{"id":269243,"date":"2003-05-02T00:00:00","date_gmt":"2003-05-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/guduri-kotaiah-company-and-ors-vs-indian-tobacco-traders-and-ors-on-2-may-2003"},"modified":"2017-01-06T15:44:39","modified_gmt":"2017-01-06T10:14:39","slug":"guduri-kotaiah-company-and-ors-vs-indian-tobacco-traders-and-ors-on-2-may-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/guduri-kotaiah-company-and-ors-vs-indian-tobacco-traders-and-ors-on-2-may-2003","title":{"rendered":"Guduri Kotaiah & Company And Ors. vs Indian Tobacco Traders And Ors. on 2 May, 2003"},"content":{"rendered":"
Andhra High Court<\/div>\n
Guduri Kotaiah & Company And Ors. vs Indian Tobacco Traders And Ors. on 2 May, 2003<\/div>\n
Equivalent citations: 2003 (4) ALD 540<\/div>\n
Author: B Nazki<\/div>\n
Bench: B Nazki, G Yethirajulu<\/div>\n

ORDER<\/p>\n

Bilal Nazki, J.\n<\/p>\n

1. These Civil Revision Petitions came before us on a reference made by a learned single Judge of this Court who found that the judgment of this Court in D. Kyathappa v. K.L. Siddaramappa<\/a>, 2002 (6) ALD 834, is contrary to another judgment of this Court in CRP No. 3491 of 2002, dated 11.10.2002. Both these judgments relate to the amendment carried out to Section 115 of the Code of Civil Procedure (for short “the Code”), which became effective from 1.7.2002. The maintainability of a revision was the question before the learned single Judge. A learned single Judge of this Court in CRP No. 3491 of 2002 held that Section 115 of the Code applies to the suits as well as to the proceedings including interlocutory proceedings, if an order passed in the interlocutory application had become final, whereas the other learned single Judge in D. Kyathappa v. K.L. Siddaramappa<\/a> (supra) held that finality as contemplated under the amended provision should relate to the main suit, but not to interlocutory proceedings. In view of this contradictory judgments, the learned single Judge referred the matter to the Division Bench.\n<\/p>\n

2. We have heard learned Counsel for the parties. Many learned Counsels including Sri Nuty Rammohan Rao and Sri Vedula Srinivas have appeared in the matter as amicus curiae because according to them this is a question of vital importance to the Bar and the Bench. Learned Advocate General and learned Senior Standing Counsel for Union of India have also appeared.\n<\/p>\n

3. Now in the first instance, let us examine as to what is the change brought by the Code of Civil Procedure (Amendment) Act<\/a>, 1999 which became effective from 1.7.2002. In fact, there is no change or amendment in the provision itself, but one of the provisos which was available before the amendment has been deleted and another proviso has been added. The proviso (a) to Sub-section (1) of Section 115<\/a> of the Code before amendment continues to remain as statute even after amendment which reads as under:\n<\/p>\n

“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–\n<\/p>\n

(a) the order, if it had been made in favour of party applying for revision, would have finally disposed of the suit or other proceeding, or”\n<\/p>\n

4. The proviso (b) to Sub-section (1) of Section 115<\/a> of the Code before amendment read as under:\n<\/p>\n

“(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.”\n<\/p>\n

5. This proviso is not now part of
\nthe amended statute. Sub-section (2) of
\nSection 115<\/a> of the Code continues to remain
\nas it was before the amendment. Sub
\nsection (3) to Section 115<\/a> of the Code has
\nbeen added:\n<\/p>\n

“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.”\n<\/p>\n

6. In the light of these amendments, it
\nis contended by Sri S, Niranjan Reddy,
\nlearned Counsel for the respondents that
\nunless an order, if it had been made in
\nfavour of the party applying for revision,
\nwould have finally disposed of the suit or
\nother proceedings, the revision would not be maintainable. On the other hand, Sri G. Pedda Babu, learned Counsel for the petitioners and other learned Counsels submit that the Legislature has deliberately used the words ‘suit’ or ‘other proceedings’ in the proviso (a) to Sub-section (1) of Section 115<\/a> of the Code. They also contend that, as a matter of fact, the amendment has not made any material change in Section 115<\/a> of the Code as far as the power of the High Court is concerned, because what is deleted from this provision is a power, which is otherwise inherent in the High Court. It is contended that nobody perhaps would argue before the High Court that an order be allowed to stand even if it results in failure of justice or it causes irreparable injury to the party against whom it was made. They contend that the Parliament would have not imagined that by deleting the proviso (b) the High Court would not interfere in orders which would occasion a failure of justice or cause irreparable injury to a party against whom it was made and that cannot be the intention of the Parliament.\n<\/p>\n

7. Now in the light of these arguments, many judgments have been cited and this Court would try to interpret as to what meaning can be assigned to the words ‘suit’ or ‘other proceedings’ as they appear in the proviso (a) to Sub-section (1) of Section 115<\/a> of the Code and also whether by deleting the proviso (b) this Court cannot interfere in those orders which the High Court thinks would result in failure of justice or causes irreparable injury to a party against whom it was made. The learned single Judge in D. Kyathappa v. K.L. Siddaramappa<\/a> (supra) held as under:\n<\/p>\n

(a) Section 115<\/a> as amended by Act 46\/99 which had come into force with effect from 1.7.2002 is applicable to all revision applications pending adjudication, whether admitted or not and the same will have to be dealt with strictly in 11 accordance with the proviso to Section 115<\/a> with effect from 1.7.2002.\n<\/p>\n

(b) On coming into force of the Amendment Act<\/a>, 46\/99 if the order complained is interlocutory in nature and that will not have the effect of disposal of suit or other proceedings, the same cannot be varied or reversed in exercise of revisional jurisdiction under Section 115<\/a>.\n<\/p>\n

(c) In the absence of any saving clause under Section 32<\/a>, pending revisions which were instituted prior to 1.7.2002 have to be dealt with in accordance with the provisions of Section 115<\/a> as the same are not saved by recourse to the provisions of Section 6<\/a> of the General Clauses Act, 1897.”\n<\/p>\n

On the other hand, another learned single Judge held:\n<\/p>\n

“The proviso merely states that the High Court shall not vary or reverse any order made in the course of a suit or other proceeding except where the order would have finally disposed of the suit or other proceedings. Therefore, this power restricts the revisionery power of the High Court to the extent that the revisions would not be maintained as far as orders which are interlocutory in nature are concerned, but where the Court decides a suit or proceedings finally the power of revision under Section 115<\/a> is available. Settling of a controversy between the parties would not be settling the suit between the parties. Once a suit is settled finally then an appeal would lie.”\n<\/p>\n

8. Before going to the case laws to
\nwhich a reference has been made, it may be
\nseen that the amendment to Section 115<\/a> of
\nthe Code has not brought any change to
\nproviso (a) of Sub-section (1). Therefore
\nwhatever meaning assigned to proviso (a)
\nbefore the amendment by the Courts will
\ncontinue to have the same meaning and the
\neffect of deleting the proviso (b) from Sub-section (1) would have no effect on the
\nmeaning of proviso (a) because the proviso\n<\/p>\n

(b) as it existed before the amendment was
\nalso making a reference to the orders passed
\nand which had been referred to under the proviso (a) of Sub-section (1). The restriction is that the order, if it had been made in favour of a party applying for revision, would have finally disposed of the suit or other proceedings. Before taking recourse to proviso (b) it had to be satisfied that the order was within the purview of proviso (a). Therefore the judgments which were rendered by various Courts before the amendment and even after the amendment Act of 1976 would hold good. The scope of proviso (a) was not restricted by the proviso (b), but it was enhanced by proviso (b). Therefore it will have to be seen as to what is the restriction now in the absence of proviso (b). The Parliament has used both the words ‘suit’ or ‘other proceedings’.\n<\/p>\n

9. Sri Niranjan Reddy, learned Counsel submits that the proceedings, though not defined in the Code<\/a>, would only mean those proceedings which are independent proceedings. The words ‘suit’ or ‘other proceedings’ have be.en used in order to make it clear that the provision would apply not only to the suits, but other independent proceedings like an application under Arbitration Act<\/a>. This argument was, however, countered by the learned Counsels appearing for other side who submit that the words ‘suit’ or ‘proceedings’ are not defined in the Code<\/a> and the Code<\/a> only prescribes a meaning to the plaint or written statement, but the words ‘suit’ or ‘proceedings’ have been used not only in Section 115<\/a> of the Code, but in many other provisions of the Code<\/a> and other Acts also. The word ‘proceedings’ has been used in many provisions of the Code<\/a> including Section 24(2)(b)<\/a> of the Code. Section 24<\/a> of the Code deals with general power of transfer and withdrawal, which empowers the High Court or the District to transfer suits or other proceedings from one Court to another Court and under Sub-section (2)(b) of Section 24<\/a> of the Code proceedings has been defined which includes a proceeding for the execution of a decree or order. The decree or an order emanates, from a suit. Therefore Section 24<\/a> of the Code does not contemplate the proceedings only, but also a proceeding which is an independent proceeding. It contemplates both. The High Court or the District Court can also entertain a transfer application under this Section with respect to execution of a decree or an order emanating from a suit. Similarly in Section 63<\/a> of the Code also which relates to property attached in execution of decrees of several Courts, the word ‘proceeding’ has been used in order to enhance its meaning and not to restrict its meaning to the independent proceedings alone. Then coming to Section 141<\/a> of the Code, this Section is important which reads as under:\n<\/p>\n

“141. Miscellaneous proceedings :–The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.\n<\/p>\n

Explanation :–In this Section, the expression “proceedings” includes proceedings under Order IX, but does not include any proceeding under Article 226<\/a> of the Constitution.”\n<\/p>\n

10. This section makes the procedure which is applicable to the suits also applicable to the proceedings in any Court of civil jurisdiction. It can be inferred that the applications in a suit can be proceedings within Section 115<\/a> of the Code. Therefore once an application is finally decided, the revision would be maintainable if it had the effect of finally disposing of that proceeding, although it had no effect on the suit at that point of time.\n<\/p>\n

11. Number of judgments have
\nbeen referred to and some of them being
\nK.R. Subbaraju v. Vasavi Trading Co<\/a>.,
\n, Debt Das v. State of
\nV.P.,, Pool Singh v. Mavia,
\n. None of these judgments
\nhas considered the impact of the word ‘proceedings’ used in Section 115<\/a> of the Code. Sri S.Nimnjan Reddy, learned Counsel for the respondents has, however, relied on a judgment of the Supreme Court reported in Vishnu Awatar v. Shiv Autar<\/a>, . In this judgment the words ‘other proceedings’ were considered and it appears the Supreme Court approved the view of the Full Bench judgment of the Allahabad High Court. The findings of the Allahabad High Court were:\n<\/p>\n

“The words “or other proceedings” in the phrase “cases arising out of original suits or other proceedings” refer to proceedings of final nature. These words have been added in order to bring within the purview of the revisional jurisdiction orders passed in proceedings of an original nature, which arc not of the nature of suits, like arbitration proceedings. This phrase cannot include decisions of appeals or revisions, because then the Legislature will be deemed to have contradicted itself. The words “or other proceedings” have to be read ejusdem generis with the words “original suits”. They will not include appeals or revisions.\n<\/p>\n

The phrase “in any other case” used with reference to the District Court will refer to cases arising out of original suits of the value of less than Rs. 20,000\/- and also cases arising out of other proceedings of an original nature of a valuation below Rs. 20,000\/-.”\n<\/p>\n

12. This judgment was altogether in a different context, as the revisional power was being exercised by the High Court and the District Court as well. The High Court’s power had been restricted to matters where the value of the suits was below Rs. 20,000\/-In that context the words “or other proceedings” or the words “cases arising out of original suits or other proceedings” and the words “in any other case” were considered. Therefore, this judgment would not be of any help to the respondents.\n<\/p>\n

13. Sri Nuty Rammohan Rao, learned senior Counsel has relied on a judgment of the Supreme Court reported in ML. Sethi v. R.P. Kapur<\/a>, . This judgment was passed in the year 1972 even before the Amendment of Code<\/a>, 1976. Therefore it need not be referred to.\n<\/p>\n

14. On the question of interpretation of Section 115<\/a> of the Code, Sri V. Srinivas, learned Counsel submitted that even otherwise the power of the High Court cannot be restricted because even if a power is restricted under Section 115<\/a> of the Code, the High Court can always take recourse to Article 227<\/a> of the Constitution, therefore Article 227<\/a> of the Constitution should be kept in mind while interpreting the Section 115<\/a> of the Code. He refers to the judgment of the Supreme Court reported in Central Mine Planning and Design Institute Ltd. v. Union of India<\/a>, . The Supreme Court was considering what is the meaning of ‘judgment’ in terms of Clause 10 of the Letters Patent of Patna. He contended that while interpreting the Section 115<\/a> of the Code this judgment could be helpful. The Supreme Court while referring to other earlier judgments of the Supreme Court stated that there were three kinds of judgments:\n<\/p>\n

(1) A final judgment:–In this category falls a judgment by which suit or action brought by the plaintiff is dismissed or decreed in part or full;\n<\/p>\n

(2) A preliminary judgment :–This category is sub-divided into two classes;\n<\/p>\n

(a) where the Trial Judge by an order dismisses the suit, without going into the merits of the suit, only on a preliminary objection raised by the defendant\/ respondent on the ground of maintainability;\n<\/p>\n

(b) where maintainability of the suit is
\nobjected on the ground of bar of
\njurisdiction, e.g., res judicata, a manifest
\ndefect in the suit, absence of notice under
\nSection 80<\/a> and the like; and <\/p>\n

(3) Intermediary or interlocutory judgment :–In this category fall orders referred to in Clauses (a) to (w) of Order 43 Rule 1 and also such other orders which possess the characteristics and trappings of finality and may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding.\n<\/p>\n

Elucidating the third category, it is observed: (SCC Head note)
\n “Every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned.”\n<\/p>\n

15. According to this judgment, a judgment which decides matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned would also be a judgment within the meaning of Letters Patent. Drawing analogy from this judgment if an order in an application filed in a suit which decides matters of moment or affect vital and valuable rights of the parties, that order should be revisable.\n<\/p>\n

16. Sri Nuty Rammohan Rao, learned senior Counsel refers to a judgment of the Supreme Court reported in Shreenath v. Rajesh<\/a>, . In this judgment principles have been laid down for interpreting the procedural law and the Supreme Court in para-3 said:\n<\/p>\n

“In interpreting any procedural law, where more than one interpretation is possible, the one which curtails the procedure without eluding justice is to be adopted. The procedural law is always subservient to and is in aid of justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed.”\n<\/p>\n

17. There could be number of cases where an order is passed which will not have the effect of deciding the suit, but which would cause irreparable injury to a party against whom it was passed and which would be detriment to a party. Therefore, in our view, the revision would lie in those matters also. As a matter of fact, we are of the view that by deleting the proviso (b) from Sub-section (1) of Section 115<\/a> of the Code the power of the High Court has not been affected as has been pointed out hereinabove. Any order passed in any proceeding which may emanate from a suit or which may be an independent proceeding would be revisable, if it had the effect of finally deciding that proceeding, provided the order comes otherwise within the purview of Section 115<\/a> of the Code.\n<\/p>\n

18. Sri Nuty Rammohan Rao, learned Senior Counsel has also drawn our attention to the Law Commission of India’s report which had opposed deletion of proviso (b) of Sub-section (1) of Section 115<\/a> of the Code. In this report the Law Commission had said:\n<\/p>\n

“2.10. Clause 12 of the Amendment Bill proposing to delete the existing Clause (b) of the proviso to Sub-section (1) of Section 115<\/a> and the further addition of Sub-section (3) in Section 115<\/a> :–There was almost uniform opposition to the proposal to delete Clause (b) of proviso to Sub-section (1) of Section 115<\/a>. It was submitted that such a power should be available to the High Court to correct instances of failure of justice or of orders causing irreparable injury. It was submitted that deletion of the said clause would only result in more remands by the Appellate Courts. Only a few members of the subordinate judiciary in the State of Uttar Pradesh supported this provision. So far as the insertion of Sub-section (3) is concerned, it was generally welcomed by all.”\n<\/p>\n

19. For these reasons, we answer the
\nreference holding that the deletion of proviso\n<\/p>\n

(b) from Sub-section (1) of Section 115<\/a> of
\nthe Code only restricts the revisional power
\nof the High Court to the extent that the
\nrevision would not be maintainable as far as orders which are interlocutory in nature are concerned, but where the Court decides any proceedings which are independent or emanating from a suit finally, the power of revision under Section 115<\/a> of the Code would be available.\n<\/p>\n

20. The effect of the amendment should be applied retrospectively to the cases which are pending on 1.7.2002 or the amendment should apply to those revisions which are filed after 1.7.2002 was not argued before us. Therefore the finding on that question by the learned single Judge shall remain.\n<\/p>\n

21. There was some argument as to whether Section 115<\/a> of the Code as amended is ultra vires to Articles 226 and 227 of the Constitution. We agree that the Section 115<\/a> of the Code cannot restrict the powers of the High Court under Articles 226 and 227 of the Constitution and they operate in two different fields.<\/p>\n","protected":false},"excerpt":{"rendered":"

Andhra High Court Guduri Kotaiah & Company And Ors. vs Indian Tobacco Traders And Ors. on 2 May, 2003 Equivalent citations: 2003 (4) ALD 540 Author: B Nazki Bench: B Nazki, G Yethirajulu ORDER Bilal Nazki, J. 1. These Civil Revision Petitions came before us on a reference made by a learned single Judge of […]<\/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":[10,8],"tags":[],"class_list":["post-269243","post","type-post","status-publish","format-standard","hentry","category-andhra-high-court","category-high-court"],"yoast_head":"\nGuduri Kotaiah & Company And Ors. vs Indian Tobacco Traders And Ors. on 2 May, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/guduri-kotaiah-company-and-ors-vs-indian-tobacco-traders-and-ors-on-2-may-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Guduri Kotaiah & Company And Ors. vs Indian Tobacco Traders And Ors. on 2 May, 2003 - 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