BANARASI DEVI SAHA Vs. BASUDEV LAL DHANUKA

JUDGEMENT

(1.) This reference has been made by a learned Single Judge to decide whether a revision Under Section 115 of the Code of Civil Procedure would lie against a revisional order passed by the District Judge exercising jurisdiction under the same section as amended. Cause for the reference arose because a learned Single Judge of this Court in Civil Revision No. 892 of 1991 Kelu Sahoo v. Kalandi Sahoo disposed of on 15 -1 -1992 made an observation in para -5 that 'this Court can revise the revisional order of District Judge since under the amended provision restriction as imposed in respect of revision under the Code of Criminal Procedure is not there'. The learned Single Judge in this present matter, however, could not persuade himself to agree with the aforesaid view. Hence, this reference.

(2.) IT is known that revisional power was conferred on the District Judges of this State following amendment of the Code of Civil Procedure by Orissa Act 26 of 1991. We may read amended Section 115 of the Code of Civil Procedure : '115. The High Court; in cases arising out of original suits or other proceedings of the value exceeding one lakh rupees, and the District Court, in any other case including a case arising out of an original suit or other proceedings instituted before the commencement of the Code of Civil Procedure (Orissa Amendment) Act, 1991, may call for the record of any case which has been decided by any Court subordinate to the High Court or the District Court, as the case may be, and in which no appeal lies thereto, and if such subordinate Court appears - (a) to have exercised a jurisdiction not vested in it by law; or (b) to have failed to exercise a jurisdiction so vested ; or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court or the District Court, as the case may be make such order in the case as it thinks fit : Provided that in respect of cases arising out of original suits or other proceedings of any valuation decided by the District Court shall be competent to make an order under this section ; Provided further that the High Court or the District Court shall not under this section, vary or reverse any order, including an order deciding an issue, made in the course of a suit or other proceedings; or (i) the order if so varied or reversed, would finally dispose of the suit or other proceedings ; or (ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. Explanation - In this section, the expression 'any case which has been decided' includes any order deciding an issue in the course of a suit or other proceeding.'

(3.) IT may be stated that such an amendment had taken place in some other States of the country including Uttar Pradesh long before. As Shri Mukherjee has brought to our notice two decisions of the Apex Court dealing with the Uttar Pradesh amendment, we may with profit know that amendment which was first effected, in 1970 to be further amended in 1978. Section 115 as it stood after 1978 amendment was in the following language : '115. The High Court, in cases arising out of original suits or other proceedings of the value of twenty thousand rupees and above, including such suits or other proceedings instituted before Aug. 1, 1973 and the District Court in any other case, including a case arising out of an original suit or other proceedings instituted before such date, may call for the record of any case which fas been decided by any court subordinate to such High Court or District Court, as the case may be, and in which no appeal lies thereto, and if such subordinate Court appears - (a) to have exercised a jurisdiction not vested In it by law ; on (b) to have failed to exercise a jurisdiction so vested; or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity ; the High Court or the District Court .as the case may be make such order in the case as it thinks fit : Provided that in respect of cases arising out of original saute or proceedings of any valuation, decided by the District court the High Court alone shall be competent to make an order under this section : Provided further that the High Court or the District Cowl shall not under this section, vary or reverse any order including am order deciding an issue, made in the course of a suit or other proceeding dings except where, - (i) the order, if so varied or reversed, would finally dispose of the suit or other proceeding ; or (ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. (Explanation) -In this section the expressio any case which has been decided' includes any order deciding an issue in the course of a suit or other proceeding.'