C.V. Sirpurkar, J.
1. This civil revision under Section 115 of the Code of Civil Procedure, 1908 has been preferred challenging the legality, propriety and correctness of order dated 18/10/2014 passed by the 13th Civil Judge Class-I, Bhopal in M.J.C. No. 10/2011, whereby learned court below had rejected an application under Order 19 Rule 2 of the Code of Civil Procedure for permission to cross-examine respondent No. 1 (a).
2. The facts giving rise to this civil revision may be summarized thus: The applicant and respondent No.2, who are real brother and sister, jointly filed Regular Civil Suit No. 585/2006 against respondent Nos. 1, 3 and 4, for declaration and permanent injunction in respect of the suit land. Civil Suit No. 585/2006 was decreed in favour of the applicant and respondent No.2 on 28/07/2006. About 4 years after the judgment and decree, the deceased/respondent No.1 filed an application under Order 9 Rule 13 of the Code of Civil Procedure through his power of attorney holder for setting aside the judgment and decree dated 28/7/2006. This was registered as M.J.C. No.10/2011. During the pendency of the Miscellaneous Judicial Case, respondent No.1 died and his legal representatives respondent Nos.1 (a), (b), (c) and (d) were brought on record.
3. The case of the revision petitioner is that during the pendency of M.J.C. No. 10/2011, power of attorney holder of the applicant, Mohammad Saeed, met respondent No. 1 (a) Sharmila Tagore, who told him that they have no right, title or interest in the suit land and they have not authorized anyone to engage counsel on their behalf nor have they signed any power in favour of any advocate. Consequently, the applicant moved an application under Section 45 of the Indian Evidence Act to get the signature of respondent No.1
(a) on Vakalatnama, examined by a handwriting expert. The reply to application under Section 45 of the Indian Evidence Act, was accompanied by an affidavit, purported to be sworn by Smt. Sharmila Tagore; therefore, the applicant moved an application before the learned trial Court praying for permission to cross-examine Smt. Sharmila Tagore. This application was dismissed by impugned order dated 18/10/2014.
4. The applicant challenged the impugned order by way of writ petition (W.P. No. 18146/2014) which was withdrawn by him on 25/11/2014 with liberty to challenge the order in civil revision. In the result, this civil revision came to be filed.
5. The question that arises for consideration herein is whether a civil revision is maintainable against an order dismissing application under Order 19 Rule 2 of the Code of Civil Procedure, filed for permission to cross-examine the affiant, in a proceeding under order 9 rule 13, in view of the proviso appended to sub-section (1 of Section 115 of the Code of Civil Procedure?
6. It has been held by a Division Bench of this High Court in the case of Johra Bi and others Vs. Jageshwar and others [(2010) 1 M.P.L.J. 98] that the revisional jurisdiction under Section 115 of the Code of Civil Procedure, is available against:
(i) an order deciding finally the suit or other proceedings where no appeal is provided; and
(ii) where effect of the order in the revision would finally disposed of the suit or other proceedings.
It has further been observed that the revisional jurisdiction will not be exercised in respect of other orders " deciding a case" in the course of a suit or other proceedings; though, there may be an error or defect, irregularity or illegality in exercise of the jurisdiction, where allowing the revision would not finally disposed of the suit or other proceedings.
7. Similar proposition of law was made by a Judge of this High Court sitting singly in the case of Sawalsingh Vs. Smt. Ramsakhi and others, (2002 (4) M.P.H.T. 200).
8. In this regard, learned counsel for the applicant inviting attention of this Court to paragraph nos. 7 and 8 of the judgment in the case of Sawal Singh (Supra), has argued that the expression "other proceedings" occurring in the proviso to section 115 (1), has to be read ejusdem generis. Thus, as per learned counsel, the expression "other proceedings" would apply only to the proceedings that are akin to a suit. Since, a proceeding under order 9 rule 13 is not akin to a suit, the proviso to section 115 (1) would not apply to such proceedings and hence, even an interlocutory order, which made either way, would not terminate the proceedings, would be amenable to revisional jurisdiction of the High Court, if other conditions envisaged in section 115 (1), are satisfied.
9. This Court is unable to persuade itself to agree with aforesaid contention. If we carefully analyse the paragraph nos. 7 and 8 of the judgment in Sawal Singh's case (supra), no such intention is deductible. The paragraph no. 7 reads as follows:
7. The proviso clearly lays a postulate that if the order which is under assail if it had been made in favour of party applying for revision, the suit or other proceedings would have been finally disposed of. The words used in this proviso which are of immense signification are "order passed in the course of a suit or other proceedings". There are certain categories of orders which come into existence in the course of hearing of the suit. To enumerate some: an order refusing/allowing an application for amendment, prayer for grant of injunction, relief seeking appointment of receiver, commission/survey knowing commission, application to file documents, application to take up an issue as preliminary one, application seeking addition of an issue and such other ancillary matters. These orders are precluded from the purview of assail as ordinarily, in a case of this nature the suit would not stand disposed of. But there are certain proceedings which are proceedings under the Code which may warrant interference because they have the status of original proceeding. To elucidate: applications under Order IX, Rule 4 and Order IX, Rule 13. These applications are filed in Court of law when the suit is not in existence or pending as the same has seen the extinction/end because of some obtaining circumstances. Hence, they are to be regarded as original proceedings. To give an example, if the Court refused to restore the suit for some reason or other and the matter travels to High Court in revision and if the revision is allowed, the said proceeding would stand terminated. Therefore, a proceeding of that nature is an independent proceeding otherwise immense hardship would be caused. (Emphasis supplied)
10. When we peruse first part of paragraph of no. 7, we find that it enumerates certain categories of orders which come into existence in the course of hearing of the suit, like an order refusing/allowing an application for amendment, prayer for grant of injunction, relief seeking appointment of receiver, application for commission/survey, application to file documents, application to take up an issue as preliminary one, application seeking addition of an issue and such other ancillary matters. Such orders have been expressly precluded from the purview of revisional jurisdiction. There is no dispute so far as aforesaid contention is concerned.
11. The second part of the paragraph no. 7 refers to certain proceedings under the Code of Civil Procedure, which may warrant interference because they have the status of original proceedings like those in the applications under order IX, rule 4 and order IX, rule 13. (Emphasis supplied). Now, the question is whether aforesaid observation made in paragraph no. 7, may be construed to mean that in the proceedings like those under order 9 rule 4 or order 9 rule 13 even the orders that would not terminate those proceedings, if made in favour of the revision petitioner, are open to interference? The answer to this question has to be in the negative because of the example given in the latter part of the paragraph no. 7 itself. Learned Judge sitting singly, has observed that if the Court refused to restore the suit for some reason or other and the matter travels to High Court in revision and if the revision is allowed, the said proceeding would stand terminated. Learned Judge further observed that a proceeding of that nature is an independent proceeding otherwise immense hardship would be caused. Obviously, the hardship learned Judge was referring to could not have resulted from an interlocutory order passed in such proceeding. So, it cannot be inferred from the observation made and the example given in paragraph no. 7 that even the kind of orders, which if made in a civil suit, would not have been revisable due to the embargo contained in proviso to section 115 (1), would be revisable if made in proceedings under order IX rule 4 or rule 13 or similar proceedings.
12. Now, let us examine the import of paragraph no. 8, which is reproduced hereinbelow:
8. The terms "other proceedings" have wide meaning and they should not be read in a narrow compass. In the Code 'other proceedings' are not defined but in sections 24, 63, 99, 99-A, 141, 144, 146 and 147, the word 'proceedings' has been used. Under section 141, the legislation has specifically included the proceedings under Order 9 Civil Procedure Code but has excluded any proceedings u/art. 226 of the Constitution. The term proceedings cannot be confined to a civil proceeding alone. It has the comprehensive meaning so as to include within it all matters coming up for judicial adjudication."
13. A bare perusal of paragraph no. 8 reveals that it militates against assigning a restricted meaning to the expression "other proceedings" and explicitly holds that a proceeding under order 9 rule 13 would fall under the expression "other proceedings". As such, the proviso to section 115 (1), would apply even to an interlocutory order passed in a proceeding under order 9 rule 13, exposing it to the embargo contained therein.
14. In this regard, it would be useful to refer to paragraph no. 20 of the judgment in the case of Johra Bee (supra), wherein a Division Bench of this High Court has categorically held that: "20. The question still subsist what is the meaning to be given to "other proceedings". In our opinion, there is no reason to restrict the meaning of "proceeding" akin to the suit.
So, there is no case for reading the expression "other proceedings", ejusdem generis in relation to the term "suit".
15. Moreover, in respect of object of the proviso to section 115 (1), which was introduced in the Code with effect from 1-7-2002, the Supreme Court in the case of Surya Dev Rai v. Ram Chander Rai, (AIR 2003 SUPREME COURT 3044) has observed that: "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 revisional jurisdiction cannot be exercised unless the requirement of the proviso is satisfied".
16. As such, it is inconceivable that the intention of the legislature would be that though, an interlocutory order passed in a civil suit or a proceeding akin to a suit would not be revisable but the same passed in other proceedings which are not akin to a suit, would be revisable.
17. It is true that the settled principle of interpretation of statutes is that a provision curtailing the jurisdiction of civil court, has to be construed strictly and while interpreting the provision, the Court should lean in favour of the view that is against curtailing the jurisdiction of civil Court. However, where the legislative mandate and the object behind it is unambiguous, the Court should not hesitate to give full effect to the same.
18. Thus, it is clear that the test prescribed in proviso to sub- section 1 of section 115, is required to be applied to every individual case and it is to be seen whether impugned order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. If the answer is in negative, revision would not be maintainable.
19. In this view of the matter, a proceeding under order 9 rule 13, would be covered by the expression "other proceedings" as used in proviso to section 115 (1). Consequently, an interlocutory order passed in such proceedings, would not be amenable to revisional jurisdiction of the High Court at the instance of the party aggrieved thereby.
20. There is no doubt that the order impugned in this civil revision rejecting permission to cross-examine respondent No.1(a) with regard to an affidavit purported to have been sworn by her, does not fall in the category of orders which are amenable to revisional jurisdiction because even if the order had been made in favour of the revision petitioner, it would not have terminated the proceedings under Order 9 Rule 13 of the Code of Civil Procedure pending before the trial Court. As such, a civil revision against impugned order is not maintainable.
21. In the result, this civil revision, without examining the merits of the impugned order, is dismissed in limine, as being not maintainable.