ORDER
K.K. Lahoti, J.
1. This order will decide Civil Revision Nos. 202/2000 (Sawal Singh v. Smt. Ramsakhi and Ors.), 286/2002 (Anokhi Lal v. Surendra Kumar and Ors.) and 388/2002 (Leela Bai v. Lottan and Ors.) involving same question of law. The facts of the cases are as under :--
(Civil Revision No. 202/2000)
The applicant has filed present revision challenging the order dated 18-1-2000 passed by Additional District Judge, Khurai, Distt. Sagar in Civil M.A. No. 19/99, by which appeal filed by plaintiffs/respondents under Order 43 Rule 1 of CPC was allowed and temporary injunction issued against the applicant during the pendency of the suit.
(Civil Revision No. 286/2002)
This applicant has challenged the order passed by First Civil Judge, Class 2, Khandwa, in Civil Suit No. 170-A/99 by which application filed by non-applicants/plaintiffs under Order 6 Rule 17, CPC was allowed and plaintiffs were permitted to amend the plaint. This revision was filed on 6-2-2002 and admitted on 9-4-2002.
(Civil Revision No. 388/2002)
In this revision the order passed by the Court below by which application under Order 39 Rules 1 and 2, CPC filed by the plaintiff was rejected by the Trial Court and appeal filed by the applicant under Order 43 Rule 1, CPC, was also dismissed, is impugned.
The batch of revisions has been filed invoking jurisdiction of this Court under Section 115 of the Code of Civil Procedure (hereinafter referred to 'the Code'). Section 115 of the Code of Civil Procedure has been amended by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), and came into force on 1st July, 2002 by Notification dated 6th June, 2002. Now, the amended Section is 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 proceedings.'
Prior to 1-7-2002, the provision reads as under:--
'115. Revision.-- The High Court may call for the record of any cases which has been decided by any Court subordinate to such HighCourt and in which no appeal lies thereto, and if such Subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law; or
(b) to have failed to exercise a jurisdiction so vested; or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not, under this section, vary or reverse any order made or any order deciding an issue, in the course of a suit or other proceedings except where :
(a) the order, if it had been made in favour of the party applying for the revision, would have finally disposed of the suit or 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.'
By amendment of 1999, following changes have taken place in Section 115 of the Code:--
(a) Following proviso has been substituted in Sub-section (1):--
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. (b) After Sub-section (2) but before the Explanation, following Sub-section (3) has been inserted namely:-- '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.'
2. In nut-shell, now in Sub-section (1) of Section 115 of the Code, following words which were in the statute book have been omitted :--
'(b) The order, if allowed to stand, would occasion a failure ofjustice or cause irreparable injury to the party against whom it was made.'
Except this, the amended Sub-section (1) is as it is as it was prior to 1-7-2002, but this has substantially changed in the exercise of revisional jurisdiction of High Court.
3. For the decision of the above revision petitions, following questions arise:--
(a) The effect and scope of invoking revisional jurisdiction of the High Court after the aforesaid amendment,
(b) The effect of the said amendment on pending cases on 1-7-2002.
4. The revisional jurisdiction conferred on the High Court under Section 115 of the Code can be segregated into two compartments, namely, first relating to the circumstance under which the High Court can exercise the jurisdiction for rectification of the errors pertaining to the order passed by inferior Courts, and secondly the proviso which follows the main section creating certain riders/qualifiers. If the proviso is read in its entirety in a constructive manner, it is quite clear that even if the requirements stipulated in the first part, such as, non-exercise of jurisdiction though vested, exercise of jurisdiction which is impermissible or commission of material irregularity in passing of the order, the Court shall not vary or reverse the order if conditions precedent enshrined in the proviso are not satisfied. By virtue of recent amendment by which Sub-clause (b) of the proviso to the Sub-section (1) has been deleted, what remains in the statute book is the proviso. The proviso creates an embargo in exercise of power of revision. To put it differently, it restricts the exercise of jurisdiction while entertaining the revision. The Court may be satisfied with regard to the components mentioned in the first compartment but unless the case fits into the category that has been engrafted in the proviso the Court will not be in a position to interfere.
5. 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 came 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. Butthere 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.
6. 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, 99A, 141, 144, 146 and 147, the word 'proceedings' has been used. Under Section 141, the legislation has specifically included the proceedings under Order 9, CPC but has excluded any proceedings under Article 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.
7. A proceeding instituted under Section 144 of the Code has to be treated as an original proceeding as it relates to different realm altogether. It has a different colour. Ordinarily, it is in the nature of an execution proceeding. The execution proceeding cannot be regarded as a proceeding in the course of the suit or related to an order passed under the suit or decision of an issue in the suit. Another example may be given. After the suit is disposed of an application may be filed under Section 152 of Code for rectification of the error in the decree. That proceeding has to be considered to be in a different sphere. Otherwise that would defeat the purpose of justice. A proceeding under Section 47 which was initially appealable after 1976 amendment is not appealable. If the same is not treated as an original proceeding, revision would not lie and the same cannot be the purpose of the proviso and such an acceptation would amount to traversity of justice.
8. A consequence cannot be equated with the main proceeding. After the termination of the lis, to give effect to the verdict of the lis execution takes place. Hence, that has also to be kept in the compartment of original proceeding. Quite apart from the above, the proceedings which are initially under the special statute before the competent authority of the Code or under M.P. Accommodation Control Act or under any other eviction proceeding relating to public premises and such other ancillary proceedings are the original proceedings and if the appeal is barred then revision is maintainable because final order is passed in these proceedings. In this context, it is apposite to referto the decision rendered in the case of Shyam Sunder Agarwal and Co. v. Union of India, AIR 1996 SC 1321, wherein the Apex Court held :--
'28. It may be stated that even if a special statute expressly attaches finality to an appellate order passed under that statute, it has been held by this Court in the case of Hari Shankar that such provision of finality will not take away revisional powers of the High Court under Section 115 of the Code of Civil Procedure.....'
The proceedings under the Land Acquisition Act, Hindu Succession Act, Guardians and Wards Act and order passed under Section 94 of the Code are also in the realm of original proceedings. However, the list is not exhaustive but only illustrative. Now this Court will not exercise revisional jurisdiction in respect of those orders which would not dispose of the suit finally. Though on the decision of the suit the effect of the order may be substantial, material, or on jurisdictional issues, but if immediate effect is not the final disposal, the revisional jurisdiction cannot be exercised, though those issues can definitely be raised when regular appeal is preferred.
9. The learned Counsel appearing for applicants submit that by proviso, the right of revision cannot be curtailed. The main section provides a remedy to a litigant, but by the proviso, such a remedy has been curtailed. The proviso cannot curtail the right available under the main section. Suffice it to say that language of a proviso is normally construed in relation to the subject-matter covered by the section to which the proviso is appended. The proviso does not travel beyond the provisions to which it is a proviso. In the circumstances, while construing the proviso it is to be considered in relation to the principal section to which it stands as a proviso. Section 115 provides revisional jurisdiction to the High Court. Remedy of the revision is a procedural, which can be curtailed by legislation. The effect of the deletion of Clause (b) of the proviso is that the revisional jurisdiction in relation to interlocutory orders is curtailed. The legislation looking to the long pendency of the civil cases and proceedings had decided to provide speedy process to the Court so that the cases which are pending/filed in the Civil Courts may be decided expeditiously. In that regard, in the Code various provisions have been made in which the time period has been provided. In the procedure also, there are several amendments which give effect to the legislative intent for speedy trial. To achieve this aspect, the Legislature had deleted (b) clause of proviso with an intention that the interlocutory orders should not be interfered with in the revisional jurisdiction of the High Court. The proviso in the section does not form a separate section, but has to be read harmoniously in relation to the main provision.
10. Apart from this, the legislation has provided remedy to challenge all such interlocutory orders by enacting Section 105 in the Code. Where noappeal is provided against the order, then any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. In the circumstances, the effect of amendment is that the interim orders which have been passed in the course of a suit or other proceedings the High Court will not exercise its revisional jurisdiction in respect of those orders. While all the orders against which a revisional jurisdiction is invoked and result of which would have final disposal of the suit or other proceeding, the revisional jurisdiction of the High Court can be exercised. In the circumstances, each and every case has to be seen on the basis of the aforesaid criteria.
11. The next question arises whether the pending revisions on 1-7-2002 will be governed by the amended provision or with the provisions which were in existence when the revision was filed. It is settled law that the remedy of revision is not as of right. It is procedural law and every case has to be decided on the existing law when the power is to be exercised. The Full Bench of this Court in the case of Ramchandra v. Dattatraya, 1986 JLJ 344 : (1986 MPLJ 406 = AIR 1986 MP 191) has considered this question, and ruled thus :--
'8. In our opinion, in order to ascertain as to whether a right of revision is or is not conferred on a litigant, it would be necessary to examine the provision of law under which that right is being claimed. Does it provide that a revision shall lie against a particular order or does it merely confer power on a superior authority to revise orders of a subordinate authority In one case a substantive right is conferred while in the other case it is not so. That is why the Supreme Court held in AIR 1980 SC 1575 (supra) that the amendment made in Section 115, CPC was a procedural reform in the field of revision to the High Court.
9. The matter can be looked at from another angle. As held by the Supreme Court in Smt Ganga Bai v. Vijay Kumar, AIR 1974 SC 1126. It is well settled that though there is an inherent right in every person to bring a suit of a civil nature, a right of appeal inheres in no one and an appeal for its maintainability must have the clear authority of law. The right of appeal is thus a creature of statute. Similarly, if a right of revision is claimed, it should be conferred by a provision of law. In this connection difference in the language used in Section 96, CPC and Section 115, CPC is noteworthy. Section 96, CPC provides that an appeal shall lie from every decree passed by any Court exercising original jurisdiction, to the Court authorised to hear appeals from the decrees of such Court. Section 96, CPC thus confers a right of appeal. On the other hand, Section 115, CPC which deals with revisions provides that the High Court may call forthe record of any case and if certain conditions are fulfilled, may make such order as it thinks fit. It is true, as urged on behalf of the petitioner, that the use of the word 'may' in Section 115, CPC does not mean that the High Court has an unfettered discretion in dealing with a case under Section 115, CPC. But the fact that the discretion of High Court under Section 115, CPC is controlled by that provision docs not lead to the conclusion that a substantive right is conferred on a litigant by Section 115, CPC.'
12. In the repeal and savings clause of the Code of Civil Procedure (Amendment) Act, 1999. Relevant Section is 32(2)(i), which reads as under:--
'32. Repeal and savings.-- (2) Notwithstanding that the provisions of this Act have come into force or repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897 (10 of 1897),-- (i) the provisions of Section 115 of the Principal Act, as amended by Section 12 of this Act, shall not apply to or affect any proceedings for revision which had been finally disposed of.'
13. By the aforesaid provision, the only finally disposed of revision, which has been decided prior to coming into force of this Amendment Act will not be affected. The intcndment of the legislature is that all the pending matters will be governed by the amended provision. In Ramchandra 's case (supra), the Full Bench has also held :--
'11. Having given our anxious consideration to the matter, we have come to the conclusion that in the absence of any express provision to the contrary, in the Amending Act supervisory or revisional power under Section 115, CPC has to be exercised in accordance with the provisions of law in force at the time when the power is sought to be exercised.....'
14. In view of the Full bench decision, all the pending revisions will be decided in accordance with law which is in force at the time when the revisional power is exercised.
15. In view of the aforesaid, conclusions are as under :--
(a) The revisional jurisdiction under Section 115 of the Code is available against:
(i) the order deciding finally the suit or other proceedings where no appeal is provided, and
(ii) where effect of order in the revision would finally dispose of the suit or other proceedings;
(b) The revisional jurisdiction will not be exercised in respect of all other orders 'deciding any case' in the course of suit or other proceedings, though there may be any error, defect, irregularity or illegality in exercise of jurisdiction, where allowing the revision would not finally dispose of the suit or other proceedings.
(c) all the pending revisions on 1-7-2002 will be decided as per the amended provisions of Section 115.
16. In view of the aforesaid, in Civil Revision No. 286/2002, applicant has challenged the order passed by the Trial Court allowing the amendment application filed by plaintiff/non-applicant, is an interlocutory order. By allowing this revision, suit cannot be disposed of finally. In the circumstances, revisional jurisdiction in this case is not exercised. However, the applicant is granted liberty to assail the order at an appropriate time and forum, or in case occasion arises to the applicant to file an appeal against the final order. Dismissal of this revision will not come in the way of applicant to challenge the order.
Civil Revision Nos. 388/2002 and 202/2000
Both have arisen out of order passed in appeal under Order 43 Rule 1, CPC in which application under Order 39 Rules 1 and 2 of CPC was decided. Deciding these revisions will not dispose of the suits finally. In the circumstances, revisional jurisdiction cannot be exercised. Consequently, these revisions are dismissed.
17. Before parting with the cases, I unreservedly record my appreciation for the able assistance rendered by Shri Ravish Agrawal, Senior Advocate, Shri S.K. Seth, Additional Advocate General, Shri H.D. Khirwadkar, Shri R.P. Jain, Shri Ashok Lalwani, Shri Imtiaz Hussain, Shri A.K. Jain, Shri Alok Aradhe, Shri N.K. Patel, Shri Pramod Varma and other Advocates.