NARHAR RANGO KULKARNI Vs. MILIND SHRIPAD BENDRE

JUDGEMENT

(1.) ADMIT . By consent heard forthwith. Section 115 as amended by the Amendment Act of 1999 and as further amended by C.P.C. (Amendment) Act, 2002 came into force on 1.7.2002. Section 115 as amended came up for consideration before two separate Single Judge Benches of this court. Palshikar, J. in Raja S/o. Mahadeo Rahate vs. Dinkar 2002 (3) Mh.L.J. 921 was basically answering the question as to whether Section 115 as amended would apply to pending proceedings and to that extent the scope and extent of Section 32 of the amended Act and in so doing also considered the nature of the power conferred by Section 115. The learned Judge held relying on various judgments of the Apex Court that the power of revision conferred on the High Court does not confer substantive right on a party. The learned Judge further held in Paragraph sixteen of the Judgment that Section 115, is a power in the court to suo moto exercise revisional jurisdiction or on an application by an aggrieved party. The learned Judge then held that though Section 115 creates a power in the High Court to suo moto revise the order of the subordinate court, it does not in any way create a right in the litigant to require the High court to exercise this power. Considering the scheme of Section 115 before its amendment by Act of 1976, the learned Judge held that the power of the High Court under Section 115 before its amendment in 1976 was wider and that it was a power of superintendence analogous to the powers conferred on the High Court by Article 227 of the Constitution of India. The learned Judge noted that the Law Commission had recommended deletion of Section 115 and has given substantive reasons for deletion of those provisions, as it was the opinion of the Law Commission that as the provisions of Section 115 were analogous to the provisions of Article 227 of the Constitution of India, no injustice would be caused to the litigant if the entire section is deleted. The Joint Committee of Parliament considered this aspect in great detail but however, choose to retain Section 115 inspite of the recommendations of the Law Commission of India, but felt a need of certain modifications. The learned Judge has then quoted from the report of which the following observations, however, may be referred to :

(2.) ANOTHER learned Judge of this court, Khandeparkar, J. in Smt. Zahida and Others vs. Abidali decided on 19/23rd September, 2002 was considering an application rejecting the joinder of parties. As the matter involved interpretation of section 115 apart from the counsel appearing for the Petitioners in the proceedings, other counsel were also allowed to address the court. Before the learned Judge, one of the issues for consideration was the expression "other proceedings" under the proviso to Section 115 of C.P.C. and whether it would include Miscellaneous and supplementary proceedings in the suit, apart from other original proceedings. It was also contended that the word "shall" in the proviso is required to be read as "may". If that was so considered, even an order rejecting an application for joinder of parties would be subject to the revisional jurisdiction of this court. The learned Judge after extensive discussion on the issue and also placing reliance on another judgment of the Apex Court which was decided under the unamended provisions of Section 115 in Prem Bakshi and others vs. Dharam Dev and others reported in (2002) 2 S.C.C. 2, negatived the same. It was also contended before the learned Judge that finality spoken was not in relation to the suit in its entirety but also could be in relation to any proceedings therein and in that connection the expression "other proceedings" in the proviso, would fall under the expression "other proceedings" even if they would not result in termination of those proceedings. This contention was also rejected. The learned Judge then went to consider the expression "in the course of the suit" and held it would include all types of orders passed during the pendency of the suit and the said expression would not relate only to the matter relating to the progress of the suit but would include all orders relating to the subject matter of the controversy in the suit, as well as any part thereof, so also those necessary for further progress of the suit or any part thereof. Being so, the orders passed in supplementary or incidental proceedings in a suit, would also be the orders, "in the course of the suit" within the meaning of the said expression in the proviso to the said section. The learned Judge considering all other aspects held that only those orders would be revisable where interference would result in termination of the suit and not otherwise.

(3.) SECTION 115 has been amended from time to time. It originally read as under :