Report No. 27
54. Section 115.-Section 115 of the Code has been very narrowly interpreted by the Privy Council. In one case1, the Privy Council pointed out, that where a court has jurisdiction to decide a question before it and it decides the question, it cannot be regarded as acting in the exercise of its jurisdiction "illegally or with material irregularity" within the meaning of clause (c) of section 115. In another case2, the Privy Council laid down, that the section applies to jurisdiction alone, to the irregular exercise or non-exercise of it or the illegal assumption of it, and is not directed against erroneous conclusions of law or fact in which the question of jurisdiction is not involved. These principles have been reiterated in subsequent decisions of the Privy Council3 and the Supreme Court4-5. In spite of these rulings, the High Courts have continued to exercise a very wide and extensive jurisdiction under this section. The result is, that the High Courts are flooded with revision applications, most of which are frivolous, and are filed with a view to delaying the conclusion of litigation. We may, in this connection, quote a passage from the Fourteenth Report, which reveals a telling picture6:-
"The statement shows that over fifty per cent. of these applications are dismissed summarily by the High Courts and that the percentage of ultimate success is very low even out of those in which a rule nisi is issued. For instance, in Bihar, out of 1,020 applications under section 115 of the Code disposed of in 1954, 546 were dismissed summarily and out of the rest the rule was made absolute only in 152 applications. In Bombay, out of a total of 1.711 applications disposed of in the same year, as many as 1,245 applications were summarily dismissed and orders were reversed only in 145 applications. In Madhya Pradesh, the total number of applications disposed of was 631, out of which 351 were summarily dismissed and the orders were reversed only in 79 applications. In Madras, excluding 1,447 applications transferred in that year to Andhra, 1,826 applications were disposed of out of which 605 were summarily dismissed and the orders were reversed only in 219 applications."
The provisions of section 115 are particularly misused in the case of revision applications against interlocutory orders.
1. Amir Hassan Khan v. Shea Baksh Singh, (1885) 11 IA 237: ILR 11 Cal 6 (PC).
2. Balakrishna Udayyar v. Vasudeva Aiyar, 44 IA 261: ILR 40 Mad 793: AIR 1917 PC 71 (PC).
3. Venkatagiri v. Hindu Religious Endowments Board, Mad 76 IA 67: AIR 1949 PC 156 (158): ILR 1950 Mad 1 (PC).
4. Keshardeo v. Radha Krishan, 1953 SCR 136: AIR 1953 SC 23 (28).
5. See also Manindra Land Corporation v. Bhutnath, AIR 1964 SC 1226.
6. 14th Report, Vol. I.
55. Questions to be considered as to revision.-Two questions arise for consideration: (1) whether it is at all necessary to retain section 115, (2) whether the right of revision applications against interlocutory orders should be curtailed and if so, in what manner.
Retention of section 115.-As regards the first question, it may be argued, that in view of Articles 226 and 227 of the Constitution, section 115 of the Code of Civil Procedure is no longer necessary. Article 226 empowers the High Court to issue a writ of certiorari. Article 227 vests in the High Courts the power of superintendence over all such courts. We, however, think that in addition to Articles 226 and 227, the jurisdiction conferred upon the High Courts by section 115 serves a useful purpose.
56. Revision against interlocutory orders.-As regards the second question, the Law Commission, after carefully considering the views expressed before it, came to the conclusion that the right of revision against an interlocutory order is a valuable right which should not be abolished. The case for retaining the right of revision against an interlocutory order was fairly put by an experienced Chief Justice who made the following statement before the Law Commission1:-
"It is not unoften that a very wrong order is made. If it be made impossible to challenge the order immediately and have it set aside and if the error is left to be corrected in the appeal from the final order if and when such an appeal is taken, the intermediate proceedings will necessarily all be on an erroneous basis and it can hardly be just to compel the parties to submit to the order without any chance of instant redress."
The Law Commission in the Fourteenth Report accordingly recommended that the expression "case decided" in section 115 should be so defined as to include an interlocutory order2. Necessary amendment is proposed in section 1153.
1. 14th Report, Vol. I.
2. See now Major S.S. Khanna v. Brigadier Dhillon, AIR 1964 SC 497.
3. Appendix I, section 115.
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