural Institute Higher Education
Establishment, Birauli and by post Secretary, Managing Committee,
Rural Institute (Birauli) Society.
.... Defendants 1st set/Opposite Parties 2nd set
16. Smt. Mani Devi Wife of late Kedar Prasad Singh,
17. Sri Jayant Kumar Singh
18. Sri Manoj Kumar Singh
19. Sri Ranjan Kumar Singh
20. Sri Jitendra Kumar Singh
No. 17 to 20 Sons of Late Kedar Prasad Singh.
No. 16 to 20 resident of village-Muktapur, P.O.-Muktapur, P.S.-
Kalyanpur, District-Samastipur.
21. Smt. Aruna Singh Wife of Sri Satyendra Narayan Singh daughter of
late Kedar Prasad Singh, at present resident of Green Scarya Apartment
Flat 1, in front of Nirmala convent Gangapur Road, Nasik
(Maharastra).
22. Smt. Puspa Singh Wife of Dr. Arun Kumar Singh, daughter of late
Kedar Prasad Singh, resident of Mohalla-Bhawdevpur Professor
Colony, Sitamarhi, P.O. Sitamarhi, District-Sitamarhi.
.... Defendants 2nd set/Opposite Parties 3rd set
23. Head Master, Basik Schook Mohammadpur Birauli, P.O. Birauli
Institute Birauli (Pusa) District-Samastipur.
Defendants 3rd set/Opposite Parties 4th set
- Opposite Parties
with
C.R. No. 1880 of 2009
8
Abdul Salam Mandal @ Abdus Salam Mandal, S/o Late Ghulam Mustafa
Mandal, resident of Mohalla Kanhauliganj, Pakki Sarai, Chamra Godown
Lane, P.S. & Town-Muzaffarpur, District-Muzaffarpur.
.... .... Defendant/Petitioner
Versus
Santosh Kumar Nathani, S/o Late Mali Ram Nathani, resident of Mohalla-
Kanhauliganj, Pakki Sarai, Chamra Godown Lane, P.S. & Town-
Muzaffarpur, District-Muzaffarpur.
.... .... Plaintiff/Opposite Party
---------------
For the Petitioners : M/s Sidheshwari Prasad, Vishwanath Pd. Sinha,
Shashi Shekhar Dwivedi, Sukumar Sinha,
Chittaranjan Sinha, D.K.Sinha, Sr. Advocates
Yugal Kishore, Sanjay Kumar Singh
Prabhash Ranjan Thakur, Dronacharya,
Nageshwar Pd. Sinha, Akhilesh Kumar Sinha
Ranjeet Kumar, Kundan Kumar, Dhirdyuti Kr.
Verma, Amish Kumar, Siddhartha Prasad,
Faiz Ahamad, Samir Kumar Sinha,
Amrendra Kr. Sinha, S.P.Singh, M.P.Sinha, Ratan
Kumar Sinha, Madhukar Pandey, Anshuman,
D.D.Vijay, Advocates
For the Opposite Parties: M/s Raghav Prasad, Dilip Kumar,
Rana Ishwar Chandra, Ratnesh Kumar Singh,
Sarveshwar Tiwary, Anjani Kumar Sinha,Advocates
------------
PRESENT- THE HON'BLE THE CHIEF JUSTICE
THE HON'BLE MR JUSTICE MIHIR KUMAR JHA
ORDER
(27.04.2010)
As per Dipak Misra, C.J.-
Expressing doubt with regard to the correctness
of the decisions rendered in Joydeb Banerjee v. Subodh
Choudhary & Anr., 2005 (1)PLJR 440, Raghubans
9
Mani v. Mahabir Babu Marwari, (2005) 4 PLJR 135,
and Prem Shankar Chaudhary v. Special Officer, now
President, Bihar State Board of Religious Trust &
Ors., (2005) 4 PLJR 487, the learned single Judge thought
it apposite to refer the following questions for delineation
by a larger bench.
"(i) Whether the Civil Revision against an
interlocutory order (an order which could not
have finally decided the suit or proceedings in
favour of the party applying for revision, if
same had been passed by the court concerned
in his favour) is maintainable in view of the
newly substituted proviso to the Sub Section
(1) of Section 115 of the Code?
(ii) Whether, even assuming that there is such
a bar, still the High Court can interfere with
such orders under "Civil Supervisory
Jurisdiction"?
(iii) Whether in each and every such Civil
Revision, even if a petition has been filed
under Section 115 of the Code, the High Court
can hear and decide the same in exercise of its
power under Article 227 of the Constitution of
India?
10
(iv) Whether all such revisions filed under
Section 115 of the Code of Civil Procedure
should be allowed to be converted into a writ
petition under Article 227 of the Constitution of
India?"
In view of the aforesaid situation, the matter has been
placed before us.
2. Section 115 of the Code of Civil Procedure, 1908
(hereinafter referred to as `the Code‟) was amended and
substituted by the Amendment Act, 1999, which came into
force on 01.07.2002.
"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
11
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.]"
3. It is worth noting that challenge to
amendments made to the Code by Amendment Act 46 of
1999 and Amendment Act 22 of 2002 came to be dealt
with in Salem Advocates Bar Association v. Union of
India & ors., (2003) 1 SCC 49 wherein the Apex Court
expressed the view that the amendments that have been
made do not suffer from any constitutional infirmity.
4. In Shiv Shakti Coop. Housing Society,
12
Nagpur v. Swaraj Developers and others, (2003) 6 SCC
659, the Apex Court was considering the effect of the
amendments to Section 115 of the Code. The matter arose
from various High Courts holding that the revisions filed
before them under Section 115 of the Code were not
maintainable, since an order passed in favour of the party
applying for revision would not have finally disposed of
the suit or other proceedings. Their Lordships noted that
after the amendments, while proviso (a) of the unamended
provision has been retained in its totality, in the amended
provisions, clause (b) of the proviso has been omitted. In
the said case, it has been held that preferring an
application under Section 115 of the Code is not a
substantive right and it was a source of power for the High
Court to supervise the subordinate courts but does not
confer a right on a litigant aggrieved by any order of the
subordinate court to approach the High Court for relief. In
the said case, a reference was made to the four-Judge
Bench decision rendered in Hari Shankar v. Rao
Girdhari Lal Chowdhury, AIR 1963 SC 698, wherein it
had been held that the power of hearing a revision is
13
generally given to a superior court so that it may satisfy
itself that a particular case has been decided according to
law. It is worth noting in the case of Hari Shankar
(supra) that a reference was made to Section 115 of the
Code to hold that the High Court‟s powers under the said
provision are limited but certain particular categories of
cases and the right therein is confined to jurisdiction and
jurisdiction alone. After analyzing the various aspects of
the provision in the backdrop of statutory interpretation,
the Apex Court has held as follows:
"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 or does not finally decide the
lis, the revision will not be maintainable. The
legislative intent is crystal clear. Those orders,
which are interim in nature, cannot be the
subject matter of revision under Section 115.
There is marked distinction in the language of
Section 97(3) of the Old Amendment Act and
14
Section 32(2)(i) of the Amendment Act. While
in the former, there was clear legislative intent to
save applications admitted or pending before the
amendment came into force. Such an intent is
significantly absent in Section 32(2)(i). The
amendment relates to procedures. No person has
a vested right in a course of procedure. He has
only the right of proceeding in the manner
prescribed. If by a statutory change the mode of
procedure is altered the parties are to proceed
according to the altered mode, without
exception, unless there is a different stipulation."
xxx xxx xxx xxx
"34. In view of what has been stated above the
inevitable conclusion is that the High Courts
were right in the conclusion about non-
maintainability of revision applications."
(Underlining is ours)
5. From the aforesaid enunciation of law, it is
clear as day that their Lordships have held that in case an
order is interim in nature, it cannot be the subject matter of
revision under Section 115 of the Code. It has been
categorically held that if the order in favour of the party
applying for revision would have given finality to a suit or
15
other proceedings and the answer is `yes‟, then the
revision would be maintainable and, if the answer is
negative in nature, then the revision is not maintainable.
Thus, the acid test that is to be applied in every case is to
discern and find out whether the order though interim
would dispose of the suit or other proceedings.
6. In Surya Dev Rai V. Ram Chander Rai and
others, (2003) 6 SCC 675, a two-Judge Bench of the Apex
Court was dealing with the impact of the amendment in
Section 115 of the Code brought in by Act 46 of 1999 with
effect from 01.07.2002 on the power and jurisdiction of
the High Court to entertain petitions seeking a writ of
certiorari under Article 226 of the Constitution or
invoking the power of superintendence under Article 227
of the Constitution as against similar orders, acts or the
remedy of filing civil revision under Section 115 of the
Code was available to the person aggrieved. While dealing
with the scope of exercise of jurisdiction after amendment
to Section 115 of the Code, their Lordships have held thus:
"4. Section 115 of the Code of Civil Procedure
as amended does not now permit a revision
petition being filed against an order disposing of
16
an appeal against the order of the trial court
whether confirming, reversing or modifying the
order of injunction granted by the trial court.
The reason is that the order of the High Court
passed either way would not have the effect of
finally disposing of the suit or other proceedings.
The exercise of revisional jurisdiction in such a
case is taken away by the proviso inserted under
sub-section (1) of Section 115 of the CPC. The
amendment is based on the Malimath
Committee's recommendations. The Committee
was of the opinion that the expression employed
in Section 115 CPC, which enables interference
in revision on the ground that the order if
allowed to stand would occasion a failure of
justice or cause irreparable injury to the party
against whom it was made, left open wide scope
for the exercise of the revisional power with all
types of interlocutory orders and this was
substantially contributing towards delay in the
disposal of cases. The Committee did not favour
denuding the High Court of the power of
revision but strongly felt that the power should
be suitably curtailed. The effect of the erstwhile
clause (b) of the proviso, being deleted and a
new proviso having been inserted, is that the
revisional jurisdiction, in respect of an
interlocutory order passed in a trial or other
proceedings, is substantially curtailed. A
17
revisional jurisdiction cannot be exercised unless
the requirement of the proviso is satisfied."
(Emphasis supplied)
7. After so holding, their Lordships adverted to
the impact of the amendment of jurisdiction under Articles
226 and 227 of the Constitution and eventually held thus:
"38. Such like matters frequently arise before the
High Courts. We sum up our conclusions in a
nutshell, even at the risk of repetition and state
the same as hereunder:-
(1) Amendment by Act No.46 of 1999 with
effect from 01.07.2002 in Section 115 of Code of
Civil Procedure cannot and does not affect in any
manner the jurisdiction of the High Court under
Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts
subordinate to the High Court, against which
remedy of revision has been excluded by CPC
Amendment Act 46 of 1999 are nevertheless open
to challenge in, and continue to be subject to,
certiorari and supervisory jurisdiction of the High
Court.
(3) Certiorari, under Article 226 of the
Constitution, is issued for correcting gross errors
18
of jurisdiction, i.e., when a subordinate court is
found to have acted (i) without jurisdiction - by
assuming jurisdiction where there exists none, or
(ii) in excess of its jurisdiction - by overstepping
or crossing the limits of jurisdiction, or (iii) acting
in flagrant disregard of law or the rules of
procedure or acting in violation of principles of
natural justice where there is no procedure
specified, and thereby occasioning failure of
justice.
(4) Supervisory jurisdiction under Article 227
of the Constitution is exercised for keeping the
subordinate courts within the bounds of their
jurisdiction. When a subordinate court has
assumed a jurisdiction which it does not have or
has failed to exercise a jurisdiction which it does
have or the jurisdiction though available is being
exercised by the Court in a manner not permitted
by law and failure of justice or grave injustice has
occasioned thereby, the High Court may step in to
exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of
supervisory jurisdiction, none is available to
correct mere errors of fact or of law unless the
following requirements are satisfied: (i) the error
is manifest and apparent on the face of the
proceedings such as when it is based on clear
19
ignorance or utter disregard of the provisions of
law, and (ii) a grave injustice or gross failure of
justice has occasioned thereby.
(6) A patent error is an error which is self-
evident, i.e., which can be perceived or
demonstrated without involving into any lengthy
or complicated argument or a long-drawn process
of reasoning. Where two inferences are
reasonably possible and the subordinate court has
chosen to take one view the error cannot be called
gross or patent.
(7) The power to issue a writ of certiorari and
the supervisory jurisdiction are to be exercised
sparingly and only in appropriate cases where the
judicial conscience of the High Court dictates it to
act lest a gross failure of justice or grave injustice
should occasion. Care, caution and
circumspection need to be exercised, when any of
the abovesaid two jurisdictions is sought to be
invoked during the pendency of any suit or
proceedings in a subordinate court and the error
though calling for correction is yet capable of
being corrected at the conclusion of the
proceedings in an appeal or revision preferred
there against and entertaining a petition invoking
certiorari or supervisory jurisdiction of the High
Court would obstruct the smooth flow and/or
20
early disposal of the suit or proceedings. The
High Court may feel inclined to intervene where
the error is such, as, if not corrected at that very
moment, may become incapable of correction at a
later stage and refusal to intervene would result in
travesty of justice or where such refusal itself
would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or
supervisory jurisdiction will not convert itself into
a Court of Appeal and indulge in re-appreciation
or evaluation of evidence or correct errors in
drawing inferences or correct errors of mere
formal or technical character.
(9) In practice, the parameters for exercising
jurisdiction to issue a writ of certiorari and those
calling for exercise of supervisory jurisdiction are
almost similar and the width of jurisdiction
exercised by the High Courts in India unlike
English courts has almost obliterated the
distinction between the two jurisdictions. While
exercising jurisdiction to issue a writ of certiorari
the High Court may annul or set aside the act,
order or proceedings of the subordinate courts but
cannot substitute its own decision in place
thereof. In exercise of supervisory jurisdiction
the High Court may not only give suitable
directions so as to guide the subordinate court as
21
to the manner in which it would act or proceed
thereafter or afresh, the High Court may in
appropriate cases itself make an order in
supersession or substitution of the order of the
subordinate court as the court should have made
in the facts and circumstances of the case."
8. In Sadhana Lodh v. National Insurance Co.
Ltd. And Another, (2003) 3 SCC 524, a three-Judge
Bench of the Apex Court was considering the issue
whether an insurer can assail the award passed by the
tribunal by filing a petition under Article 227 of the
Constitution of India as an appeal is totally misconceived
under Section 173 of the Motor Vehicles Act, 1988. In that
context, their Lordships have held thus:
"6. The right of appeal is a statutory right and
where the law provides remedy by filing an
appeal on limited grounds, the grounds of
challenge cannot be enlarged by filing a petition
under Articles 226/227 of the Constitution on the
premise that the insurer has limited grounds
available for challenging the award given by the
Tribunal. Section 149(2) of the Act limits the
insurer to file an appeal on those enumerated
grounds and the appeal being a product of the
statute it is not open to an insurer to take any plea
22
other than those provided under Section 149(2) of
the Act (see National Insurance Co. Ltd. vs.
Nicolletta Rohtagi, 2002(7) SCC 456). This being
the legal position, the petition filed under Article
227 of the Constitution by the insurer was wholly
misconceived. Where a statutory right to file an
appeal has been provided for, it is not open to the
High Court to entertain a petition under Article
227 of the Constitution. Even if where a remedy
by way of an appeal has not been provided for
against the order and judgment of a District
Judge, the remedy available to the
aggrieved person is to file a revision before the
High Court under Section 115 of the Code of
Civil Procedure. Where remedy for filing a
revision before the High Court under Section 115
CPC has been expressly barred by a State
enactment, only in such case a petition under
Article 227 of the Constitution would lie and not
under Article 226 of the Constitution. As a matter
of illustration, where a trial Court in a civil suit
refused to grant temporary injunction and an
appeal against refusal to grant injunction has been
rejected, and a State enactment has barred the
remedy of filing revision under Section 115
C.P.C., in such a situation a writ petition under
Article 227 would lie and not under Article
226 of the Constitution. Thus, where the State
legislature has barred a remedy of filing a
23
revision petition before the High Court under
Section 115 C.P.C., no petition under Article 226
of the Constitution would lie for the reason that a
mere wrong decision without anything more is
not enough to attract jurisdiction of High Court
under Article 226 of the Constitution."
9. In Sajjan Kumar v. Ram Kishan, (2005) 13
SCC 89, their Lordships of the Apex Court were dealing
with a case where an application for amendment preferred
by the plaintiff was rejected and the High Court declined
to interfere in exercise of jurisdiction under Section 115 of
the Code. In that context, their Lordships have held thus:
"5. Having heard the learned counsel for the
parties, we are satisfied that the appeal deserves
to be allowed as the trial court, while rejecting
the prayer for amendment has failed to exercise
the jurisdiction vested in it by law and by the
failure to so exercise it, has occasioned a
possible failure of justice. Such an error
committed by the trial court was liable to be
corrected by the High Court in exercise of its
supervisory jurisdiction, even if Section 115
CPC would not have been strictly applicable. It
is true that the plaintiff-appellant ought to have
been diligent in promptly seeking the
24
amendment in the plaint at an early stage of the
suit, more so when the error on the part of the
plaintiff was pointed out by the defendant in the
written statement itself. Still, we are of the
opinion that the proposed amendment was
necessary for the purpose of bringing to the fore
the real question in controversy between the
parties and the refusal to permit the amendment
would create needless complications at the
stage of execution in the event of the plaintiff-
appellant succeeding in the suit."
10. In Joydeb Banerjee (supra), the learned
single Judge was dealing with the situation wherein the
learned trial judge had rejected the petitions filed by the
petitioners under Order VII, Rule 11 of the Code. The
learned single Judge referred to Shiv Shakti Coop.
Housing Society, Nagpur (supra) and Sadhana Lodh
(supra) and expressed the view thus:
"7. After hearing the learned counsel for the
parties and after perusing the materials on record,
I find that three Judges Bench of the Hon‟ble
Supreme Court in the case of Sadhana Lodh v.
National Insurance Co. Ltd. And Another
reported in AIR 2003 Supreme Court 1561 has
held that where remedy for filing civil revision
before the High Court under Section 115 C.P.C.
25
had been specifically barred by State enactment,
only in such cases petition under Article 226 of
the Constitution of India would lie. In the instant
case there being no such bar by the State
enactment, I hereby hold that this civil revision is
maintainable, specially when the question of
jurisdiction is involved."
11. In Raghubans Mani & Ors. (supra), the
learned single Judge was dealing with the factual matrix
where the application for intervention in the suit being
allowed a revision petition was filed, assailing the same.
The question of maintainability of the revision was raised
by the opposite party. The learned single Judge in
paragraph 8 has opined thus:
"8. After hearing the learned counsel for the
parties and after perusing the materials on record
specially the impugned order, it is quite apparent
that due to the objection of the intervenor-
opposite party no.2, a lis had arisen as to whether
opposite party no.2 was a necessary party for the
proper adjudication of the suit and the said lis has
been decided by the learned court below vide the
impugned orders. Hence, in my view, according
to the decision of the Hon‟ble Apex Court in case
of Shiv Shakti Coop. Housing Society, Nagpur
(supra), the said orders were revisable under
26
Section 115 C.P.C. after its recent amendment
which came into force on 1.7.2002. Even
according to another decision of the Hon‟ble
Apex Court in case of Sadhana Lodh v.
National Insurance Co. Ltd. And Another,
reported in AIR 2003 SC 1561 equivalent to
(2003) 3 SCC 524 [: 2005(2) PLJR (SC) 43], the
provision of Section 115 C.P.C. would be
attracted in such matters. Hence, it is hereby held
that these Civil Revisions are maintainable."
12. In Prem Shankar Chaudhary (supra), the
learned single Judge was addressing himself with regard to
the defensibility of an order whereby the learned trial
judge had directed the opposite parties to remove their
locks put on the two wooden entrance gates in a title suit.
The maintainability of the revision petition was raised by
the opposite parties. The learned single Judge, while
dealing with the maintainability of the revision, has
expressed thus:
"19. So far the question of maintainability of this
civil revision is concerned, the Hon‟ble Apex
Court has specifically held in the case of
Neelakantan vs. Mallika Begum reported in
(2002) 2 Supreme Court Cases 440 that in cases
where finding is recorded by courts below
27
without any legal evidence on the record or on
misreading the evidence or suffers from any
legal infirmity which materially prejudices the
case of one of the parties or the finding is
perverse, it would be open for the High Court to
set aside such finding and to take a different
view. In another decision of a Bench of three
Hon‟ble Judges, the Hon‟ble Supreme Court in
the case of Sadhana Lodh v. National
Insurance Co. Ltd. reported in (2003) 3
Supreme Court Cases 524 has also held that on
in such cases where remedy for filing civil
revision is expressly barred by State enactment a
petition under Article 227 of the Constitution
would lie. Hence where there are such
perversities in the findings and such legal
infirmities in the impugned order which
materially prejudices the case and leads to clear
violation of law and abuse of the process of the
court, the High Court has to interfere under its
revisional jurisdiction to uphold the dignity of
legal procedure and proper functioning of the
judicial system. Furthermore, Section 115 of the
Code of Civil Procedure specifically provides
that where the subordinate court fails to exercise
a jurisdiction vested in it or where it has acted in
exercise of its jurisdiction illegally or with
material irregularity, this Court can interfere in
its revisional jurisdiction. Here in the instance
28
case the lower court has not only failed to
exercise the jurisdiction vested in it but has also
failed in its basic duty to uphold the dignity,
respectability and effectiveness of the orders and
proceeding of the Court of Law. Hence, this civil
revision is maintainable."
13. Thus, from the aforesaid, it is evincible that
the learned single Judge in Joydeb Banerjee (supra) has
placed reliance on the decision rendered in Sadhana Lodh
(supra). He has expressed the view that as there is no bar
by State enactment, the civil revision is maintainable
especially when the question of jurisdiction is involved.
Be it reiterated, in the said case, an application was filed
under Order VII Rule 11 of the Code. The learned counsel
for the petitioners contend that in the absence of specific
bar as regards the entertainability of a civil revision by the
State amendment, the view expressed by the learned single
Judge relying on Sadhana Lodh's case (supra) is wholly
justified. It is worth noting that the Apex Court was
dealing with the maintainability of an appeal at the
instance of the insurer under Section 173 of the Motor
Vehicles Act, 1988. Their Lordships expressed the view
29
that the petition under Article 227 of the Constitution was
wholly misconceived. Their Lordships opined that even
where a remedy by way of an appeal has not been
provided against the order and judgment of the District
Judge, the remedy available to the aggrieved person is to
file a revision before the High Court under Section 115 of
the Code and where the remedy for filing a revision before
the High Court has been expressly barred by the said
amendment, only in such a case a petition under Article
227 of the Constitution of India would lie.
14. While understanding the ratio of this case, two
aspects are to be kept in mind. The Apex Court was
dealing with the challenge to an appeal directed against an
award passed under the Motor Vehicles Act, 1988, that is
a final order putting the controversy to an end at the level
of the tribunal. As the appeal is barred, it has been opined,
the same could be challenged in civil revision. If there is a
prohibition in the State amendment, it is open to the
insurer to prefer a writ petition under Article 227 of the
Constitution of India. The amended provision that has
been incorporated in Section 115 of the Code bars a civil
30
revision in respect of interim orders unless conditions
precedent are not satisfied. An award passed under the
Motor Vehicles Act is final and is executable as a decree.
It cannot be construed as an interlocutory order. In this
regard, we may refer with profit to the decision in Shyam
Sunder Agrawal & Co. v. Union of India, AIR 1996 SC
1321, wherein the Apex Court has held that even if a
special statute expressly attaches finality to an appellate
order passed under that statute, such provision of finality
will not take away the revisional powers of the High Court
under Section 115 of the Code.
15. From the aforesaid decision, it is clear as
crystal that unless there is a prohibition, a revision would
be maintainable even if finality is attached to the order.
16. In view of the aforesaid analysis, the
decision in Sadhana Lodh (supra) is not applicable as the
same dealt with an award which was final in nature and
further the ratio laid down therein cannot be understood to
mean that if there is no provision in the State amendment
prohibiting entertaining a civil revision, a civil revision
would be maintainable. In view of the categorical and
31
unambiguous language employed in Section 115 of the
Code which is enacted by the Parliament, the same has to
hold the field and where the conditions precedent therein
are not satisfied, a civil revision would not be
maintainable. We may hasten to clarify that in Sadhna
Lodh (supra), their Lordships were not dealing with an
order of interlocutory nature and, therefore, the
appreciation of the ratio has to be from a different
spectrum altogether.
17. In Prem Shankar Chaudhary (supra), the
learned single Judge has referred to the decision in
Neelakantan & Ors. vs. Mallika Begum, (2002) 2 SCC
440. In the said case, their Lordships have opined as
follows:
"8. ... 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, which materially
prejudices the case of one of the parties or the
32
finding is perverse, it would be open for the
High Court to set aside such a finding and to
take a different view. ........."
18. The learned single Judge also placed reliance
on Sadhana Lodh (supra). On the base of the said two
decisions, the learned single Judge has expressed the view
that considering the perversities in the findings and such
legal infirmities in the impugned order which materially
prejudice the case and leads to clear violation of law and
abuse of the process of the court, the High Court has to
interfere under the revisional jurisdiction to uphold the
dignity of legal procedure and proper functioning of the
judicial system, because Section 115 of the Code
specifically provides that where the subordinate court fails
to exercise a jurisdiction vested in it or where it has acted
in exercise of its jurisdiction illegally or with material
irregularity, the High Court can interfere in its revisional
jurisdiction.
19. The two decisions in respect of which the
learned single judge has expressed his doubt with regard to
their correctness, as is manifest, are fundamentally based
33
on the decision rendered in Sadhana Lodh (supra) and
the principle that unless the High Court rectifies
jurisdictional errors, the same would amount to abuse of
the dignity of the procedure. We have already delineated
the facts on which the decision in Sadhana Lodh (supra)
was rendered and how the same is not applicable while
exercising jurisdiction under Section 115 of the Code. In
the case of Neelakantan & Ors. (supra), their Lordships
were not dealing with the amended provision of Section
115 of the Code even remotely and the question of
maintainability was not the issue. In this context, we may
fruitfully state that a decision has to be treated as
precedent for what it decides. The Supreme Court in the
case of Ambica Quarry Works Vs. State of Gujarat,
AIR 1987 SC 1073 has held thus:
"18. The ratio of any decision must be
understood in the background of the facts of that
case. It has been said long time ago that a case
is only an authority for what it actually decides,
and not what logically follows from it."
20. In Bhavnagar University v. Palitana Sugar
Mill (P) Ltd., (2003) 2 SCC 579, it has been observed by
34
the Supreme Court as under:
"59. ........ It is also well settled that a little
difference in facts or additional facts may make a
lot of difference in the precedential value of a
decision."
21. In Bharat Petroleum Corporation Ltd. Vs.
N.R. Vairamani, 2004 (8) SCC 579, in paragraphs 9 to
12, their Lordships of the Apex Court have ruled thus:
"9. Courts should not place reliance on decisions
without disclosing as to how the factual situation
fits in with the fact situation of the decision on
which reliance is placed. Observations of courts
are neither to be read as Euclid‟s theorems nor as
provisions of a statute and that too taken out of
their context. These observations must be read in
the context in which they appear to have been
stated. Judgments of courts are not to be
construed as statutes. To interpret words, phrases
and provisions of a statute, it may become
necessary for judges to embark into lengthy
discussions but the discussion is meant to explain
and not to define. Judges interpret statues, they
do not interpret judgments. They interpret words
of statutes; their words are not to be interpreted as
statutes. In London Graving Dock Co. Ltd. vs.
Horton, 1951 AC 737, Lord Mach Dermott
35
observed (All ER p. 14 C-D):
„The matter cannot, of course, be settled
merely by treating the ipsissima verba of Willes,
J., as though they were part of an Act of
Parliament and applying the rules of
interpretation appropriate thereto. This is not to
detract from the great weight to be given to the
language actually used by that most distinguished
Judge. ...‟
10. In Home Office V. Dorset Yacht Co. Ltd.,
1970 AC 1004, Lord Reid said-
„Lord Atkin‟s speech ... is not to be treated as
if it were a statutory definition. It will require
qualification in new circumstances.‟ (All ER p.
297 g).
Megarry, J.in Shepherd Homes Ltd. v. Sandham (No. 2) (1971) 1 WLF 1062, observed (All ER p. 1274d):
„One must not, of course, construe even a reserved judgment of even Russel, L.J. as it were an Act of Parliament;‟ And, in British Railways Board v. Herrington, 1972 AC 877, Lord Morris said: (All ER p. 761c) „There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.‟ 36
11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
12. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
„Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.
* * * * Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."37
22. The aforesaid principle was reiterated in Oriental Insurance Company Ltd. Vs. Smt. Raj Kumari & Ors., AIR 2008 SC 403, on the following terms:
"........ A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. Observations of courts are neither to be read as Euclid‟s Theorems nor as provisions of the statute and that too taken out of their context."
23. The aforesaid authorities have been recently considered by the Supreme Court in Sarva Shramik Sanghatana (KV), Mumbai Vs. State of Maharashtra & Ors., (2008) 1 SCC 494, and in the said case, their Lordships have referred to certain observations made by Lord Halsbury which read as under:
"14. On the subject of precedents Lord Halsbury, L.C., said in Quinn v. Leathem, 1901 AC 495: (All ER p.7G-I) 38 „Before discussing Allen v. Flood, 1898 AC 1, and what was decided therein, there are two observations of a general character which I wish to make; and one is to repeat what I have very often said before - that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all."
24. In Rajbir Singh Dalal (Dr.) Vs. Chaudhari Devi Lal University, Sirsa and Anr., (2008) 9 SCC 284, their Lordships have opined thus:
"34. The decision of a court is a precedent if it lays down some principle of law supported by reasons. Mere casual observations or directions without laying down any principle of law and without giving reasons does not amount to a 39 precedent.
35. In State of Punjab Vs. Baldev Singh, (1999) 6 SCC 172, a Constitution Bench of this Court observed (vide SCC para 43) that a decision is an authority for what it decides (i.e., the principle of law it lays down) and not that everything said therein constitutes a precedent.
36. In Karnataka SRTC Vs. Mahadeva Shetty, (2003) 7 SCC 197, (vide SCC para 23) this Court observed that the only thing binding as an authority upon a subsequent Judge is the principle upon which the case was decided.
37. As observed by this Court in State of Orissa Vs. Sudhansu Sekhar Misra, AIR 1968 SC 467, (vide AIR para 13): (AIR pp. 651-52, para 13).
„13. ... A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observations found therein nor what logically follows from the various observations made in it. ......."
25. In this context, we may take note of another principle. A judgment is not to be read as a statute. It has been so held in Union of India & ors. vs. Dhanwanti 40 Devi and ors,, 1996 AIR SCW 4020:
"Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a Statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents."
26. We have referred to the aforesaid decisions as we are inclined to think that the decision in Sadhana Lodh (supra) is not applicable and, in fact, the decisions in Shiv Shakti Coop. Housing Society, Nagpur (supra) and Surya Dev Rai (supra) are directly on the point. That apart, the reliance placed by the learned single Judge on the decision of Sajjan Kumar (supra) with regard to the maintainability of civil revision in respect of an interlocutory order without meeting the conditions precedent is not apposite. The Apex Court has held that the error that was committed in that case by the trial judge 41 was liable to be corrected by the High Court in exercise of its supervisory jurisdiction even if Section 115 of the Code would not have been strictly applicable.
27. As it appears, the learned single Judge has applied the concept of deductive method and opined that their Lordships have expressed the view that the revision is maintainable. What has been stated by their Lordships is that it was obligatory to rectify the error in exercise of supervisory jurisdiction even if the revisional jurisdiction as engrafted under Section 115 of the Code would not have been strictly applicable. The concept of supervisory jurisdiction was dealt with in Surya Dev Rai (supra) in paragraphs 22 & 23 of the said judgment. We think it apt to reproduce the same as under:
"22. Article 227 of the Constitution confers on every High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction excepting any court or tribunal constituted by or under any law relating to the armed forces. Without prejudice to the generality of such power the High Court has been conferred with certain specific powers by clauses (2) and (3) of Article 227 with which we 42 are not concerned hereat. It is well-settled that the power of superintendence so conferred on the High Court is administrative as well as judicial, and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The paramount consideration behind vesting such wide power of superintendence in the High Court is paving the path of justice and removing any obstacles therein. The power under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. Else the parameters invoking the exercise of power are almost similar.
23. The history of supervisory jurisdiction exercised by the High Court, and how the jurisdiction has culminated into its present shape under Article 227 of the Constitution, was traced in Waryam Singh Vs. Amarnath, AIR 1954 SC 215 : 1954 SCR 565. The jurisdiction can be traced back to Section 15 of High Courts Act 1861 which gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisionsal jurisdiction on the 43 High Court. Section 107 of the Government of India Act, 1915 and then Section 224 of the Government of India Act, 1935, were similarly worded and reproduced the predecessor provision. However, sub-section (2) was added in Section 224 which confined the jurisdiction of the High Court to such judgments of the inferior courts which were not otherwise subject to appeal or revision. That restriction has not been carried forward in Article 227 of the Constitution. In that sense Article 227 of the Constitution has width and vigour unprecedented.
28. In this regard, it would be appropriate to refer to Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233 wherein it has been held as follows:
"35. It is argued with great insistence that as the object of the Election Rules is to discover the intention of the majority of the voters in the choice of a representative, if an elector had shown a clear intention to vote for a particular candidate, that must be taken into account under Section 100(2)(c), even though the vote might be bad for non-compliance with the formalities. But when the law prescribes that the intention should be expressed in a particular manner, it can be taken into account only if it is 44 so expressed. An intention not duly expressed is, in a Court of law, in the same position as an intention not expressed at all.
36. The decision in (1875) 10 CP 733 (T), was cited in support of the contention that for deciding whether the result of the election had been affected it was permissible to take into account votes which had been rendered invalid by the mistake of the polling officer. That was a decision on Section 13 of the Ballot Act, 1872 which provided that no election should be declared invalid by reason of non-compliance with the rules, if it appeared to the Tribunal "That the election was conducted in accordance with the principles laid down in the body of this Act, and that such non-compliance or mistake did not affect the result of the election".
What happened in that case was that all the ballot papers issued at polling station No.130 had been marked by the polling officer and had become invalid under Section 2 of the Act. It was contended on behalf of the unsuccessful candidate that the mistake of the polling officer rendered the whole election void, without reference to the question whether the result of the election had been affected. In repelling this contention, the Court observed at page 750: 45
"Inasmuch, therefore, as no voter was prevented from voting, it follows that the errors of the presiding officers at the polling stations No.130 and No.125 did not affect the result of the election, and did not prevent the majority of electors from effectively exercising their votes in favour of the candidate they preferred, and therefore that the election cannot be declared void by the common law applicable to parliamentary elections."
This was merely a decision on the facts that the departure from the prescribed rules of election at the polling stations was not so fundamental as to render the election not one "conducted in accordance with the principles laid down under the body of this Act."
29. We have referred to the aforesaid decisions only to come to the conclusion what their Lordships in Sajjan Kumar (supra) have, in fact, stated about the duty of the High Court to rectify the error in exercise of supervisory jurisdiction. Their Lordships have not dealt with regard to the maintainability of civil revision.
30. The learned counsel appearing for the 46 revisionists would submit that civil revision is not barred if an order is passed which would tantamount to final disposal of the suit or other proceedings and the terms `other proceedings‟ have to be understood in their connotative expanse. Their emphasis is on the terms `other proceedings‟. Regard being had to the said submission, it is obligatory on our part to appreciate what the terms `other proceedings‟ do convey.
31. In Black‟s Law Dictionary, Sixth Edition, the term `proceeding‟ has been described to mean in a general sense the form and manner of conducting judicial business before a court or judicial officer and includes all possible steps in an action from the commencement till the end.
32. In Advanced Law Lexicon, Third Edition, 2005, by P. Ramanatha Aiyar, the term `proceeding‟ has been dealt with at page 3746. The said term, as has been stated therein, signifies that a proceeding in a civil action is an act necessary to be done in order to attain a given end. It is a prescribed mode of action in carrying into effect a legal right.
33. The purpose of referring to the various law 47 dictionaries is only to appreciate what meaning is to be placed on the terms `other proceeding‟. As we have already indicated hereinabove, the proceeding must be akin to the suit and it should be an independent proceeding for the phrase used in the proviso to Section 115 of the Code is suit or proceeding. There are several applications which require independent adjudication relating to the maintainability of the suit and once the said adjudication is complete, there can be no doubt that the proceeding comes to an end inasmuch as it would have an effect of finally disposing of the proceeding. The two significant facts indicate that the interlocutory order passed must be such which must fit into the compartment engrafted in the restrictive spectrum of the proviso, i.e., the suit or proceeding would have been finally disposed of. It is further worth noting that the language used in the proviso in the course of a suit or other proceeding‟ is of immense signification. There can be independent proceeding.
34. Corpus Juris Secundum deals with `proceeding‟ as follows:
"Proceeding.- The terms "proceeding" and "proceedings" are discussed generally in Actions 48 1 h (c) and, with reference to bankruptcy, in Bankruptcy 1. The terms have been held to be synonymous with "ease" see Actions 1(b)(1), and "cause" see Actions 1 (e) (1), and also have been held synonymous with or have been distinguished from, "action", "judgment", "process", "prosecution", and "suit" see Actions 1 h (1) (b)."
35. In Words & Phrases, Permanent Edition, Volumn 34, published by West Publishing Co., the term `proceeding‟ used in the provision has to be treated as akin to the suit and it has to have the colour and character of an independent proceeding.
36. The acid test which is to be applied is that if by termination of such a proceeding an independent cause of action is put at naught, the application for revision would be maintainable. The interlocutory orders made in the course of hearing of a suit or proceeding is not amenable to revisional jurisdiction if such an order does not put an end to the suit or proceeding and as we have already indicated, the proceeding has to have an independent character. Emphasis in the present provision is whether the order in favour of a party applying for revision would 49 have given finality to the suit or other proceeding. If the answer is `yes‟, then the revision is maintainable and if the answer is in the negative, the revision is not maintainable. The test that is required to be applied in every case so as to find an outcome is whether the order is interim in nature or finally disposes of the suit or other proceeding.
37. We may, at this juncture, give a few examples which are illustrative in nature, viz., an order under Rule 10 of Order VII returning a plaint to be presented to the proper court, an order under Rule 9 of Order IX rejecting an application to set aside the dismissal of a suit, an order under Rule 13 of Order IX rejecting an application to set aside an ex parte order, an order under Rule 106 of Order XXI, an order under Rule 9 of Order XXII, an order under Rule 2 of order XXV, an order under Rule 5 or Rule 7 of order XXXII rejecting an application for permission to sue as an indigent person, and an order dismissing the suit on the ground of non-joinder of parties are amenable to revisional jurisdiction.
38. In this regard, we may refer with profit to the decision rendered in Surajmal, s/o Siddhanathji vs. 50 Sundarlal, s/o Nanuram & Ors., [2003 (2) M.P.L.J. 408]. In the said case, a Division Bench of the Madhya Pradesh High Court referred to the scheme of order passed under Section 104 of the Code. It has been opined therein that every order passed in appeal under Order XLIII, Rule 1 of the Code of Civil Procedure is not an interlocutory one. It will depend upon the nature of the order from which the appeal arises as also the effect of the order passed in this appeal. The Division Bench enumerated that there are two categories of orders. Be it noted, the Bench addressed to the concept of interlocutory order which we may profitably quote:
"13. Generally speaking interlocutory order means an order made provisionally in the course of a suit or other proceeding. As per the Law Lexicon by P. Ramanatha Aiyar (reprint Edition 1992 Page 611), the term "interlocutory" in Law means not that which decides the cause, but that which only settles some intervening matter relating to the cause".
The expression `interlocutory order‟ has been explained as follows:
"An interlocutory order is one which is made pending the cause and before a final hearing on merits.51
An interlocutory order is made to secure some end and purpose necessary and essential to the progress of the suit and generally collateral to the issues framed by the pleadings not connected with the final judgment".
The learned author quoting an English decision Smit vs. Cowell (6 QBD 75) further explained : "interlocutory order" is not necessarily confined to an order made between writ and final judgment but it means an order other than final order or judgment".
Thereafter, the Bench reproduced Order XLIII, Rule 1 of the Code which provides for appeals from orders. Thereafter, in paragraph 16, it has been held thus:
"16. The orders enumerated above can be classified in two categories. In one category are those orders which finally dispose of the suit or proceeding in which they are made. Orders enumerated in clauses (a), (c), (d), (ja),
(k), (n), (na), (t), (u) and (w) belonged to this category. Another category is of those orders enumerated in the remaining clauses (including the one passed on application for temporary injunction), which are purely interim in nature and the lis in which any such order is made survives even after passing of 52 the order and even after disposal of the appeal against that order. The orders of latter category are obviously interlocutory and the provisional character of these orders remains unchanged even after disposal of the appeal preferred under Order 43, Rule 1. The appellate proceedings arising out of such interlocutory orders are nothing but collateral or incidental to the suit or proceedings in the course of which those orders are made. It is true that the dictum that appeal is a continuation of suit is not of universal application but it would be so in a case like the one in hand where the suit giving rise to that appeal survives even during the pendency and after disposal of the appeal. The appeal in the instant case had a limited object of testing the correctness or otherwise of the interim order passed in the course of the suit or proceedings without in any manner affecting final disposal of that lis. The order passed in appeal would, thus, fall within the perview of proviso to sub-section (1) of Section 115 and would not be open to revision unless it satisfies the condition laid down by the said proviso in addition to the grounds as enumerated under sub-section (1)."53
39. Thus, it is quite vivid that the sine qua non is the extinction of a suit or proceeding. We may hasten to add that unless a suit or proceeding would have been disposed of, no revision would lie. That is the seminal test. When an application for intervention or impleadment is allowed or rejected, it does not extinguish the suit or proceeding. As we have already opined, the proceeding must have its own independence and an order passed in the suit must bring the suit or proceeding to an end. Certain instances in this regard have already been cited in Surajmal (supra), that is, when a plaint is returned, an application to set aside the dismissal of the suit is rejected, when an application to set aside the ex parte decree is not allowed and such other matters which have been mentioned hereinabove. The quintessentiality is that the suit or proceeding becomes extinct.
40. The next aspect that arises for consideration is whether the High Court can interfere in exercise of power under Article 227 of the Constitution of India. The said position is no more res integra inasmuch the Apex Court has cleared the position in the case of Surya Deb Rai 54 (supra). We only proceed to add that the parameters laid down therein are to be strictly followed.
41. The other issue that arises for consideration is whether all the civil revisions filed before this Court under Section 114 of the Code may be allowed to be converted into writ petitions under Article 227 of the Constitution of India. In this context, we may refer with profit to the decision rendered in Col. Anil Kak (Retd.) v. Municipal Corporation, Indore & ors., AIR 2007 SC 1130 wherein a revision was preferred challenging the order of an appeal that arose from an order passed under Order 39, Rules 1 and 2 of the Code of Civil Procedure. As the revision was not maintainable, an application was filed to convert the same into a petition under Article 227 of the Constitution of India. The said prayer was allowed and the petition was treated to be one under Article 227 of the Constitution of India. Thereafter, the High Court proceeded to deal with the merits of the case and passed an order. The said order came to be challenged before the Apex Court. In that context, their Lordships held as follows:
"2. All that the High Court has done is to treat the petition filed before it under Section 115 of 55 the Code as a proceeding initiated under Article 227 of the Constitution of India. The respondents had filed the revision originally and during the pendency of that revision the High Court appears to have taken a view that an order in an appeal arising from a proceeding under Order 39, Rules 1 and 2 of the Code, could not be challenged under Section 115 of the Code since the order was in the nature of an interlocutory order. In such a situation, in our view, the High Court rightly decided to permit the revision petitioners before it, to convert the same as a proceeding under Article 227 of the Constitution of India. After all, the court could have done it on its own, even without a motion in that behalf by the petitioner. We see absolutely no ground to interfere with the said order on the grounds raised in this special leave petition. ....."
42. In Nawab Shaqafath Ali Khan & ors. Vs. Nawab Imdad Jah Bahadur & ors., (2009) 5 SCC 162, it has been held as follows:
"48. If the High Court had the jurisdiction to entertain either an appeal or a revision application or a writ petition under Articles 226 and 227 of the Constitution of India, in a given case it, subject to fulfillment of other 56 conditions, could even convert a revision application or a writ petition into an appeal or vice versa in exercise of its inherent power. Indisputably, however, for the said purpose, an appropriate case for exercise of such jurisdiction must be made out."
43. In view of the preceding analysis, we proceed to record our conclusions in seriatim as follows:
(i) The civil revision preferred under Section 115 of the Code is not maintainable unless the conditions precedent engrafted therein are squarely satisfied.
(ii) The decisions rendered in Joydeb Banerjee (supra), Raghubans Mani (supra) and Prem Shankar Chaudhary (supra) do not lay down the law correctly and, accordingly, they are overruled and, resultantly, any decision following the said line of decisions stands overruled.
(iii) The civil revisions in respect of certain orders which have been stated in the earlier part of the judgment are maintainable, but the list is not exhaustive for the acid test has to be that the suit or 57 proceeding would have finally disposed of the suit or other proceedings.
(iv) The civil revisions which are pending can be converted into writ petitions on fulfillment of other conditions.
44. The reference is answered accordingly. The matters be placed before the learned single Judge for delineation in accordance with law.
( Dipak Misra, C.J. ) ( Mihir Kumar Jha, J. ) Patna High Court.
The 27th of April, 2010.
AFR Dilip