JUDGMENT
A.P. Deshpande, J.
1. A common question of law about the
maintainability of the Revision Petitions directed
against interlocutory orders cropped up after the
Parliament introduced extensive amendment to the
Civil Procedure Code by Amendment Act of 1999,
which has come into force w.e.f. 1-7-2002. As the
said question emerged repeatedly in various
matters, I had directed the Registry to identify
cases, wherein identical issues are involved and
pursuant to the said direction, the office has
placed on Board aforesaid matters, wherein a common
question of maintainability of the Revision
Petitions arises for adjudication. I have heard
the learned Advocates appearing for the Revision
Petitioners, so also the learned Advocates
representing the respondents. The petitions are
taken in two groups. Group A denote petitions
which are admitted and pending final hearing and
Group B denote cases which are at admission stage.
All the petitions are being decided by this common
order.
2. All the Revision Petitions are arising
out of the orders passed by the Trial Court under
Order 39 Rule 1 and 2 of C.P.C., either granting or
refusing injunction, which orders are carried in
Miscellaneous Appeals before the District Judge
under Order 43 Rule 1(r) of the C.P.C. The First
Appellate Court, in these matters, has either
confirmed the order passed by the trial Court by
granting or refusing injunction and/or has reversed
the order. To decide the question of
maintainability of the Revisions, it is required to
be first ascertained as to whether the orders
impugned are interlocutory in nature or otherwise.
The said question is already answered by the
learned Single Judge of this Court (Justice V.G.
Palshikar) in a judgment reported in 2002(4)
Mh.L.J. 615 ” Nagorao @ Arun s/o. Narayan Yerawar
and others Vs. Narayan Nagan Yerawar and another”
It is held by the learned Single Judge that, ” the
position of an order under Order 39 is, in my
opinion, identical. The principal contentions
raised by different parties in the suit regarding
the subject matter for which the interim order is
made are yet to be decided. The findings recorded
by the learned trial Court or the appellate Court
under Order 43, Rule 1 are prima facie findings
dealing with the continuation or discontinuation of
a temporary injunction granted or not granted.
There can, therefore, be no doubt that the order
under Order 39 Civil Procedure Code is a temporary
order.”
The learned Single Judge has proceeded
to further observe, ” What is contemplated by
section
115 as amended in 2002 is that the order
should be such if made in favour of the revision
applicant would have finally disposed of the suit
or other proceedings. The Civil Suit in which
temporary injunction is granted or not granted is
not decided finally either by grant or refusal
thereof and continues to pend. Taking into
consideration this aspect of the matter, therefore,
it cannot be said that merely because the revision
application is directed against an order passed by
appellate Court finally deciding the Misc. Appeal
under Order 39, Rule 1 read with Order 43, Rule 1,
C.P.C., the revision is maintainable. What is now
necessary after July, 2002 for maintaining a
revision is that the order impugned in revision
must have the effect of finally disposing of the
suit or proceedings in favour of the person who
applies for revision. By very nature of things and
the nature of Order 39 itself, such a contingency
cannot occur and consequently, a revision
application whether against an appellate order or
original order granting or refusing injunction is
not maintainable after 1.7.2002.”
So the test laid down in the said
judgment for a revision to be maintainable is that
the interlocutory order impugned in revision if set
aside must have the effect of finally disposing of
the suit or proceedings in favour of the person,
who applies for revision. In order to appreciate
the test laid down in the judgment, I proceed to
refer to the provisions of Section 115 as amended
by the Amendment Act No. 46/1999, which has come
into force w.e.f. 1-7-2002, which is as under :
“S.
115(1) The High Court may call
for the of any case which has been decided by any
Court subordinate to such High Court and in which
no appeal lies thereto, and if such subordinate
Court appears,
(a) to have exercised a jurisdiction not
vested in it by law, or
(b) to have failed to exercise a
jurisdiction so vested, or
(c) to have acted in the exercise of its
jurisdiction illegally or with material
irregularity
the High Court may make such order in the case as
it thinks fit :
Provided that the High Court shall not,
under this section, vary or reverse any order made
or any order deciding an issue, in the course of a
suit or other proceeding except where the order, if
it had been made in favour of the party applying
for revision, would have finally disposed of the
suit or other proceedings.
(2) The High Court shall not, under this
section vary or reverse any decree or order against
which an appeal lies either to the High Court or to
any Court subordinate thereto.
(3) A revision shall not operate as a stay
of suit or other proceeding before the court except
where such suit or other proceeding is stayed by
the High Court.
Explanation : In this section, the expression “any
case which has been decided” includes any order
made, or any order deciding an issue, in the course
of a suit or other proceeding.”
The interpretation of the proviso which
is couched in a negative form, would provide the
answer to the question. The proviso lays down 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. So, the test is laid down as to when
the High Court can interfere with the interim order
passed by the Court below and it categorically lays
down that had the order impugned been passed in
favour of the aggrieved party, it would have
finally disposed of the suit or other proceedings,
In this situation alone revision against an
interlocutory order would be maintainable and not
otherwise.
I am in agreement with the view taken by
the learned Single Judge in the case cited supra.
3. The next judgment dealing with the same
question, is by the same learned Judge and it has
been rendered prior in point of time than the
judgment, referred to hereinabove. The learned
Judge, while deciding the batch of petitions
dealing with the identical question, in the case of
“Rajabhau Rahate Vs. Dinkar Ingole” 2002(3) M.L.J.
921″ has had an occasion to have a retrospect of
the provisions contained in Section 115 of the
C.P.C., as it stood prior to the Amending Act of
1976 and thereafter, with a view to find out the
legislative intent, in amending the Civil Procedure
Code, by an amending Act of 1999, which has come
into force from 1st July, 2002. It is observed,
” Then, in 1999, again extensive
amendments were made to the Code of Civil
Procedure including several reforms, all
aimed at curtailing the delays in disposal of
the litigation, to which the Code of Civil
Procedure was applicable. It is also
necessary to note that all the amendments of
1976 as also the amendment of 1999 or 2002
were basically made to substantially reduce
the delay caused in disposal of the matter
because of several procedural hurdles.
Attempt was made to remove those hurdles in
1976. The revisional powers under Section
115 were circumscribed to an extent, but
contemplated results did not occur and,
therefore, further amendment was thought
necessary in 2002.”
After noting the legislative intention
behind amending Section
115, the learned Judge
proceeded to interpret the amended Section
115 and
categorically held,
“Taking into consideration the above
discussion and the ratio of the judgments cited
above, I am of the view that :
(i) The provisions of Section
115 as
amended with effect from 1st
July, 2002 are applicable from
that date to all proceedings
pending in this Court under Section
115 of the Civil Procedure Code.
(ii) There is no right in a litigant
to move an application under
Section
115 of the Civil
Procedure Code for exercise of
jurisdiction mentioned therein.
(iii) That it being not a right as
held above, there is no question of
it being saved byre course to
provisions of Section 6 of the
General Clauses Act, 1897.
(iv) The provisions of section
32(2)(i) do not either by direct
legislation or by necessary
implication save any such proceedings
from being affected by the amendment
with effect from 1-7-2002.
(v) As a consequence of the above,
all revision applications, whether
pending as on 1st July, 2002 or
filed thereafter, will have to be
dealt with strictly in accordance
with the provisions of Section
115
of the Civil Procedure Code
with effect from 1st July, 2002.
(Vi) As a further consequence thereof, no revision application
against an interlocutory order will
been tertainable even if the order
is made prior to 1st July 2002
as moving this Court Section
115 is
held not to be a right.
4. In view of the findings reached by the
learned Single Judge that the provisions of Section
115 as amended w.e.f. 1-7-2002, are applicable
from that date to all proceedings pending in this
Court under Section
115 of the C.P.C., it is
evident that all matters, whether filed prior to
1st July, 2002 or thereafter, need to be decided at
the touch-stone of the amended provisions contained
in Section
115 and if that be so, then, unless and
until the very interlocutory order satisfies the
test laid down in the proviso, i.e. if the
impugned order had been passed in favour of the
Revision Petitioner, would have resulted in
termination of the suit or other proceedings, the
revision would not be maintainable.
5. I also have assistance of 4 more
judgments, touching the very question, and next I
proceed to refer to the judgment by another learned
Single Judge of this Court reported in 2002(4)
Mh.L.J. 913 ” Zahida Nizamuddian Dalal and others
Vs. Abidali Jaffer Ali Syyed and others”. The
learned Judge has also interpreted the amended
Section
115 having regard to the legislative
intent. In para. 26 of the judgment, the learned
Judge has observed,
“The whole purpose behind imposing
restrictions upon the exercise of revisional powers
being to curtail obstruction to the speedy disposal
of the suit and having noticed the revisional
interference being main cause for such
obstructions, as already observed above, to
interpret expression “other proceedings” to include
supplementary proceedings in a suit will defeat the
very purpose behind the incorporation of the said
proviso to Section
115 of the Civil Procedure Code.
The learned Judge has explained the judgment in
“Rajabhau Rahate” reported in 2002(3) Mh.L.J. 921
(supra) and in para.37 of the judgment the learned
Judge has concluded the issue by laying down that
” Considering the law as stated above, the impugned
order being an interlocutory order and any
interference therein would not result in
terminating of the suit, no revision lies against
the same and this revision application therefore is
liable to be rejected and is hereby accordingly
dismissed.”
So, the view taken by the learned Single
Judge in “Rajabhaus case” has been endorsed with
approval in ” Zahida Nizamuddin & others Vs.
Abidali Jafar and others ” by Justice Khandeparkar.
6. The Karnataka High Court as well, in the
judgment “K.R.
Subbaraju Vs. M/s. Vasavi Trading Company &
others”, has interpreted Section
115 as amended by
Act No. 46/1999 and has held that the revisional
jurisdiction is materially restricted by the
amendment. It is held that even if the order
impugned suffers from jurisdictional error, the
same cannot be interfered unless it be shown that
if the impugned order was passed in favour of the
party applying for revision, it would have finally
disposed of the suit or other proceedings. The
said judgment was in regard to an order passed
under Order 6 Rule 17 i.e. amendment of the plaint
and as the test contained in the proviso was not
satisfied, the Court declined to interfere and held
that the revision petition was not maintainable.
7. The next judgment is that of the Madhya
Pradesh High Court. The learned Single Judge has
held in ” Phoolsingh Vs. Mavla and others”
, that the scope of
interference in revision is restricted by the
proviso substituted by the Amending Act of 1999.
In the said judgment, it is further held that the
amendment applies to all cases pending, on the date
on which the amendment act comes into force.
8. There is one more judgment dealing with
the said question, reported in AIR 2002 All. 14.
In paras.8 and 9 of the said judgment, the Court
observed :
” I have considered the arguments.
I am afraid that no relief can be
granted to the revisionist in these
revisions in view of the proviso added
to Section
115 C.P.C. by Amending Act
No. 46 of 2002 enforced w.e.f.
1-7-2002 which is as follows :
“…..”(cited supra)
According to this proviso therefore, the
order cannot be varied, reversed in the
exercise of powers under Section
115
C.P.C. for the reason that had the
order been made in favour of the
revisionist it would not have finally
disposed of the suits.”
9. In the above referred judgments, the
view is expressed by all the learned Judges
holding that there is no right in the litigant,
much less, a substantive right to approach the
High Court under Section
115 of C.P.C. in its
revisional jurisdiction. The jurisdiction of
the High Court contained in Section
115 is the
power of the Court and is not a right of the
litigant.
In view of the above discussion, I am of
the clear opinion that the present Revision
Petitions challenging the interlocutory orders
cannot be entertained in exercise of powers
under Section
115 and to put it in other words,
the Revision Petitions are not maintainable.
10. The learned Advocates appearing for the
Revision Petitioners sought permission to
convert the Revision Petitions into Writ
Petitions under Article 227 of the Constitution
of India. The question is, should this Court
permit a revision to be converted into Writ
Petition, is again, no longer open for a debate.
In a judgment reported in 2002(4) Mh.L.J. 597 ”
Bharatkumar Agrawal Vs. M/s. Anita Trust
through Ku. Preeti Patel and another”, the
learned Single Judge of this Court has held,
” Viewed from any point, therefore, it
is not possible for me to accede to the
request that Revision Application filed
under section
115 of the C.P.C. can be
converted into a writ petition. After
operation of the amended section
115,
revision application must end.
Proceedings must terminate as the
petition is not maintainable. To
entertain a not maintainable petition
and say on it that it should be
transposed as a writ petition to get the
jurisdiction in order to nullify the
legislative intent is such a course
which the Supreme Court has positively
disapproved in the case of ” State of
Himachal Pradesh Vs. Raja Mahendra Pal,
Cited supra. When both the urisdictions
are co-existing and are available to the
litigants, to say or to permit a
litigant after six years of pendency or
for that matter six years of pendency or
for that matter six days of pendency of
an application which by operation of law
is not maintainable , be permitted to be
made a petition under Article 227 would
be setting at naught the legislative
mandates.”
11. So, basically if this Court has no
jurisdiction to entertain a revision, this Court
would be lacking a further jurisdiction to allow
conversion of revision into a writ petition and
in this view of the matter, I am not inclined to
favourably consider the prayer made by the
learned Advocates for the petitioners seeking
conversion of the revision into a writ petition.
Lastly, it was vehemently submitted by
the learned Advocates for the petitioners that
the petitioners are entitled to invoke the
powers of this Court, by moving a petition under
Article 227 of the Constitution of India as they
contended that in most of the matters, the
impugned orders suffers from error of law that
is manifest on the face of the record and in
this situation, they would be entitled to
agitate their grievance under Article 227 of the
Constitution of India.
There is no doubt that amendment to
Section
115 by Act No. 46/1999 will not affect
the powers conferred on the High Court under
Article 227, but the said power has to be
exercised only in appropriate cases. It is
submitted by the Advocates for the petitioners
that the interim orders are operating for years
and years, pending the revision petitions, and
the same should be continued for a reasonable
period, so as to enable the petitioners to move
petitions under Article 227 of the Constitution,
as otherwise, it would result in miscarriage of
justice. No doubt, there is substance in the
said contention. True it is, that power under
Article 227 of the Constitution is analogous to
the power of superintendence contained in
Section
115 of the C.P.C. A power has been
conferred on the High Court under Article 227 of
the Constitution, to keep the subordinate courts
within the bounds of their authority. The power
of judicial review is enshrined in Article 226
and 227 of the Constitution and it is a part of
the basic structure of the constitution and
hence, amendment to Section
115 in no way,
encroaches upon the power contained in Article
227 of the Constitution and the said power is
wholly unaffected. I am not called upon to
opine, while deciding these revision petitions,
as to under which situation the High Court in
exercise of power under Art. 227 would
interfere with an order under challenge but, as
it is evident, that a writ petition under Art.
227 would be maintainable even against an
interlocutory order, which does not satisfy the
test laid down in the proviso to Section
115 as
amended. It would be in the interest of justice
to continue the status quo for a limited period
so as to enable the litigants to approach this
Court in exercise of jurisdiction under Article
227 of the Constitution of India by moving an
appropriate petition. To substantiate the last
submission, the learned Advocates have placed
reliance on the judgment reported in 2003(1)
Mh.L.J. 275 ” Prabhudas Gedam and another Vs.
Municipal Council, Bhadravati”, wherein the
learned Single Judge has taken into
consideration catena of Apex Court judgments
including the judgment in “L. Chandrakumars
case”. Therefore, even if this Court has no
jurisdiction under Section
115, still status quo
is ordered for a reasonable time in exercise of
inherent powers contained in Section 151 of the
C.P.C.
12. In the result, the Revision Petitions
(falling in Group A which are heard finally) are
dismissed. Rule is discharged. There shall be
no orders as to costs. Civil Applications , if
any, filed in these revisions, stand disposed of.
In so far as Revision Petitions (in
Group B are concerned) the same are dismissed
inlimine.
However, (in Group A and Group B
matters) status quo as on today to continue for
a period of 15 days.