Suriyanarayan Gopalan and Jayasudha Suriyanaraya Zoom
E. Om Prakash, Senior Advocate
27.05.2020 at 4.00 PM
A session to explore the scope of Revisional Jurisdiction of High Court under Section 115 of Civil Procedure Code and Article 227 of Constitution of India.
Under our Constitutional system, High Courts are vested with powers to exercise jurisdictions of Original cause, Appellate cause, Judicial Review (Writ jurisdiction), Revision as part of supervisory jurisdiction.
Madras High Court being a Chartered High Court is vested with all the powers and derived the authority from Letters Patent and the Constitution of India, apart from various statutes.
Many special statutes vest the Revision Jurisdiction with the High Court as a finality to the proceedings under such Acts, namely Rent Control Act. This is unlike the appeal provision under other Acts.
Revisional Jurisdiction is a classic example of “Checks and Balances”, recognized as part of the Constitutional scheme in our country.
The Revisional Jurisdiction is vested with superior courts under the statutes, to be invoked and exercised as part of the supervisory power. Such jurisdiction is also vested with Appellate Courts in the subordinate judiciary, namely the District Courts. We are concerned in this session only with the High Court’s Revisional Jurisdiction under CPC and the Constitution of India.
The jurisprudence behind the Revisional Jurisdiction of High Court is effectively to prevent the subordinate Courts from failing to exercise jurisdiction when needed or exercising jurisdiction when not vested, or from acting arbitrarily, capriciously, illegally or irregularity in exercise of jurisdiction.
The power of superintendence is primarily derived from the Constitution of India.
Article 227 of the Constitution of India:
Power of superintendence over all Courts by the High Court.- [(1) Every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction.]
(2) Without prejudice to the generality of the foregoing provisions, the High Court may-
(a) call for returns from such Courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such Courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such Courts and to attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any Court or tribunal constituted by or under any law relating to the Armed Forces.
For the purpose of this session let us see the specific power of Revision vested on High Court under the provisions of Civil Procedure Code. The Code regulates the conduct of proceedings before the Civil Courts. The Code recognizes right of appeal to a litigant from an original proceeding.
What is the nature of civil proceedings is answered by the Hon’ble Supreme Court of India in the case of
Commissioner of Income-Tax, Bombay and Anr. Vs Ishwarlal Bhagwandas and Ors (1966) 1 SCR 190
(Writ against Income Tax Officer before Bombay High Court and certificate granted to appeal to SC – Objection raised saying certificate cannot be granted in terms of Art 133 of Constitution as the order not being a civil proceedings)
in the following words:
The expression “civil proceedings” is not defined in the Constitution, nor in the General Clauses Act. The expression in our judgement covers all proceedings in which a party assets the existence of a civil right conferred by the civil law or by statute, and claims relief for breach thereof.
Infringement of civil rights results in a person seeking for remedy before a Civil Court and if the claim proved, results in decree for declaration, injunctions, delivery of possession, divisions, damages, compensation, etc.
The right of appeal is a substantive right as provided under statute. As you are aware against a Judgement and Decree of a Civil Court, an appeal lies to the superior court by way of a substantive right as provided under the Code. Similarly, further appeal lies to High Court only on a substantial question of law. The original court (Trial Court) and the First Appellate Court are courts empowered to appreciate fact and law. But a second appeal is only on a substantial question of law.
Sections 96 to 103 of CPC enable the filing of Appeal and further Second Appeal within the parameters set forth therein. The procedures arising thereto are provided in Order 41 and 42.
Section 104 provides for appeals from orders of the Civil Court. The details of orders against which appeals will lie in set in Order 43 of the Code.
Stages in a suit or proceedings:
Every proceeding before a Court of Law, invite the following for consideration and decision:
Jurisdiction – Pecuniary / Territorial.
Parties to the proceedings.
Bar in Law.
Court fee.
Interim Relief.
Protection of lis.
Evidence – Oral / documentary.
All these issues invite questions to be decided, which sometimes result in deciding the maintainability of the suit / proceedings. Such orders unless where an appeal is provided, become final and binding on the parties. Cases where such decisions require a reconsideration being patently illegal, want of jurisdiction, etc. These are to be rectified by invoking Section 115 of CPC.
Section 115 of CPC
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 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.]
Prior to amendment by amending Act 1999, which came into effect in 2002, Section 115 also had a remedy in terms of the following words under the Proviso,
(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.
At first instance instances where appeal lies against order is provided in Order 43, other than Section 104 of the Code. For the sake of completion of the narration and an understanding let us take note of orders against which the appeal lies.
Order 43
Appeal from orders. – An appeal shall lie from the following orders under the provisions of section 104, namely:-
(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court [except where the procedure specified in rule 10A of Order VII has been followed];
(b) [] (c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; (d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte []
(f) an order under rule 21 of Order XI;
(g) [] (i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement; (j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale; [(ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable.] (k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit; (l) an order under rule 10 of Order XXII giving or refusing to give leave; (m) []
(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
[(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent persons:]
(o) [] (p) orders in interpleader-suits under rule, rule 4 or rule 6 or Order XXXV; (q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII; (r) an order under rule 1, rule 2 [rule 2A], rule 4 or rule 10 of Order XXXIX; (s) an order under rule 1 or rule 4 of Order XL; (t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal; (u) an order rule 23 [or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court; (v) []
(w) an order under rule 4 of Order XLVII granting an application for review.
Instances of orders other than in which appeal lies, can be subject matter of revision, but not as a right. The party seeking for an order or revision against such orders has to satisfy the Court the other criteria. Primarily to show that if the order is passed in favour of the party applying for revision, the same would decide the suit / proceedings finally.
Shiv Shakti Coop. Housing Society, Nagpur Vs Swaraj Developers and Ors. MANU/SC / 0335 / 2003 = (2003) 6 SCC 659
Those orders which are interim in nature and does not decide the lis finally, cannot be subject matter of revision under Section 115 of CPC.
All other criteria set out above are of much subjective decision. No hard and fast rule can be made or applied except precedents on identical facts. Suffice to say the same fall within the ambit of the discretion to be exercised by the Court.
The issue next comes up for discussion is that after the amendment, if no revision is maintainable under Section 115 of CPC unless all criteria is not satisfied and still if there is a grievance against the order, being grossly irregular and that injustice is being done, is there no other remedy.
This is where recourse can be had to Art 227 of the Constitution of India, invoking the supervisory jurisdiction and therefore the Revisionary jurisdiction. The Hon’ble Supreme Court settled the principles under this jurisdiction in the following words in the case of
State, through Special Cell, New Delhi Vs Navjot Sandhu @ Afshan Guru and Ors. (2003) 6 SCC 641
(i) the jurisdiction under Art 227 cannot be limited or fettered by any Act of the State Legislature;
(ii) the supervisory jurisdiction is wide and can be used to meet the ends of justice, also to interfere even with interlocutory order;
(iii) the power must be exercised sparingly, only to move the subordinate courts and Tribunals within the bounds of their authority to see that they obey the law. The power is not available to be exercised to correct mere errors (whether on the facts or laws) and also cannot be exercised “as the cloak of an appeal in disguise.
Keshardeo Chamria Vs Radha Kissen Chamria and Ors. MANU/SC/0006/1952 = AIR 1953 SC 23
Refers to Privy Council decisions on Section 115 of CPC. It goes on set out the what “illegality” and “material irregularity” mean.
A reading of Art 227 of Constitution does not speak about any remedy by way of Revision and rests only with the power of superintendence over the subordinate Courts and Tribunals within the jurisdiction. We are aware that Art 226 of the Constitution empowers the High Court to issue prerogative writs. Let us see how the law evolved in these areas, to vest with the High Court any revisional jurisdiction. This analysis of reading Art 226 and 227 is essential as till date there are many High Courts which entertain petitions with a common nomenclature of “Petition under Art 226 and 227 of Constitution of India”.
Art. 226 of Constitution
[226. Power of High Courts to issue certain writs. – (1) Notwithstanding anything in article 32 [* * *], [every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or [writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them,][for the enforcement of any of the rights conferred by Part III and for any other purpose.]
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
[(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without-
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.]
[(4)] The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.
Surya Dev Rai Vs Ram Chander Rai and Ors – MANU/SC/0559/2003 = (2003) 6 SCC 675
The Supreme Court had in fact held that an order of the civil court can also be a subject matter of challenge in a petition under Art. 226 of Constitution. Effectively stating that Writ of Certiorari will lie against the order of the Civil Court. However this view is over rulled in the later judgement. Certain principles of invoking Art 227 of the Constitution and that the amendment to Section 115 does not restrict the invocation of Art 227 of Constitution of India and seeking relief before High Court.
Radhey Sham Vs Chabbi Nath – (2015) 5 SCC 423
The Supreme Court while reiterating that power under Art 227 of the Constitution would enable the High Court to exercise revisionary jurisdiction in the matters decided by subordinate Court, held petition under Art. 226 of the Constitution is not maintainable.
Earlier to this, in fact the Hon’ble Supreme Court in the case of Umaji Keshao Meshram and Ors. Vs Radhikabai and Anr. 1986 (Supp.) SCC 401, categorized the remedies under Art. 226 and 227 in the following words:
“According to the Full Bench even were Clause 15 to apply, an appeal would be barred by the express words of Clause 15 because the nature of the jurisdiction under Articles 226 and 227 is the same inasmuch as it consists of granting the same relief, namely, scrutiny of records and control of subordinate courts and tribunals and, therefore, the exercise of jurisdiction under these articles would be covered by the expression “revisional jurisdiction” and “power of superintendence”. We are afraid, the Full Bench has misunderstood the scope and effect of the powers conferred by these articles. These two articles stand on an entirely different footing. As made abundantly clear in the earlier part of this judgment, their source and origin are different and the models upon which they are patterned are also different. Under Article 226 the High Courts have power to issue directions, orders and writs to any person or authority including any Government. Under Article 227 every High Court has power of superintendence over all courts and tribunals throughout the territory in relation to which it exercises jurisdiction. The power to issue writs is not the same as the power of superintendence. By no stretch of imagination can a writ in the nature of habeas corpus or mandamus or quo warranto or prohibition or certiorari be equated with the power of superintendence. These are writs which are directed against persons, authorities and the State. The power of superintendence conferred upon every High Court by Article 227 is a supervisory jurisdiction intended to ensure that subordinate courts and tribunals act within the limits of their authority and according to law (see State of Gujarat v. Vakhatsinghji Vajesinghji Vaghela MANU/SC/0149/1968 : AIR 1968 SC 1481 and Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand MANU/SC/0031/1972 : (1973) 1 SCR 185). The orders, directions and writs Under Article 226 are not intended for this purpose and the power of superintendence conferred upon the High Courts by Article 227 is in addition to that conferred upon the High Courts by Article 226. Though at the first blush it may seem that a writ of certiorari or a writ of prohibition partakes of the nature of superintendence inasmuch as at times the end result is the same, the nature of the power to issue these writs is different from the supervisory or superintending power Under Article 227. The powers conferred by Articles 226 and 227 are separate and distinct and operate in different fields. The fact that the same result can at times be achieved by two different processes does not mean that these two processes are the same.”
The relief in a petition under Art. 227 of Constitution is not restricted, so far as the patent illegality is shown. Some of the reliefs can be
To set aside interim order pending suit.
To struct down the plaint itself.
To seek direction to the Court for conformity with law in a civil proceedings.
Period of limitation as in the case of Section 115 CPC does not strictly apply for petition under Art. 227 of the Constitution.
There is no intra court appeal in cases of order passed in a petition under Art 227 of the Constitution.
The power exercised under Section 115 of CPC is in the nature of Revisionary jurisdiction. Petitions under the said section are with the limited contours. However, Art 227 of the Constitution of India sets in to prevent any gross abuse as the High Court is entitled to intervene in his supervisory jurisdiction.
The reliefs under the said provisions are only discretionary in nature and shall be exercised sparingly.

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