A revision would lie if it appears that the subordinate Court has exercised its jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested or has acted in the exercise of the jurisdiction illegally or with material irregularity.

Headnote:
CIVIL PROCEDURE CODE, 1908 - SECTION 115 - REVISION - JURISDICTION - COURT'S FAILURE TO EXERCISE JURISDICTION - STAY OF INJUNCTION - APPLICATION PENDING - COURT'S DUTY TO PASS ORDER - DIRECTION TO COURT TO PASS ORDER ON STAY APPLICATION.
Fact of the Case:

Petitioner filed a Title Suit for declaration and permanent injunction, claiming to be shareholders and duty elected members of the Executive Committee of Pub-Barigog Gaon Panchayat Samabai Samity. An ex parte injunction was granted and later vacated. Petitioner appealed and filed an application for interim injunction. The appellate Court granted a time-bound stay, but no order was passed extending the stay period despite an application filed by the petitioner.
Finding of the Court:

The Court held that the appellate Court should have passed an order on the petitioner's application for extension of the stay period. The Court's failure to do so amounted to not exercising its jurisdiction.
Issues: Whether the appellate Court had the jurisdiction to pass an order on the petitioner's application for extension of the stay period.
Ratio Decidendi: The Court held that a revision would lie if it appears that the subordinate Court has exercised its jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested or has acted in the exercise of the jurisdiction illegally or with material irregularity. In this case, the appellate Court had the jurisdiction to pass an order on the petitioner's application for extension of the stay period, but it failed to do so. Therefore, the Court directed the appellate Court to pass an order on the application within seven days.
Final Decision: The Court directed the appellate Court to pass an order on the petitioner's application for interim relief within seven days. In the meantime, the operation of the impugned order was suspended till 13th February 1984.

The facts giving rise to this revision petition are these. The petitioner has filed a Title Suit No. 318 of 1983 in the Court -of Sadar Munsiff, Gauhati for declaration and permanent injunction maintaining that they are the shareholders and duty elected members of the Executive Committee of Pub-Barigog Gaon Panchayat Samabai Samity, hereinafter referred to as "the Samity". An application for interim injunction was also filed along with the suit. The learned Munsiff granted an ex parte injunction which was subsequently vacated by him. The petitioner then preferred an appeal in the Court of the Assistant District Judge No. 1, Gauhati and filed an application for interim injunction. The appellate Court below stayed the operation of the impugned order till 22nd Jan., 1984. It seems that the case could not be taken up on 22nd Jan., 1984, because it was Sunday and the Courts were closed. Hence the record was placed before the appellate Court below on 23rd Jan., 1984 whereupon an order was passed fixing 25th Jan., 1984 for hearing the stay matter. Incidentally on 25th Jan., 1984 the stay application could not be considered because an application for adjournment was filed which was allowed. The Court below has now fixed 2nd Mar. 1984 for hearing the stay application as also the original appeal. In the meantime the Assistant Registrar of the Co-operative Societies, Gauhati asked the Secretary of the Samity to convene the meeting of the Ad hoc Board mentioning therein that there was no injunction from any Court restraining the opposite parties from functioning. The petitioner then filed an application in the . appellate Court below praying that the operation of the stay order granted on 12th Jan., 1984 be continued till the disposal of the appeal. The Court below has not passed any interim order on that application. The petitioner therefore has approached this Court by means of this petition for the interim relief as also for revising the order of stay by extending it till the date of hearing of the appeal. I have heard the learned counsel for the petitioner.

2. The petitioner has not sought for the quashing of any order. In fact no order has yet been passed against him. His application for grant of stay is yet pending before the Court below. No doubt the court below has not passed any order in spite of a request made by the petitioner and has fixed 2nd Mar. 1984 for the hearing of the stay application. The learned counsel for the petitioner says that if no order is passed by the Court below the appeal filed by the petitioner would become infructuous and he would suffer irreparable injury. He, therefore, contends that in the circumstances of the case the Court below should have passed an interim order and as the same has not been done, this court should intervene. In support of his contention the learned counsel for the petitioner has placed reliance on a decision of the Supreme Court in Mool Chand Yadav v. Raza Buland Sugar Co. Ltd., Rampur (1982) 3 SCC 484, wherein it was observed that judicial approach requires that during the pendency of the appeal the operation of an order having serious civil consequences must be suspended and more so when appeal is admitted. In that case an appeal was preferred in the Allahabad High Court and notice of motion was taken out for suspension of the order under appeal. But the Division Bench declined to grant stay. Hence, an appeal by special leave was filed before the Supreme Court.

3. In the case in hand an appeal has no doubt been filed from the impugned order with an application for stay and the Court had granted a time-bound stay but thereafter no order was passed extending the operation of the stay order. The petitioner therefore moved the Court below for extension of the operation of that order. Incidentally that application is still pending consideration and no order has been passed so far on it. The case Mool Chand Yadav (supra) is therefore distinguishable. Anyway, it has to be taken note of t

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Judicial Analysis

1984 Supreme(Gau) 18

GAUHATI HIGH COURTT.S.Mishra, J.Dhaneswar Karji -AppellantVersusUmesh Chandra Choudhury -RespondentCivil Revn.No. 32 of 1984Decided On : 06-02-1984

A revision would lie if it appears that the subordinate Court has exercised its jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested or has acted in the exercise of the jurisdiction illegally or with material irregularity.

Judicial Analysis

GAUHATI HIGH COURT
T.S.Mishra, J.
Dhaneswar Karji -Appellant
Versus
Umesh Chandra Choudhury -Respondent
Civil Revn.No. 32 of 1984
Decided On : 06-02-1984