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Report No. 163

2.10. Clause 12 of the Amendment Bill proposing to delete the existing clause (b) of the proviso to sub-section (1) of section 115 and the further addition of sub-section (3) in section 115.-

There was almost uniform opposition to the proposal to delete clause (b) of proviso to sub-section (1) of section 115. It was submitted that such a power should be available to the High Court to correct instances of failure of justice or of orders causing irreparable injury. It was submitted that deletion of the said clause would only result in more remands by the appellate courts. Only a few members or the subordinate judiciary in the State of Uttar Pradesh supported this provision. So far as the insertion of sub-section (3) is concerned, it was generally welcomed by all.

2.10.1. The Law Commission, while welcoming the insertion of sub-section (3) in section 115, is of the opinion that the proposal to delete clause (b) of the proviso to sub-section (1) is not advisable nor would it serve the purpose of speedy disposal of suits. May be, it is true, that in some States interference under section 115 is being made very liberally and without due regard to the restrictive language of the section. That is certainly a feature to be deprecated and discouraged.

The High Courts and the other authorities exercising powers of revision (in the State of Uttar Pradesh, the power of revision has been conferred upon the District Judges) should always bear in mind the significance, the object and the purpose underlying section 99 of the Code. Section 99 is premised on the supposition that each and every infraction of a procedural provision in the Code does not warrant interference by the appellate court and that interference with a judgment and decree is warranted only where such infraction has resulted in substantial prejudice to the party.

This is the spirit behind section 99 which says, "No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties or cause of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court." B

ut the proposal to delete clause (b) of proviso to section 115(1) on the ground of frequent interference by the courts exercising powers of revision may not be warranted. The remedy lies elsewhere, namely, exercising restraint and self-discipline while exercising power of revision. It may be noted that this clause was inserted on the recommendations of Law Commission of India, 27th report, para. 57. In this regard the reason underlying these provisions is quoted under para. 56 of the said report, are quoted below:-

"56. 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 Commission:-

"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 order. Necessary amendment is proposed in section 115."

The Commission feels that the reasons assigned for introducing this clause in section 115 as quoted under para. 56 of 27th report of Law Commission are germane and lead to the conclusion that the said provision should be retained. The Law Commission, therefore, recommends that the proposal to delete clause (b) of proviso to sub-section (1) of section 115 be given up. The addition of sub-section (3) is, however, perfectly in order.



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




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