ZILA PARISHAD GAYA Vs. MOHAN PRASAD

JUDGEMENT

(1.) THIS civil revision by the plaintiff -opposite party of a miscellaneous case under Order 39 Rule 2A is directed against order dated 13.3.97 by which the miscellaneous case (case No. 3 of 1997) was transferred by the 1st Munsif, Gaya to the 1st Addl. Munsif, Gaya, for disposal.

(2.) COUNSEL for the petitioners submitted that by order dated 5.3.97 the application (Misc. Case No. 3 of 1997) was returned to the plaintiff -opposite party for presentation in the proper court i.e. 1st Addl. Munsif, Gaya who had issued the order of injunction alleged to have been disobeyed. After passing the said order the court became functus officio and could not have passed the impugned order. He also submitted that in any view it is only the District Judge, who was competent to transfer the case from one court to another, the Munsif being court having co -ordinate jurisdiction could not have transferred the case.

(3.) BOTH the submissions appear to be well founded. I am still not inclined to interfere in the matter. Section 115 of the Code of Civil Procedure empowers the High Court to make such order as it thinks fit where subordinate court has exercised a jurisdiction not vested in it by law or failed to exercise jurisdiction so vested or committed illegalities or material irregularities in exercise of its jurisdiction. The proviso appended to the section, however, lays down that the High Court shall not vary or reverse any decree or order made in course of suit or other proceeding except where - (a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or; (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.