TaxTMI 
TaxTMI 
2003 (2) TMI 526
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....which are not subject to appeals. Mr. Dasgupta argued that the expression "any case which has been decided" by any Court subordinate to such High Court includes part of a suit/proceeding and there cannot be any restriction on the exercise of the power of revision by the High Court. Mr. Dasgupta argued that "other proceeding" includes interlocutory proceeding in the suit. The orders passed in various proceedings in suits or other proceedings include the interlocutory orders passed therein, which are not subject to appeals, but which would affect the legal right of the parties. Mr. Dasgupta has drawn my attention to the explanation to Section 115 of the Code where the term "any case which has been decided" was explained to include any order made or any order deciding an issue in the course of a suit or other proceeding. Mr. Dasgupta, therefore, argued that it was not the legislative intention to curtail the power of the High Court to entertain revisional application under section 115 of the Code against interlocutory orders. Mr. Dasgupta submitted that the word "proceeding" used in section 115 contemplates exercise of revisional jurisdiction by the....
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.... Khanna v. Brig. F.J. Dillon, reported in AIR 1964 SC 497 and Baldevdas Shivlal & Anr. v. Filmistan Distributors (India) Pvt. Ltd. & Ors., reported in AIR 1970 SC 406. The Apex Court while interpreting the expression "case" referred to in section 115 of the Code observed that the expression case included a suit, but in ascertaining the limit of jurisdiction of the High Court, there would be no warrant for equating the same with the suit alone. In Baldevdas (supra) the Apex Court observed, "The expression 'case' is not limited in its import to the entirety of the matter in dispute in an action. The expression 'case' is a word of comprehensive import... To interpret the expression 'case' as an entire proceeding only and not a part of the proceeding imposes an unwarranted restriction on the exercise of powers of superintendence and may result in certain cases denying relief to the aggrieved litigant where it is most needed and may result in the perpetration of gross injustice. ... A case may be said to be decided, if the Court adjudicates for the purpose of the suit some right o....
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....ssible to lay down principles about what is final and what is interlocutory. It is better to look at the nature of the application and not at the nature of the order eventually made. In general, orders in the nature of summary judgment where there has been no trial of the issues are interlocutory." Mr. Dasgupta referred to the decision in the case of Amarnath and Others v. State of Haryana and Another, reported in (1977)4 SCC 137. Mr. Dasgupta submits that a proviso or an exception to the main provision cannot be so interpreted so as to nullify or destroy the main provision. Mr. Dasgupta in this connection cited Maxwell on the Interpretation of Statutes and, particularly, he has drawn my attention to the following observations of the learned author that unless the words were clear, the Court should not so construe the proviso as to attribute an intention to the legislature to give with one hand and take away with another. A sincere attempt should be made to reconcile the enacting clause and the proviso and to avoid repugnancy between the two. Mr. Dasgupta drew my attention to sections 254 and ....
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....g for the opposite parties, submitted that although he was opposing the revisional application on merits, but he was not opposing the submissions of Mr. Dasgupta on the question of the scope of the revisional jurisdiction of this Court even after the amendment of Code of Civil Procedure by the amending Act of 1999 and, in fact, Mr. Mukherjee initially adopted the submissions on the said question advanced by Mr. Dasgupta. In the second thought, however, Mr. Mukherjee disputed the contentions of Mr. Dasgupta and argued that the petitioner in this revisional application is not entitled to challenge the order impugned as the tests laid down in the proviso to section 115 are not satisfied. ( 5. ) Mr . Ashoke Mukherjee, learned senior advocate, and Mr. Pushpendu Bikash Sahoo, learned advocate, also, advanced their submissions on this point. While adopting the arguments advanced by Mr. Dasgupta, Mr. Sahoo requested me to consider section 298 of Crawford's Construction of Statutes and has drawn my attention to the observation of the learned author that if a proviso cannot be given sensibl....
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....ourt. Mr. Sengupta referred to the meaning of the word 'other' as explained in Black's Law Dictionary and submitted that the other proceeding indicates different and distinct proceedings from those registered as suit. Mr. Sengupta heavily relied upon the decisions in the cases of Phool Singh v. Mavla, reported in 2002(3) MPLJ 326 : AIR 2002 MP 246 and K.R. Subbaraju v. M/s. Vasavi Trading Company and Others, reported in AIR 2002 Karnataka 407 : 2002(3) Indian Civil Cases 807. Mr. Sengupta seriously disputed the contentions of Mr. Dasgupta that the inherent power of the Civil Court can be invoked in spite of amendment of the Code of Civil Procedure by amending Act of 1999 as inherent power can be invoked in respect of the fields not covered expressly by the provisions of the Code. Mr. Sengupta in support of his contentions cited the decisions in the cases of Manilal Mohanlal Shah and Others v. Sardar Sayed Ahmed Sayed Mahmad and Another, reported in (1955)1 SCR 108, Talab Haji Hussain v. Madhukar Purshottam Mondkar and Another, reported in 1958 0 SCR 1226, R.P. Kapur v. The State of....
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....sp; to frame rules of practice for subordinate Courts. This section gave to the High Courts large power over the inferior Courts to compel them to do any act, which by law they should do, and to command them to execute all powers with which they are vested and to restrain them from meddling when they have no jurisdiction. In pursuance of the said Act, Letters Patent were issued constituting High Courts of Bengal, Madras and Bombay. The Letters Patent constituting the High Court of Judicature for the Bengal Division of the Presidency of Fort William was issued on May 14, 1862. The said Letters Patent was, however, revoked by Letters Patent dated December 28, 1865 in order to make further provision respecting the Constitution of the said High Court and the administration of justice thereby. Therefore, for the first time, in view of the said Act, High Court was vested with the power of superintendence over all Courts subordinate to it and to frame rules for practice for subordinate Courts. Thereafter, Code of Civil Procedure 1877 (Act X of 1877) was passed and it came into force with effect from Octobe....
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....ion applications, particularly against interlocutory orders, are lacking in substance and were eventually dismissed was not a ground for curtailing the powers of the High Court in revision generally. Nevertheless, an amendment of the law was necessary in order to remedy the grave evil of delay arising out of revision applications against interlocutory orders. It would strengthen the hands of the revision Courts and constantly remind them of the danger of entertaining and granting stay in revision applications against interlocutory orders, if provisions be made in section 115 of the Code that nothing therein should apply to interlocutory orders from which no appeal lies, unless the order is likely to occasion a failure of justice or cause an irreparable injury. Therefore, the Law Commission in its 14th report made the following recommendations: (1) The expression 'case decided' in the section should be clarified so as to include within it an interlocutory order including an order deciding an issue from which no appeal lies. (2) Provision should, however, be made in the....
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....ed. The discretion of the Court in granting or refusing to issue commissions, and with regard to many more miscellaneous matters, should not be open to revision under section 115. It is against such orders that revision are generally filed, resulting in a stay of the proceedings and consequent delay in the disposal of cases. We may note that serious cases of injustice can be dealt with under Article 227 of the Constitution. Having regard to the above position, and of the fact that where injustice has resulted, adequate remedy is provided for by Article 227 of the Constitution for correcting cases of excess of jurisdiction, we are of the view that it is not longer necessary to retain section 115. Article 227, we are sure, will cover every case of serious injustice; and, in that sense, that Article is wider than section 115. We, therefore, recommend that section 115 should be deleted." ( 11. ) But the Joint Committee of the Parliament did not agree with the recommendations of the Law Commission and suggested that the section should be retained, in addition to the restrictions already containe....
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....inserted. After the amendment by the Code of Civil Procedure (Amendment) Act, 1976 (Act of 1976) section 115 of the Code of Civil Procedure read as follows: 115. Revision. (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 the 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 a....
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....ing for revision, would have finally disposed of the suit or other proceedings. (2) The High Court shall not; under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court. Explanation: In this section, the expression "any case which has been decided'' includes any order made, or any order deciding an issue, in the course of a suit or other proceeding." ( 17. ) The section 12 of the amending Act of 1999 is based on the recommendation of Justice V.S. Malimath Committee, the resolution adopted in the conference of the Law Minister held in New Delhi on June 30, 1997 and July 1, 1997, 129th report of the Law Commission of India and the recommendations of the committee on subordinate legislation. It was proposed to introduce a bill for the amendments of the Code of Civil Procedure, 1908 keeping in view, inter alia, that ever....
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....nbsp; revision on the ground that an order if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made, leaves wide scope for the exercise of the revisional power with all types of interlocutory orders presumably not intended. While the Committee agrees, in principle, that the scope of interference against interlocutory orders should be restricted, it feels that object can more effectively be achieved without, at the same time, denuding the High Court of the power of revision, by deleting clause (b) of the proviso to sub-section (1) of section 115 CPC the Committee, therefore, recommends that the only amendment which is required to be made in sub-section (1) of section 115 of the Code of Civil Procedure is to substitute the existing proviso to sub-section (1) by the following: 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 h....
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....the suit or other proceedings and no revision would lie against nay other interlocutory orders which would not finally dispose of the suit or other proceedings and no orders can be passed in pending cases in which other interlocutory orders are under challenge. Thus rightly so the scope of revision has been restricted by Legislature by substituting proviso by amendment in the Principal section 115 of the Code of Civil Procedure by Amendment Act, 1999 (No. 46 of 1999) with effect from 1.7.2002." ( 20. ) The next decision has been delivered by the Bombay High Court in the case of Rajababu v. Dinkar, reported in 2002(3) Maharashtra Law Journal 921 where it has been held that all revisional applications, whether pending as on July 1, 2002 or filed thereafter would have to be dealt with strictly in accordance with the provisions of the amended section 115 of the Code of Civil Procedure. It was, further, held that no revision application against an interlocutory order would be entertainable even if the order has been made prior to July 1, 2002 as moving the High Court under section 115 of the Cod....
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....nbsp; (supra) held that in view of the amendment made in section 115 of the Code, which has become operative from July 1, 2002, the revisional jurisdiction of the High Court has now been materially restricted. The effect of the amendment is that even if the order sought to be impugned suffers from jurisdictional error, it cannot be interfered with under section 115 of the Code unless it can be shown and found that if the order impugned would have been made in favour of the party applying for revision, it would have finally disposed of the suit or other proceeding. The word 'other proceeding' used in the proviso has to be understood as speaking about proceeding divorced of the suit. ( 24. ) My reading of the present provisions of section 115 of the Code of Civil Procedure is that with effect from July 1, 2002, when the amended provisions have come into force, the revisional jurisdiction of the High Court has been materially restricted. In order to invoke the revisional jurisdiction of the High Court, the party concerned is not only to satisfy the High Court that by the order impugned....
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....nbsp; exercising the revisional power, the High Court could ignore the proviso to the main section. In my view, the proviso will prevail as it speaks the last intention of the makers. Moreover, the Apex Court in the case of Prem Bakshi and Others v. Dharam Dey and Others, reported in (2002)2 SCC 2 while considering the power of the High Court under section 115 of the Code of Civil Procedure, as it stood prior to amendment of 1999, observed as under: "The proviso to sub-sections (1) and (2 with Explanation was added by the amending Act of 1976. By this amendment the power of the High Court was curtailed; the intention of the legislature being that the High Court should not interfere with each and every interlocutory order passed by the trial Court so that the trial of a suit could proceed speedily and that only the interlocutory order coming under clause (a) or (b) of the proviso would be entertained by the High Court." ( 26. ) Therefore , it can never be suggested that the High Court can interfere with each and every order passed by a Court subordinate to it only if the requirements of sub-....
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.... frustrated inasmuch as the whole purpose behind introduction of the amendment by amending Act of 1999 in respect of the exercise of the revisional power was to curtail the power of revision in order to avoid delay in disposal of the suit or the proceeding. ( 29. ) I am unable to accept the contentions that in exercise of the inherent power the High Court, for ends of justice or to prevent abuse of the process of the Court, can invoke the revisional jurisdiction overlooking the proviso to sub-section (1) of section 115 of the Code. Such submission does not appeal to me since it is contrary to the clear and unambiguous language of the statute. There is no ambiguity in the language of the statute. The inherent powers of the Civil Court can ordinarily be exercised when there is no legislation on a particular field or subject matter. Where there is an express provision barring a particular remedy, the Court can never resort to the exercise of inherent power, particularly, to nullify the effect of the express provision. It is the ordinary rule of interpretation that to exercise the power the req....
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....aja Mahendra Pal, cited supra. When both the jurisdictions are co-existing and are available to the litigants, to say or to permit a litigant after six years of pendency or for that matter six days of pendency of an application which by operation of law is not maintainable, be permitted to be made a petition under Article 227 would be setting at naught the legislative mandates. Such exercise of jurisdiction under Article 227, in my opinion, is not permissible." ( 34. ) It seems that the attention of the learned Judge was not drawn to Apex Court decision in the case of Municipal Corporation of Delhi v. R.P. Khaitan and Another, reported in 79 (1999) Delhi Law Times 555 (SC) where the Apex Court observed as under: "It is true that the extraordinary remedies provided under Articles 226 and 227 of the Constitution are dependent upon the High Court willing to interfere in a matter for which a large measure of discretion rests with it. Its power is so wide so as to envelope not only all aspects of the matter but orders can be passed of such nature as the High Court thinks fit. The jurisdiction as....