Judgment:
1. This revisional application is directed against an order dated 20.3.2007 passed by the Additional District & Sessions Judge, Contai, Purba Medinipur in Civil Revision no. 1 of 2007 by which an application for stay of all further proceedings in Title Suit no. 288 of 1997 was rejected.
2. The opposite party no. 2 instituted Title Suit no. 288 of 1997 praying for declaration of his right, title and interest in respect of a suit property and also decree for permanent injunction restraining the petitioners and the proforma opposite parties from creating any disturbances in peaceful possession thereof. It is a specific case of the opposite party no. 1 that one Sher Ali Saha was the original owner of the suit property. Upon the death of the said owner the suit property devolved upon his three sons, who thereafter transferred the suit property by executing and registering a deed of conveyance dated 2nd May 1960 in favour of the opposite party no. 1. The petitioner and the proforma opposite parties are the grand-children of the said Sher Ali Saha, the original owner of the suit property.
3. During the pendency of the said suit the defendant no. 3 namely Apa Bibi died and the factum of the said death was intimated to the trial court on 15.4.2000.
4. However, an application under Order 22 Rule 9 of the Code of Civil Procedure read with section 5 of the Limitation Act was filed by the opposite party no. 1 which was registered as Judicial Misc. Case No. 4 of 2004. The said application was opposed by the petitioners and the proforma opposite party no. 2, by filing a written objections.
5. The trial court allowed the said application under Order 22 Rule 9 of the Code after setting aside the abatement upon condoning the delay in taking out such application within the statutory period prescribed for the same.
6. The said order was assailed by the petitioners under section 115A of the Code before the Additional District & Sessions Judge, Contai, Purba Medinipur which was registered as Civil Revision Case No. 1 of 2007. The petitioners also filed an application for stay of all further proceedings of the said Title Suit till the disposal of the said civil revisional application. The said application for stay was rejected by the trial court by the impugned order.
7. Mr. Tarak Nath Halder, learned Advocate appearing for the petitioners submits that the court below have misread the provision of section 115(3) of the Code while rejecting the application for stay. He strenuously argued that the revisional application is maintainable as the order if it had been made in favour of the petitioners applying for revision would have finally disposed of the suit or other proceeding.
8. Mr. Amal Baran Dash, learned Advocate appearing for the opposite party opposed the submission of the petitioner in contending that the court below rightly passed an order rejecting the application for stay as no ground is made out by the petitioner in the said application.
9. Having considered the submission of the respective counsels at length, it is undisputed that an application for setting aside the abatement of the suit was filed along with a prayer for condonation of delay. The said application was ultimately allowed and the order of abatement was set aside. Assailing the said order under section 115A of the Code before the Additional District & Sessions Judge, Contai, Purba Mdeinipur, it was tried to be contended that such order is not sustainable inasmuch as the legal parameters laid down for condoning the delay under section 5 of the Limitation Act has not been followed.
10. Before me a point has been taken by the opposite party no. 1 that the order disposing an application under Order 22 Rule 9 of the Code is not revisable as the said order does not result into the dismissal of the suit or other proceeding.
11. It is tried to be contended that unless an order complained of disposes the suit or other proceeding, the same is not capable of being challenged under section 115A of the Code.
12. Proviso to section 115 of the Code which was inserted by section 12 of the CPC (Amendment) Act, 1999 (46 of 1999) w.e.f. 1.7.2002 postulates that any order deciding an issue in course of a suit or a proceeding shall not be varied or reversed except where such order if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.
13. A point as to what could be the meaning given to the word ‘other proceedings’ came up before the Single Bench of this court in case of Mrityunjay Sen v. Smt. Sikha Sen reported in AIR 2003 Cal 165 where it has been held that the other proceeding does not mean interlocutary or incidental or supplemental proceeding but shall mean the different and distinct proceeding from those, which are registered as suits in these words :
“33. I am unable to accept the contentions advanced before me that in exercising the revisional power, the High Court could ignore the proviso to the main section. In my view the proviso will prevail as it speaks the last intention of the makers. Moreover, the Apex Court in the case of Prem Bakshi v. Dharam Dev reported in (2002) 2 SCC 2 :
(AIR 2002 SC 559) while considering the power of the High Court under Section 115 of the Code of Civil Procedure. as it stood prior to amendment of 1999, observed as under :
"The proviso to sub-sections (1) and (2) with Explanation was added by the amending Act of 1976. By this amendment the power of the High Court was curtailed; the intention of the legislature being that the High Court should not interfere with each and every interlocutory order passed by the trial Court so that the trial of a suit could proceed speedily and that only the interlocutory order coming under clause (a) or (b) of the proviso would be entertained by the High Court."
34. Therefore, it can never be suggested that the High Court can interfere with each and every order passed by a Court subordinate to it only if the requirements of sub-section (1) of Section 115 are satisfied or for ends of justice or to prevent abuse of the process of the Court can refused to look into the proviso to said sub-section (1). I hold that amendment was introduced by the amending Act of 1999 to restrict the power of revision only in respect of cases where the order would have finally disposed of the suit or the proceeding if it had been made in favour of the party applying for revision.
35. Now, I proposed to consider the meaning of the expression 'other proceeding' referred to in the proviso to sub-section (1)of Section 115 of the Code. My reading of the statute is it was never the intention of the makers of the law that by inclusion of the expression 'other proceeding' they intended to vest the High Court with the power of revision even in respect of order that may be passed in interlocutory or supplemental proceeding to a suit. In my view, the expression 'in the course of a suit' is sufficient to vest the High with the power of revision against the interlocutory orders passed by the Court subordinate to it provided, however, the requirements of the proviso are satisfied. My reading is that by insertion of the expression other proceeding the legislature intended to vest the High Court with the power of revision in respect of order passed in the civil proceedings, which are registered other than suits. The expression 'other' indicates different and distinct proceedings from those, which are registered as suits. A Full Bench of this Court in the case of Deb Narain Dutt v. Narendra Krishna reported 1889 ILR 16 Calcutta 267 held that "The word "proceeding" is a very general one, it is not limited to proceedings connected with civil suits; but includes, I suppose, proceedings other than civil proceedings, and civil proceedings other than suits."
36. If the interpretation, suggested by some of the learned members of the bar, that in view of the insertion of the expression other proceeding all types of orders passed in interlocutory or supplemental proceeding can be revised by the High Court, the very purpose of the introduction of the amendment will be frustrated inasmuch as the whole purpose behind introduction of the amendment by amending Act of 1999 in respect of the exercise of the revisional power was to curtail the power of revision in order to avoid delay in disposal of the suit or the proceeding.
37. I am unable to accept the contentions that in exercise of the inherent power the High Court, for ends of justice or to prevent abuse of the process of the Court, can invoke the revisional jurisdiction overlooking the proviso to sub-section (1) of Section 115 of the Code. Such submission does not appeal to me since it is contrary to the clear and unambiguous language of the statute. There is no ambiguity in the language of the statute. The inherent powers of the civil Court can ordinarily be exercised when there is no legislation on a particular field or subject- matter. Where there is an express provision barring a particular remedy, the Court can never resort to the exercise of inherent power, particularly, to nullify the effect of the express provision. It is the ordinary rule of interpretation that to exercise the power the requisite condition must be fulfilled.”
14. Admittedly, the suit abated for non-bringing the heirs on record on the death of one of the defendant. Once the suit abated there is no lis pending before the court. The order dismissing an application for setting aside the abatement, if dismissed, does not attract the proviso to section 115 of the Code. The suit is no longer in existence. Furthermore, dismissal of an application for setting aside the abatement does not result into the further dismissal of a dismissed suit. Though the point of maintainability of a revisional application under section 115A of the Code is taken by the opposite party no. 1 before this court for the first time and the court below did not have any occasion to deal with the said point and as such it would not be proper on my part to decide the maintainability of the revisional application under section 115A of the Code at this stage.
15. The application for stay was rejected on the ground that section 115(3) of the Code creates an embargo in passing such order.
It would be profitable to quote section 115 which reads thus :
“115. Revision.- (1) the High Court may call for the record of any case which has been decided by 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 :
(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to the 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."
16. On a bare reading of sub-section 3 of section 115 of the Code there is no ambiguity in holding that a mere filing of a revisional application does not operate as a stay of the suit or other proceedings. The trial court has misread the said provision in holding that the power to grant stay has been taken away by such amendment. On a meaningful reading of the entire provision contained in sub-section 3 of the Section 115 of the Code, the power has been conferred upon the revisional court to pass the order of stay of the progress of the suit or other proceeding provided sufficient ground or case is made out by the litigant applying for revision.
17. Thus the order impugned is hereby set aside.
18. The court below is directed to reconsider the said application for stay. The opposite party no. 1 is granted liberty to take a point of maintainability of the revisional application before the court below. It is expected that the court below shall make all efforts to dispose of the said application for stay within three weeks from the date of communication of this order.
19. The revisional application is disposed of. However, there shall be no order as to costs.
20. Urgent photostat certified copy of this order, if applied for, be supplied to the parties on priority basis.