JUDGMENT
V.G. Palshikar, J.
1. This revision application raises a substantial question of law of large public importance regarding maintainability of a revision application under section 115 of the Code of Civil Procedure, 1908, after its amendment effective from 1st July, 2002. The question whether a revision application pending before this Court as of that day are liable to be decided in accordance with the amended provisions of section 115 or the amendments may not affect the pending revisions; what is the scope and extent of saving Clause in section 32 of the Amendment Act. These and analogous important questions occur with regularity in all cases that will come up for admission after 1st July, 2002. In my opinion, therefore, it is necessary that the view of this Court at least on the interpretation of these provisions, is taken and made known to all concerned.
2. Generally, it could be necessary to decide the scope and extent of the provisions of section 115 of the Code of Civil Procedure to determine whether the revisions pending in this Court prior to 1st July, 2002 be maintained as if the amendments have not been effected or they are liable to be considered only in light of the amended provisions.
3. I had solicited the assistance of the learned members of the bar by inviting their participation and discussion on the question of scope and extent of the provisions of section 115 of Civil Procedure Code as amended by the Amendment Act of 1999. Several learned Counsel appeared and submitted their views on the scope and extent of the provisions of section 115 as amended.
4. Shri W.G. Charde, learned Advocate contended that taking into consideration the provisions of section 32 by which repeals and savings are effected, it is obvious that even the pending proceedings will have to be governed by section 115 as amended by section 12 of the Amendment Act, 1999. He pointed out the judgment of the Supreme Court , to contend that right of appeal is a substantive right, but there is no such substantive right of making an appeal under section 115 of the Code of Civil Procedure for revision and hence it can be affected by the amendment. He contended that section 115 has always been a source of power for the High Court to supervise the Courts subordinate to it and it is never a right conferred on litigant aggrieved by an order of the subordinate Court to approach the High Court for injunction. That being the basic principle on which section 115 stood all these years, it cannot be said that to make an application thereunder is a right substantive in nature which cannot, therefore, be retrospectively affected.
5. Shri G.B. Lohiya, learned Advocate submitted that looking to the provisions of the Amending Act, it is obvious that the power of revision to be exercised by this Court is seriously circumscribed and revision applications can hereafter be maintained only in cases where the impugned order if passed in favour of the complaining party would have resulted in adjudication of the entire lis or would have finally disposed of that lis. However, he contended relying on the provisions of section 32 and section 6 of the General Clauses Act that the amendment being procedural in nature is prospective and, therefore, it does not affect pending revisions though the provisions of sub-section 32(2)(i) of the Amendment Act, 1999 does not so prescribe. According to the learned Counsel, it will have to be necessarily implied in the provisions of section 32(2)(i) that it will not affect pending revisions though he did not subscribe to the view canvassed by Shri Khapre that right to move a revision application is a vested substantive right.
6. Shri R.L. Khapre, learned Counsel appearing for the applicant in this revision application, contended that civil revision under section 115 is continuation of the entire proceedings commended by the institution of the civil suit. Like an appeal, a revision also is continuation of a suit and, therefore, on the institution of the suit there is right to move for revision if and when adverse order of any nature is made against any party to that litigation. According to him, therefore, this being a substantive right, it could not be affected retrospectively. Relying on the provisions of section 32(2)(i) and section 6 of the General Clauses Act, he contended that the provisions of section 32 make a specific mention to section 6 of the General Clauses Act and its application to the amendments. By necessary implication, therefore, mere non mention in Clause (i) of the fact that the amendment will not affect rights vested prior to amendment makes no difference and the revision application has to be maintained as if the amendments have not taken place. Reliance was placed by the learned Counsel on several judgments of this Court as also the Supreme Court of India in support of the different facets of his submissions. I will deal with them at appropriate places hereafter.
7. Shri P.N. Kothari, learned Advocate submitted that right to apply under section 115 of the Code of Civil Procedure is not a substantive right. Section 6 of the General Clauses Act applies only to substantive vested rights and it will not, therefore, apply to the provisions of section 115 as the right to make an application under that section is not a substantive right. He compared the provisions of section 96, section 100 with section 115 of the Code of Civil Procedure and pointed out that sections 96 and 100 of the Code of Civil Procedure create a specific right of appeal in a litigant who is adversely affected by the decree passed. The wordings are ‘an appeal shall lie’ whereas section 115 does not even speak of any application being made by person aggrieved by an order of the subordinate Court. It is completely a power given to the High Court to act in cases of illegalities of serious nature. He, therefore, submitted that revision applications pending in this Court will have to be dealt with from 1-7-2000 onwards only in accordance with the provisions of that section as amended by Amendment Act, 1999. He relied on the judgment of the Supreme Court in K. Eapen Chako v. The Provident Investment Company (P.) Limited, A.I.R. 1976 S.C. 2610 for the proposition that the right of revision is not a substantive right. I will refer to this judgment also in extenso at appropriate place hereafter.
8. Shri D.L. Dharmadhikari, the learned Advocate submitted that the provisions of the Amending Act will have to be interpreted as prospective in nature as it cannot affect right which have accrued to the parties prior to amendment of the Act. According to the learned Counsel, once a revision application is filed and admitted after hearing by the Court, cognizance of the matter is taken by the Court and such cases, therefore, cannot be affected by a subsequent amendment. According to him, therefore, the provisions of amendment by the Act of 1999 will have to be read prospectively and the pending proceedings in revision in this Court will not be affected by amendment which became operational from 1-7-2002.
9. Shri N.A. Vyawahare, learned Advocate submitted that in fact the amending provisions make broader the jurisdiction of the High Court under section 115 of Civil Procedure Code. According to him, the fetters that existed by reason of existence of Clause (b) of the proviso to section 115 have been removed by deletion of that proviso and according to him, now High Court can suo motu revise or revise on an application of aggrieved person any adverse order which finally adjudicates the dispute irrespective of the nature of that order.
10. Shri Atul S. Chandurkar, learned Advocate also submitted that though the provisions of section 115 as amended are prospective in nature, it has come into force from 1-7-2002 and from that date onwards the pending revisions also will have to be considered only in accordance with the provisions as amended with effect from that date. He pointed out to me a very recent judgment of the Madhya Pradesh High Court delivered at the Indore Bench on 8-7-2002 in Civil Revision Application No. 962/99 reported in Phoolsingh v. Mavia & Bhavaliya and two others, 2002(3) M.P.L.J. 326 wherein this very question was taken up for consideration by the learned Single Judge of that High Court and on detailed consideration of the arguments advanced before him, the learned Judge came to the conclusion that the provisions of section 115 as amended with effect from 1-7-2002 are such as will affect the pending revisions also and the same will have to be considered for maintainability, etc. only in accordance with the provisions as amended with effect from 1-7-2002. This judgment probably is the only judgment delivered after the amendment became operative from 1-7-2002 and I will consider it in extenso at a later stage.
11. Useful submissions were also made by Shri S.R. Deshpande, Advocate, Shri K.G. Gharote, Advocate, Shri Rohit Joshi, Advocate. I have carefully considered the submissions of the learned Counsel. I have scrutinised the provisions of the Civil Procedure Code and the various amending Acts, etc. In my opinion, in view of the arguments advanced at the bar and in view of the legal structure of the provisions of section 115 from its inception to date, the question of scope and extent of section 115 of the Code of Civil Procedure will have to be considered in two parts. In first part, I will deal with the submissions that right to revision is a substantive right and is, therefore, a substantive vested right as contemplated by section 6 of the General Clauses Act and consequently, the revision applications pending on the date of application of the Amending Act, i.e. 1-7-2002 will apply only to institutions made after that date, i.e. revision applications filed in the High Court after that date and the pending revisions will have to be considered in accordance with the provisions prior to the amendment on that date. In the second part, I will consider the effect of various amending Acts, the necessary legislative intent flowing therefrom and decide the scope and extent of the provisions of section 115 of the Civil Procedure Code.
12. That takes me to the submission that Civil Procedure Code provides for lodging of civil suits and it provides for certain appeals and revisions under the Code. All these proceedings are continuation of the civil suit and, therefore, the existence of these provisions on the date of institution of the suit creates a vested right in the litigants to take recourse to the remedies of appeals and revisions if and when any adverse order to any of the parties is made. That being the substantive right, it can be affected only prospectively and not retrospectively. The right vests when the suit is instituted and it cannot, therefore, be divested by an amendment brought after the institution of the suit. Shri Khapre relied on the decision in Shankar Ramchandra Abhyankar v. Krishnaji, in support of his submission that a revision is continuation of the proceedings and therefore, a right to challenge an order adverse to a litigating party before the High Court by invoking powers under section 115 is a substantive right which cannot be amended or altered retrospectively. In my opinion, this case is of no use to Shri Khapre as it deals with the question as to whether an order passed by this Court under section 115 of Civil Procedure Code be interfered with by this Court under Articles 226 and 227 of the Constitution of India. It was while considering the question of maintainability of suit or writ challenging an order under section 115 of Civil Procedure Code that the question of continuation of proceedings was considered. Even if it is assumed that a revision is a continuation of proceedings, it will not be possible for me to accept the contention of Shri Khapre that the right of revision is a right in the first place or that it is a substantive right in the second place for the reason that the right must either exist or not exist in the eye of law. There cannot be an inchoate right or a contingent right. There can be several civil suits in which interim orders are made and no revision or appeal is sought. There may be several suits where no occasion whatever arises for appeals or revisions within the Code. Consequently, it cannot be said that the right to revision is a substantive right. In this connection, the submission of Shri Kothari is liable to be accepted. A comparative study of the provisions of section 96 and section 100 and section 115 of Civil Procedure Code will demonstrate that while providing these remedies the legislature has taken care and has observed that an appeal shall lie from a decree passed under the Code. It further provided that in certain cases a further appeal shall lie from appellate decree passed under this Code. There is no such right conferred by section 115 of Civil Procedure Code which does not even speak of an application by an aggrieved person. It is a power conferred on the High Court which is analogous to the power of superintendence given to it by Article 227 of the Constitution. There is, therefore, no substantive right of revision as urged by Shri Khapre. Useful reference can be made at this stage to a judgment of the Supreme Court reported in the case of K. Eapen Chako v. The Provident Investment Company (P.) Limited, reported in A.I.R. 1976 S.C. 2610, wherein the Supreme Court has observed as under:—
“37. A statute has to be looked into for the general scope and purview of the statute and at the remedy sought to be applied. In that connection the former state of the law is to be considered and also the legislative changes contemplated by the statute. Words not requiring retrospective operation so as to affect an existing statutory provision prejudicially ought not be so construed. It is a well-recognised rule that statute should be interpreted if possible so as to respect vested rights. Where the effect would be to alter a transaction already entered into, where it would be to make that valid which was previously invalid, to make an instrument which had no effect at all, and from enactments merely affect procedure and do not extend to rights of action. See Re Joseph Sucha and Co. Ltd., 1875(1) Ch.D. 48. If the legislature in the form of procedure are retrospective unless there is some good reason or other why they should not be. In other words, if a statute deals merely with the procedure in an action, and does not affect the rights of the parties it will be held to apply prima facie to all actions, pending as well as future.”
From the above, it will be seen that it is only in case of vested rights that a legislation has to be interpreted to mean as one affecting such rights to be prospective in nature. In the instant case, there is no right of revision under section 115 and there is, therefore, no question of considering the effect of the amendment only prospectively. I will deal with this aspect also again at the later stage. In my opinion, therefore, having found that there is no vested right of appeal or revision under section 115 of Civil Procedure Code, as it always existed whether prior to amendment of 1976 or of 1999, it always was a power conferred on the High Court for the purposes of considering the legality, propriety, jurisdictionwise of orders made by courts subordinate to it. The section as it always stood and it now standing does not speak of any application being made under that proviso. There is, therefore, no question of an application for revision being made a substantive right.
13. With this finding, I will proceed to consider the question as to the effect of the amendments and the question as to whether the amendments are prospective in nature or retrospective in nature. If prospective, what is the effect thereof from 1-7-2002 on cases lodged before that date but pending on that date.
14. The Code of Civil Procedure was legislated in the year 1908 to provide for the procedure to be adopted in the conduct of civil suits by the courts in India. It came into force on 1-1-1909 and applied to all the States in India except Jammu and Kashmir. It provided for various procedures, rights, remedies for person litigating in Civil Courts. It provided for hierarchy of courts. By section 3, it provided that the District Court shall be subordinate to the High Court and every Civil Court of a grade inferior to that of District Court and Civil Court, Court of Small Cause, will be subordinate to the High Court and the District Court. It provided for courts. It defined the jurisdiction of the courts, the manner in which a suit shall be tried is exhaustively provided by the Code. Then in section 96, a right of appeal is mentioned. Section 96 provides that except where otherwise provided, an appeal shall lie from every decree passed by any Court. It, thus, created a substantive right in a litigant to take in appeal a decree passed against him. Section 100 provided for second appeal. The second appeal was also available only in cases where the case involved a substantial question of law. Here also the right of appeal against an appellate judgment and decree was a substantive right created by the Code though certain limitations were prescribed on the power of the Appellate Court to entertain such appeal and it was restricted to substantial questions of law only. It is however worthwhile to note that both sections 96 and 100 of the Code gave a complete right of appeal and further appeal prior to its Amending Act, 1976. I will have to consider exhaustively the effect of 1976 amendment and 2002 amendment. Presently, I will consider what is provided for by the Code of Civil Procedure. It deals vested rights of appeals provided. It provides the procedure which is the complete Code of conducting the proceedings in a case pending before the courts established under the Code. It provides the machinery and manner in which the appeals shall be considered or further appeals will be considered in a suitable case. It has also defined the rights of the courts or the powers and jurisdiction of the Courts established under the Code. It also spells out the powers of the High Court under the Code. One such power is to be found in section 115 of the Civil Procedure Code. It is the power on the High Court to call for the record of any case which has been decided by any Court subordinate to the High Court and pass appropriate orders thereon if the contingency mentioned in the section exist.
15. The powers of the High Court while dealing with the first appeals or second appeals are also defined by the Act. In this case, I am however concerned only with the power of the High Court under section 115 of the Code of Civil Procedure and is now, circumscribed by the Amendment of 2002. I have to consider the provisions of section 115 as it stood from time to time. I have already pointed above that the Code was established in 1908, was made applicable in 1909 and section 115 was always in the statute book since then. The provisions of section 115 of the Code of Civil Procedure read as under:
“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 as it thinks fit.”
It appears that prior to 1-6-1965, there was no amendment of this section. It provided for a power in the High Court to call for record of any case which has been decided by any Court subordinate to such High Court of the three contingencies mentioned in Clauses (a), (b) and (c) of that section occurred. A plain reading of the section will show that it is the power of the High Court to call for record of any case to High Court and exercise this power suo motu or may exercise it on application made by aggrieved party. It certainly cannot therefore be said that making of an application under section 115, invoking the power of the High Court to call for record and examine the propriety of a particular order is a right of the litigant much less a substantive right. An aggrieved party may make an application for calling of records and the High Court may or may not in its discretion, call the records and scrutinise the order impugned. Section 115, therefore, creates a power in the High Court to suo motu revise an order of the subordinate Court. It does not anywhere create a right in the litigant to require the High Court to exercise this power. It is not possible to read in section 115 of the Civil Procedure Code any right to call for record and revision of any order. I would like to consider the provisions of section 96 of the Civil Procedure Code as is canvassed by Shri Kothari.”96.
(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature congnizable by courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed three thousand rupees.”
From above, it will be clear that an appeal shall lie from every decree. The right to make an appeal is thus given to the litigant who loses in the Court of first instance. It is a substantive right created as a matter of procedure for vindicating the grievance that the person may have against any decree which is adverse to him. A bare perusal of language of sections 96 and 115 of the Civil Procedure Code will demonstrate, therefore, that one that is section 96 creates a right of appeal whereas section 115 creates a power or jurisdiction in High Court to suo motu revise inappropriate, without jurisdiction or illegal and unjust order of the Court below.
16. From the language of section 115 noted above, it is clear that till it was amended in 1976, the power of the High Court under section 115 to revise an order of the subordinate Court was wider. The High Court could interfere in cases where there was a jurisdictional error and also in cases where the exercisal jurisdiction was illegal or irregular. There were no fetters on the power of the High Court. It was basically a power of superintendence given to the High Court analogous to the powers being given to the High Court by Article 227 of the Constitution of India which came in existence in 1950.
17. As the Code of Civil Procedure is a Code prescribing the various procedures for conducting a civil suit, it has been extensively amended from time to time to meet the requirements of the time when the amendment was made. Procedural changes to meet the requirements of the changing times are always necessary and are always made. But the very extensive and far-reaching amendments were made to the Code of Civil Procedure for the first time in 1976 by the Civil Procedure Code (Amendment) Act, 1976. I will have to consider the amendment brought out by this Amending Act to section 115 of the Code of Civil Procedure with which presently we are concerned. This Amending Act, re-numbered section 115 and it was substituted in its new form. Earlier section 115 had no sub-section. After amendment, section 115 was made of two sub-sections. Sub-section (1) of section 115 retained the old section 115 as it is but a proviso was added to it and sub-section (2) was added along with an explanation. By this sub-section (2), it was provided that the High Court shall not interfere under section 115 where the order or decree is appealable in other Courts subordinate to the High Court. It will be seen that the original section 115 as it stood before the amendment also provided that revision could be taken up by High Court only in cases where no appeal lies thereto, meaning to the High Court. By the amendment of 1976, sub-section (2) was added and the power of the High Court to entertain revision or to take up revision was curtailed to an extent in cases where an appeal lay against the impugned order to any Court subordinate to the High Court. The proviso to sub-section (1) as added by the Amending Act, 1976 put a fetter on the High Court to revise the orders of the subordinate courts. Clauses (a) and (b) of the proviso circumscribed the powers of the High Court to a large extent and it was made available only in cases where Clauses (a) and (b) were applicable. The High Court could, in effect, revise any order of any subordinate Court when it appears to the High Court that the Court has exceeded the jurisdiction vested in it by law. But, in so doing, it must consider as required by proviso that the order impugned if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings but the amendment did permit the High Court to interfere in any kind of order if allowed to stand would have occasioned failure of justice or caused irreparable injury to the party against whom it was made. Thus, it will be seen from the provisions of section 115 of as amended by the 1976 Act that the power of revision vested in the High Court by that section was to a large extent curtailed by the amendment.
18. In fact, the Law Commission of India had recommended deletion of section 115, and the Law Commission gave substantial reasons for deletion of these provisions. It was therefore the opinion of the Law Commission of India that the provisions of section 115 being analogous to provisions of Article 227 of the Constitution of India, no injustice would be caused to the litigants if the entire section is deleted.
19. The Joint Committee of the Parliament considered this aspect also in great details and decided to retain section 115 in spite of the recommendations of the Law Commission of India itself, but was of the view that certain modifications to that section are necessary. The observations of the Joint Committee are also noteworthy. They throw a substantial light on intention of the legislature in amending section 115 as it did in 1976.
“The question whether it is at all necessary to retain section 115 was carefully considered by the Committee. The Law Commission has expressed the view that, in view of Article 227 of the Constitution, section 115 of the Code of is no longer necessary. The Committee, however, feel that the remedy provided by Article 227 of the Constitution is likely to cause more delay and involve more expenditure. In remedy provided in section 115 is on the other hand, cheap and easy. The Committee, therefore, feel that section 115, which serves a useful purpose, need not be altogether omitted particularly on the ground that an alternative remedy is available under Article 227 of the Constitution.
The Committee, however, feel that, in addition to the restrictions contained in section 115, an overall restriction on the scope of applications for revision against interlocutory orders should be imposed. Having regard to the recommendations made by the Law Commission in its Fourteenth and Twenty-seventh reports, the Committee recommended that section 115 of the Code should be retained subject to the modification that no revision application shall lie against an interlocutory order unless either of the following conditions is satisfied, namely:—
i. that if the orders were made in favour of the applicant, it would finally dispose of the suit or other proceedings; or
ii. that the order, if allowed to stand, is likely to occasion a failure of justice or cause an irreparable injury.
The Committee feel that the expression case decided should be defined so that the doubt as to whether section 115 applies to an interlocutory order may be set at rest.”
It is in light of these observations made by the Law Commission of India and the Parliament of India that I have to consider the provisions of section 115. It will be better to consider the provisions of section 115 amended by the Act of 1976, it reads thus:
“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 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—
(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 amendments as effected by the 1976 Act, it will be seen that certain positive restrictions have been put on the powers of the High Court to take up revision under this section. Earlier it could be done in any case where the jurisdictional error was committed by the subordinate Court or where substantial injustice was caused to the parties. It was not necessary then i.e. prior to 1976 that the impugned order should have the result of finally deciding the lis or the proceedings in the subordinate courts. By amendment, this restriction was put. A proviso was added to contain qualifications which must exist before power under section 115 could be exercised and they were Clauses (a) and (b) of the proviso. By Clause (b), however, the power of the High Court to entertain a revision application or suo motu revise an order in cases where total failure of justice was possible, or where irreparable loss would be caused to the parties, against whom it was made was preserved. Thus, the power, which was unbridled prior to 1976 was circumscribed after 1976 but it was not totally curtailed. The High Court could, even after this amendment, interfere in cases where there was failure of justice or irreparable loss caused. It will be noticed that though extensive amendments made to the provisions of section 115, the nature of the proceedings under that section was not changed. It continued to be suo motu power of the High Court. It continued to be the superintendence power of the High Court over the subordinate courts. Only certain limitations were put on that power.
20. It is necessary to note that while amending the Civil Procedure Code and section 115 particularly, the Code of Civil Procedure (Amendment) Act, 1976 provided by section 97 repeals and savings. It was legislated that admitted revision applications will not be affected by the amendment. The provisions need to be noted verbatim which read thus:
“97. Reapeal and savings.—(1) Any amendment made, or any provision inserted in the principal Act by a State legislature or a High Court before the commencement of this Act shall except in so far as such amendment or provision is consistent with the provision of the principal Act as amended by this Act, stand repealed.
(2) Notwithstanding that the provisions of the Act have come into force or the 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),—
(a) ………………………….to
(n) ………………………….
(o) the amendment of section 15 of the principal Act by section 43 of this Act, shall not apply to or affect any proceedings for revision which had been admitted, after preliminary hearing, before the commencement of the said section 43; and every such proceedings for revision shall be disposed of as if the said section 43 had not come into force;
From the above quotation, it will be seen that notwithstanding the amendment, it was provided that it shall not affect any proceeding or revision which has been admitted after preliminary hearing before the commencement of section 43. Section 43 of the Amendment Act of 1976 was the section by which section 115 of the original Civil Procedure Code was substituted or amended and altered, it will, thus, be seen that specific saving was done by the Parliament in relation to revision application admitted before commencement of the amending Act and it provided that every such proceedings or revision shall be disposed of as if the said section 43 has not come into force. From this, it will be clear that the Parliament consciously enacted the provisions of repeal and savings and categorically provided for saving of the proceedings already admitted prior to commencement of the amending Act.
21. This amendment was on the statute book for quite some time. 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. That takes me to the amendment to section 115 by the Act of 1999. The Civil Procedure Code (Amendment) Act of 1999, by section 12 thereof, amended section 115 of the original Code. After the amendment, the said section reads as under:
“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 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 a 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.”
From the above it will be seen that what appeared as Clause (b) of the proviso after the 1976 amendment stood deleted and the revisional power could be exercised by this Court only in cases where the impugned order would result in finally adjudicating the lis if it is made in favour of the party complaining. These further restrictions on the powers of the High Court were considered necessary by the Parliament so as to curtail the number of revisions, which in a large number of cases resulted in the original proceedings in the civil suit being stayed. Now by the amendment, it is provided that no revision shall be maintainable in cases where the impugned order is of interlocutory nature or does not finally decide the lis. The intention of the legislature in effecting this amendment is very clear. Interim reliefs to be granted under the Code are, of necessity, interim in nature. The final adjudication of the civil suit takes care of the interim orders. But availability of appeals and revisions against such interim orders in vast majority of cases result in pendency of the original civil suit for years and ultimately the interlocutory order has to give way to the final adjudication, which ultimately takes place. The legislature therefore thought it fit to do away with this interim remedy of challenging the interim order to avoid the delay caused in the interim period. That being the intention, the provisions of section 115, as amended in July 2002, will have to be considered in light of that legislative intent. It is with this object, that the section was amended and it is with this object in mind that the provisions of repealing and saving section i.e. section 32, will have to be read. Section 32 reads as under:
“32. Repeal and savings.—(1) Any amendment made or any provision inserted in the principal Act by a State legislature or High Court before the commencement of this Act shall, except insofar as such amendment or provisions is consistent with the provisions of the principal Act as amended by this Act, stand repealed.
(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),—
(a) ………………………to
(h) ………………………
(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 proceeding for revision which had been finally disposed of
……………………………”
It should, therefore, be noted from the above quotations that the wording of section 32 of the Amendment Act of 1999 and the wording of section 97 of the Amendment Act of 1976 is identical and, therefore, it must be interpreted accordingly. The legislative intent in both the provisions is abundantly clear by the language used in the section. In 1976, the legislature intended to save revision applications admitted and pending before the provisions of section 43 of that Act came into force. Such intent is absent in section 32. It positively provides that it shall not apply only to revision applications finally decided. The interpretation, therefore, the provisions of section 32(2)(i), therefore, leave no doubt that the legislature intended to affect the pending revisions by amending section 115 with effect from 1st July, 2002. This intention of the legislature is clear from the language of section 32.
22. The view that procedural amendments apply to pending proceedings also unless specifically expelled is accepted since long. In Anant Gopal Sheorey v. State of Bombay, the Supreme Court observed that no person has a vested right in any course of procedure. In para 4 of the above judgment, the Supreme Court held that:
“The question that arises for decision is whether to a pending prosecution the provisions of the amended Code have become applicable. There is no controversy on the general principles applicable to the case. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered he has no other right than to proceed according to the altered mode.”
23. Section 115 of the Code of Criminal Procedure, right from its inception, is a procedure prescribed and provided by the Code for exercise of the power of superintendence by the High Court over the courts subordinate to it. As observed earlier, it does not create any right in any litigant to claim as a matter of course revision under that section. The High Court may or the High Court may not use its discretion for revising an order passed by the subordinate Court. This being a situation and the litigant having no right to move an application under section 115, what is provided for by this section is a procedure, recourse to which can be taken by the High Court to supervise the exercise of jurisdiction by courts subordinate thereto and, therefore, the provisions of the Amending Act will apply with effect from 1st July, 2002 to pending proceedings also.
24. The latest judgment of the Supreme Court on this point is also very clear. In Kolhapur Canesugar Works Ltd. and another v. Union of India and others, the Supreme Court observed that:
“At common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute book as completely as if it had never been passed, and the statute must be considered as a law that never existed. To this rule, an exception is engrafted by the provisions of section 6(1). If a provision of a statute is unconditionally omitted without a saving Clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceeding shall not continue but a fresh proceeding for the same purpose may be initiated under the new provision.”
25. From the above decision, it will be therefore clear that the provisions of section 6 of the General Clauses Act are not attracted in the present case for the reason that there is no substantive vested right in a litigant to seek revision under section 115 of the Code of Civil Procedure by the High Court and in the absence of any saving specifically made, it will have to be held that the provisions as amended by the Amending Act of 1999 shall apply to pending revisions also.
26. That, moving the High Court for exercise of jurisdiction under section 115 of the Code of Civil Procedure is not a right which can be confirmed from the decision of the Supreme Court , Smt. Gangabai v. Vijay Kumar and others. The Supreme Court in that case has observed the basic distinction between the right of suit and right of appeal. The observations of the Supreme Court read thus:
“There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute, one may, at one’s peril, bring a suit of one’s choice. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute.”
From the above, it will be seen that a right of revision cannot be said to be existing in the person under section 115 of the Code of Civil Procedure for there is not even a mention of any such application maintained at the instance of the applicant much less it can be called a right. A right must have the clear authority of law. Such authority is lacking under section 115 and, therefore, there is no right in a litigant to invoke section 115 as a matter of right. That being the situation, the provisions of section 6 of the General Clauses Act have no application to the issue in this case.
27. This Court, while considering the effect of amendment to section 397 on pending revisions under the Criminal Procedure Code, has taken a view that revision under the Criminal Procedure Code not being a matter of right, there is no question of any vested right being affected by the provision incorporated in sub-section (2) of section 397 of the Criminal Procedure Code.
28. Similarly provision for revision is contained in section 115 of the Code of Civil Procedure as amended from time to time. Both the Civil Procedure as also the Criminal Procedure provide for a power to revise orders of the courts subordinate to it, which has been held by this Court in the above ruling that it is not a matter of right insofar as Criminal Code is concerned. The ratio of the above decision will apply with equal force in case of section 115 revision also.
29. Reliance was placed on the decision of this Court reported in Lfabai Rasiklal Waghela v. Keshaorao, 1986 Mh.L.J. 207 to contend that the provisions as amended on 1st July, 2002 would have no effect on the revisions pending before this Court or on the orders or in relation to orders made by the subordinate courts prior to 1st July, 2002. In my opinion, this decision does not have that effect nor does it support the contention that the amendment is not retrospective. Before I proceed to consider this judgment of this Court, one thing must be noted and it is in relation to the contention that section 115 as amended does not have retrospective operation. I must consider what is retrospective operation. According to me, a provision of law operates retrospectively, meaning thereby it operates with back dated effect, rights and liabilities created prior to the amendment are affected by it. In the present case, we are concerned with a right to make application under section 115. There is, therefore, no question of the provisions of section 115 as amended in 2002 retrospectively on any right. What is prescribed by section 115 is the procedure as aforesaid and that procedure can apply retrospectively. I have only referred to above judgments of the Supreme Court in this regard. The section, in my opinion, prospectively i.e. it will apply from 1st July, 2002 to all proceedings. The proceedings or orders passed prior to 1st July, 2002 have not been saved in any manner by section 32(2)(o) to (i) and, therefore, the section must with all vigour, apply to all proceedings pending as on 1st July, 2002. So considered, there is no question of any retrospective operation of the Act. In the decision reported in 1986 Mh.L.J. 207, this Court was considering the retrospective effect of section 26-A of the Provincial Small Causes Courts and the Presidency Small Causes Courts Act. There, by the amendment of 1984, certain provisions were added. Certain suits were made triable by the courts of Small Causes and by section 26-A, it was provided that an appeal shall lie from a decree or order made by the Court of Small Causes exercising jurisdiction under section 26 to the District Court. Section 26 was also newly added by the Amendment of 1984. Considering the provisions as newly added by the 1984, Act creating jurisdiction in the Court of Small Causes, and giving a right of appeal to a litigant under section 26-A was therefore, under consideration and it was in light of this and the fact that section 26-A did create a substantive right of appeal in the litigant that the Court held that pending suits have to be decided as if the amendment has not come into force. This ruling is of no help to contend that a pending revision application also should be decided as if the amendment has not come into force.
30. Useful reference can also be made to the observations of the Supreme Court in the case . I have already observed that section 115 of the Civil Procedure Code confers a jurisdiction on the High Court to supervise the jurisdiction of the courts below and have also held that it does not confer any right on the litigant. The Supreme Court in relation to jurisdiction observes as under:
“The word ‘jurisdiction’ is a verbal cast of many colours. Jurisdiction originally seems to have had the meaning which Lord Baid ascribed to it in Anisminic Ltd. v. Foreign Compensation Commission, 1969(2) A.C. 147, namely, the entitlement “to enter upon the enquiry in question”. If there was an entitlement to enter upon an inquiry into the question, then any subsequent error could only be regarded as an error within the jurisdiction. Therefore, what is conferred on the High Court by section 115 is jurisdiction is an entitlement to enter upon an enquiry into the question of correctness of an order passed by the courts subordinate to it. That being the scope and extent of section 15, making of an application cannot be a right of the litigant and, therefore, there is no question of the right being saved by the saving provisions in section 32.
31. Shri A.S. Chandurkar, learned Counsel brought to my notice a very recent judgment delivered by the Indore Bench of the Madhya Pradesh High Court where the Single Bench of the Madhya Pradesh High Court in the case of Phoolsingh v. Mavia & Bhavaliya and two others, Civil Revision No. 962/1999; reported in 2002(3) M.P.L.J. 326 considered the scope of section 115 as amended with effect from 1-7-2002. I am in respectful agreement with the view taken by the Madhya Pradesh High Court as it has proceeded to hold after considering all the relevant provisions of the Civil Procedure Code and the amending Act that the revision applications pending as on 1-7-2002 or filed thereafter will have to be considered strictly in light of the provisions as amended by the amending Act. I am, thus, fortified with the view that I am taking as aforesaid.
32. 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 15 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 the jurisdiction mentioned therein.
(iii) That it being not a right as held above, there is no question of it being saved by recourse 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 be entertainable even if the order is made prior to 1st July, 2002 as moving this Court under section 115 is held not to be a right.
33. These being the findings that I have reached, as a conclusion of the discussion made hereinbefore, I will apply the same to the facts of the present revision application. Admittedly it is directed against an order passed by the lower Appellate Court by which it has rejected the application under Order 41, Rule 5 for stay of the judgment and decree as passed by the trial Court and as impugned before the lower Appellate Court. Even if the application is granted or rejected, it does not finally adjudicate upon the rights of the parties. It does not decide the lis of the regular civil appeal or the regular civil suit and consequently the revision application is directed against an order which is obviously is of interlocutory nature. In the view that I have taken, the revision application is therefore liable to be dismissed as not maintainable. It is accordingly dismissed.
