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Report No. 163

Q.6. Section 115 (Revision): Clause 12 of the Bill

(i) Section 115(1), Proviso, of the Code (as inserted in 1976), provides that the High Court shall, not in revision, vary or reverse an order made in the course of a suit or an order deciding an issue in the course of a suit (briefly, interlocutory orders), unless one of the following conditions is satisfied:

(a) the order, if it had been made in favour of the revision petitioner, would have finally disposed of the case, or

(b) the order, if it is allowed to stand, would occasion a failure of justice or cause irreparable injury to the petitioner.

In either of the two cases mentioned above, the High Court can interfere.

Of course, the requirements given in the main paragraph of the section, clause (a), (b), or (c) - are still to be satisfied. See Mulla, C.P.C. (1993), Vol. 1, pp. 776 and 824.

The Bill proposes to amend the proviso, so as to delete clause (b). The effect would be to bar interference in revision against interlocutory orders, even where there, is failure of justice or irreparable injury. The proposal is intended to cut the number of revisions on petitions. However, it is to be noted that the effect would be to bar interference even in cases of serious injustice resulting from an interlocutory order.

For example, an order of the trial court refusing an amendment of pleadings, even where the amendment is sought because of intervening events or to rectify a bona fide mistake or to remedy unintentional omission to implead a party or unintentional omission to take a plea in defence which is left out, would cease to be revisable under the Bill.

(ii) An order rejecting a document as inadmissible would cease to be revisable, even though the document may be very material.

(Such orders can possibly be made a ground of attack in appeal against the ultimate decree, but the lapse of time would itself cause serious injustice).

(iii) The revisional court would be deprived of the opportunity of taking into account subsequent events - a power which it possesses at present.

State of Madras v. Asher Textiles Ltd., AIR 1960 Mad 180.

(iv) If the trial court wrongly frames an issue on a fact which is admitted by the defendant, the High Court can (under the existing section), interfere.

Gorakh v. Vithal, 1887 ILR 11 Born 435.

Sivaprasad v. Tricamdas, 1915 ILR 42 Cal 926 (931).

[The proposal will take away this power.] Keeping the above aspects in mind, would you favour the proposed amendment of section 115?

Plaint and Summons

The Code of Civil Procedure (Amendment) Bill, 1997 Back

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