GANGA SARAN Vs. CIVIL JUDGE HAPUR GHAZIABAD

JUDGEMENT

(1.) S. 115, C.P.C. has been substituted altogether by U.P. Amendment Act No. XXXI of 1978 with effect from 1-8-1978. The substituted provision reads as follows :

(2.) A Full Bench considered the meaning and effect of this provision in Jupiter Chit Fund (Pvt.) Ltd. v. Dwarka Diesh Dayal, AIR 1979 All 218. Insofar as it is relevnt for our purposes two principles enunciated in the Full Bench are:- (1) Against orders made in suits valued at less than rupees twenty thousand a revision lies only to the District Judge and against the orders of the District Judge in revision no revision lies to High Court. (2) Against an order made by the District Judge in an appeal no revision lies to the High Court provided the suit is valued at less than rupees twenty thousand. Both these aspects were affirmed by the Supreme Court in Vishesh Kumar v. Shanti Prasad AIR 1980 SC 892 and Sri Vishnu Awatar v. Shiv Awatar, AIR 1980 SC 1575 respectively. In Vishesh Kumar v. Shanti Prasad, the Supreme Court held that S.115 as amended by U.P. Amendment Act assigns mutually exclusive jurisdiction to High Court and District Court and that recognising a revisional power in High Court over a revisional order passed by the District Judge would defeat the legislative scheme and object underlying it. In vishnu Awatar v. Shiv Awatar it was held that against an order of the District Judge made in appeal no revision lies to the High Court provided the suit is valued at less than rupees twenty thousand. This has been the well accepted law in this State. However, in a case arising from this State reported in Qamaruddin v. Rasul Baksh 1990 All WC 308 the Supreme Court disposed of the matter without noticing the U.P. amendment. It appears that by an unfortunate omission it was not brought to the notice of the Supreme Court that the said case was from U.P. and was governed by S. 115 as substituted by U.P. Amendment Act. The matter was disposed of as if it arises under S.115 as enacted by the Central Legislature. The Supreme Court held that against an order made under O. 39 R. 1 and 2 an appeal lies under O. 43 R. 1 to the District Judge and the order of the District Judge on such appeal is amenable to the revisional jurisdiction of this Court u/ S. 115. In that view of the matter the Court expressed its surprise as to how the High Court could have entertained a writ petition under Art. 226 of the Constitution for issuance of a writ of certiorari and mandamus against such an appellate order of the District Judge. After narrating the facts, the appeal before the Supreme Court was disposed of in the following words :

(3.) It is this judgment which has led Hon. R. A. Sharma, J. to refer these two writ petitions to a larger Bench. The learned Judge was of the opinion that inasmuch as in Qamruddin's case (1990 All WC 308), the Supreme Court has declared that a revision is maintainable against an appellate order of the District Judge made under O.43, though without noticing the U.P. Amendment Act, the matter requires to be considered by a larger Bench to determine the effect of the said judgment on the state of law obtaining in this State.