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Allahabad High Court
G.D. Sharma vs Praveen Sharma on 8 September, 2000
Equivalent citations: 2000 (4) AWC 2931
Author: V Sahai
Bench: V Sahai


JUDGMENT

V.M. Sahai, J.

1. This revision has been filed under Article 227 of the Constitution challenging the order dated 15.7.2000 passed in Misc. Appeal by the tower appellate court. The stamp reporter has reported that court fee paid in the revision is Rs. 100. He has mentioned in his report that the revision is not maintainable in view of Full Bench decision in AIR 1979 All 218.

2. Prima facie, the report appears to be correct. But the learned counsel for the revisionist Sri J. J. Munir has challenged the report and has relied on four single Judge decisions of this Court and has urged that the revision is maintainable under Article 227 of the Constitution. The learned counsel urged that he did not file the revision under Section 115 of the Civil Procedure Code, therefore, the Full Bench decision referred in the report was not attracted.

3. A Full Bench of this Court in M/s. Jupiter Chit Fund (Pvt.) Ltd. v. Dwarka Diesh Dayal, AIR 1979 All (FB) 218, after considering the State amendment has held that a decision in appeal or revision by the civil court arising out of suits or other proceedings is not amenable to revisional jurisdiction of High Court under Section 115. C.P.C. In another Full Bench decision of this Court in Ganga Saran v. Civil Judge, Hapur Ghaziabad and others, AIR 1991 All (FB) 114, it has been held that a writ under Article 226 against such order is not maintainable and no mandamus can be issued to a private individual. Both these Full Bench decisions were examined by the

learned single Judge in Matthan Singh v. IInd Additional District Judge, Meerut, 1996 (11 ARC 117, and it was held that an order passed in appeal or revision could neither be challenged by way of appeal or revision nor writ jurisdiction under Article 226 of the Constitution be invoked. He, however, held that in absence of any verdict that a non-revlsable order could not be challenged under Article 227 of the Constitution converted the revision In a petition under Article 227 and decided it accordingly. In Ram Pher Yadav v. Union Bank of India and others. 1999 (2) ACJ 1561, the learned Judge entertained a petition under Article 227 of the Constitution against an order passed in appeal arising out of a suit but while dismissing it on merits, observed that, “the Court exercises revisional Jurisdiction under Article 227 of the Constitution on the same grounds on which such jurisdiction is exercised by the High Court under Section 115, C.P.C.” Similar observations were made by him In M/s. Om Rice Mill Jaspur and others v. Banaras State Bank Ltd. Kashipur and another, 2000 (1) ACJ 263. In Smt. Brijendra Kaur and others v. Ram Agarwal and others. 2000 (1) ACJ 535, the learned Judge converted the revision filed under Section 115, C.P.C. under Article 227 and decided it as revision. But neither decision contains any reason in support of treating a revision filed under Section 115, C.P.C. as a revision or a petition under Article 227 of the Constitution.

4. I have perused these decisions but I am not able to persuade myself to agree with the view taken by the learned single Judge. No civil revision can be entertained under Article 227 of the Constitution. The remedy by way of appeal or revision are statutory remedy. They can be created and taken away by the Legislature. Once the Legislature barred a revision under Section 115, C.P.C. against an order passed in appeal or revision by the civil court and such provision has been upheld by this Court and Apex Court, it cannot be urged that the revision is still maintainable. The

power under Articles 226. 227 and Section 115. C.P.C. are exercised by the High Court. But when the remedy of approaching the High Court by way of revision has been taken away by the Legislature, the entertaining of revision under Article 227 would be circumventing the provision of law. I am also doubtful if a writ petition under Article 227 can be entertained against an order passed by the civil court in appeal or revision. What has been barred directly cannot be invoked indirectly. It has already been held in a Full Bench of this Court in Ganga Saran (supra) that no writ petition under Article 226 is maintainable against such orders. The powers under Article 227 are powers of superintendence over subordinate Courts and Tribunals. It is a power vested by the Constitution in the High Courts to be exercised to ensure that the Courts or Tribunals function within its jurisdiction but it cannot be invoked as a matter of course against any order passed tn appeal or revision. It is not a revisional power as held by learned single Judge. In some of the decisions. the Courts while emphasizing limited nature of power exercised under Article 226 and 227 have observed that they are in nature of revisional power. But from such observation. It cannot be held the power exercised under Article 227 is revisional power. There is a well defined difference in existence and exercise of power. This, in my opinion, is not only circumventing the law but creating jurisdiction which does not exist. Further the court fee payable on revision is Rs. 100. But in this revision, the court fee paid is Rs. 100. This Court fee is payable in writ petition. The rules of the Court do not permit it. The practice of paying Rs. 100 court fee which is fee for writ petition and then claiming that it may be treated as revision under Article 227 in absence of any rule cannot be permitted.

5. For all these reasons the following questions are referred for being decided by a larger Bench :

(1) Whether a civil revision is maintainable under Article 227 of the Constitution?

(2) Whether by paying Rs. 100 as court fee, a revision against an order passed by the civil court against which a revision under Section 115, C.P.C. has been barred can be entertained by this Court under Article 227 of the Constitution?

(3) Whether under the rules of the Court, the power under Article 227 can be exercised by this Court In a writ petition against an order passed by civil court in appeal or revision?

(4) Whether in absence of any procedure prescribed by the rules of the Court, what procedure would apply for exercising power under Article 227 of the Constitution?

(5) Whether a person against whom an order has been passed by civil court in appeal or revision has no remedy?

6. Since the aforesaid questions
are arising frequently, the office is
directed to place the records of this
case within a week before the Hon’ble
The Chief Justice for constituting a
larger Bench.


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