The High Court has the power to exercise revisional jurisdiction over subordinate courts under Section 104 of the J&K Constitution. Section 115(2) CPC, which bars the High Court from varying or reversing any decree or order against which an appeal lies, is ultra vires the Constitution to the extent that it takes away the jurisdiction of the High Court in entertaining a revision against an order, against which an appeal lies before a Subordinate Court.

1. This revision is directed against the order passed on 1-9-93 by the City Munsiff, Srinagar in suit No. 131 of 1993 titled Ghulam Rasool Vs State and others. During the year 1993, the respondent herein was working as Senior Assistant in the office of the Executive Engineer, Transmission Line, Construction Division -II, PDD, Railway Station, Jammu. Vide order No. DC/PD/ADM-2/Camp/9 of 1993 dated 17-8-93, petitioner-1 herein transferred the respondent from the construction wing of Power Development Department, Jammu to the Procurement and Material Management Wing of the Power Development Department, Jammu. This order of transfer was challenged by the respondent in the above said suit wherein it was prayed that the order may be declared as null and void. Consequential relief in the form of perpetual injunction was also sought that the petitioners be restrained from giving effect to the order in question. The plaint was accompanied by the application made under 0.39 Rules 1 & 2 CPC wherein relief of temporary injunction was sought for not giving effect to the above stated transfer order. On 1-9-1993, the City Munsiff, Srinagar in the said application passed exparte order whereby the transfer order in question was kept in abeyance. The interim order is the subject matter of the dispute in this revision petition which has been referred to larger Bench by the learned single Judge vide his order dated 31-1-1997 who did not agree with the ratio of Single Judge decision given in Civil Revision Petition No 44/95. The reason for dis-agreement is the newly engrafted sub-section (2) in section 115 CPC which stipulates that 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." In the above said revision petition No. 44/95, it was held that revision petition is maintainable even where the appeal lies either to the High Court or to the court subordinate thereto.

2. Mr. S.K. Anand, learned counsel appearing for the petitioners has contended that the revision petition in the present case is maintainable because the City Munsiff, Srinagar has not passed the impugned order under the provisions of Order 39 Rules 1&2 CPC as main suit was not maintainable before him because of lack of territorial and statutory jurisdiction. He had sought the relief of declaring the transfer order as null and void and by virtue of the impugned order sought the temporary relief of injunction in his favour not to give effect to the order of transfer in question. His prayer was accepted on the allegations made in the application that balance, of convenience was in his favour and he had a prima facie case also. He had also alleged that in case the temporary relief was not granted he had to suffer irreparable loss. It may be noted that the State and its functionaries were arrayed as defendants in the suit. No notice as is contemplated under section 80 CPC was given to the defendants. The temporary relief was granted in complete dis-regard of sub-clause (3) to section 80 CPC which provides that a suit and/ or an application for interim relief against the Government or any public officer in respect of any act purporting to be done by the public officer in his official capacity, may be instituted with the leave of the court, without serving any notice as required by subsection (1); but the court shall not grant relief in the suit, whether interim or otherwise except after giving to the Government or Public Officer , as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit. The plaint had not disclosed how the Munsiff had jurisdiction in Srinagar when the impugned order was passed in Jammu and its area of operation was in Jammu itself.

Section 56 of the Specific Relief Act provides that an injunction cannot be granted to interfere with the public duties of any department of the Government or the