JOKHI RAM MOHAN LAL Vs. GITA DEVI TULSYAN

JUDGEMENT

(1.) The defendant is the petitioner in this civil revision application It is d; reeled against an order dated 12-1-1977 passed by the learned Munsiff rejecting art application filed on behalf of the petitioner under Order XXIII Rule 3 of the Civil P. C., 1908 (hereinafter to be referred to as the Code).

(2.) It appears that the plaintiff-opposite party filed a suit for eviction of the petitioner from a premises fully described in the plaint under the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act. 1947, which was registered as Title Suit No. 248 of 1967. During the pendency of that title suit, on 11-1-1975, the aforesaid petition under Order XXIII, Rule 3 of the Code was filed on behalf of the defendant-petitioner saying that the dispute between the parties had been settled, and, as such, the suit should be disposed of in terms of the compromise entered into between the parties. Learned Munsif heard both the parties and ultimately by the impugned order dated 12-1-1977 rejected the said petition on the finding that no compromise took place as alleged by the defendant-petitioner. As already stated above, the present revision application is directed against this order and was filed before this Court on 28-3-1977. This application was listed for hearing before learned single Judge of this Court, who has referred it to a Division Bench for a decision on the Question of maintainability of the revision application.

(3.) The question which is to be answered is as to whether the present revision application is barred by Sub-section (2) of Section 115 as amended by the Civil P. C. (Amendment) Act, 1976 (hereinafter to be referred to as the Act). The new Sub-section (2) is as follows: "The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto." This sub-section places a bar on the power of this Court of entertaining any revision application for reversing any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto. Prior to introduction of Sub-section (2) by amendment, there was some controversy in view of the language of Section 115 as to whether the revisional power of this Court is barred only in cases where appeal lies to this Court or even in cases where appeal lies before any court subordinate to this Court. The words "in which no appeal lies thereto" occurring in Section 115 were interpreted to mean that this bar on entertaining revision applications in cases in which an appeal lies, is only in respect of cases where appeal lies to this Court. Reference in this connection may be made to the case of Tipan Prasad Singh v. Secy. of State (AIR 1935 Pat 86) in which Fazl Ali, J., (as he then was) was of the view that Section 115 provided that High Court may act under that section in a case which has been decided by a court subordinate to it and in which no appeal lies to the High Court. According to the learned Judge, it did not provide that the High Court cannot interfere in a case where an appeal lies to an inferior court. In that case, it was found that an appeal lay before the District Judge. In that view of the matter, the revisional application to this Court was held not barred. Later, a Full Bench of this Court in the case of Maqbool Alam Khan v. Mt. Khodaija Begum (AIR 1949 Pat 133) having found that an appeal lay to the District Judge against the order in question, refused to exercise its revisional jurisdiction saying that the revision application was incompetent and the petitioner concerned should have availed of the remedy by filing an appeal before the District Judge concerned. Thus, even in absence of provision like the present Sub-section (2) of Section 115, this Court refused to exercise its revisional jurisdiction even in cases where appeal was to be filed before the District Judge. It appears, to remove this controversy, present Sub-section (2) of Section 115 has said in clear and unambiguous words that against an order if an appeal lies either to the High Court or to any court subordinate thereto the High Court shall not under this section exercise its revisional jurisdiction for reversing any order or decree. The effect of this Sub-section (2) of Section 115 will be that if an appeal lay before the District Judge against this order dated 12-1-1977, then the present revision could not have been filed on 28-3-1977 when the Amendment Act had come in force on 1-2-1977.