Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status

TABLE OF CONTENTS
Contents
Table of Contents ............................................................................................................................ 1 Table of Cases ................................................................................................................................. 3 Table of Statutes ............................................................................................................................. 3 Introduction ..................................................................................................................................... 4 Research Methodology ................................................................................................................... 5 I. A. Development of Section 115 of the Civil Procedure Code, 1908 ........................................... 6 Original ........................................................................................................................... 6 any case which had been decided- A cause for delay in revision applications ................... 6 B. 1976 Amendment Brought into Effect from 1st February, 1977 ................................ 7 Statutory Recognition of the Ratio in Major S. S. Khanna v. Brig. F. J. Dillon..................... 7 Prem Bakshi and Ors. v. Dharam Dev and Ors. ................................................................... 10 C. 1999 Amendment Brought into Effect from 1st July, 2002 ....................................... 12 Malimath Committee Recommendations ............................................................................. 12 Effect of the Amendment Act, 1999 ..................................................................................... 14 Surya Dev Rai v. Ram Chander Rai and Ors. ....................................................................... 15 II. A. Parties and Prerequisites to Section 115 ............................................................................... 17 Parties ............................................................................................................................ 17 Madan Lal Tiwari v. The Superintendent and Manager, The Bengal Nagpur Cotton Mills Ltd. ........................................................................................................................................ 17 B. Prerequisites to Section 115 ......................................................................................... 20 Pandurang Dhoni Chouguie v. Maruti Hari Jadhav .............................................................. 20 Major S. S. Khanna v. Brig. F. J. Dillon ............................................................................... 23 Shri. M. L. Sethi v. Shri. R. P. Kapur ................................................................................... 26 III. A. B. Distinctions ........................................................................................................................ 29 Revision and Power of Superintendence under the Constitution ............................ 29 Appeal and Revision .................................................................................................... 29 Page 1

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status C. D. Revision and Reference ................................................................................................ 30 Revision and Review .................................................................................................... 30

Conclusion .................................................................................................................................... 31 Bibliography ................................................................................................................................. 32 Articles .................................................................................................................................. 32 Books .................................................................................................................................... 32 Reports .................................................................................................................................. 32

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status

TABLE OF CASES
Major S. S. Khanna v. Brig. F. J. Dillon, AIR 1964 SC 497 Prem Bakshi and Ors. v. Dharam Dev and Ors., 2002 INDLAW SC 11 Surya Dev Rai v. Ram Chander Rai and Ors., AIR 2003 SC 3044 Madan Lal Tiwari v. The Superintendent and Manager, The Bengal Nagpur Cotton Mills Ltd., AIR 1964 MP 297 Pandurang Dhoni Chouguie v. Maruti Hari Jadhav, [1956] 1 S.C.R. 102 Shri. M. L. Sethi v. Shri. R. P. Kapur, AIR 1972 SC 2379

TABLE OF STATUTES
The Constitution of India, 1950 The Code of Civil Procedure, 1908

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status

INTRODUCTION
The Code of Civil Procedure, 1908 (hereinafter referred to as C. P. C.) confers, revisional jurisdiction on all High Courts by Section 115 of the C. P. C. The main object being to prevent subordinate courts from acting arbitrarily in exercise of their jurisdiction. It gives the High Courts with the powers necessary to ensure that the proceedings of the subordinate courts are conducted in accordance with the law within the bounds of their jurisdiction and in furtherance of justice. The civil procedure code was first enacted 18591, to simplify the procedure of the Courts of Civil judicature which was not established by Royal Charter. It did not contain any provision of revision. However, the establishment of the High Courts with the passing of the Charter Act of 1861 in the Bengal, Bombay and Madras Presidencies led to conferring on them a power of superintendence over subordinate courts subject to their appellate jurisdiction by Section 15 of that Act. The Sudder Courts under Section 35 of the 1861 Act were empowered to call for the records of any case decided in appeal by the Subordinate Courts and in which no further appeal lay and it is shown that the subordinate Court appeared to have exercised a jurisdiction not vested with it. This was prior to the actual constitution of the High Courts. Thus, it can be inferred that Section 115 of the C. P. C. is founded on Section 35 of Act XXIII of 1861.2 The revisional powers of High Court was defined for the first time under Section 6223 of the Code of 1877 and also laid down certain conditions prior to its exercise. jurisdiction under Section 622 was supervisory in nature. This provision of The revisional revision was

conceived in the interest of maintaining effective control over courts subordinate to the High Courts. The Section 622 of the code of 1877 further amended by Act XII of 1879 and when Code of Civil Procedure, 1908 was enacted, the provision of Section 622 of the earlier Code was retained as Section 115 of the Code of 1908.

1 2

Act VIII of 1859 W.W. Chitaley and V. B. Bakhale, The Civil Procedure Code (Act V of 1908) (9th edn., vol.2, Bombay: The All India Reporter Ltd., 1977) at 505. 3 622. The High Court may call for the record of any case in which no appeal lies to the High Court, if the Court by which the case was decided appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, and may pass such order in the case as the High Court thinks fit.

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status

RESEARCH METHODOLOGY
AIMS AND OBJECTIVES
The aim of this paper is to study the scope and the status of revisional jurisdiction of the High Courts under the C.P.C. and also trace its evolution by various amendments. The objective is to examine the supervisory powers of High Court by using its revisional powers under Section 115 of the C.P.C.

SCOPE AND LIMITATION

The scope of this project is restricted to Section 115 of the C.P.C. The constraints of time and word limit has refrained the researcher from an in depth comparative analysis of revision with appeal, reference and review.

RESEARCH QUESTIONS
The research questions addressed in this paper are as follows: 1. Why was there a need for an amendment to section 115 C.P.C.? 2. What was the impact of the previous section 115 prior to amendment? 3. How does power of revision of the High Court vary from that of appeal, review and reference? 4. What are the mandatory pre-conditions prior to the application of revisional powers?

MODE OF CITATION
A uniform mode of citation has been followed

SOURCE
Secondary sources like books have been used. Also case laws have been dealt with in detail to bring out various ingredients and effects of the revisional power of High Courts vested in section 115 of C.P.C.

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status

I.

DEVELOPMENT OF SECTION 115 OF THE CIVIL PROCEDURE CODE, 1908

A. ORIGINAL

Section 115 prior to 1976 Amendment read as follows: 115. Revision -The High Court may call for the record of any case which had 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 material irregularity, the High Court may make such order in the case as it thinks fit. Keeping this provision in mind the researcher shall now move on to examine the flaws in this provision leading to need for amendment which was brought about by Amendment Act of 1976.

ANY CASE WHICH HAD BEEN DECIDED- A CAUSE FOR DELAY IN REVISION
APPLICATIONS

The reason for introduction of Explanation to section 115 by the 1976 Amendment was the confusion which arose in interpreting the phrase any case which had been decided. The confusion was whether section 115 was applicable to an interlocutory order or not. The introduction of the Proviso was also done with a view to restrict the kind of interlocutory orders to which section 115 was applicable. These restrictions were sought for in the 1976 amendment in order to remedy the delay which was arising out of revision applications under section 115 prior to the amendment. Also, the need for the amendment was felt to strengthen the hands of the revising court and to remind them of the danger of entertaining and granting stay in revisions applications against interlocutory orders which were leading to a large number of pending cases in the subordinate courts. Submitted by: Jagriti Singh (1572) Page 6

Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status

B. 1977

1976 AMENDMENT BROUGHT

INTO

EFFECT

FROM

1ST FEBRUARY,

STATUTORY RECOGNITION OF THE RATIO IN MAJOR S. S. KHANNA V. BRIG. F. J. DILLON4

The decision in Major Khannas case5 which has been discussed in detail in the second chapter of this research paper has played an important role as a catalyst in bringing about the 1976 Amendment to Section 115 C.P.C. The ratio of the case determined the meaning of the term case decided in section 115 C.P.C. so as to include all kinds of interlocutory orders passed by the courts subordinate to the High Court within its ambit for revisional jurisdiction. Thus, to reorganize the issue with regard to revision powers of the High Court the researcher will now be referring to the various Law Commission Reports. The 54th Report of the Law Commission of India6 in 1973acknowledged the fact that often the cause of delay in trial of suits in case of revision petitions was those against interlocutory orders which invariably resulted in stay of proceedings. They also inferred from various case laws that the object of the parties in moving the High Courts under section 115 C.P.C. had shifted from seeking justice to that of delaying the progress of the proceedings. 7 The Law Commission of India under this report suggested that section 115 should be deleted. The justification given being that section 115 was analogous to provisions of Article 227 of the Constitution of India and hence the litigants in no way would be prejudiced by deleting entire section 115 C.P.C.8 They also emphasized on the discretion of the court in granting adjournments, amendment of pleadings, in issuing or refusing to issue commissions as matters which should not be open to revision. Since it is generally against such orders that revisions are generally filed leading to stay of proceedings and delay in disposal of cases.9

4 5

AIR 1964 SC 497 AIR 1964 SC 497 6 The Law Commission of India 54th Report on The Civil Procedure Code,1908 (February 1973). 7 Ibid, chapter 1-L para. 5at page 96. 8 Ibid, para 7-8 at page 97. 9 Supra note 7.

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status The 54th Report also referred to the 27th Report of the Law Commission of India in 196410 with regard to the prior discussion on the issue of revision. The two issues raised before the 27th Report of the Law Commission were firstly, whether it was necessary to retain section 115 in the C.P.C. and secondly, whether the right of revision applications against interlocutory orders should be curtailed and if so in what way. Answering the first question the law commission of the view that the presence of Article 226 and 227 in the Constitution was sufficient hence section 115 C.P.C. was not a necessity, yet should be retained as it serves a useful purpose in furthering the motive behind Article 226 and 227.11 With regard to the second question, the Law Commission concluded that right of revision against interlocutory orders was a valuable right which in their opinion should not be abolished. This opinion was based on the famous decision of Major S.S. Khanna v. Brigadier Dhillon12. Therefore while the 14th Law Commission Report13 only recommended that the phrase case decided should be so defined to cover within its ambit interlocutory orders as well. The 27th Law Commission Report14 on the other hand upholding the view of the 14th Report, in furtherance added certain restrictions to be placed on revision applications against interlocutory orders. These restrictions were to be added in addition to clause (a), (b) and (c) of section 115 prior to 1976 Amendment. The restrictions referred to were implemented by way of proviso (a) and (b) to section 115 by the 1976 Amendment. Hence the Joint Committee finally concluded that in spite of alternative remedy available under Article 227 of the Constitution, section 115 serves as a useful, cheap and easy remedy. Hence, they recommended that Section 115 be retained in the C.P.C. and the recommendations of 14th Law Commission Report15 and 27th Law Commission Report16 be implemented by inserting a proviso (a) and (b), sub-section (2) and Explanation to the Section 115.

10 11

The Law Commission of India 27th Report on The Civil Procedure Code,1908 (December 1964) Ibid, Para 55 at page 24. 12 AIR 1964 SC 497. 13 The Law Commission of India 14th Report on Reforms of the Judicial Administration (Vol. I) on (August, 1996) at page 420. 14 Supra note 10, para 57 at page 25. 15 Supra note 13, para 19, at page 420. 16 Supra note 10, para 54-60, at pages 23-27.

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status However, the Parliament instead by enacting the 1976 Amendment to section 115 C.P.C. legislatively adopted the view taken by 3 judge bench of Supreme Court in Khannas case.17 The introduction of the explanation to section 115 (1) makes the interlocutory order revisable. However, the ambit of power to revise interlocutory orders by High Court was also curtailed by the same amendment by inserting the proviso (a) and (b) to section 115(1). Thus, though the term case decided included interlocutory orders as well with its ambit yet the proviso to section 115(1) placed a restriction such that it would not include all the interlocutory orders within its sphere but only those which would fall within clause (a) or (b) of the proviso to section 115(1). The amendment inserted the explanation and the proviso (a) and (b) to Section 115(1) and subsection (2). Thus, section 115 of C.P.C. after the 1976 Amendment reads 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 material irregularity, the High Court may make such order in the case as it thinks fit: Provided that the High Court shall not, under his 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 against whom it was made.

17

Brajesh Ranjan, Curtailment of Revisional Jurisdiction of High Court in India- A Critique, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1482946 (2nd December, 2009).

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status (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. 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.

PREM BAKSHI AND ORS. V. DHARAM DEV AND ORS.18

This case was decided by the Supreme Court of India on 9th January, 2002, prior to the 1999 Amendment to Section 115 C.P.C. came into effect. This case discusses the reason for bringing about the amendment in 1976 and discusses the scope of the phrase finally disposed of the suit or other proceeding and failure of justice or irreparable injury as given in Proviso (a) and (b) to Section 115(1). This is an appeal by special leave is directed against the order of the High Court of Punjab & Haryana. BRIEF FACTS The land under controversy originally belonged to Durga Dass who mortgaged the same to Sunder Dass and Udhey Ram. The appellants and respondent Nos. 2 to 5 are the legal heirs of Sunder Dass and Udhey Ram. When defendant/respondent No. 1 Dharam Dev got his name mutated in the revenue record on the death of Durga Dass, the present suit was filed for declaration of joint ownership of the land of the appellants and respondent Nos. 2 to 5 on the ground that neither Durga Dass nor his legal heirs could get the suit land redeemed within a statutory period and also for permanent injunction restraining respondent No. 1 from alienating the suit land. In the same suit an application under Order 6 Rule 17 C.P.C. for amendment of the plaint was filed. It was pleaded that from a subsequent civil suit filed by the respondent No. 1 against the appellants, it came to the knowledge of the appellant that the suit land was sold by Durga Dass to Sunder Dass and Udhey Ram adjusting the mortgage amount and later on a pre-emption suit filed by Amar Nath, son of Kamal Krishna and another, which was decided in the year 1943 and it was decreed that the plaintiffs in that suit on payment of certain amount, within the time specified by the Court, to Sunder Dass and Udhey Ram, the suit would stand decreed and in case
18

2002 INDLAW SC 11

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status of non payment, suit would stand dismissed. The present respondent No. 1 is the son of Amar Nath. It was stated in the said application that as the amount directed by the court was not paid, there was no decree for pre-emption and the suit stood dismissed and accordingly, prayer was made for amendment of the plaint. TRIAL COURT and HIGH COURT The trial court allowed the application, which was set aside by the High Court by the impugned order on the ground that the appellants want to challenge a decree passed in 1943 in the present suit, which was filed in the year 1999 and, therefore, it is barred by limitation. SUPREME COURT The Supreme Court went on to examine whether the impugned order was revisable by the High Court by exercising powers under Section 115 C.P.C. (Prior to the 1999 Amendment). In this case the Supreme Court also discussed the reason for bringing about the 1976 Amendment by inserting the proviso (a) and (b) to sub-section 1, sub-section 2 and the explanation into section 115. The Court was of the view that the aim of this amendment of 1976 was to curtail the revision powers of the High Court. They stated that 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. The court in this case held that the order in question by which the amendment was allowed could not be said to have finally disposed of the case and, therefore, it would not come under clause (a) of the proviso to section 115(1) of the C.P.C. The reasoning given by the court was that under clause (a), the High Court would be justified in interfering with an order of a subordinate court if the said order finally disposed of the suit or other proceeding. Supposing that if a trial court held by an interlocutory order that it had no jurisdiction to proceed with the case or that suit was barred by limitation, it would amount to finally deciding the case and such order would be revisable. The Supreme Court then moved on to examine whether the order in question has caused failure of justice or irreparable injury to respondent No. 1. This was answered in negative by the court Submitted by: Jagriti Singh (1572) Page 11

Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status as the court is of the view that it is impossible to cause failure of justice or irreparable injury to any party mere amendment of pleadings. Since amendment of the pleadings would not amount to decisions on the issue involved. Thus, the court was of the view that order allowing the amendment would not come under clause (b). Thus, the Supreme Court held that the High Court erred in law in interfering with the order of the trial court allowing the prayer for amendment of the plaint.

C.

1999 AMENDMENT BROUGHT

INTO

EFFECT

FROM

1ST JULY, 2002

The 1976 Amendment which inserted the proviso to section 115(1) to restrict the application of revisional powers of High Court in case of interlocutory orders did not yield the desired results. It did not lead to speedy disposal of cases.19 The problem was vested in the proviso itself. The clause (b) of the proviso was so broadly drafted that it covered within its scope any kind of order. Thus, it permitted the High Court to interfere with any kind of order which in effect diluted the restriction which was put by clause (a) of the proviso. In 1989, the Government of India to combat the delay in disposal of cases constituted the Malimath Committee also known as Arrears Committee under the chairmanship of Justice V.S. Malimath. The committee submitted an extensive report in August, 1990. The recommendations and issues discussed and settled upon by the committee with regard to section 115 C.P.C. is as follows.

MALIMATH COMMITTEE RECOMMENDATIONS

Section 12 of the Amendment Act of 1999 is based on the recommendations of the Malimath Committee. The Section 32(2) clause (1) of the Amendment Act provides that the provision of section 115 C.P.C., as amended by section 12 of the Amendment Act of 1999 would not apply or affect any proceeding for revision which had been finally disposed off. With regard to revision against interlocutory orders, the Malimath Committee made following recommendations. The committee though in principle agreed that the scope of interference against interlocutory orders should be restricted yet they felt that the object could more
19

P.M. Bakshi, Mulla on the Civil Procedure Code (Bombay: N.M. Tripathi Pvt. Ltd., 1990) at 379.

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status effectively be achieved without denuding the revision power of the High Court by deleting clause (b) of the proviso to section 115(1). Therefore, the only amendment recommended by the committee was to substitute the proviso with this one: 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 have finally disposed of the suit or other proceedings. However, with regard to the grant of stay in case of revisional jurisdiction the proposal was made before the Malimath Committee to enact a provision similar to Order XLI Rule 5 of the C.P.C. The proposal was rejected by the committee on following grounds: a) Since the High Court has been conferred revisional powers under section 115 C.P.C. it is reasonable to expect them to exercise such powers as per the circumstances and justice for determining the merits of the case. b) The power of revision varying in nature from that of appellate power such a provision is not needed. c) The condition for exercise of power of stay laid down in Order XLI Rule 5 C.P.C. may not apply appropriately to all types of cases arising under revisional jurisdiction. As a result, section 115 of C.P.C. was amended by the C.P.C. (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-2002) so as to incorporate the following changes. Firstly, section 12 of the Amendment Act of 1999 deleted clause (b) of the proviso to section 115(1). Secondly, it also introduced a new sub-section (3) in section 115. Thus, Section 115, C.P.C. after the Amendment Act of 1999 reads 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 material irregularity, Submitted by: Jagriti Singh (1572) Page 13

Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status 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 the order, if it had been made in favour of the party applying 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.

EFFECT OF THE AMENDMENT ACT, 1999

It has curtailed the revisional jurisdiction of High Court as compared to the previous section 115 C.P.C.20 Firstly, the effect of deletion of clause (b) of the proviso to section 115(1) is that the interlocutory orders passed in trial or other proceedings is curtailed. It prevents all the unintended interlocutory orders from revision which were being brought to the court on the ground of failure of justice or causing irreparable injury to the party against whom it was made. The new sub-section (3) was introduced in section 115 C.P.C. so as to prevent a huge back log of cases in courts and to prevent any party from taking advantage of pending decisions which could be anticipated as against them. The effect of this sub-section is thus that mere filing of revision would not amount to stay of proceeding unless so ordered by the High Court. The matter of routine in all cases of revision has been restricted to cases in which the Court demands the case file. The effect of the amendment has also been dealt with in the following case in 2003.

20

Sarkar, Code of Civil Procedure, Vol. I (10th edn., New Delhi: Wadhwa & Nagpur Pub. Co., 2002) at 585.

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status

SURYA DEV RAI V. RAM CHANDER RAI AND ORS.21

BRIEF FACTS The appellant in this case had filed a suit asking for permanent preventive injunction of an agricultural land based on his title and possession over the same in the court of Civil Judge. He also asked for temporary injunction under Order 39, Rule 1 and 2 of the C.P.C. TRIAL COURT The trial court rejected the plea of the appellant. HIGH COURT The appellant thus moved the High Court under Article 226 of the Constitution. This was rejected by the High Court on the ground that the appellant was seeking interim injunction against private respondents. The High Court was also of the view that earlier the appellant could have could have availed the revisional jurisdiction of High Court under Section 115 C.P.C. however, now he cannot due to the 1999 Amendment to the section. SUPREME COURT Hence, the appeal to this order of the court raises the issue before Supreme Court compelling it to examine the effect of the 1999 Amendment in Section 115 C.P.C. by the Act 46 of 1999 w.e.f. 1.07.2002. The court in this case examined the effect of the amendment on the writ of certiorari under Article 226 and on power of superintendence under Article 227. The court also analysed whether a person would be divested of judicial review if he lost in the original court and the appellate court due to gross failure of justice. The court then referred to the Malimath Committee Recommendations based on which the 1999 amendments have been made. The proviso was amended because the earlier proviso was of very wide scope which led to making most of the interlocutory orders permissible for revision as a result of which there was delay in the disposal of cases. As a result the clause (b) of the proviso was deleted and adding a new proviso this substantially curtailed interlocutory orders from being taken up for revision by the High Courts.
21

AIR 2003 SC 3044.

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status Hence, in this case it was concluded that the Amendment act of 1999 which has narrowed the scope of section 115 from taking interlocutory orders for revision does not in any way affect the jurisdiction of High Court under Articles 226 and 227 of the Constitution. Thus, the Amendment Act of 1999 to section 115 shall have no effect on Article 226 and 227 of the Constitution. The Section 115 C.P.C. as it stands now shall be discussed in detail in the subsequent chapters of this research paper.

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status

II.
A.

PARTIES AND PREREQUISITES TO SECTION 115

PARTIES

A person aggrieved by an order passed by a court subordinate to High Court may file a revision against such order. But the High Court may even Suo motu exercise revisional jurisdiction under section 115 C.P.C.

MADAN LAL TIWARI V. THE SUPERINTENDENT AND MANAGER, THE BENGAL NAGPUR COTTON MILLS LTD.22
This case was decided by the Madhya Pradesh High Court in 1962. It was a revision petition under section 115 C.P.C. against the order passed by the District Court. The main issue of focus the researcher would like to bring forth from this case is the locus standi with regard to revision petition. Thus, through this case I shall show as to who has the right to file revision petition under section 115 C.P.C. BRIEF FACTS An application was filed by Shyam Rao, Balram Puri, Udayaram and 1126 other workers of the Bengal Nagpur Cotton Mills., Ltd., Rajnandgaon against Badrinarayan, Superintendent and Manager of the said Mills under Section 15 (3) of the Payment of Wages Act. Monthly good muster wages were paid to the workers of the Bengal Nagpur Cotton Mills, Ltd., Rajandgaon from 1944. The payment of good muster wages was made up to the end of October 1955 but it was thereafter stopped by the Management It was alleged that good muster wage was wage as defined under the Payment of Wages Act and the three applicants and 1126 other workers on whose behalf the application was made were entitled to receive it for the month of November 1955. The total amount claimed by them as due good muster wages was Rs. 4255/-. In addition, compensation was also claimed. The Authority under the Payment of Wages Act, Rajandgaon directed payment of the said amount and compensation at the rate of Rs. 10/- per worker to all the applicants.

22

AIR 1964 MP 297

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status The application was contested on various grounds. Firstly, that the good muster was only a concession amounting to ex gratia payment and not wages as defined in the Act and that there was no express or implied contract to pay good muster wages. Secondly, that the recognised union on 14-10-1955 had entered into an agreement with the management which was registered on 4-1-1956 which under its terms abolished good muster wages and granted the workers additional facilities in the shape of increased monthly wages and extra dearness-allowance. DISTRICT COURT The district court held in favour of the workers that the amount of good, muster was wages as defined in the Act and there was implied contract to pay the amount which was clear from the long period in which the good muster wages were paid to the workers by the Mills from 1944 upto the month of October 1955. He further concluded that the application was maintainable and that Shri Madanlal Tiwari claimed to be the General Secretary of the Mill Mazdoor Sangh and as, with the petition, there was a schedule giving the addresses of 1129 petitioner, there was substantial compliance with the Payment of Wages Procedure Rules, 1937. However, on all other points, he agreed with the contentions raised by the management of the Mills. He also opined that the claims made by the individual applicants for good muster for the month of November 1955 were very vaguely made and it was not possible to find from the evidence on record as to what was actually due to each one of the applicants in case his claim was found to be good. In that view, the appeal of the Mills was allowed and the application was dismissed. HIGH COURT There were two preliminary objections raised before the Court by the counsel for non-applicant. Firstly, it was urged that the revision petition under Section 115 of the Code of Civil Procecedure was not the proper remedy because the proceedings had been initiated before a tribunal which was not a civil court and the appeal before the District Judge, was in his capacity of being a persona designata. The counsel for non-applicant relied on the view taken in the case of Sawatram Ramprasad Mills v. Vishnu Pandurang23, where it has been held that the authority appointed under the Payment of Wages Act, Section 15, is not a civil Court in the narrow sense
23

AIR 1950 Nag 14

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status contemplated in the Code of Civil Procedure but an administrative tribunal and as such not subject to the revisional jurisdiction of the High Court, exercisable under Section 115 of the Code of Civil Procedure. However, the High Court in this case relied on the view that was taken in a very recent case of Manager, Hindusthan Journals Private Ltd., v. Govind Ramsawal Ram24 where a Division Bench of High Court has held that revision under Section 115 was the appropriate remedy. The second objection was raised on behalf of the non-applicant that Shri Madanlal Tiwari who has filed this revision has no locus standi to file it. It was contended that his position at best was that of an agent because he had described himself as authorised representative of the employees under the Payment of Wages Act, Rajnandgaon, in the heading of the revision petition. It was argued that even if it was assumed that he was an agent, he could not file the revision in his own name. It was necessary for the valid constitution of the revision petition that it should have been filed by the workers themselves who were aggrieved parties and who were the applicants before the Authority under the Payment of Wages Act and who were the respondents in the Court below. The High Court in this case opined that the objection was well founded. The revision petition should have been filed by Shyam Rao, Balram, Udayaram and the other workers of the Mills who were aggrieved by the non-payment of good muster wages for the month of November 1955. Even if they could not sign the revision petition, they should have been shown as the petitioners and Shri Madanlal Tiwari should have signed the revision petition in his capacity of representing the employees. He could not arrogate to himself the right of becoming a party by filing the revision petition in his own name. He has no right to ignore the real aggrieved persons so completely. Being an agent of disclosed principal or class of principals he cannot initiate proceedings when the parties are not before the Court. Shyamrao, Balram and Udayaram actually came forward as parties during the proceedings before the District Judge and the Authority under the Payment of Wages Act which were in their names and on their behalf along with the other workers. However, the same was not followed with regard to the revision which was instituted in High Court.

24

1962 MP LJ 437

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status Thus, the High Court on this ground alone held that the revision petition would fail and was liable to be dismissed. Hence the principle which can be derived from this case is that only a person aggrieved by an order passed by a court subordinate to High Court can file a revision against such order.

B.

PREREQUISITES

TO

SECTION 115

The following conditions must be satisfied as can be inferred from section 115 C.P.C. before revisional jurisdiction can be exercised by the High Court. 1. A case must have been decided 2. The court which has decided the case must be a court subordinate to the High Court 3. The order should not be an appealable one 4. The subordinate court must have: a. Exercised jurisdiction not vested in it by law; or b. Failed to exercise jurisdiction vested in it; or c. Acted in the exercise of its jurisdiction either illegally or with material irregularity

PANDURANG DHONI CHOUGUIE V. MARUTI HARI JADHAV25

This case deals with exercise of jurisdiction by High Court under Section 115 of C.P.C. prior to the 1976 Amendment. BRIEF FACTS The respondents Maruti Hari Jadhav and two others under the Bombay Agricultural Debtors Relief Act, 1939 moved the B.A.D.R. Court at Karad on May 26, 1949, for adjustment of the debt alleged to be due from them to the appellants, Pandurang Dhondi Chougule & others. Their case was that the debt in question was due under a mortgage deed executed by their grand-father in favour of the grand-father of the appellants on August 29, 1881. By this mortgage, six agricultural lands situated at Kapil (in the former State of Oundh) had been mortgaged to the mortgagee with possession for a sum of Rs. 575. In 1908, the respondents predecessors-ininterest had sued on this mortgage in the Court of the Sub-Judge at Kapil. This suit had been withdrawn with liberty to file a fresh suit.
25

[1956] 1 S.C.R. 102

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status Following which another suit by the respondents in the same Court for redemption of the mortgage in 1932-33. On September 2, 1936, a decree came to be passed in the said suit. According to the respondents, the decree directed them to pay Rs. 3,677 within six months from the date on which it was drawn. However, since the money was not paid their relationship as mortgagor and mortgagee continued so, respondents pleaded that they were entitled to claim adjustment of the debt in question. The respondents also pleaded that the decree which was passed in the said suit was in the nature of a preliminary decree, and though the appellants were entitled to apply for making the said decree final after the expiration of the six months period prescribed by it, they took no such action and the mortgage debt, therefore, remains unpaid and the equity of redemption vesting in the respondents has not been cleared. TRIAL COURT The appellants raised several contentions. They urged that the mortgage was extinguished and the respondents were therefore, not entitled to claim adjustment of the debt, and they also contended that the application made by the respondents was barred by time. The trial Judge rejected the appellants argument that the mortgage had been extinguished, and held that the equity of redemption still vested in the respondent. He, however, found that the respondents application for adjustment of the debt was barred by time. As a result, the respondents failed and their application was dismissed. DISTRICT COURT The matter then went in appeal to the District Court, North Satara. The appellate Court held that the decree in the second suit filed in 1932-33 amounted to a final decree which absolutely debarred the right of the mortgagors to redeem the property in view of the fact that they had failed to pay the decretal amount within the time prescribed by it. It also agreed with the view taken by the trial Court that the respondents application was barred by limitation. As a result, the appeal preferred by the respondents was dismissed. HIGH COURT

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status The main issue argued before the High Court was whether the respondents right to redeem the mortgage had been extinguished by the decree passed in suit of 1932-33. The High Court differed from the District Court and took the view that the decree did not determine the respondents right to redeem the mortgage. The High Court construed the decree as a preliminary decree and found that the clause purporting to extinguish the equity of redemption did not affect its essential character as a preliminary decree and did not in law put an end to the relationship of creditors and debtors between the parties. In regard to the finding recorded by the courts below that the respondents application was barred by time, the High Court took the view that the question as to whether the application is within sixty years from the expiry of the period prescribed in the mortgage deed for repayment was entirely irrelevant as the said application was substantially for the adjustment of debt under the decree passed in suit of 1932-33. Based on these reasons, the High Court set aside the orders passed by the courts below and remanded the proceedings to the trial Court with a direction that the application made by the respondents for adjustment of the debt should be tried in accordance with law. It is against this order that the appellants went before the Supreme Court by special leave. SUPREME COURT The main issue which was before court was whether the High Court was justified in interfering with the decision of the District Court that the decree in question extinguished the respondents right to redeem the mortgage. The court in answering this question upheld the appellants contention that the High Court exceeded its jurisdiction under section 115 C.P.C. The court reasoned that the construction of a decree like the construction of a document of title is no doubt a point of law. Even so, it cannot be held to justify the exercise of the High Court's revisional jurisdiction under s. 115 of the Code because it has no relation to the jurisdiction of the Court. Like other matters which are relevant and material in determining the question of the adjustment of debts, the question about the existence of the debt has been left to the determination of the courts which are authorised to administer the provisions of the Act; and even if in dealing with such questions, the trial court or the District Court commits an error of law, it cannot be said that

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status such an error of law would necessarily involve the question of the said courts' jurisdiction within the meaning of s. 115 of the Code. The court then further moved on to examine the scope of the powers of the High Court in exercising its revisional jurisdiction under section 115 C.P.C. They emphasized on the tests laid down by section 115 and the importance of complying with it before the High Court decides to exercise its revisional jurisdiction under it. While exercising its jurisdiction under section 115, it was held not competent to the High Court to correct errors of fact however gross they may be. However, with regard to even errors of law, to be revisable by the High Court they need to have relation to the jurisdiction of the subordinate court to try the dispute itself as clauses (a), (b) and (c) of section 115 specify. Even though sometimes in order to afford guidance to subordinate courts and to avoid confusion in the administration of the specific law in question, important questions relating to the construction of the operative provisions contained to such an Act must be finally determined by the High Court; but in doing so also the High Court must enquire whether a complaint made against the decision of the subordinate court on the ground that it has misconstrued the relevant provisions of the statute, attracts the provisions of section 115.

MAJOR S. S. KHANNA V. BRIG. F. J. DILLON26

This case discusses the meaning of the expression case decided in Section 115 of the Code of Civil Procedure with respect to the revisional jurisdiction of the High Court. BRIEF FACTS Brig. F. J. Dillon and Major S. S. Khanna carried on business in partnership as Construction Engineers. They agreed to dissolve the partnership with effect from February 15, 1956. In the dissolution deed it was agreed that Dillon was to take over all the assets and properties of the partnership as absolute owner and to pay all the debts and to discharge all the liabilities of the partnership and to keep Khanna indemnified against all demands and claims in relation to the partnership business.

26

AIR 1964 SC 497

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status TRIAL COURT The deed however did not terminate the disputes between the parties. So, Khanna commenced on action against Dillon in the Court of the Subordinate Judge, 1st Class, Delhi for dissolution of the partnership and rendition of accounts. On January 12, 1957, the parties arrived at a compromise (which was incorporated into a decree of the Court) confirming the earlier dissolution of the partnership, subject to a scheme of winding up, under which all outstanding realized from the debtors of the firm and the sale proceeds of certain assets were to go into a banking account to be opened in the joint names and were to be applied in the first instance to meet the liabilities of the dissolved firm, and the balance in that joint account was to belong to Dillon. Dillon filed a suit in the Court of the Subordinate Judge at Delhi for a decree for Rs. 54,250 with future interest alleging that between the months of May 1957 and November 1957 he had, at the request of Khanna, advanced in three sums an aggregate amount of Rs. 46,000 as short-term loans which Khanna had promised to but had failed to repay. Khanna pleaded that he did not borrow any loans from Dillon, and that the amount claimed in the action being advanced, even on the plea of Dillon, out of joint funds belonging to the two partners, action for recovery of those amounts was in law not maintainable. Thus, it was finally held that the suit was not maintainable as it was by a partner against another partner of a dissolved firm which was in the process of winding up, and in respect of advances from the partnership assets. HIGH COURT The High Court of Punjab in exercise of its revisional jurisdiction set aside the order of the subordinate judge, and directed that the suit be heard and disposed of according to law. ISSUES BEFORE SUPREME COURT The revisional jurisdiction of the High Court exercised under section 115 C.P.C. was challenged by Khanna on the following grounds: (i) the order did not amount to a case which has been decided within the meaning of section 115 C.P.C. Submitted by: Jagriti Singh (1572) Page 24

Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status (ii) power of the High Court as by the express terms of section 115 has excluded the decree which may be passed in the suit being subject to appeal to the High Court; and (iii) the order did not fall within any of the three clauses (a), (b) and (c) of section 115. SUPREME COURT The court analysed 2 different views taken by various High Courts in order to determine the meaning of case decided under section 115. The first being that the term case includes an interlocutory proceeding relating to the rights and obligations of the parties, and the expression record of any case includes so much of the proceeding as relates to the order disposing of the interlocutory proceeding. Thus, giving the High Court power to rectify an order of a Subordinate Court at any stage of a suit or proceeding irrespective of the remedy available to the party aggrieved i.e. by implying that his right to file an appeal as referred to in the section is only against the ultimate decision. The second view is that the High Court has no power in exercise of its revisional jurisdiction, to correct an error in any interlocutory order. As expression case does not include an issue or a part of a suit or proceeding and therefore the order on an issue or a part of a suit or proceeding is not a case which has been decided. The Supreme Court reasoned that interpreting the expression case as an entire proceeding only and not a part of a proceeding would mean imposing a restriction upon the exercise of powers of superintendence which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in perpetration of gross injustice. Hence, the Supreme Court answered the first issue in this case, by giving a broader interpretation to the expression case as something which included within its ambit civil proceedings other than the suits and was not restricted by anything contained in the section, to the entirety of proceeding in a Civil Court. However with regard to pre-requisites to section 115 as specified in current sub-section 1 the court held that mere fulfillment of conditions of Section 115 (1) [as it stands now] does not oblige High Court to exercise its revisional jurisdiction. Thus, it can be inferred that the revisional jurisdiction to be exercised by High Court is discretionary.

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status Moving further to the second issue raised, the court examined the extent of fulfilment of other pre-requisites to application of section 115 before exercising revisional jurisdiction by High Courts. In light of that the court examined High Courts power to set aside an order which does not finally dispose of the suit, and when from the decree or from the final order passed in the proceeding an appeal is competent. It was argued that the phrase in which no appeal lies thereto in section 115 C.P.C. made it clear that High Courts jurisdiction to entertain a petition in revision could be exercised only if no appeal lay from the final order passed in the proceeding. However the court with regard to this issue held that once it had granted that the expression case included a part of a case, the conclusion was obvious that revisional jurisdiction of the High Court may be exercised irrespective of the question whether appeal lies from the ultimate decree or order passed in the suit. Lastly, with regard to the third issue the court held that since the question before High Court by way of revision was with regard to maintainability of suit before the Trial Court it was a decision on an issue relating to the jurisdiction of the Court to entertain the suit filed by Dillon. Thus, it fell within the ambit of Section 115 clause (c) [Presently Section 115 (1) (c) of the C.P.C.].

SHRI. M. L. SETHI V. SHRI. R. P. KAPUR27

This case deals with what constitutes material irregularity under Section 115(c) prior to the 1976 Amendment. BRIEF FACTS The respondent Shri R.P. Kapur filed a suit in forma pauperis on April 29, 1962, against the appellant Shri M. L. Sethi and his wife for recovery of damages to the tune of Rs. 7,48,000/- for malicious prosecution. Notice of the petition to sue in forma pauperis was given to the State Government and the appellant under Order 33, Rule 6 of the Civil Procedure Code. Both the Government and the appellant filed objections stating that the respondent is not a pauper. TRIAL COURT

27

AIR 1972 SC 2379

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status The appellant thereafter filed an application for discovery of documents from the respondent for proving that the respondent is not a pauper. The Court passed an order on February 23, 1970, directing the respondent to discover on affidavit the documents relating to the bank accounts of the respondent from March 1, 1963, to the date of filing the affidavit of discovery, as also the documents in respect of the properties held by him and the personal accounts maintained by him. The respondent was to file the affidavit of discovery on March 8, 1970. It was specifically stated that no extension of time will be allowed for filing the affidavit and that the discovery should be made within the time. The respondent did not file the affidavit as per the order. In an application filed on March 31, 1970 he stated his intention to file a revision against the order dated February 23, 1970, before the High Court and that two months time may be allowed for the purpose. The Court rejected the application for time on April 4, 1970, on the ground that the respondent should have been more diligent since the application for permission to sue in forma pauperis was pending for the last seven years and that the respondent had enough time for filing the revision. The respondents counsel then moved another application on the same day stating that the respondent wants to adduce evidence and that since he had not come to Court in the expectation that his earlier application dated March 31, 1970, for adjournment would be allowed, the case may be adjourned. This application was also rejected by the Court. And as counsel for the respondent reported no instruction and as there was no evidence to show that the respondent was a pauper, the Court dismissed the application for permission to sue in forma Pauperis and directed the respondent to pay the court fee within 15 days. HIGH COURT The High Court held, that the trial Court acted with material irregularity as it did not consider the question of the necessity for discovery of the documents or the relevancy of the documents of which discovery was sought and also for the reason that, in ordering discovery of the documents relating to personal accounts, and pass books, it overlooked the right of the respondent to claim privilege. Thus, dismissing the order was passed on April 4, 1970 for application for permission to sue in forma pauperis after rejecting the application for adjournment, and setting aside the order for discovery as well.

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status SUPREME COURT The case went on appeal to Supreme Court is, by special leave, from the order of the High Court of Allahabad allowing on application for revision of orders passed by the Civil Judge, Saharanpur, directing discovery of documents by the respondent and dismissing an application by him for permission to sue forma pauperis. It was contended by the counsel for the appellant that though the order for discovery of documents was bad in law, the High Court was not justified in interfering with it. Hence, the order dated April 4, 1970 dismissing the application for permission to sue in forma pauperis after rejecting the application for time, can be referred to as an interference by High Court with the discretion of the trial Court in the matter of adjournment. The Supreme Court referred to Pandurangs case28 where it was opined that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings. Hence, any finding on these pleas in favour of the party raising them would take away the jurisdiction of the court and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of Section 115 of the Code. But an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of jurisdiction of that court cannot be corrected by the High Court under Section 115. The Supreme Court was of the view that the trial Court had jurisdiction to pass the order for discovery. Even if it is assumed that lack of jurisdiction will be a consequence of every material error of law Supreme Court does not believe that the order was vitiated by any error of law. Thus, the Court held that rejection of the application for time and the consequent dismissal of the petition for permission to sue in forma pauperis can hardly be said to sound in jurisdictional error even in its extended sense. Thus, they are not satisfied that the refusal to adjourn occasioned any failure of natural justice so as to render the order a nullity. Nor is there anything to show that in rejecting the application for time the Court acted illegally or with material irregularity in the exercise of its jurisdiction.
28

[1956] 1 S.C.R. 102

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status

III. DISTINCTIONS
A. REVISION
AND

POWER

OF

SUPERINTENDENCE

UNDER

THE

CONSTITUTION
A revision under section 115 C.P.C. and a petition under Article 227 of the constitution are two separate and distinct proceedings. Firstly, while revisional power is only judicial, the power of superintendence is both judicial as well as administrative.29 Secondly, the power of revision is statutory and can be taken away by legislation. But the power of superintendence is constitutional and cannot be taken away or curtailed by a statute. 30 Finally, the revisional powers of High Court are restricted and can be exercised only when the case complies with the conditions laid down under section 115 C.P.C. none of these restrictions apply to exercise of supervisory powers of the High Court under Article 227 of the Constitution.31

B.

APPEAL

AND

REVISION

An appeal lies to a superior court which may not necessarily be a High Court, while revision application under C.P.C. lies only to a High Court. Secondly, an appeal lies only from a decree under section 96 C.P.C or an appealable order under section 104 C.P.C. But a revision application lies from any decision of a court subordinate to the High Court from which no appeal lies to the High Court or any other subordinate Court.32 Thirdly, a right to appeal is a substantive right conferred by a statute, while the revisional power of the High Court is purely discretionary.33 Fourthly, an appeal abates if the legal representatives of a deceased party are not brought on record within the prescribed period. A revision application however does not abate such cases. The High Court may at any time bring the proper parties on the record of the case.34

29

W.W. Chitaley and V. B. Bakhale, The Civil Procedure Code (Act V of 1908) (Bombay: The All India Reporter Ltd., 1977) at 590. 30 Id. 31 Id. 32 Viswanatha Aiyer, The Code of Civil Procedure, 1908, (Hyderabad: Gogia Law Agency, 2000) at 500. 33 Ibid, at 480. 34 Ibid at 489.

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status Fifthly, the grounds for an appeal and a revision application are also different. A revision application lies only on the ground of jurisdictional error. An appeal lies on a question of fact or of law or of fact and law.35 Lastly, filing of an application is not necessary in case of revision. An aggrieved party may invoke the jurisdiction of the High Court by filing an application or the High Court may exercise the revisional jurisdiction even if suo motu. In case of appeal, on the other hand, a memorandum of appeal must be filed before the appellate court by the aggrieved party.36

C.

REVISION

AND

REFERENCE

Firstly, in reference, the case is referred to the High Court by a court subordinate to it. In case of revision, the jurisdiction of the High Court is invoked either by the aggrieved party or by the High Court suo motu.37 Secondly, the grounds of reference relate to reasonable doubt on question of law, while the grounds for revision relate to jurisdictional errors of the subordinate court.38

D.

REVISION

AND

REVIEW

Firstly, revisional jurisdiction can only be exercised by the High Court, while the power of review can be exercised by the very court which passed the decree or made the order.39 Secondly, revision power can be exercised by the High Court only in a case where no appeal lies to the High Court, but review can be made even when an appeal lies to the High Court.40 Thirdly, revisional powers can be exercised by the High Court even suo motu but for review an application has to be made by an aggrieved party.41 Fourthly, the power of revision and review can be exercised on different grounds. Fifthly, the order granting review is appealable, but an order passed in the exercise of revisional jurisdiction is not appealable.42

35 36

Id. Sarkar, Code of Civil Procedure, Vol. I (10th edn., New Delhi: Wadhwa & Nagpur Pub. Co., 2002) at 632. 37 Id. 38 Id. 39 M.P. Jain, Code of Civil Procedure (Nagpur: Wadhwa & Company, 2004) at 356. 40 C.K. Takwani, Civil Procedure (5th edn., Lucknow: Eastern Book Company, 2003) at 400. 41 Ibid, at 401. 42 Id.

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status

CONCLUSION
The power of revision of the High Court under section 115 of the C.P.C. has undergone various amendments in 1976 as well as in 1999, yet it has managed to keep a strong footing there despite of discussions on its deletion by various law commissions. The main problem which raises the issue of its deletion is with regard to interlocutory orders leading to delay in proceedings and misuse of the provision by the parties to stay the proceedings hence resulting in delay. However, the new amendment of 1999 which has been implemented since 2002 has curtailed the power of High Court to take up interlocutory orders for revision. Though the researcher via various case laws has illustrated that this restriction does not apply with regard to cases taken before the High Court under Article 226 and 227 of the Constitution. Thus, the amendment to section 115 by restricting the revision of interlocutory orders by High Court is not intended to be for the detriment of the people rather just to increase the efficiency of the courts by reducing the number of suits being stayed which is leading to injustice to one of the parties. Hence, in graver cases of injustice in case of interlocutory orders the case can always be taken to the High Court under Article 226 and 227. The other amendment which have been brought about by 1976 and the 1999 amendment are the insertion of the explanation and sub-section (2) and (3) to the section. The explanation was included to clarify the meaning of the term case decided so as to include interlocutory orders. This was the effect of the ratio in Major Khannas case. However, the sub-section (2) just reiterates what was already there in the original section 115. The sub-section (3) explicitly addresses the issue of delay in proceedings due to stay of the suit or proceeding. It thus, states that a revision shall not operate as a stay unless expressly provided by the High Court. Hence, the researcher would like to conclude that the amendment of 1999 should prove as an effective mechanism to curb the number of suits being stayed and the delay caused thereof. However, the practical efficiency and defects are yet to be seen.

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Revisional Jurisdiction of High Courts under The Civil Procedure Code, 1908A Study of its Scope and Status

BIBLIOGRAPHY
ARTICLES
1. Brajesh Ranjan, Curtailment of Revisional Jurisdiction of High Court in India- A Critique, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1482946 (2nd December, 2009).

BOOKS
1. C.K. Takwani, Civil Procedure (5th edn., Lucknow: Eastern Book Company, 2003). 2. M.P. Jain, Code of Civil Procedure (Nagpur: Wadhwa & Company, 2004). 3. P.M. Bakshi, Mulla on the Civil Procedure Code (Bombay: N.M. Tripathi Pvt. Ltd., 1990). 4. Sarkar, Code of Civil Procedure, Vol. I (10th edn., New Delhi: Wadhwa & Nagpur Pub. Co., 2002). 5. Sudipto Sarkar and V. R. Manohar, Civil Procedure Code (Nagpur: Wadhwa and Co., 2006). 6. Viswanatha Aiyer, The Code of Civil Procedure, 1908, (Hyderabad: Gogia Law Agency, 2000). 7. W.W. Chitaley and V. B. Bakhale, The Civil Procedure Code (Act V of 1908) (Bombay: The All India Reporter Ltd., 1977).

REPORTS
1. The Law Commission of India 14th Report on Reforms of the Judicial Administration (Vol. I) on (August, 1996). 2. The Law Commission of India 27th Report on Civil Procedure Code, 1908 (December 1964). 3. The Law Commission of India 54th Report on Civil Procedure Code, 1908 (February 1973). 4. The Malimath Committee Report or Arrears Committee Report (August, 1990).

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