The main legal point established in the judgment is that the right to invoke jurisdiction under Section 115 of the Code of Civil Procedure arises only in a case which has been decided in an original suit or other proceedings by the subordinate court.

( 1 ) THIS revision has been filed under Section 115 of the Code of Civil Procedure by the plaintiff who feels aggrieved by the order dated 17. 9. 2005 passed by the trial court whereby the trial court refused to grant ex parte temporary injunction without hearing the other side. It therefore, issued notices to the defendants and directed the file to be put up for disposal of the application No. 6c on 4. 10. 2005, approached this Court. The provision of Section 115 of the Code of Civil procedure as has been amended in the State of U. P. by U. P. Act No. 14 of 2003 is reproduced below: 115. Revision.-The High Court, in case arising out of original suits or other proceedings (of the value exceeding one lakh rupees or such higher amount not exceeding five lakh rupees as the high Court may from time to time fix, by notification published in the Official Gazette including such suits or other proceedings instituted before the date of commencement of the U. P. Civil laws (Amendment) Act, 1991, or as the case may be, the date of commencement of such notification), and the district court in any other case, including a case arising out of an original suit or other proceedings instituted before such date, may call for the record of any case which has been decided by any Court subordinate to such High Court or district court, as the case may be, 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 material irregularity, the High Court or the district court, as the case may be, may make such order in the case as it thinks fit:

Provided that in respect of cases arising out of original suits or other proceedings of any valuation, decided by the district court, the High Court alone shall be competent to make an order under his section: provided further that the High Court or the district court shall not, under this section vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceeding, except where:(i) the order, if so varied or reversed, would finally dispose of the suit or other proceeding; or (ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made:

Provided also that where a proceeding of the nature in which the district court may call for the record and pass orders under this section was pending immediately before the relevant date of commencement referred to above, In the High Court, such Court shall proceed to dispose of the same. Explanation.-In this section, the expression "any case which has been decided" includes any order deciding an Issue in the course of a suit or other proceeding.

( 2 ) A perusal of the provisions of Section 115 clearly demonstrates that the right to invoke jurisdiction under Section 115 will arise only in a case which has been decided in an original suits or other proceedings by the subordinate court.

( 3 ) HERE admittedly the suit has not been decided finally. It is only temporary injunction application on which notices have been issued. The order clearly demonstrates that this application has not been finally decided therefore, In my opinion, the order under challenge is not covered by the phrase "case decided.

( 4 ) LEARNED Counsel for the revisionist has relied upon a decision of the Honble Apex Court in A. Venkatasubbiah Naidu v. Chellappan and Ors. AIR2000 SC 3032 , 2000 (5 )ALT44 (SC ), 2001 (1 )BLJR663 , 2000 (4 )CTC358 , (2001 )1 GLR687 , JT2000 (10 )SC 599 , (2001 )1 MLJ75 (SC ), RLW2001 (1 )SC 84 , 2000 (6 )SCALE398 , (2000 )7 SCC695 , [2000 ]supp3 SCR303 , 2000 (2 )UJ1300 (SC ). The aforesaid decision deals with the provisions of ~ Section 115 of the Code of Civil Procedure which is not similar to that which is applicable to the State of U