VISHESH KUMAR v. SHANTI PRASAD

Citation: [1980] 3 S.C.R. 32

Court: Supreme Court of India

Bench: V.R. KRISHNA IYER, R.S. PATHAK

Case summary

20,000 a fundamental contradiction would be allowed to invade and destroy the division of revisional power between the High Cwrt and the District Court, for the High Court would then enjoy jurisdictional power in respect of an order arising out of a suit of a valuation -of...

Judgment text

VISHESH KUMAR v. SHANTI PRASAD March 12, 1980 (V. R. KRISHNA IYER AND R. S. PATHAK, JJ. J Code of Civil Procedure-S. 115-State amend1nents bifurcated revisional jurisdiction between High Court and District Court-High Court-ff possessea revisional jurisdiction from an order of District Judge disposing of revision pelitiou. Provincial Small Cause Courts Act-Section 25-High Court-If possesses jurisdiction under section 115 C. P. C. against an order of District Judge under section 25 of the Act disposing of a revision petition. Section 115 of the Code of Civil Procedure confers on the High Court of & State poWer to remove any jurisdictional error committed by a subordinate court in cases where the error cannot be corrected by resort to its appellate jurisdiction. From its inception there was increasing resort to the revisiooal jurisdiction of the High Court under s. 115. To alleviate the burden of arrears and reduce the vo1ume of litigation which had reached an insuportable point, s.

115 was amended by successive state amendments, each amendment attempt~ ing to close the gap left by its predecessor. The amendments conferred revisional jurisdiction both on the High Court and the District Court each enjoying mutually exclusive revisional powers. The consistent object b~hind the succoosive amendments was to divide the work load of revision petitions between the High Court and the District Court and decentralise the jurisdiction. A proviso was added to s. 115 by the U. P. Civil Laws Amendment Act, 1973 declaring that "in respect of cases...... arising out of original suits of any valuation decided by the District Court the High Court alone shall be competent to make an order under this section. " I' The Code of Civil Procedure (Amendment) Act, 1976 superseded the acheme of bifurcation of revisional jurisdiction with effect from Ist February 1977. With certain modifications the position reverted to what it was under the original s. 115.

An exception was made where a revision petition under 1. 115 had been admitted after preliminary hearing before 1st February 1977; it would continue to be governed by s. 115 as it stood before that date. But the Code of Civil Procedure (U. P. Amendment) Act 1978 substantially ·restored the status quo ante. Section 25 of the Provincial Small Cause Courts Act was amended from time to time in its application to the State of U. P. 'The first amendment substituted the District Judge for the High Court. A further amendment made r in 1972 added a proviso which declared that in relation to any case decided by a District Judge or Additional District Judge exercising jurisdiction of a Judge of Small Causes Court the power of revision under s. 25 would vcat " in the High Court. VISHESH KUMAR V. SHANTI PRASAD 33 The two questions that fell' for consideration were : (il whether the High . \ 't. ) Ltd. v. Dwarka Diesh Dayal and others A. l. R. '1979 AD. 218 approved. 2. {a) An order passed under s.

25 of the Provincial Small Cause Courts \ Act by a District Court is not amenable to the revisional jurisdiction of the . 'High Court under s. 115 of the C. P. C. [42 Fl (b) An examination of the several provisions of the Provincial Small Cause ·Courts Act indicates that it is a self-sufficient code so far as the present enquiry ia c. oo. cemed. The Legislature clearly intended that a decree or order made · OH~ [1980] -~ S. G. R. (2) Whether the High Court possesses 1evi;ional jurisdicti<>n ' -{ under s. 115 against an order of the District Cou1t under s. 25, Prn · vincial Small Cause Courts Act disposing of a revision petition ? As regards the first question, it will be noticed that a revisional power was formerly entrusted exclusively to the highest court in the ,B state, the High Court. The State amendments now divided it between the High Court and the District Court. The amendment effect by the U. P. Civil Laws (Amendment) Act, 1970 conferred exclusive jurisdiction under s.

115 in the High Court in cases arising out of original suits of the value of Rs. 20,000/- and above, and in other cases the revisional jurisdiction was concurrently shared between + the High Court and the District Court. It was apparently supposed that the average litigant would prefer the less expensive and more convenient forum of the District Court. The measure, it seems, did not bring the relief expected, and the State Legislature found it necessary, by enacting the U. P. Civil Laws (Amendment) Act, 1972 to make a clearcut division of jurisdiction between the High Court ,D and the District Court, resulting in exclusive revisional jurisdiction to the High Court in cases arising out of original suits of the value of Rs. 20,000/- and above, and exclusive jurisdiction under s. 115 to the District Court in other cases. There was a sharp bifurcation of revisional jurisdiction, and the High Court and District Court now enjoyed mutually exclusive revisional powers.

A controversy arose whether a revisional order under s. 115 made by the District Court was final or was itself amendable to the revisional power of the High Court under the same section. The point was considered by a full Bench of the High Court in Har Parasad Singh and others v. Ram Swarup and others(l) and it was held that no such revision petition was maintainable before tile High Court. Further State amendments were made to s. 115 without materially disturbing the division of power. But a proviso added to s. 115 by the U. P. Civil Laws (Amendment) Act, 1973, followed by the U. P. President's Acts (Re-enactment with Modifications) Act, 1974 stated : "Provided that in respect of cases decided before the .. 20th day of September,-1972, and also all cases arising out of original suits of any valuation decided by the District Court, the High Court alone shall be competent to make an order under this section.

" The proviso reopened the controversy whether a rev1s1on petition lay to the High Conrt against a revisional order passed by the Dis- - (I) A. L R. 1973, Allahabad, 390. VJSHESH KUMAR v. SHANTI PRASAD (Pathak, J. ) t! rict Court, and on a difference of opinion between two learned judges a third learned judge of the Allahabad High Court now held inPhool Wati and othersv. Gur Sahai (I) that a revision petition would lie. ' The Code of Civil Procedure (Amendment) Act, 1976, however, superseded the scheme of bifurcation of revisional jurisdiction with -effect from ! st February, 1977 and, with certain modification the position reverted to what it was under the original s. 115. In otr. er words, the entire sphere of revisional jurisdiction was res- 1 tored to the High Court, no such power being now vested in the District Court. An exception was made where a revision petition ·. under s.

115 hadi been admitted, after preliminary hearing, before Ist February, 1977; it would continue to be governed bys. 115 as it stood -before that date. The situation lasted only briefly, for on ! st August, 1978 the Code of Civil Procedure (Uttar Pradesh Amendment) Act, 1978 substantially restored the status quo ante. The controversy whether it is open to the High Court to exercise ·revisional power in respect of a revisional order under s. 115 of the District Court presents little difficulty. The basis for determining that question flows from the principle incorporated in the bifurcation of the revisional jurisdiction, And legislative history comes to our aid. The consistent object behind the successive amendments was to divide the work load of revision petitions between the High Court and the District Court aP. d decentralise that jurisdiction.

That purpose was s0ught to be achieved by classifying all cases into two mutually exclusive categories depending on the valuation of the suit out of which they arose. In determining whether the Legislature intended a further revision petition to the High Court, regard must be had to the principle that the construction given to a statute should be such as would advance the object of the legislation and suppress the mischief sought to be cured by it. it seems to us that to recognise a revisional power in the High Court over a revisional order passed by the District Jur! ge would plainly defeat the. object of the legislative scheme. The fr. tent behind the bifurcation -of jurisdiction-to reduce the number of revision petitions filed in the High Court-would be frustrated. The scheme would, in large measure, lose its meaning. If a revision petition is permitted to the High Court- against the revisional order of the District Court arising out of a suit of a value less than Rs.

20,000/-, a fundamental -contradiction would be allowed to invade and destroy the division of revisional power between the High Court and the District Court, for (! ) A. l. R. 1975 Allahabad 262. 40 SUPREME COURT REPORrs [1980] 3 S. C. R. the High Court would then enjoy jurisdictional power in respect of an order arising out of a suit of a valuation below Rs. 20,000/-. That was never intended at all. In Phoolwati (supra), considerable importance was attached to the proviso introduced in s. 115 by the U. P. Civil Laws Amendment Act, 1973. The proviso declared that "in respect of. ....... aO I cases arising out of original suils of any valuation decided by the District Court, the High Court alone shall be competent to make an order under this section". What it said was that no matter what the valuation of the original suit, be it Rs. 20,000/- and above or below Rs.

20,000/-, if a case arising out of such suit was decided by the Dis- + trict Court, the case would be amenable to the revisional power of the High Court We are already familiar with the category of case~ where the High Court wields revisional jurisdiction over cases arising out of original suits of a value of Rs. 20,000/- or more. That is the category already covered by the substantive provision in s. 115. The other category covered by the proviso would include those instances, for example where an original suit although of a value making it triable by a court subordinate is transferred to the District Court for trial. Orders passed by the District Court in such a suit could constitute a case decided by it and amenable to the revisional power of the High Court. What must be noted is that the test incorporated in the proviso is the fact that the case has been decided by the District Court. The valuation of the suit is irrelevant.

But the proviso cannot be construed to include the case of a revisional order passed by the District Court for that would be in direct conflict with the fundamental structure itself of s. 115 evidencing that a mutually exclusive jurisdiction has been assigned to the High Court and the District Court within its terms. A proviso cannot be permitted by construction to defeat the basic intent expressed in the substantive provision. Har Prasad Singh (supra) and Phoolwati (supra) were considered by a Full Bench of the High Court in M/s Jupiter Funt! (Pvt. ) Ltd. v. Dwarka Dlesh Dayal and others (1) and in our judgment the High Court rightly laid down there that the phrase "case arising out of an original suit" occurring in s. 115 does not cover orders passed in revision. .. , We are of opinion on the first question that the High Court is not vested with revisional jurisdiction under s. 115, Code of Civil Procedure- over a revisional order made by the District Court unde• that section.

(I) A. I. R. 1979 All. 218. VISHESH KUMAR v. SHANTI PRASAD (Pathak, J. ) 41 We shall now advert to the second question, whether a revisional order of the District Court under s. 25, Provincial Small Cause Courts Act, is amenable to the revisional jurisdiction of the High Co urt under s. 1! 5, Code of Civil Procedure. Section 25 originally provided : "25. The High Court, for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such order with:respect thereto as it thinks fit. " Section 25 was amended in its application to the State of Uttar Pradesh from time to time. The first amendment substituted the District Judge for the High Court, so that the District Judge became the repository of revisional power instead of the High Court.

A further amendment, made in 1972, added a proviso, which declared that in relation to any case decided by a District Judge or Additional District Judge exercising the jurisdiction of a Judge of Small Causes the power of revision under s. 25 would vest in the High Court. The question before us arises in those cases only where the District Judge has exercised revisional power under s. 25. Is an order so made open to revision by the High Court under s. 115, Code of Civil Procedure ? An examination of the several provisions of the Provincial Small Cause Courts Act indicates that it is a self-sufficient code so far as the present enquiry is concerned. For the purpose of correcting decrees or orders made by a Court of Small Causes the Act provides for an appeal and a revision in cases falling under s. 24 ands. 25 respectively, Cases in which the District Judge and the High Court respectively exercise revisional power, revisional powers are specifically mentioned.

· A complete set of superior remedies has been incorporated in the Act. Moreover, s. 27 of the Act provides : . ,.. "27. Finality of decrees and orde•s. -Save as provided by this Act, a decree or order made under the foregoing provisions of this Act by a Court of Small Causes shall be final. " The Legislature clearly intended that a decree or order made by a Court of Small Causes should be final subject only to correction by the remedies provided under the Provincial Small Cause Courts Act. It is a point for consideration that had s. 25, in its application to the State of Uttar Pradesh' continued in its original form the I:Iigh Court would have exercised the revisional power under s. 25, and no question could have arisen of invoking the revi- If sional power of the High Court under s. 115 of the Code. All the indications point to the conclusion that a case falling within the 4-189SC! /80 42 SUPREME COUl>. T REPORTS [1980] 3 S. C. R.

Provincial Small Cause Courts Act was never intended to be subject to the remedies provided by the Code of Civil Procedure, By way of abundant caution s. 7 of the Code made express provision barring the application of ss. 96 to 112 and 115 of the Code to courts constituted under the Provincial Small Cause Courts Act, Section 7 of the Code merely embodies the general principle against resort to remedies outside the Provincial Small Cause CourtsAct. Although the court of the District Judge is not a court constituted under the Act the general principle continues to take effect. No change in the principle was brought about merely because revisional power under s. 25, before the proviso was added, was now entrusted to the District Judge. It must be remembered that the legislative intention behind the amendment was to relieve the High Court of the burdea of excercising revisional jurisdiction in respect of cases decided under the Provincial Small Cause Courts Act.

We are of firm opinion that the central principle continues to hold, notwithstanding the amendment effected in s. 25, that the hierarchy of 1emedies enacted in the Provincial Small Cause Court Act represents a complete and final order of remedies, and it is not possible to proceed outside the Act to avail of a superior remedy provided by another statute. These considerations were apparently not present before the High Court of Allahabad when it held in Bimla Rani Kohli v. M/s. Bandu Motor Finance (P) Ltd. (l) tha(a revisional order of the District Judge under s. 25, Provincial Small Cause Courts Act could be revised by the High Court under s. 115, Code. of Civil Procedure. In our opinion, the view taken by the High Court is not correct. Accordingly, we hold that an order passed under s. 25, Provincial Small Cause Courts Act by a District Court is not amenable to the revisional jurisdiction of the High Comt under s. 115, Code of Civil Procedure. In Civil Appeal No. 2844 of 1979, S. L.

P. No. 9104 of 1979, S. L. P. No. 9142 of 1979 and S. L. P. No. 9752 of 1979, the High Court has rejected revision petitions f. led under s. 115, Code of Civil Procedure, against the revisional orders of the District Court under s. 25, Provincial Small Cause Courts Act. On the opinion reached by us that a revision petition under s. 115 is not maintainable against a revisional order under s. 25, the appeal and the associated special leave petitions must be dismissed. (1) A. J. R. 1972 All. 242. VISHESH KUMAR v. SHANTI PRASAD (Pathak, J. ) 43 S. L. P. No. 9031 of 1979 arises out of an application for an ad interim injunction made in a pending suit. Since then the suit has been dismissed, and an appeal against the decree is pending. As the suit itself has been disposed of, all proceedings for grant of interim relief must be regarded as having lapsed. The Special Leave Petition has become infructuous and must be dismissed accordingly. .

,1 It has been urged by the appellant in Vishesh r<:umar v. Shanti Prasad (Civil Appeal No. 2844of1979) that in case this Court is of the opinion that a revision petition under s. 115, Code of Civil Proceurde, is not maintainable, the case should be remitted to the High Court for consideration as a petition under tArticle 227 of the Constitution. We are unable to accept that prayer. A revision petition under s. 115 is a separate and distinct proceeding from a petition under Article 227 -Of the Constitution, and one cannot be idnetified with the other. In the result, the appeal and the special leave petitions are dismissed. There will be no order as to cost. P. B.. R. Appeal and Petition~ dismissed. f )__