RAMCHANDRA Vs. DATTATRAYA

JUDGEMENT

(1.) This Full Bench has been constituted on a reference made by a learned single Judge of this Court, who was of the opinion that two decisions of this Court in Civil Revn. No. 6 of 1985 (Pirbux v. Babulal) (reported in 1986 Cur Civ LJ 36) and in Civil Revn. No. 942 of 1984 (Gayaprasad v. Deepchand)(reported in 1985 Cur Civ LJ 91) required reconsideration by a larger Bench.

(2.) The material facts giving rise to this reference, briefly, are as follows: In a suit instituted by the applicants against the opponents in the Court of the Civil Judge, II Class, Neemuch, an application for the grant of temporary injunction, submitted by the applicants was rejected. Aggrieved by that order, the applicants preferred an appeal in the Court of add1. Judge, Neemuch to the Court of District Judge, Mandsaur, but that appeal was also dismissed. Hence, the applicants preferred a revision petition under S. 115, C.P.C. before this court on 5-11-1984. Prior to that date S. 115, C.P.C. was amended by the Code of Civil Procedure (Madhya Pradesh Amendment) Act 29 of 1984 (hereinafter referred to as 'the amending Act'), which came into force on 14-8-1984. The effect of the amendment made in S. 115, C.P.C. was considered by a Division Bench of this Court in Pirbux's case and it was held that as a result of the amendment, the jurisdiction of the High Court under S. 115, C.P.C. to revise an order passed in appeal by a District Court was taken away irrespective of the fact that the suit which gave rise to the appeal before the District Court was pending when the Amending Act 29 of 1984 came into force. The Division Bench held that its view was supported by the decision of the Division Bench at Gwalior in C. R. No. 442 of 1984 (Gayaprasad V. Deepchand) (reported in 1985 Cur Civ LJ 91) when these decisions were brought to the notice of the learned single Judge, who heard this revision petition, the learned Judge doubted the correctness of those decisions. Hence, he referred the matter to the Chief Justice. That is how this Full Bench has been constituted to decide the question of the maintainability of this revision petition.

(3.) Shri Sanghi the learned counsel for the petitioner, contended that the right to move the High Court in exercise of its revisional jurisdiction, was vested right which attached to a litigation when it commenced and that it could not be affected by any subsequent amendment unless an express provision was made giving retrospective operation to the amendment. It was urged that exercise of revisional powers by a High Court under S. 115, C.P.C., was not part of procedural law and that the provisions of S. 115, C.P.C., which were in force on the date when the litigation commenced, would be decisive of the question as to whether a revision petition was or was not maintainable. In reply, it was contended by Shri Vyas, learned counsel for the non-applicant, that there was no vested right to prefer a revision petition and that if the revisional power did not exist when it was invoked, the revision petition preferred by the petitioner, could not be held to be maintainable.