ZAHIDA NIZAMUDDIN JALAL Vs. ABIDALI JAFFERALI SYYED

JUDGEMENT

(1.) THE petitioners challenge the order dated 7th August, 2002 passed by the Joint Civil Judge, Junior Division, Kalyan District-Thane under Exh. 40 in Reg. Civil Suit No. 471 of 1998. By the impugned order, the trial Court has rejected the application filed by the petitioners for their joinder as the parties to the suit. Considering the provisions of section 115 of the Code of Civil Procedure, as amended, and which are in force with effect from 1st July, 2002, and the decision of the learned Single Judge of this Court in the matter of (Rajabhau Mahadeorao Rahate v. Dinkar Shantaram Ingole) reported in 2003 (1) Bom. C. R. (N. B.)40 : 2002 (3) Mh. L. J. 921, the impugned order would not be revisable and therefore, the petition would be liable to be rejected in limine. However, the learned Advocate for the petitioners contended that the expression "other proceedings" in the proviso to section 115 of the Code of Civil Procedure would include miscellaneous as well as supplementary proceedings in a suit, apart from other original proceedings, as well as that the word "shall" in the said proviso is required to be read as "may" and having so considered, the impugned order would be revisable and these points are not covered by the decision of the learned Single Judge in Rajabhau v. Dinkars case (supra) and therefore, the matter was heard at length, while allowing even other Advocates to address the Court in relation to the scope of section 115 of the Code of Civil Procedure, as amended, and in force with effect from 1st July, 2002.

(2.) SHRI Y. S. Jahagirdar, the learned Senior Advocate submitted that under section 115 of the Code of Civil Procedure, the High Court is empowered to pass any such order as it thinks fit and therefore, such a wide jurisdiction conferred upon the High Court cannot be held to have been curtailed by mere deletion of Clause (b) of proviso as it existed prior to the amendment in question. Further, referring to the expression "other proceedings" in the said proviso, it was contended that the term being of wide connotation, cannot be restricted to the original proceedings otherwise than those in a suit and would also include various proceedings in the course of a suit. Drawing attention to the explanation Clause of section 115 of the Code of Civil Procedure, it was argued that inspite of deletion of Clause (b) of proviso, as it stood prior to the amendment, the legislature in its wisdom has thought it fit to retain the explanation clause which describes the expression "case decided" and the expression "case decided" includes even the interlocutory order, and therefore, the proviso cannot be said to be restricting revisional jurisdiction to the cases of final disposal of the suit, but it would also include any case decided during the pendency of a suit and therefore, would also relate to various proceedings in the course of a suit. He further submitted that the proviso cannot be interpreted to curtail the powers given under the main body of section and should be read in consonance with the explanation clause to the said section.

(3.) THE learned Advocates Shri A. S. Oak, A. V. Anturkar, V. Z. Kankaria, G. S. Godbole, V. K. Shah, U. P. Warunjikar and P. R. Naidu have argued in support of the submissions made by Shri Y. S. Jahagirdar. Shri A. S. Oak has submitted that the proviso does not curtail the power of the High Court in relation to its revisional jurisdiction under section 115 of the Code of Civil Procedure. Shri V. K. Shah has adopted the arguments by Shri Y. S. Jahagirdar. Shri V. J. Kankaria has submitted that the learned Single Judge in Rajabhau v. Dinkars case (supra) has not considered the interpretation of section 115 and more particularly the proviso thereto. Shri P. R. Naidu has submitted that the curtailment of the revisional power is only in relation to appealable orders and once it is clear that the orders which are passed in the course of the suit are excluded from being subjected to the appeals, the revisional jurisdiction of the High Court in respect of such orders cannot be interpreted to have been curtailed by the proviso.