JAYANTHI Vs. DAYANANDA

JUDGEMENT

(1.) There is an interesting controversy in this case touching the interpretation of the powers of this court to entertain a revision petition from an interlocutory order made by the Court-below in respect of which an appeal lies not to this court but to the Court of the Civil Judge under Order 43, Rule l(r) of the Code of Civil Procedure. Now the Civil Procedure has been amended in the year 1976 and the amendment brings into force Clause (2) of Section 115 which reads as follows:

(2.) In this case notice having been issued on admission, the respondents join the issue and counsel for the respondents points out that the ratio of the decision referred to supra was of no avail in this case, because we have now on hand an issue touching exercise of jurisdiction under Section 115 CPC after it was amended and sub-clause (2) referred to supra had been added on. Counsel says the amendment makes all the difference. Mr Hande, learned counsel for the petitioner points out notwithstanding the addition of Clause (2), Clause (1) which is material having remained as it was and having been interpreted by the Supreme Court in the decision mentioned above, bound as I am by the dictum of the Supreme Court, I must also hold the revision petition to be maintainable and not to discard it on any in linine ground. Probably if Clause (2) had not been added on, the submission of Mr. Hande as aforesaid would have been clearly evincible. But the addition of Clause (2) makes all the difference. True as pointed out by Mr. Hande it may not be open to say that the revision petition was not maintainable at all and therefore liable to be rejected at the threshold itself. The expression in Clause (1) of Section 115 (in which no appeal lies thereto) is carried even after the amendment, and that therefore remain the same for interpretation as held by the Supreme Court in Vidyavati v Devi Das, AIR 1977 SC 397 referred in supra. But that will not help the petitioner. A certificate by me that the revision petition is maintainable will not take him anywhere because the moment Clause (2) operates it ties down my hands and precludes me from granting any relief to the petitioner. Clause (2) is very clear and very plain. All. that it says is a revision petition arising out of an order from which an appeal lies either to the High Court or to any Court subordinate thereto precludes the High Court from varying or reversing such a decree or order. In this case there is no dispute that the impugned order being one of refusing an injunction, the petitioner who was plaintiff in the Court-below had a right of appeal to the next highest Court namely, Civil Judge, Udupi, as provided for under Order 43, Rule l(r). If that is so, it is clear that the petitioner had a right of appeal to a Court subordinate to the High Court, a situation enjoined by Clause (2) of Section 115 totally restraining the High Court from granting any relief to the petitioner in that I cannot vary or reverse the impugned order in which event it would be futile for the petitioner to have made this revision petition itself.

(3.) In the result, I hold the revision petition to be maintainable, I decline to interfere on the ground that under Section 115(2) of the Civil Procedure Code, it is not open to this court to interfere with the impugned order since an appeal lies therefrom to the subordinate Court of the Civil Judge, Udupi. For the reasons mentioned above, the revision petition fails and is dismissed. No costs.