{"id":190290,"date":"2003-04-17T00:00:00","date_gmt":"2003-04-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shiv-shakti-coop-housing-vs-ms-swaraj-developers-ors-on-17-april-2003"},"modified":"2015-07-23T14:53:47","modified_gmt":"2015-07-23T09:23:47","slug":"shiv-shakti-coop-housing-vs-ms-swaraj-developers-ors-on-17-april-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shiv-shakti-coop-housing-vs-ms-swaraj-developers-ors-on-17-april-2003","title":{"rendered":"Shiv Shakti Coop. Housing … vs M\/S. Swaraj Developers & Ors on 17 April, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Shiv Shakti Coop. Housing … vs M\/S. Swaraj Developers & Ors on 17 April, 2003<\/div>\n
Author: A Pasayat<\/div>\n
Bench: Shivaraj V. Patil, Arijit Pasayat.<\/div>\n
           PETITIONER:\nShiv Shakti Coop. Housing Society, Nagpur\n\nRESPONDENT:\nM\/s. Swaraj Developers & Ors.\n\nDATE OF JUDGMENT: 17\/04\/2003\n\nBENCH:\nSHIVARAJ V. PATIL & ARIJIT PASAYAT.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
(Arising Out of S.L.P. (C) No. 19030 of 2002)<\/p>\n
WITH<\/p>\n
Civil Appeal No. 3489\/2003@ S.L.P.(C)No.19852\/2002,
\nCivil Appeal Nos.3494-98\/2003@ S.L.P.(C)Nos.22848-22852\/2002, and
\nCivil Appeal No. 3499\/2003@ S.L.P.(C) No.22009\/2002]<\/p>\n
ARIJIT PASAYAT,J.\n<\/p>\n
\tLeave granted.\n<\/p>\n
\tA short but important question of law involving\t effect
\nof amendment to Section 115 of the Code of Civil Procedure,
\n1908 (in short ‘the Code’) is involved in these appeals.
\nSince the answer to the question does not involve any
\nfactual adjudication, a brief reference thereto would
\nsuffice.\n<\/p>\n
\tBy Section 12(i) of the Code of Civil Procedure
\n(Amendment) Act, 1999 (in short ‘the Amendment Act’)
\noperative from 1.7.2002, amendments were made to Section 115
\nof the Code. In all these appeals, the concerned High Courts
\nheld that because of amended Section 115, the revision filed
\nbefore them was not maintainable, as had an order been
\npassed in favour of the party applying for revision, same
\nwould not have finally disposed of the suit or other
\nproceeding.\n<\/p>\n
\tIt has been contended by learned counsel for the
\nappellants that the High Court went wrong in disposing of
\nthe revision applications as not maintainable, on several
\ngrounds. They are (i) the amended provisions do not apply to
\npetitions which were admitted before the amendment, (ii)
\nappeals and revisions stand on a parallel footing and are
\nvested rights in the appellant\/applicant, as the case may
\nbe, and as such the amended provisions would not have any
\napplication, and (iii) the applications for injunction and
\nthe like which form subject matter of the revisions relate
\nto the expression ‘other proceeding’ and even if the amended
\nprovisions apply disposal of the revision would have meant
\nfinal dismissal of such ‘other proceeding’.\n<\/p>\n
\tWith reference to Section 32(2)(i) of the Amendment
\nAct, it is submitted that the same does not convey any
\nmeaning. The legislature always saved pending proceedings in
\nterms of Section 6 of the General Clauses Act, 1897 (in
\nshort ‘General Clauses Act’) and, therefore, proceedings
\nwhich were pending before the High Court on the date of
\namendment are clearly outside the effect of amendment. Even
\nif it is conceded for the sake of arguments that there is no
\nspecific provision in that regard, it is clearly a case of
\ncasus omissus.\n<\/p>\n
\tIn response, learned counsel for the respondents
\nsubmitted that plain meaning of\t provisions of a statute
\nhave to be given full effect and even a bare reading of the
\nprovisions makes it clear that the High Court’s order is on
\nterra firma. Whenever the legislature intended to keep the
\npending proceedings out of the purview of amended
\nprovisions, it was specifically so provided. Reference is
\nmade to the amendment in 1976 to the Code which in Section
\n97(3) of the Code of Civil Procedure (Amendment) Act, 1976
\n(in short ‘Old Amendment Act’) saved the pending
\nproceedings, ruling out operation of Section 6 of the
\nGeneral Clauses Act.\n<\/p>\n
\tIn order to appreciate the rival submissions it will be
\nnecessary to take note of the provisions  of Section 115 as
\nthey stood before amendment and after amendment.\n<\/p>\n
\t“Section 115 (before Amendment):\n<\/p>\n
\t(1)\tThe High Court may call for the
\nrecord of any case which has been decided by
\nany Court subordinate to such High Court and
\nin which no appeal lies thereto, and if such
\nsubordinate court appears<\/p>\n
(a)\tto have exercised a jurisdiction not
\nvested in it by law, or<\/p>\n
(b)\tto have failed to exercise a
\njurisdiction so vested, or<\/p>\n
(c)\tto have acted in the exercise of its
\njurisdiction illegally or with material
\nirregularity,<\/p>\n
the High Court may make such order in the
\ncase as it thinks fit:\n<\/p>\n
Provided that the High Court shall not, under
\nthis section, vary or reverse any order made,
\nor any order deciding an issue, in the course
\nof a suit or order proceeding, except where<\/p>\n
(a)\tthe order, if it had been made in favour
\nof the party applying for revision, would
\nhave finally disposed of the suit or other
\nproceeding, or<\/p>\n
(b)\tthe order, if allowed to stand, would
\noccasion a failure of justice or cause
\nirreparable injury to the party against whom
\nit was made.\n<\/p>\n
(2)\tThe High Court shall not, under this
\nsection, vary or reverse any decree or order
\nagainst which an appeal lies either to the
\nHigh Court or to any Court subordinate
\nthereto.\n<\/p>\n
Explanation: In this section, the expression
\n“Any case which has been decided: includes
\nany order made, or any order deciding an
\nissue, in the course of a suit or other
\nproceeding.”\n<\/p>\n
Section 115 (after Amendment):\n<\/p>\n
\t(1)\tThe High Court may call for the
\nrecord of any case which has been decided by
\nany Court subordinate to such High Court and
\nin which no appeal lies thereto, and if such
\nsubordinate court appears<\/p>\n
(a)\tto have exercised a jurisdiction not
\nvested in it by law, or<\/p>\n
(b)\tto have failed to exercise a
\njurisdiction so vested.\n<\/p>\n
(c)\tto have acted in the exercise of its
\njurisdiction illegally or with material
\nirregularity,<\/p>\n
the High Court may make such order in the
\ncase as it thinks fit:\n<\/p>\n
Provided that the High Court shall not,
\nunder this section, vary or reverse any order
\nmade, or any order deciding an issue, in the
\ncourse of a suit or order proceeding, except
\nwhere the order, if it had been made in
\nfavour of the party applying for revision,
\nwould have finally disposed of the suit or
\nother proceedings.\n<\/p>\n
(2)\tThe High Court shall not, under this
\nsection, vary or reverse any decree or order
\nagainst which an appeal lies either to the
\nHigh Court or to any Court subordinate
\nthereto.\n<\/p>\n
(3)\tA revision shall not operate as a stay
\nof suit or other proceeding before the Court
\nexcept where such suit or other proceeding is
\nstayed by the High Court.\n<\/p>\n
Explanation: In this section, the expression
\n“any case which has been decided” includes
\nany order made, or any order deciding the
\nissue, in the course of a suit or other
\nproceeding.”\n<\/p>\n
\tA comparison of two provisions shows that while proviso\n<\/p>\n
(a) of the un-amended provision has been retained in its
\ntotality, in the amended provisions clause (b) of the
\nproviso has been omitted.\n<\/p>\n
\tIt is to be noted that prior to the amendments to the
\nCode by the Old Amendment Act, the power of revision was
\nwider. By the amendment, certain positive restrictions were
\nput on the High Court’s power to deal with revisions under
\nSection 115. Prior to the said amendment, it was not
\nstrictly necessary that the impugned order would have the
\nresult of finally deciding the lis or the proceedings in the
\nlower courts. In fact, the power could be exercised in any
\ncase where jurisdictional error was committed by the
\noriginal court or where substantial injustice had resulted.
\nBy the Old Amendment Act, the condition of finally deciding
\nof lis and the proceedings in the subordinate courts was
\nintroduced. The proviso which was introduced contains
\nqualifications which are pre-requisites before exercise of
\npower under Section 115. They were clauses (a) and (b) of
\nthe proviso. Logically, the High Court has suo motu power to
\nrevise an order where total failure of justice would have
\noccasioned or where irreparable loss would have caused to
\nthe parties against whom it was made. These powers were
\nretained by clause (b). Though, after 1976, the exercise of
\npower was somewhat circumscribed, it was not totally
\ncurtailed. In other words, the High Court could even after
\nthe 1976 amendment interfere in cases where there was
\nfailure of justice or irreparable loss caused, the nature of
\nthe proceedings was substantially changed and the suo motu
\npower of the High Court was retained. It was in the nature
\nof power of superintendence of the High Court over the
\nsubordinate courts. Changes were related to indicating
\nlimitations in exercise of power.\n<\/p>\n
\tEven after the amendments in 1976, in 1999 and prior to
\nthe amendment in 1976, the revision power was exercisable
\nin a case where the order or the decree, as the case may be,
\nwas not appealable.\n<\/p>\n
\tSub-section (2) which was introduced by the Old
\nAmendment Act and retained even after present amendment,
\nprovides that the High Court shall not interfere where the
\norder or the decree is appealable in courts subordinate to
\nthe High Court.\n<\/p>\n
\tIt is interesting to note that the Law Commission of
\nIndia had recommended deletion of Section 115. In the Law
\nCommission’s opinion, provisions of Section 115 are
\nanalogous to provisions of Article 227 of the Constitution
\nof India, 1950 (in short ‘the Constitution’) and the
\nlitigants would not be prejudiced in any way if the entire
\nSection is deleted. The Joint Committee of the Parliament
\ndiscussed these recommendations and only thought it proper
\nto make certain modifications in the Section. That led to
\namendment of Section 115 by Old Amendment Act. The
\ndeliberations of the Committee are reflected in the
\nfollowing words:\n<\/p>\n
\t“The Committee, however, feel; that, in
\naddition to the restrictions contained in
\nsection 115, an overall restriction on the
\nscope of applications for revision against
\ninterlocutory orders should be imposed.
\nHaving regard to the recommendations made by
\nthe Law Commission in its Fourteenth and
\nTwenty-Seventh Reports, the Committee
\nrecommended that Section 115 of the Code
\nshould be retained subject to the
\nmodification that no revision application
\nshall lie against an interlocutory order
\nunless either of the following conditions is
\nsatisfied, namely:-\n<\/p>\n
i. that if the orders were made in favour of
\nthe applicant, it would finally dispose of
\nthe suit or other proceeding; or<\/p>\n
ii. that the order, if allowed to stand, is
\nlikely to occasion a failure of justice or
\ncause in irreparable injury.”\n<\/p>\n
\tFirst aspect that has to be considered is the
\nrespective scope of appeal and revision. It is fairly a well
\nsettled position in law that the right of appeal is a
\nsubstantive right. But there is no such substantive right in
\nmaking an application under Section 115. Though great
\nemphasis was laid on certain observations in Shankar
\nRamchandra Abhyankar v. Krishnaji Dattatraya Bapat (AIR<\/a> 1970
\nSC 1) to contend that appeal and revision stand on the same
\npedestal, it is difficult to accept the proposition. The
\nobservations in the said case are being read out of context.
\nWhat was held in that case related to the exercise of power
\nof a higher court, and in that context the nature of
\nconsideration in appeal and revision was referred to. It was
\nnever held in that case that appeal is equated to a
\nrevision.\n<\/p>\n
\tSection 115 is essentially a source of power for the
\nHigh Court to supervise the subordinate courts. It does not
\nin any way confer a right on a litigant aggrieved by any
\norder of the subordinate court to approach the High Court
\nfor relief. The scope for making a revision under Section
\n115 is not linked with a substantive right.\n<\/p>\n
Language of Sections 96 and 100 of the Code which deal
\nwith appeals can be compared with Section 115 of the Code.
\nWhile in the former two provisions specifically\t provide for
\nright of appeal, the same is not the position vis–vis
\nsection 115. It does not speak of an application being made
\nby a person  aggrieved by an order of subordinate court.  As
\nnoted above, it is a source of power of the High Court to
\nhave effective control on the functioning of the subordinate
\ncourts by exercising supervisory power.\n<\/p>\n
\tAn appeal is essentially continuation of the original
\nproceedings and the provisions applied at the time of
\ninstitution of the suit are to be operative even in respect
\nof the appeals. That is because there is a vested right in
\nthe litigant to avail the remedy of an appeal. As was
\nobserved in K. Eapen Chako v. The Provident Investment
\nCompany (P) Ltd. (AIR<\/a> 1976 SC 2610) only in cases where
\nvested rights are involved, a legislation has to be
\ninterpreted to mean as one affecting such right to be
\nprospectively operative. The right of appeal is only by
\nstatute.  It is necessary part of the procedure in an
\naction, but “the right of entering a superior court and
\ninvoking its aid and interposition to redress the error of
\nthe courts below.  It seems to this paramount right, part of
\nthe progress of the inferior tribunal.”\t (Per Westbury See:
\nAG vs. SILLEM 33 J.Ex 209).  The appeal, strictly so called,
\nis one in which the question is, whether the order of the
\nCourt from which the appeal is brought was right on the
\nmaterials which that Court had before it” (Per Lord Devuil
\nPonnamal vs. Arumogam 1905 AC 390).  The right of appeal,
\nwhere it exists, as a matter of substance and not of
\nprocedure (Colonial Sugar Refining Company vs. Irtin 1905 AC\n<\/p>\n
368).\n<\/p>\n
Right of appeal is statutory.  Right of appeal inherits
\nin no one. When conferred by statute it becomes a vested
\nright. In this regard there is essential distinction between
\nright of appeal and right of suit.  Where there is inherent
\nright in every person to file a suit and for its
\nmaintainability it requires no authority of law, appeal
\nrequires so.  As was observed in The State of Kerala vs.
\nK.M. Charia Abdulla and Co. (AIR<\/a> 1965 SC 1585), the
\ndistinction between right of appeal and revision is based on
\ndifferences implicit in the two expressions.  An appeal is
\ncontinuation of the proceedings; in effect the entire
\nproceedings are before the appellate authority and it has
\npower to review the evidence subject to statutory
\nlimitations prescribed.\t But in the case of revision,
\nwhatever powers the revisional authority may or may not
\nhave, it has no power to review the evidence, unless the
\nstatute expressly confers on it that power.  It was noted by
\nthe four-Judges Bench in Hari Shankar and others vs. Rao
\nGirdhari Lal Chowdhury (AIR<\/a> 1963 SC 698) that the
\ndistinction between an appeal and a revision is a real one.
\nA right of appeal carries with it a right of re-hearing on
\nlaw as well as fact, unless the statute conferring the right
\nof appeal limits the re-hearing in some way, as has been
\ndone in second appeals arising under the Code.\tThe power of
\nhearing revision is generally given to a superior Court so
\nthat it may satisfy itself that a particular case has been
\ndecided according to law.   Reference was made to Section
\n115 of the Code to hold that the High Court’s powers under
\nthe said provision are limited to certain particular
\ncategories of cases.  The right there is confined to
\njurisdiction and jurisdiction alone.\n<\/p>\n
As regards the field of operation of amended provision,
\nit is to be noted that the language of amended provision is
\nclear.\n<\/p>\n
\tIt is well settled principle in law that the Court
\ncannot read anything into a statutory provision which is
\nplain and unambiguous. A statute is an edict of the
\nLegislature. The language employed in a statute is the
\ndeterminative factor of legislative intent.
\nWords and phrases are symbols that stimulate mental
\nreferences to referents. The object of interpreting a
\nstatute is to ascertain the intention of the Legislature
\nenacting it. (See Institute of Chartered Accountants of
\nIndia v. M\/s Price Waterhouse and Anr.\t(AIR<\/a> 1998 SC 74))
\nThe intention of the Legislature is primarily to be gathered
\nfrom the language used, which means that attention should be
\npaid to what has been said as also to what has not been
\nsaid. As a consequence, a construction which requires for
\nits support, addition or substitution of words or which
\nresults in rejection of words as meaningless has to be
\navoided. As observed in Crawford v. Spooner (1846 (6) Moore
\nPC 1), Courts, cannot aid the Legislatures’ defective
\nphrasing of an Act, we cannot add or mend, and by
\nconstruction make up deficiencies which are left there. (See
\nThe State of Gujarat and Ors. v. Dilipbhai Nathjibhai Patel
\nand Anr. (JT<\/a> 1998 (2) SC 253)). It is contrary to all rules
\nof construction to read words into an Act unless it is
\nabsolutely necessary to do so. (See Stock v. Frank Jones
\n(Tiptan) Ltd. (1978 1 All ER 948 (HL). Rules of
\ninterpretation do not permit Courts to do so, unless the
\nprovision as it stands is meaningless or of doubtful
\nmeaning. Courts are not entitled to read words into an Act
\nof Parliament unless clear reason for it is to be found
\nwithin the four corners of the Act itself. (Per Lord
\nLoreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans (1910)
\nAC 445 (HL), quoted in Jamma Masjid, Mercara v.
\nKodimaniandra Deviah and Ors.<\/a>(AIR 1962 SC 847).\n<\/p>\n
The question is not what may be supposed and has been
\nintended but what has been said. “Statutes should be
\nconstrued not as theorems of Euclid”. Judge Learned Hand
\nsaid, “but words must be construed with some imagination of
\nthe purposes which lie behind them”. (See Lenigh Valley
\nCoal Co. v. Yensavage 218 FR 547). The view was re-iterated
\nin Union of India and Ors. v. Filip Tiago De Gama of Vedem
\nVasco De Gama (AIR<\/a> 1990 SC 981).\n<\/p>\n
In Dr. R. Venkatchalam and Ors. etc. v. Dy. Transport
\nCommissioner and Ors. etc. (AIR 1977 SC 842), it was
\nobserved that Courts must avoid the danger of apriori
\ndetermination of the meaning of a provision based on their
\nown pre-conceived notions of ideological structure or scheme
\ninto which the provision to be interpreted is somewhat
\nfitted. They are not entitled to usurp legislative function
\nunder the disguise of interpretation.\n<\/p>\n
While interpreting a provision the Court only
\ninterprets the law and cannot legislate it. If a provision
\nof law is misused and subjected to the abuse of process of
\nlaw, it is for the legislature to amend, modify or repeal
\nit, if deemed necessary. (See Commissioner of Sales Tax,
\nM.P. v. Popular Trading Company, Ujjain<\/a> (2000 (5) SCC 515).
\nThe legislative casus omissus cannot be supplied by judicial
\ninterpretative process.\n<\/p>\n
Two principles of construction\tone relating to casus
\nomissus and the other in regard to reading the statute as a
\nwhole  appear to be well settled. Under the first principle
\na casus omissus cannot be supplied by the Court except in
\nthe case of clear necessity and when reason for it is found
\nin the four corners of the statute itself but at the same
\ntime a casus omissus should not be readily inferred and for
\nthat purpose all the parts of a statute or section must be
\nconstrued together and every clause of a section should be
\nconstrued with reference to the context and other clauses
\nthereof so that the construction to be put on a particular
\nprovision makes a consistent enactment of the whole statute.
\nThis would be more so if literal construction of a
\nparticular clause leads to manifestly absurd or anomalous
\nresults which could not have been intended by the
\nLegislature. “An intention  to produce an unreasonable
\nresult”, said Danackwerts, L.J. in Artemiou v. Procopiou
\n(1966 1 QB 878), “is not to be imputed to a statute if
\nthere is some other construction available”. Where to apply
\nwords literally would “defeat the obvious intention of the
\nlegislation and produce a wholly unreasonable result” we
\nmust “do some violence to the words” and so achieve that
\nobvious intention and produce a rational construction. (Per
\nLord Reid in Luke v. IRC (1966 AC 557) where at p. 577 he
\nalso observed: “this is not a new problem, though our
\nstandard of drafting is such that it rarely emerges”.
\nIt is then true that, “when the words of a law extend
\nnot to an inconvenience rarely happening, but do to those
\nwhich often happen, it is good reason not to strain the
\nwords further than they reach, by saying it is casus
\nomissus, and that the law intended quae frequentius
\naccidunt.” “But,” on the other hand,”it is no reason,
\nwhen the words of a law do enough extend to an inconvenience
\nseldom happening, that they should not extend to it as well
\nas if it happened more frequently, because it happens but
\nseldom” (See Fenton v. Hampton 11 Moore, P.C. 345). A casus
\nomissus ought not to be created by interpretation, save in
\nsome case of strong necessity. Where, however, a casus
\nomissus does really occur, either through the inadvertence
\nof the legislature, or on the principle quod semel aut bis
\nexistit proetereunt legislatores, the rule is that the
\nparticular case, thus left unprovided for, must be disposed
\nof according to the law as it existed before such statute –
\nCasus omissus et oblivioni datus dispositioni communis juris
\nrelinquitur; “a casus omissus,” observed Buller, J. in
\nJones v. Smart (1 T.R. 52), “can in no case be supplied by
\na court of law, for that would be to make laws.”\n<\/p>\n
The golden rule for construing wills, statutes, and, in
\nfact, all written instruments has been thus stated: “The
\ngrammatical and ordinary sense of the words is to be adhered
\nto unless that would lead to some absurdity or some
\nrepugnance or inconsistency with the rest of the instrument,
\nin which case the grammatical and ordinary sense of the
\nwords may be modified, so as to avoid that absurdity and
\ninconsistency, but no further” (See Grey v. Pearson 6 H.L.
\nCas. 61). The latter part of this “golden rule” must,
\nhowever, be applied with much caution. “if,” remarked
\nJervis, C.J., “the precise words used are plain and
\nunambiguous in our judgment, we are bound to construe them
\nin their ordinary sense, even though it lead, in our view of
\nthe case, to an absurdity or manifest injustice. Words may
\nbe modified or varied where their import is doubtful or
\nobscure. But we assume the functions of legislators when we
\ndepart from the ordinary meaning of the precise words used,
\nmerely because we see, or fancy we see, an absurdity or
\nmanifest injustice from an adherence to their literal
\nmeaning” (See Abley v. Dale 11, C.B. 378).\n<\/p>\n
At this juncture, it would be necessary to take note of
\na maxim “Ad ea quae frequentius accidunt jura adaptantur”
\n(The laws are adapted to those cases which more frequently
\noccur).\n<\/p>\n
Laws ought to be, and usually are, framed with a view
\nto such cases as are of frequent rather than such as are of
\nrare or accidental occurrence; or, in the language of the
\ncivil law, jus constitui oportet in his quoe ut plurimum
\naccidunt, non quoe ex inopinato; for, neque leges neque
\nsenatusconsulta ita scribi possunt ut omnes casus qui
\nquandoque inciderint comprehendantur, sed sufficit ea quoe
\nplerumque accident contineri; laws cannot be so worded as to
\ninclude every case which may arise, but it is sufficient if
\nthey apply to those things which most frequently happen. All
\nlegislation proceeds upon the principle of providing for the
\nordinary course of things, and to this principle frequent
\nreference is to be found, in the reports, in answer to
\narguments, often speciously advanced, that the words of an
\nAct cannot have a particular meaning, because in a certain
\ncontingency that meaning might work a result of which nobody
\nwould approve. In Miller v. Salomons (7 Exch. 475) it was
\nargued that Parliament could not have intended that a Jew,
\nbefore sitting in the House of Commons, must use the words
\n“on the true faith of a Christian,” prescribed in the oath
\nof abjuration of 6 Geo. 3, c.53, because any person,
\nrefusing to take the same oath when tendered by two
\njustices, would, under the 1 Geo. 1, st.2, c.13, be deemed
\nto be a popish recusant, and would be liable to penalties as
\nsuch; and to enforce these provisions against a Jew, it was
\nsaid, would be the merest tyranny. But Baron Parke  thus
\nreplied to this argument: -“If in the vast majority of
\npossible cases in all of ordinary occurrence  the law is
\nin no degree inconsistent or unreasonable construed
\naccording to its plain words, it seems to me to be an
\nuntenable proposition, and unsupported by authority, to say
\nthat the construction may be varied in every case, because
\nthere is one possible but highly improbably one in which the
\nlaw would operate with great severity, and against our own
\nnotions of justice. The utmost that can be reasonably
\ncontended is, that it should be varied in that particular
\ncase, so as to obviate that injustice no further.”\n<\/p>\n
Appeal is the right of entering a superior Court and
\ninvoking its aid and interposition to redress the error of
\nthe court below. (per Westbury C., A.G. v. Sillem, 10 HLC
\n704 = 33 LJ ex.209).\n<\/p>\n
“Appeal”, is defined in the Oxford Dictionary, volume
\nI, page 398, as the transference of a case from an inferior
\nto a higher Court or tribunal in the hope of reversing or
\nmodifying the decision of the former. In the Law Dictionary
\nby Sweet, the term “appeal” is defined as a proceeding
\ntaken to rectify an erroneous decision of a Court by
\nsubmitting the question to a higher Court or Court of
\nappeal, and it is added that the term, therefore, includes,
\nin addition to the proceedings specifically so called, the
\ncases stated for the opinion of the Queen’s Bench Division
\nand the Court of Crown Cases reserved, and proceedings in
\nerror. In the Law Dictionary by Bouvier an appeal is defined
\nas the removal of a case from a Court of inferior to one of
\nsuperior jurisdiction for the purpose of obtaining a review
\nand re-trial, and it is explained that in its technical
\nsense it differs from a writ of error in this, that it
\nsubjects both the law and the facts to a review and re-
\ntrial, while the latter is a Common Law process which
\ninvolves matter of law only for re-examination; it is added,
\nhowever, that the term “appeal” is used in a comprehensive
\nsense so as to include\tboth what is described technically
\nas an appeal and also the common law writ of error. As Mr.
\nJustice Subramania Ayyar observes in Chappan v. Moidin, 22
\nMad 68 at p.80 the two things which are required to
\nconstitute appellate jurisdiction are the existence of the
\nrelation of superior and inferior Court and the power, on
\nthe part of the former, to review decisions of the latter.\n<\/p>\n
\tSub-section (2) of Section 115 has remained unaltered
\neven after the amendment by the Amendment Act.\tA new sub-
\nsection (3) has been added in Section 115 by the Amendment
\nAct which states that revision shall not operate as a stay
\nof suit or other proceeding before the Court except where
\nsuch suit or other proceeding is stayed by the High Court.\n<\/p>\n
\tIn Section 2, the expressions ‘decree’ and ‘order’ have
\nbeen defined in clauses (2) and (14) respectively.  It is to
\nbe noted that it matters little that the judgment is styled
\nas an “order”.\tIf, in fact, it fulfils the conditions of
\nthe definition under Section 2(2), it is a decree and
\nbecomes appealable. Orders that are not appealable are,
\ngenerally speaking, those which are procussual i.e.
\ninterlocutory or incidental orders regulating proceedings
\nbut not deciding any of the matters of controversy in the
\nsuit.  Order 43 deals with the “appeals from orders”.
\nThese appeals lie under Section 104 of the Code.  The said
\nSection deals with appeals from orders and specifies the
\norders from which appeals can lie.  Sub-section (2) of
\nSection 104 says that no appeal shall lie from any order
\npassed in appeal under the said Section.  Section 104 and
\nOrder 43 Rule I contain a full list of appealable orders.
\nAn order which amounts to a decree within Section 2(2) does
\nnot fall within Section 104 and the only applicable  section
\nis Section 96. Clauses (a) to (f) of Section 104 were
\nomitted by Arbitration Act 1940.  Section 105 relates to
\nother orders.  It, inter alia, relates to any order i.e. so
\nappealable as well as non-appelable orders.  It is in the
\nnature of a prohibition stipulating that save as otherwise
\nexpressly provided, no appeal shall lie from any order made
\nby a Court in exercise of original or appellate
\njurisdiction; but where a decree is appealed from, any
\nerror, defect or irregularity in any order, affecting the
\ndecision of the case, may be set forth as a ground of
\nobjection in the memorandum of appeal.\tSub-section (2)
\ndeals with case of remand.  This section, in fact,
\ncontemplates two things i.e. (1) regular appeal from decree;
\nand (2) the provision relating to grant of objection
\nrelating to interim order.  Order 43 Rule 1 is an integral
\npart of Section 104.\n<\/p>\n
A plain reading of Section 115\tas it stands makes it
\nclear that the stress is on the question whether the order
\nin favour of the party applying for revision would have
\ngiven finality to suit or other proceeding.  If the answer
\nis ‘yes’ then the revision is maintainable.  But on the
\ncontrary, if the answer is ‘no’ then the revision is not
\nmaintainable.  Therefore, if the impugned order is of
\ninterim in nature or does not finally decide the lis, the
\nrevision will not be maintainable.  The legislative intent
\nis crystal clear.  Those orders, which are interim in
\nnature, cannot be the subject matter of revision under
\nSection 115.  There is marked distinction in language of
\nSection 97(3) of the Old Amendment Act and Section 32(2)(i)
\nof the Amendment Act.  While in the former, there was clear
\nlegislative intent to save applications admitted or pending
\nbefore the amendment came into force. Such an intent is
\nsignificantly absent in Section 32(2)(i). The amendment
\nrelates to procedures.\tNo person has a vested right in a
\ncourse of procedure.  He has only the right of proceeding in
\nthe manner prescribed. If by a statutory change the mode of
\nprocedure is altered the parties are to proceed according to
\nthe altered mode, without exception, unless there is a
\ndifferent stipulation.\n<\/p>\n
\tSection 6 of the General Clauses Act has no application
\nbecause there is no substantive vested right available to a
\nparty seeking revision under Section 115 of the Code. In
\nKolhapur Canesugar Works Ltd. and another vs. Union of India
\nand others (AIR 2000 SC 811), it was observed that if a
\nprovision of statute is unconditionally omitted without a
\nsaving\tclause in favour of pending proceedings, all actions
\nmust stop where the omission finds them, and if final relief
\nhas not been granted before the omission goes into effect,
\nthere is no scope for granting it afterwards.  There is
\nmodification of this position by application of Section 6 of
\nthe General Clauses Act or by making special provisions.
\nOperation of repeal or deletion as to the future and the
\npast largely depends on the savings applicable.\t In a case
\nwhere a particular provision in the statute is omitted and
\nin its place another provision dealing with the same
\ncontingency is introduced without a saving clause in favour
\nof pending proceedings, then it can be reasonably inferred
\nthat the intention of the legislature is that the pending
\nproceedings shall continue but a fresh proceeding for the
\nsame purpose may be initiated under the new provision.\n<\/p>\n
\tIn view of what has been stated above the inevitable
\nconclusion is that the High Courts were right in the
\nconclusion about non-maintainability of revision
\napplications.\n<\/p>\n
\tIt was submitted by learned counsel for the appellants
\nthat even if the revision applications are held to be not
\nmaintainable, there should not be a bar on challenge being
\nmade under Section 227 of the Constitution.  It was
\nsubmitted that an opportunity may be granted to the
\nappellants to avail the remedy.\n<\/p>\n
\tIf any remedy is available to a party under any statute
\nno liberty is necessary to be granted for availing the same.
\nIf the appellants avail such remedy, the same shall be dealt
\nwith in accordance with law.\n<\/p>\n
\tThe appeals are dismissed.  No costs.\n<\/p>\n
1<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Shiv Shakti Coop. Housing … vs M\/S. Swaraj Developers & Ors on 17 April, 2003 Author: A Pasayat Bench: Shivaraj V. Patil, Arijit Pasayat. PETITIONER: Shiv Shakti Coop. Housing Society, Nagpur RESPONDENT: M\/s. Swaraj Developers & Ors. DATE OF JUDGMENT: 17\/04\/2003 BENCH: SHIVARAJ V. PATIL & ARIJIT PASAYAT. JUDGMENT: J U […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-190290","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nShiv Shakti Coop. Housing ... vs M\/S. 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