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High Court Of Calcutta
Subhro Kamal Mukherjee
MRITYUNJAY SEN - Appellant
Versus
SIKHA SEN - Respondent
C. O. 3078 Of 2002
Decided On : 02/05/2003
REVISION - SCOPE - AMENDMENT OF SECTION 115 OF CIVIL PROCEDURE CODE, 1908 - SECTION 115 OF THE CODE OF CIVIL PROCEDURE, 1908 - SCOPE OF THE POWER OF REVISION OF THE HIGH COURT - INTERPRETATION OF THE EXPRESSION 'ANY CASE WHICH HAS BEEN DECIDED' - MEANING OF THE TERM 'PROCEEDING' - INTERPRETATION OF THE EXPRESSION 'OTHER PROCEEDING' - INHERENT POWER OF THE CIVIL COURT - EXERCISE OF INHERENT POWER TO REMEDY THE WRONG - POWER OF THE HIGH COURT TO INTERFERE WITH AN ILLEGAL ORDER - APPLICABILITY OF THE PROVISO TO SECTION 115 OF THE CODE OF CIVIL PROCEDURE - RESTRICTIONS ON THE EXERCISE OF REVISIONAL POWERS - CONDITIONS FOR THE EXERCISE OF REVISIONAL JURISDICTION - DISTINCTION BETWEEN FINAL AND INTERLOCUTORY ORDERS - POWER OF THE HIGH COURT TO CALL FOR THE RECORD OF ANY CASE - POWER OF THE HIGH COURT TO MAKE SUCH ORDER AS IT THINKS FIT - JURISDICTION OF THE HIGH COURT UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA - CONVERSION OF A REVISIONAL APPLICATION INTO AN APPLICATION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA.
Fact of the Case:
The petitioner filed a revisional application under Section 115 of the Code of Civil Procedure, 1908 challenging the order passed by the Additional District Judge, Second Court at Barasat in Matrimonial Suit No. 29 of 1996. The petitioner sought to amend the cause title of the revisional application to convert the same into an application under Article 227 of the Constitution of India.
Finding of the Court:
The High Court held that the revisional application was not maintainable as it did not satisfy the requirements of the proviso to Section 115(1) of the Code of Civil Procedure, 1908. The Court further held that the inherent power of the Civil Court could not be invoked to overlook the proviso to Section 115(1) of the Code of Civil Procedure, 1908. The Court also held that the revisional application could not be converted into an application under Article 227 of the Constitution of India.
Issues: 1. Whether the revisional application was maintainable under Section 115 of the Code of Civil Procedure, 1908? 2. Whether the inherent power of the Civil Court could be invoked to overlook the proviso to Section 115(1) of the Code of Civil Procedure, 1908? 3. Whether the revisional application could be converted into an application under Article 227 of the Constitution of India?
Ratio Decidendi: 1. The High Court held that the revisional application was not maintainable under Section 115 of the Code of Civil Procedure, 1908 as it did not satisfy the requirements of the proviso to Section 115(1) of the Code of Civil Procedure, 1908. The Court held that the order impugned, if it had been made in favor of the party applying for revision, would not have finally disposed of the suit or the proceeding. 2. The Court held that the inherent power of the Civil Court could not be invoked to overlook the proviso to Section 115(1) of the Code of Civil Procedure, 1908. The Court held that the proviso to Section 115(1) of the Code of Civil Procedure, 1908 was a clear and unambiguous provision and that there was no ambiguity in the language of the statute. 3. The Court held that the revisional application could not be converted into an application under Article 227 of the Constitution of India. The Court held that the existence of an alternative remedy could be itself be a ground for the High Court refusing to exercise jurisdiction but it was not as if jurisdiction of the High Court was ousted by such existence.
Final Decision: The High Court dismissed the revisional application and declined to convert the same into an application under Article 227 of the Constitution of India.
( 1 ) IN this case I am invited to decide the scope of the power of revision of the High Court under section 115 of the Code of Civil Procedure, as amended by the Code of Civil Procedure (Amendment) Act, 1999.
( 2 ) AS the point involved in this case is a matter of general importance, I requested the learned members of the Bar to appear and assist me on the question of maintainability and scope of civil revision cases in view of the amendment of the Code of Civil Procedure by the Code of Civil Procedure (Amendment) Act, 1999.
( 3 ) MR Sudhis Dasgupta, learned senior advocate, appearing in support of this revisional application, argued that in spite of amendment of the Code of Civil Procedure by the amending Act of 1999, the High Court is not denuded of its revisional power in respect of interlocutory orders, 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 High Court against interlocutory orders. Mr. Dasgupta draws my attention to the decision of the Supreme Court of India in the case of Babu Lal v. M/s. Hazari Lal Kishori Lal and Ors. , reported in (1982)1 SCC 525 and has drawn my attention to the observations of the Apex Court that the term proceeding was a very comprehensive term and generally meant a prescribed course of action for enforcing a legal right. The Apex Court observed, further, that it was a general term giving widest freedom to a Court of law so that it might do justice to the parties in a case. It marked a stage in litigation and was step in the ladder in the journey of litigation as there were various stages. Mr. Dasgupta, also, referred to the decision in the case of P. L. Kantha Rao and Ors. v. State of Andhra Pradesh and Ors. , reported in (1995)2 SCC 471 where the Apex Court held that the word proceeding would depend upon the scope of enactment wherein the expression has been used with reference to a particular context where it occurred. Mr. Dasgupta submitted that the word ?proceeding? has not been defined in the Code. Mr. Dasgupta, therefore, referred to the dictionaries for the meaning. In Black's Law Dictionary (5th Edition, 1979) it was, inter alia, observed that the word proceeding has been used in a general sense, the form and manner of conducting juridical business before a Court or Judicial Officer. It includes regular and orderly progress in form of law including all possible steps in an action from its commencement to the execution of the judgment. The term proceeding might refer not only to a complete remedy, but, also, to a mere procedural step that was a part of larger action or special proceeding. Mr. Dasgupta, also, drew my attention to P. Ramanatha Aiyar's Law Lexicon (Second Edition, 1997 ). It has been observed that the term proceeding includes all possible steps in an action from its commencement to its execution. The word proceeding when applied to suit, it might be
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