MRITYUNJAY SEN Vs. SIKHA SEN

JUDGEMENT

(1.) In this case I am invited to decide the scope of the power of revision of the High Court under section 115 of the Code of Civil Procedure, as amended by the Code of Civil Procedure (Amendment) Act, 1999.

(2.) As the point involved in this case is a matter of general importance, I requested the learned members of the Bar to appear and assist me on the question of maintainability and scope of civil revision cases in view of the amendment of the Code of Civil Procedure by the Code of Civil Procedure (Amendment) Act, 1999.

(3.) Mr Sudhis Dasgupta, learned senior advocate, appearing in support of this revisional application, argued that in spite of amendment of the Code of Civil Procedure by the amending Act of 1999, the High Court is not denuded of its revisional power in respect of interlocutory orders, which are not subject to appeals. Mr. Dasgupta argued that the expression "any case which has been decided" by any Court subordinate to such High Court includes part of a suit/proceeding and there cannot be any restriction on the exercise of the power of revision by the High Court. Mr. Dasgupta argued that "other proceeding" includes interlocutory proceeding in the suit. The orders passed in various proceedings in suits or other proceedings include the interlocutory orders passed therein, which are not subject to appeals, but which would affect the legal right of the parties. Mr. Dasgupta has drawn my attention to the explanation to section 115 of the Code where the term "any case which has been decided" was explained to include any order made or any order deciding an issue in the course of a suit or other proceeding. Mr. Dasgupta, therefore, argued that it was not the legislative intention to curtail the power of the High Court to entertain revisional application under section 115 of the Code against interlocutory orders. Mr. Dasgupta submitted that the word "proceeding" used in section 115 contemplates exercise of revisional jurisdiction by the High Court against interlocutory orders. Mr. Dasgupta draws my attention to the decision of the Supreme Court of India in the case of Babu Lal v. M/s. Hazari Lal Kishori Lal & Ors., reported in (1982)1 SCC 525 and has drawn my attention to the observations of the Apex Court that the term proceeding was a very comprehensive term and generally meant a prescribed course of action for enforcing a legal right. The Apex Court observed, further, that it was a general term giving widest freedom to a Court of law so that it might do justice to the parties in a case. It marked a stage in litigation and was step in the ladder in the journey of litigation as there were various stages. Mr. Dasgupta, also, referred to the decision in the case of P.L. Kantha Rao & Ors. v. State of Andhra Pradesh & Ors., reported in (1995)2 SCC 471 where the Apex Court held that the word proceeding would depend upon the scope of enactment wherein the expression has been used with reference to a particular context where it occurred. Mr. Dasgupta submitted that the word "proceeding" has not been defined in the Code. Mr. Dasgupta, therefore, referred to the dictionaries for the meaning. In Black's Law Dictionary (5th Edition, 1979) it was, inter alia, observed that the word proceeding has been used in a general sense, the form and manner of conducting juridical business before a Court or Judicial Officer. It includes regular and orderly progress in form of law including all possible steps in an action from its commencement to the execution of the judgment. The term proceeding might refer not only to a complete remedy, but, also, to a mere procedural step that was a part of larger action or special proceeding. Mr. Dasgupta, also, drew my attention to P. Ramanatha Aiyar's Law Lexicon (Second Edition, 1997). It has been observed that the term proceeding includes all possible steps in an action from its commencement to its execution. The word proceeding when applied to suit, it might be used to mean the suit as a whole or it might be used to express the separate steps taken in course of a suit the aggregate of which makes up the suits. Mr. Dasgupta, also, cited the well-known decisions in the cases of Major S.S. Khanna v. Brig. F.J. Dillon, reported in AIR 1964 SC 497 and Baldevdas Shivlal & Anr. v. Filmistan Distributors (India) Pvt. Ltd. & Ors., reported in AIR 1970 SC 406. The Apex Court while interpreting the expression "case" referred to in section 115 of the Code observed that the expression case included a suit, but in ascertaining the limit of jurisdiction of the High Court, there would be no warrant for equating the same with the suit alone. In Baldevdas (supra) the Apex Court observed, "The expression 'case' is not limited in its import to the entirety of the matter in dispute in an action. The expression 'case' is a word of comprehensive import... To interpret the expression 'case' as an entire proceeding only and not a part of the proceeding imposes an unwarranted restriction on the exercise of powers of superintendence and may result in certain cases denying relief to the aggrieved litigant where it is most needed and may result in the perpetration of gross injustice. ... A case may be said to be decided, if the Court adjudicates for the purpose of the suit some right or obligation of the parties in controversy." Mr. Dasgupta, also, cited the decision of a learned Judge of the Allahabad High Court in Ram Kishan Prajapati v. Smt. Narbda & Ors., reported in 1999 Allahabad Law Journal 1001 where the learned Judge observed that other proceeding used in section 115 of the Code of Civil Procedure might include not only the original proceeding, but, also, interlocutory proceeding in other proceeding as well as interlocutory proceeding in a suit. Mr. Dasgupta, therefore, argued that there are various interlocutory orders in the course of a suit or other proceeding, which have direct bearing on the ultimate decision in the suit or other proceeding and yet no appeal lies against such order and as such it was not conceivable that by amending Act of 1999, the High Court is denuded of its power of revision in respect of such orders when the subordinate Court exercises a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally and with material irregularity. Mr. Dasgupta submits that the section 115 enjoins the High Court may makes such order in exercise of its revisional power in the case as it thinks fit. Mr. Dasgupta argued that by insertion of the proviso, the effect of the main provisions of section 115 of the Code cannot be nullified, which enables the High Court to call for the record of any case, which has been decided by the Court subordinate to such High Court in course of a suit or other proceeding with a view that the High Court may makes such order in the case as it thinks fit. According to Mr. Dasgupta there is no restriction on the power of the High Court in doing so. Mr. Dasgupta has drawn my attention to paragraph 504 (Volume 26) from Halsbury's Laws of England (Fourth Edition, 1979). The said section is quoted herein below: "504. Final and interlocutory judgments and orders. There is no definition in the Judicature Acts or the rules of Court made under them of the terms 'final' and 'interlocutory', and a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. It is impossible to lay down principles about what is final and what is interlocutory. It is better to look at the nature of the application and not at the nature of the order eventually made. In general, orders in the nature of summary judgment where there has been no trial of the issues are interlocutory." Mr. Dasgupta referred to the decision in the case of Amarnath and Others v. State of Haryana and Another, reported in (1977)4 SCC 137. Mr. Dasgupta submits that a proviso or an exception to the main provision cannot be so interpreted so as to nullify or destroy the main provision. Mr. Dasgupta in this connection cited Maxwell on the Interpretation of Statutes and, particularly, he has drawn my attention to the following observations of the learned author that unless the words were clear, the Court should not so construe the proviso as to attribute an intention to the legislature to give with one hand and take away with another. A sincere attempt should be made to reconcile the enacting clause and the proviso and to avoid repugnancy between the two. Mr. Dasgupta drew my attention to sections 254 and 255 from Crawford's the Construction of Statutes (1998 reprint, published by Pakistan Law House) and argued that the statutes, which relate to remedies and procedure, perhaps because they are remedial in character, should, also, receive a liberal construction in order to promote justice and to carry out their respective purposes, and especially so as to secure a more effective, a speedier, a simpler, and a less expensive administration of the law. Mr. Dasgupta cited the decisions in the case of Madras and Southern Mahratta Ry. Co. Ltd. v. Bezwada Municipality, reported in AIR 1944 PC 71 where the Judicial Committee explained the proper functioning of a proviso by observing "The proper function of proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case. Whereas in the present case, the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it by implication what clearly falls within its express terms." Mr. Dasgupta, also, cited the decisions in the cases of Tahsildar Singh and Another v. State of Uttar Pradesh, reported in AIR 1959 SC 1012 and T. Devadasan v. Union of India and Another, reported in AIR 1964 SC 179. Therefore, Mr. Dasgupta argued, when the legislature has retained the main part of the section, the High Court is competent to call for the records in any case, which has been decided by any Court subordinate to such High Court and is entitled to make such order as it thinks fit. Finally, Mr. Dasgupta argued that in case it is necessary for the ends of justice and to prevent abuse of the process of the Court, the High Court is entitled to exercise the inherent power to remedy the wrong. It is submitted that the proviso, which is a provision in the Code, in view of the language of section 151 of the Code of Civil Procedure, cannot limit the inherent power of the High Court. In appropriate cases, it is submitted, that the inherent of the Civil Court can be exercised to interfere with an illegal order.