JUDGMENT
V.G. Palshikar, J.
1. This revision application is directed against
the order passed in Misc. Civil Appeal No. 6/95 passed on
6-8-1996 below (Exh.114) in Regular Civil Suit No. 56/92
whereby the order of status-quo was granted. The learned
appellate Court vacating the order of status-quo granted
injunction in favour of the appellants before it and,
therefore, the unsuccessful respondent has come up in
Revision under Section 115 of the Civil Procedure Code.
2. When this matter came up for arguments, it was
noticed that several revisions of such nature are pending
in this Court. All these revisions challenged the orders
passed by the trial Court and the appellate Court either
when they are concurrent or when they are reversing. The
learned Counsel appearing in the above revision
application No. 803/96 desired for some time to argue the
matter. Accordingly, the matter was adjourned till
today. In the meantime, the office also identified about
150 revision applications wherein identical question of
law arose, namely, maintainability of all such revision
applications after 1-7-2002 when the amended provisions
of Section 115 of the C.P.C. came into operation and the
amended proviso substantially curtailed the revisional
jurisdiction of this Court and prohibited entertainment
of revision application in any interim or interlocutory
order. Again this being important question of law, the
matter was adjourned and learned members of the Bar were
invited to address this Court all the facets of this
question. Accordingly, Shri M.G. Bhangde, Shri R.L.
Khapre, Shri P.N. Kothari, Shri V.P. Panpalia, Shri
A.P. Wachasunder and Shri S.P. Kshirsagar appearing for
various applications in the revision applications
contended that such revision applications are
maintainable in spite of the amendments with effect from
1-7-2002. Shri S.R. Deshpande, Shri Rajeev Chhabra and
Shri L.G. Deshpande, learned Advocates submitted that
after the amendment, there is no question of such
revision applications being maintained and, therefore,
prayed that all these revision applications be dismissed
as not maintainable.
3. We have to first note the submissions made by
the learned Counsel in this behalf. Shri M.G. Bhangde,
learned Counsel appearing for the applicants, submitted
that the proviso to Section 115 as amended upto date
covers only four situations, i.e. (i) order made in the
course of a suit, (ii) order made in the course of other
proceedings, (iii) order deciding any issue in the course
of a suit and (iv) order deciding any issue in any other
proceedings. His contention is that the proviso is
attracted only in relation to the above four categories
and, therefore, no revision application under Section 115
of the C.P. Code will be maintainable after 1-7-2002 only
in cases where the above four contingencies occur. In
all other cases, according to the learned Counsel, a
revision application will be maintainable. He then
contended that an order under Order 39 Rules 1 & 2 of the
C.P. Code is not an interim order in any way as it finally
decides the proceedings, namely, the appeal against order
and consequently, it is not an order either in the course
of the suit or in the course of other proceedings, it
being a final order in the other proceedings and,
therefore, the revision application is maintainable.
4. Shri R.L. Khapre, the learned Counsel appearing
for the applicants, submitted that he adopts the
arguments of Shri Bhangde and he placed heavy reliance on
a judgment of this Court in Pundlik Balkrushna Patil and
others .vs. Arun Shankar Patil and others reported in
1985 Mh. L.J. 296 to contend that the revision
application is maintainable. I will advert to this
judgment at a later stage.
5. Relying on the provisions of Order 39 and Rules
1 & 2 of the Order 39, Shri P.N. Kothari, the learned
Counsel contended that an order under Rule 1 or 2 of
Order 39 adjudicates, though prima facie, on the rights
of the parties, in an application under that proviso and,
therefore, though temporary it is a final adjudication of
rights and, therefore, revision is maintainable. The
proceedings are not interlocutory in nature and,
therefore, there is no question of revision not being
maintained.
6. Shri Panpalia, learned Counsel appearing on
behalf of the applicants, submitted that the very
construction of the provisions of Order 39 denotes that
the proceedings for temporary injunction are not of
interlocutory nature. Relying on the title of Order 39,
he pointed out that Order 39 provides for temporary
injunctions and interlocutory orders. He then took me
through the provisions of Rules 1 to 6 and submitted that
they apply to temporary injunctions and under a
sub-heading interlocutory orders that can be passed by a
Court under Order 39 are mentioned. According to him,
therefore, an interlocutory order is only that which is
mentioned from Rule 6 onwards under Order 39 and an order
granting or rejecting temporary injunction is not an
interlocutory order and, therefore, revision under
Section 115 in the circumstances is maintainable.
7. Countering these submissions, Shri S.R.
Deshpande, the learned Advocate submitted that either by
grant or refusal of an interim order by way of temporary
injunction the suit is not terminated or finally decided.
The grant or refusal is only for the disposal of the
suit. It is a step taken by the Court to keep alive the
lis and protect the suit property. Merely because an
appeal is provided against an order of such interim
nature, it cannot acquire finality of any kind in any
manner. To the same effect was the submission of Shri
Rajeev Chhabra, the learned Advocate, who submitted that
even if the appeal is decided by the Appellate Authority
under Order 41 Rule 1, that decision on an appeal does
not decide the suit which is the main litigation and in
that main litigation, temporary injunction is granted to
keep alive the lis and protect the suit property and,
therefore, merely because the appeal under Order 43 Rule
1 C.P.C. is finally decided, it does not become a final
order taking it outside the purview of the provisions of
Section 115 or making it revisable under Section 115 of
the C.P. Code.
8. Shri L.G. Deshpande, the learned Advocate
appearing on behalf of the non-applicants, submitted that
by the Amending Act of 1999, the provisions of Section
115 were reconstituted. If the object for reconstitution
is considered, it will be seen that the object was
decidedly to reduce the delay caused in disposal of a
litigation and, therefore, reducing the number of interim
remedies available. According to the learned Counsel,
provisions of Order 39 are obviously interim measures
that can be taken by a Court and any order made therein
is obviously interim in nature. Merely because an appeal
is provided against that order, it cannot now be said
after reconstitution of the Section by the 1999 Amending
Act that in spite of the clear mandate of the Legislature
a revision application against such order passed by the
appellate Authority under Order 43 Rule 1 would be
maintainable.
9. I have to consider these rival contentions in
the light of the several provisions of the Civil
Procedure Code and several decisions cited at the Bar as
also noticed by me. I would again like to consider the
provisions of Section 115 of the C.P. Code as they
traveled via amendments from the inception of the Civil
Procedure Code till date. Section 115 from 1908 till
1976 read as under :-
“S. 115. 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.”
The High Court, therefore, had the power or the
jurisdiction to revise the orders of the subordinate
Courts if they were such as are covered by clauses (a),
(b) & (c) of Section 115 quoted above. Till 1976 there
were no fetters on the powers of the High Court and any
order passed by any Court subordinate to it was liable to
be revised if it answered to the description mentioned in
any of the three clauses in Section 115. About this
position, there never was any doubt. However, by passage
of time the arrears kept mounting and it was deemed
necessary by the Parliament of India to curtail delays
that occurred in pending suits. Extensive amendments,
therefore, were made to the provisions of the Civil
Procedure Code, 1908 introducing several reforms for
reducing the delay in disposal of the suits. We are
concerned in this revision with the reforms introduced by
the Parliament in the matter of revisional powers of this
Court. Section 115 of the C.P. Code was amended and
certain restrictions were placed on the power of the High
Court. The Section as amended in 1976 reads as under :-
“S. 115(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
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 –
(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 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.”
From the above, it will be seen that by the amendments of
1976, Section 115 was renumbered and it was divided into
two sub-sections. Sub-section (1) retained the original
Section 115 to it, the amendment added in the proviso and
sub-section (2) was further added putting a positive
restriction on the right of the High Court to revise an
order in cases where an appeal lay from that order either
to the High Court or to any Court subordinate thereto.
From the amendments, it will, therefore, be seen that
earlier under Section 115 the only fetter was that the
High Court could not exercise the revisional powers in
cases where the order impugned was such in which no
appeal lay thereto meaning thereby to the High Court. If
an appeal was maintainable to the High Court from that
order, revisional jurisdiction could not be exercised by
the High Court. This position was altered and the High
Court was prohibited from entertaining a revision
application against any order against which an appeal lay
either to the High Court or any Court subordinate
thereto. By adding this sub-section, a revision was made
not maintainable in cases where appeal lies either to the
High Court or to any Court subordinate thereto. After
the amendment of Section 115 by the Amending Act, 1976,
therefore, it was specifically provided that 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.
Prior to introduction of this sub-section, there were
several cases in which an appeal lay to the District
Court under the provisions of Section 104 of the Civil
Procedure Code read with Order 43 Rule 1 of C.P. Code and
depending upon the pecuniary jurisdiction of the Court
concerned, such appeals lay to the High Court also. The
original Section 115 as it stood prior to 1976 prohibited
interference by the High Court only in cases in which no
appeal lies thereto. Till 1976 it was, therefore, open
for the High Court to revise an order in which no appeal
lies to it. It could, therefore, till then entertain a
revision application in case of an order passed in appeal
under Order 43 Rule 1 if no further appeal lay to it.
This jurisdiction of the High Court was curtailed by
adding sub-section (2) to Section 115 and it was provided
that 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 any subordinate Court. After
the addition, therefore, an order against which an appeal
is maintainable before the District Court is made not
revisable directly by the High Court but there was
nothing in these amended provisions to prevent the High
Court from considering in revision an order made by the
Appellate Authority as no appeal lay to it as
contemplated by Section 115(1). It is obvious from all
this, therefore, that first inroad was made on the powers
of the High Court to revise the orders of the subordinate
Court by amendment of 1976. Certain restrictions were
put on the powers of the High Court to revise any orders
of the Court subordinate thereto.
10. It was after this amendment in 1976 came into
force that the question of extent of jurisdiction of this
Court under Section 115 was considered by this Court in a
decision in Pundlik Balkrushna Patil and others .vs.
Arun Shankar Patil and others reported in 1985 MH.L.J.
296. In that case this Court took the view on scrutiny
of the provisions of Section 115(2) as it then stood that
the order sought to be revised having been passed under
Order 43 of the C.P. Code was not appealable either to the
High Court or to any other Court subordinate to it and,
therefore, a revision was held maintainable. There is
yet another reason why the revision in those
circumstances was maintainable. It will be seen with
reference to the provisions of Section 115 as amended in
1976 that the proviso had two clauses to it and with
reference to the second clause, i.e. clause (b) it was
permissible for the High Court to interfere in revision
in a matter where gross injustice was done. The clause
read as under :-
“(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.”
The ban imposed by the proviso was, therefore, not total
and hence, interference was possible. This was the
position in relation to maintainability of revision till
the provisions of Section 115 of the C.P. Code were
further amended by the Act of 1999. By that Act, proviso
to Section 115(1) was restructured, sub-section (2)
though kept intact was reintroduced and sub-section (3)
was added. The Section after amendment reads as under :-
“S. 115(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
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.”
It will be seen that the newly introduced proviso is
restructured from the old proviso, clause (b) thereof is
deleted and (a) is merged in the proviso, thereby
providing that the High Court shall not vary or reverse
any order made in the course of a suit or 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. The removal
of clause (b) of the proviso is significant and the
submissions made at the Bar mentioned above are to be
considered in light of these amendments. The main
submission that the proviso to Section 115 covers only
four situations quoted above and the proviso is attracted
only in those situations is based basically on the
premise that an order made under Order 39 Rules 1 & 2 is
not an interim order.
11. It is, however, not possible for me to accept
the contention that order made under Order 39 Rules 1 & 2
is not an interim order. Bare look at the heading of
Order 39 in the C.P. Code is enough for this purpose. It
reads :-
“TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS”
The injunctions granted under the Order by nature of the
provisions of law are temporary. It is not, therefore,
permissible in law to hold that though the provision
under which it is made is called temporary, it is not a
temporary order. Apart from this, the fact that the
orders under Order 39 are temporary or interim or
interlocutory is established beyond reasonable doubt.
The Supreme Court in The Saharanpur Cooperative Cane
Development Union Ltd. and others vs. The Lord Krishna
Sugar Mills Ltd. and others has observed in paragraph no. 13 as under :
“13. After hearing learned advocates
appearing for the different parties we have no
doubt in our mind that this is a case where we
should not interfere with the stay order
passed by the High Court. For one thing it is
only in the most exceptional circumstances
that this Court ever agrees to interfere with
an interim working order passed by the High
Courts. The principal contentions of the
different parties in this case are yet to be
heard and adjudicated by the High Court. It
is not desirable that in delivering this
judgment we make any observation which might
influence the High Court in any manner in
passing the final order in the writ
application. Both the parties have sought to
make out before us that the stand they are
taking in this matter is the only possible
stand that one can possibly take in the light
of the relevant statutory provisions. It is
apparent that the time for deciding which of
these rival contentions is correct has not yet
come. In the circumstances, we do not see how
we can interfere with the interim order passed
by the High Court. The High Court apparently
took into consideration the fact that any
indefinite postponement of the payment of the
outstanding dues of the petitioner might
seriously prejudice the cane growers. The High
Court must have considered at the same time
that to allow the certificate proceedings to
be completed would have rendered the writ
application made by the petitioner completely
in fructuous. They, therefore, passed a
working order protecting the interests of the
cane-growers and at the same time keeping open
issues which can be brought out at the time of
adjudication. It was suggested to us on
behalf of the Cane-growers Society that the
proper order for the High Court in such
circumstances would have been to maintain the
status quo and to keep the attachments
undisturbed until the disposal of the writ
petitions and at the same time to insist on
the petitioner depositing the entire amount in
court, so that the interests of the
cane-growers could be protected in the event
of dismissal of the writ petition. While we
are not in a position, in the absence of a
judgment in this matter, to contemplate the
reasons which induced the High Court to pass
the instant order in its present form, it is
impossible for us not to appreciate the fact
that even if the High Court had passed an
order asking the petitioner to deposit the
entire amount at once that would not have
helped the immediate needs of the cane-growers
which according to the counsel of the Society
are so pressing that it is incumbent on us to
interfere even with an interim order passed by
the High Court. At one stage, we considered
the feasibility of making an order by which
the petitioner could be compelled to make a
deposit in court of a sum of Rupees 8.26 lakhs
which, according to the petitioner, is the
amount that is still outstanding if one takes
into account the various payments made by the
petitioner after the issue of the certificates
either on its own or in terms of the order of
the High Court. We, however, refrain from
passing such an order for the simple reason
that such an order would make very little
difference to the parties. This sum would in
any case be payable by the petitioner in
course of a little over two months time. Had
we passed such an order we would have only
expedited the realisation of the outstanding
dues of the cane-growers by an insignificantly
short period. This we are unwilling to do.
This cannot help any of the parties and there
can be hardly any point in taking the
extraordinary step of interfering with an
interim order of the High Court when such
interference cannot serve the interests of any
party whatsoever. In this view of the matter
these appeals fail. In the particular facts
and circumstances of the case we make no order
as to costs.”
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 C.P.C. is a temporary order.
12. The decision in Terene Traders .vs.
Rameshchandra Jamnadas & Co. and another reported in AIR
1987 S.C. 1492, in my opinion, clinches the issue that
the orders passed under Order 39 are temporary or
interlocutory in nature.
“2. In this case a learned Judge of the
Bombay High Court by his order dated July 1,
1986 has in revision set aside the order of
the Bombay City Civil Court dated September 5,
1983 and allowed the plaintiffs application
for grant of temporary injunction under Order
XXXIX R. 1 of the Code of Civil Procedure,
1908.
3. Normally, this Court does not, as a
rule, interfere with an interlocutory order of
this nature except under very exceptional
circumstances…..”
It will be seen that the very nature of the orders
indicates that they are temporary and the Supreme Court
has in most unequivocal terms observed that to be so.
13. The latest judgment of the Supreme Court in
Laxmikant V. Patel .vs. Chetanbhat Shah and another
, in my opinion, decisively
holds that the orders under Order 39 are temporary or
interlocutory in nature. The Supreme Court has held as
under :-
“The Supreme Court would not ordinarily
interfere with the exercise of discretion in
the matter of grant of temporary injunction by
the High Court and the Trial Court and
substitute its own discretion therefore except
where the discretion has been shown to have
been exercised arbitrarily or capriciously or
perversely or where the order of the Court
under scrutiny ignores the settled principles
of law regulating grant or refusal of
interlocutory injunction. An appeal against
exercise of discretion is said to be an appeal
on principle. Appellate Court will not
reassess the material and seek to reach a
conclusion different from the one reached by
the Court below solely on the ground that if
it had considered the matter at the trial
stage it would have come to a contrary
conclusion.”
It is thus clear that the order passed under Order 39 is
temporary or interlocutory in nature. According to Shri
M.G. Bhangde, learned Counsel appearing for applicants,
even if the order under Order 39 Rules 1 & 2 of the Civil
Procedure Code is interlocutory, after an appeal is filed
under Order 43 C.P.C. the appellate order is no longer
an order either in the suit or proceedings and,
therefore, is open for revision. According to him, as
noted above, the proviso bars a revision application only
in the four contingencies where the order is made in the
course of a suit or proceedings and where order is made
in the course of suit or proceeding deciding any issue in
course of that suit or proceeding. The order passed by
the appellate authority under Order 43 Rule 1 read with
Section 104 of C.P. Code is not such an order. It finally
decides the proceedings of Miscellaneous Appeal under
Section 104 and, therefore, the revision is maintainable.
I am unable to accept this contention for the reason that
an appeal against an order granting or refusing
injunction is maintainable under Order 43 Rule 1 and that
appeal is a continuation of the proceedings. An order
granting injunction if maintained in appeal merges into
the appellate order and if reversed ceases to exist and
an order dismissing an application for grant of temporary
injunction comes into existence. Even that order
continues to be temporary. In either case it is an order
in continuation of the proceedings which are pending and,
therefore, it cannot be said that it is an order in a
proceeding which is neither a suit nor a proceeding as
contemplated by Order 39 and, therefore, is a final order
is not acceptable. Even if it is presumed that the order
passed by the appellate Court under Order 43 decides the
appeal finally and the proceedings by way of Misc.
Appeal come to an end, the lis pending in the Civil Suit
does not stand decided by reason of that order. 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.
14. In my opinion, such revision application is not
maintainable after 1-7-2002 as the legislative intent to
prohibit such interference in revision is made abundantly
clear by the Amendment Act and the provisions of the
Section. It will be seen that by the 1999 Amendment the
proviso to Section 115(1) was substituted. Clause (b) of
the proviso was deleted. Section 115(2) was maintained
and clause (3) was added to Section 115. As long as the
clause (b) of proviso existed on the statute book, it was
possible for the High Court to interfere in its
revisional jurisdiction even if the order is of interim
or interlocutory nature provided if such order is allowed
to stand, it would result in failure of justice or
irreparable loss. Conscious deletion of this provision
by the Legislature is, therefore, a positive indication
of the intent of the Legislature that even if the
interlocutory order if allowed to stand caused failure of
justice or irreparable loss, it should not be interfered
with because it is of interim nature and parties can
always be relegated to their rights by the appropriate
final adjudication of the lis between the parties which
will be decided only when the suit from which this arises
is decided. That being the clear intent of the
Legislature to severely restrict the scope of revisional
powers of the High Court, to interpret the proviso in a
manner which will require reading into that proviso the
contents of clause (b) which was definitely and
positively eliminated by the Legislature by restructuring
the proviso, is impermissible in law. It will have,
therefore, to be held that the revision application
against orders under Order 39 Rule 1 whether passed by
the trial Court or in appeal by the appellate Authority
under Order 43 Rule 1 are not liable to be revised under
Section 115 of the Civil Procedure Code after 1-7-2002.
15. In the result, therefore, all these revision
applications fail and are dismissed. There will be no
order as to the costs.