BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 30.07.2024
CORAM
THE HONOURABLE MR JUSTICE D.BHARATHA CHAKRAVARTHY
C.R.P(MD)No.SR96611 of 2023
P.Natarajan … Petitioner
-Vs-
- K.Vasantha
- P.Gandhimathi
3.Madhavi Palanisamy
4.R.A.Palaniappan
5.R.Vasanthi
6.Janaki
7.Viswaraj
8.Poongodi
9.Saravanakumar
10.Sivanesan … Respondents
(R6 to R10 were ex-parte before the trial Court, hence, notice on them may be dispensed with) PRAYER: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order passed in I.A.No.225 of 2014 in A.S.No.SR5745 of 2014 dated 04.10.2017 on the file of the Principal District Court, Karur.
For Petitioner : Mr.H.Arumugam
ORDER
The Petitioner has made an application in I.A.No.225 of 2014 in A.S.SR.No.5745 of 2014 to condone the delay of 487 days in filing the appeal. By an order, dated 04.10.2017, the petition is dismissed. As against the same, the present Civil Revision Petition is filed under Article 227 of the Constitution of India. - The objection of the Registry is that a revision is maintainable as against the said order under Section 115 of the Code of Civil Procedure and therefore, when the said Civil Revision Petition is maintainable without filing the same within the period of Limitation. Now, belatedly after a period seven years, the present Civil Revision Petition is filed under
Article 227 of the Constitution of India. - The learned counsel for the petitioner would first place reliance inthe judgment of this Court in Pachamuthu Vs. K.Thangamuthu reported in 2015(1) CTC 460, whereunder in an identical circumstance, this Court has held that if the revision petitioner succeeds, then the same would result in continuation of proceedings and therefore, in view of the proviso to Section 115 of the Civil Procedure Code, the revision under Section 115 is not maintainable.
- The learned counsel would rely upon the judgment of the Hon’ble
Supreme Court of India in Shiv Shakti Cooperative Housing Society, Nagpur Vs. Swaraj Developers and Others reported in (2003) 6 SCC 659 and the judgment in Vidyodhaya Trust and Others Vs. Mohan Prasad and others reported in 2006(7) SCC – 452. The said judgments are press home to the proposition that the revisionary powers of this Court under the amended Civil Procedure Code have been restricted and if the Civil Revision Petition arises out of an interlocutory application, then the same would not be maintainable. In order to determine whether the Civil
Revision Petition arises out of an interlocutory application or not, this
Court has to see that if the Civil Revision Petition is allowed in favor of the petitioner, then if the proceedings are to continue, then the same is interlocutory in nature and therefore, the Revision under Section 115 is not maintainable. - I have considered the said submissions made by the learned counsel for the petitioner and perused the material records of the case.
- Firstly, Section 115 of the Code of Civil Procedure is extracted hereunder.
“[(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 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]
(a)the order, if it had been mad 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.]
[(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]” - A bare reading of the same, it would be clear that this Court under Section 115 can call for the record of any case, which has been decided by any Court Subordinate to it, against which, if no appeal lies and if in the opinion of this Court, there is erroneous exercise of jurisdiction or failure to exercise jurisdiction or if the trial Court has acted illegal in exercise of its jurisdiction or with material irregularity, then this Court can exercise the revisionary jurisdiction. The proviso, curtails the said power of revision by stating that under this section, the High Court shall not vary or reverse any order made or any order deciding an issue in the course of a suit or other proceedings. An exception is also made to the proviso that even if the order is made in the course of the suit or other proceedings, still if the order if it would have made in favour of the revision petitioner, if it would finally dispose of the suit or other proceedings, then the revision is entertainable.
- In the instant case, the application is filed under Section 5 to condone the delay in filing the appeal suit. The said application is rejected. Consequently, the appeal suit itself stands rejected. Therefore, it is not made in the course of any suit or proceedings. It finally disposes of the proceedings itself. Therefore, it would not come within the mischief of the proviso itself. If only it arises out of any interim order, even then an exception is carved out stating that if the decision would have been otherwise in favour of the party whose filing the Revision Petition, even then also the revision can be exercised. The petitioner herein wants to reverse apply the said exception of the proviso where the order itself is a final order disposing of the proceedings. Therefore, the argument advanced on behalf of the petitioner is an incorrect understanding of the provision and Section 115 of the Revision. As a matter of fact, the scope of the original Section 115 and the amendment thereafter, has been laid down by the Hon’ble Supreme Court of India in Shiv Sakthi Cooperative Housing Society cited supra by the learned counsel for the petitioner itself. It can be seen that the amendment was pursuant to the recommendation of the Law Commission, whereunder, the revisionary jurisdiction was sought to be restricted because several Revision Petitions were filed as against every interlocutory order and the matters were pending. The manner in which the provision has to be read, both with reference to causes omissions and also reading the provision as a whole, has also been discussed by the Hon’ble Supreme Court of India in paragraph 23. It is essential to extract paragraph No.23 of the judgment, which reads as follows.
“23.Two principles of construction one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. “An intention to produce an unreasonable result”, said Danackwerts, L.J. in Artemiou v. Procopiou (1966 1 QB 878), “is not to be imputed to a statute if there is some other construction available”. Where to apply words literally would “defeat the obvious intention of the legislation and produce a wholly unreasonable result” we must “do some violence to the words” and so achieve that obvious intention and produce a rational construction. (Per Lord Reid in Luke v. IRC (1966 AC 557) where at p. 577 he also observed: “this is not a new problem, though our standard of drafting is such that it rarely emerges”. - Though the learned Counsel would rely upon paragraph No.32 of the said judgment, to contend that if the answer to the question that if the order is in favour of the Revision Petitioner would be a know, then the revision is not maintainable. The said observations are with reference to the proviso where the revision is filed against the interim orders made during the course of the proceedings. Here, in the instant case, the order of the Lower Appellate Court itself finally disposes of the proceedings. The judgment in 2006(7) SCC 452 in Vidyodhaya Trust and Others Vs.
Mohan Prasad and others in paragraph No.9, reads as under:
“9.The amendment to Section 115 CPC is based on the recommendations made by the Malimath Committee. The said Committee was of the opinion that the expression employed in Section 115 CPC which enables interference in revision on the ground that the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the parties against whom it was made, left open wide scope for exercise of powers with all types of interlocutory orders and this was substantially contributing towards delay in the disposal of cases. The Committee did not favour denuding the High Court of the power of revision, but strongly felt that the powers should be suitably curtailed. The effect of the erstwhile clause (b) of the proviso was deleted and a new proviso has been inserted so that the revisional jurisdiction is substantially curtailed. A revisional jurisdiction cannot be exercised unless the requirement of the proviso is satisfied. It is thus clear that the proviso creates an embargo in exercise of revisional power.” - Therefore, a wholesome reading of Section 115 of the Civil Procedure Code, it would be clear that the proviso will operate only in case of orders, which are passed in the course of the proceedings, that is, order which is of interlocutory in nature and the exception is in respect of those orders only, that is, if the orders if it is passed in favour of the revision petitioner, the same would result in finality of the proceedings. The same cannot be applied, where the order itself results in finality of proceedings such as dismissal of an application under Section 5.
- In view thereof, the Office objection relating to the
maintainability is sustained and the Civil Revision Petition stands rejected at the SR stage itself, however with liberty to the petitioner to file a civil revision petition under Section 115 of the Code of Civil Procedure.
30.07.2024
NCC: Yes/No
Index : Yes / No
RM/Rmk
Note : The original fair and decreetal order, shall be returned to the learned counsel for the petitioner, after obtaining photo copy of the same.
To
1.The Principal District Judge, Karur.
D.BHARATHA CHAKRAVARTHY, J.
Rm/Rmk
C.R.P(MD)No.SR96611 of 2023
30.07.2024
