Report No. 14
11. Careful scrutiny absent (Rankin Committee's recommendation) (Method of dealing with revisions).-
It was pressed upon us that provided a superior Court is discerning and firm, there ought not to be any under interruptions of the proceedings of the subordinate Courts, simply because a right of revision is provided in the law. The evil of a voluminous body of Rules against interlocutory orders with all the undesirable consequences of such Rules, which has undoubtedly grown is to my mind not due to any deficiency or superfluity in the law but due entirely to laxity in its administration."
This is no doubt true and, as in the case of second appeals, we are driven to the conclusion that enough c are is not exercised in granting rule nisi and issuing stay orders at the time of admission of these revision application. Nor have the High Courts, excepts a few, accepted as they well might have, the recommendation of the Rankin Committee,1 of which we approve, for obtaining from the subordinate courts a periodical return of cases in which stay orders have been granted or records called for so that may be expeditiously disposed of. The real remedy lie, in our opinion, in the superior courts keeping in view the following essential rules in dealing with these revisions:
1. Report of the Civil Justice Committee, p. 281, para. 4.
(1) That the rule nisi should not be issued except upon a very careful and strict scrutiny;
(2) That where a stay is not granted, the records of the subordinate courts should not be called for and when the records are necessary, only copies of the records should be required to be produced; and
(3) That whenever a rule nisi is granted and a stay order issued, every effort should be made to dispose of the revision application within two or three months.
12. No grounds for abolishing revisions (But scope for curtailment).-
On the whole and after careful consideration, on the views and information placed before us, we are of opinion that the fact that a large percentage of these revision applications, particularly against interlocutory orders, are lacking in substance and are eventually dismissed is not a ground for curtailing the powers of the High Court in revision generally.
13. But, nevertheless, an amendment of the law is necessary in order to remedy the grave evil of delays arising out of revision applications in interlocutory orders. It appears to us that it would be unsafe to expect an improvement in the situation merely by reason of the superior courts observing the rules mentioned above. We are of the view that it would strengthen the hands of the revising courts and constantly remind them of the danger of entertaining and granting stay in revision applications against interlocutory orders, if provisions were made in section 115 of the Code that nothing therein shall apply to interlocutory orders from which no appeal lies, unless the order is likely to occasion a failure of justice or cause an irreparable injury.
14. Restriction on power to grant stay.-
It is, we think, also necessary to enact provisions similar to those in Order XLI, rule 5, Code of Civil Procedure limiting the powers of the Court to grant stays in revision applications.
15. Conflict of opinion.-
Difficulties have been created by conflict of judicial opinion on the interpretation of section 115 of the Code. Under this section, the High Court may only call for the record of "any case which has been decided by any Court subordinate to such High Court", It is further provided that the case which has been decided by the subordinate court must be one "in which no appeal lies thereto", i.e.., to the High Court.
"Case decided".- A difference of opinion has arisen between the High Courts in the interpretation of the words "case decided". The High Court of Allahabad has held that these words do not include an issue or part of a case; in other words, they do not include interlocutory orders. It has, therefore, held that the High Court has no power to interfere in revision against an interlocutory order made in any case.1 The Rajasthan High Court has also taken a similar view.2 The majority of the High Courts has, however, taken the contrary view and held that a revision does lie to the High Court against interlocutory orders.3
1. Buddhu Lal v. Mewa Ram, ILR 43 All 564; Sua Pali v. Ariya Pretinidhi Sabha, AIR 1936 All 686.
2. Pyar Chand v. Dungar Singh, AIR 1953 Raj 90.
3. Dhapi v. Ram Pershad, 14 Cal 768; Mani Lal v. Durga Prasad, 3 Pat 930; C. Janardhanan v. N.M. Verghese, AIR 1925 Mad 707; Secretary of State for India in Council v. Narsibhai Dadabhai Patel, 48 Born 43.
16. "In which no appeal lies".-
A somewhat similar divergence of view has arisen also in the interpretation of the words "in which no appeal lie". The Rajasthan High Court has held 1 that if it is open to a party to raise as a ground of appeal in the High Court (under section 105 of the Civil Procedure Code from the final decree or order) the correctness of any order which has been passed during the pendency of a suit or proceeding, no revision will lie to the High Court from that order inasmuch as an appeal would eventually lie to the High Court and the condition, in the section contained in the words "in which no appeal lies thereto" will not have been satisfied.
In effect, on the Rajasthan view, it is only when the order in question cannot be challenged in the High Court either in first or in second appeal or even as a ground of appeal under section 105, that the High Court will be able to entertain revision under section 115.1 A different view, however, has been taken by a number of other High Courts in regard to the interpretation of these words and it has been held that these words have reference only to a first appeal2
1. Dhapi v. Ram Pershad, 14 Cal 768; Mani Lal v. Durga Prasad, 3 Pat 930; C. Janardhanan v. N.M. Verghese, AIR 1925 Mad 707; Secretary of State for India in Council v. Narsibhai Dadabhai Patel, 48 Born 43.
2. Tipan Prasad Singh v. Secretary of State, AIR 1935 Pat 86; Narayana Sarajee Sagne v. Seshrao Vithoba, AIR 1948 Nag 258.
17. Section 115(C) (Views of the Privy Council).-
The High Courts are also not agreed on what amounts to an illegality or material irregularity within the meaning of clause (c) of the section. What is not an illegality or a material irregularity within the meaning of the section was decided by the Privy Council in Amir Hassan Khan v. Sheo Baksh Singh, ILR 11 Cal 6. where the Judicial Committee laid down that where a Court has jurisdiction to decide a question before it and, in fact, decides the question, it cannot be regarded as acting in exercise of its jurisdiction illegally or with material irregularity, merely because its decision is erroneous.
This was further emphasized by the Judicial Committee in Balakrishna Udayar v. Vasudeva Aiyar, 44 Indian Appeals 261. in which it was laid down that the section applied 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. The High Courts have, however, placed varying interpretations upon the principles laid down by the Privy Council, so that, there is a mass of conflicting judicial opinion as to what constitutes illegality or material irregularity within the meaning of the section.
18. Recommendations of the Rankin Committee.-
The difficulties in the interpretation of the section and the need to resolve the conflict of decisions which, in the opinion of the Civil Justice Committee, had given rise to "much bad law" was felt by that Committee and it made certain recommendations for the amendment of the law. Those amendments related not only to the clarification of the language of section 115 but also to a curtailment of the High Courts' revisional powers. As we are making recommendations of our own in regard to the clarification of the language of section 115, it is unnecessary to enter into the history of the legislation which was introduced to implement the recommendations of the Civil Justice Committee and which was eventually not enacted.
19. Recommendations on section 115, C.P.C.-
Though we do not feel justified in recommending any general curtailment in the powers of revision conferred by section 115, we are of the view that the difficulties created by conflicting judicial views in the interpretation of the section need to be removed. We, therefore, make the following recommendations indicating the lines on which section 115 should, in our opinion, be amended;
(1) The expression 'case decided' in the section should be clarified so as to include within it an interlocutory order including an order deciding an issue from which no appeal lies.
(2) Provision should, however, be made in the section, limiting the power of revision to such interlocutory orders which, if decided in favour of the petitioner would be sufficient for the final disposal of the suit or proceeding; or in which the order is likely to occasion a failure of justice or cause an irreparable injury.
(3) The words "in which no appeal lies thereto" in the first part of the section should be altered so as to make untenable the view of the Rajasthan High Court that no revision will lie if the order could be brought before the High Court eventually in second appeal or be made the subject matter of a ground of appeal to the High Court under section 105 of the Civil Procedure Code. Our intention is that the right of moving the High Court in revision should be denied only in cases where an appeal lies either to the High Court or to the district court from the order in question.
20. Revision under Article 227.-
Apart from the provisions of section 115, it is not unusual to invoke jurisdiction under Article 227 of the Constitution in order to induce the High Courts to interfere in revision. We are of the view, however, that such powers as the High Courts possess under Article 227 need to be preserved, notwithstanding their occasional use for the purpose of reviewing decisions of the Courts below.
21. A suggested method for securing expedition.-
We may in this connection consider a draft Bill prepared by the Chief Justice of one of the States who was firmly of the view that legislation of the nature contemplated by it would result in expediting the disposal of civil revision petitions. Although the Bill in its terms was applicable only to revision petitions, yet the procedure contemplated by it was equally applicable to appeals.
The idea underlying the scheme contained in the Bill was, that on an order being made the party against whom it is made should be required to decide within a specified time whether he wished to proceed in revision against it. If he decided to do so the court passing the order would issue the necessary notices and fix a day for the hearing of the matter in the•High Court. It was said that the court itself having been seized of the proceedings, much of the delay that now occurs in serving processes and so forth could be avoided.
In the draft Bill revision petitions are divided into two categories-petitions against final orders and those against interlocutory orders.
As regards revision against final orders, the Bill provides that whenever a court or tribunal passes a final order from which a revision lies to the High Court, it shall at the time of passing the order fix a date, being not earlier than 15 days and not later than 30 days for the appearance of the parties appearing in the case for the confirmation of the order or judgment.
On the date so fixed, any party wishing to file a revision against that order is required to file his objections to the order or judgment before the trial court together with copies for the other parties present. The trial court is then required to fix a date for the appearance of the parties in the High Court and send the records together with objections to the High Court for its decision after handing over copies of the ground of objections to the respondents. It is proposed that thereafter the High Court should either on the date fixed by the subordinate court or on any subsequent date, hear and finally dispose of the petition, and that further notices to the parties present in the trial court or to those who are ex-parte in that court would not be necessary. If no objections are filed the order of the lower court is confirmed by it and cannot thereafter be challenged in revision.
The procedure contemplated in the Bill for the filing of revisions against interlocutory orders under section 115 of the Civil Procedure Code is substantially the same. The only modification is, that the person objecting to the order passed should file his petition of objections to the trial court within 15 days of the said order whereupon the court shall give notice of the objection to the opposite parties and fix a date for their appearance in the High Court.
It will be noticed, that in substance, what the proposed Bill contemplates is that notices of revisions should be served on the respondents not by the High Court but by the trial court and thus delays in the service of notice by the High Court to a party in a subordinate court is avoided.
22. Not favoured.-
In our opinion the results sought to be achieved by this Bill can be easily secured without prescribing any such elaborate procedure. In our chapter on the "Trial of Civil Suits" we have recommended that parties on their first appearance in a trial court should file a registered address, service at which will be effective not only for the purposes of the pending proceeding but also for any appeal or revision arising out of that proceeding. We have also drawn attention to an amendment effected in West Bengal in Order VI of the Civil Procedure Code by the addition of rule 14A under which service of any process may be effected upon a party at his registered address for a period of two years even after the final disposal of the suit or matter.
If such a rule is made by all the High Courts and the revision petitioner is required to state in his petition the address for service given by the respondent in the lower court and service of notice by registered post is authorised delays occurring by reason of notices having to be served will be avoided. Further, generally in pending suits the registered address of a party is likely to be that of his advocate and hence service of notices will not present much difficulty. The lower court can serve a notice upon a party as easily and effectively at his registered address as by requiring him to appear in court on a particular date to take notice of objections.
We do not, therefore, consider that the legislation on the lines proposed will be particularly useful. Its objectives, as we have seen, can be attained equally well by an amendment of the rules and by insisting upon the petitioner stating in his petition the registered address of the respondents and also paying process fees at the time when the petition is filed.
23. Section 25, Provincial Small Cause Courts Act (Two suggestions).-
In regard to revision applications under section 25 of the Provincial Small Cause Courts Act, 1887 two points were raised. Firstly, whether the admission of an application for revision under that section should be made conditional on the applicant depositing the decretal amount in Court; secondly, whether this revisional jurisdiction should be conferred upon the district court without a further revision to the High Court.
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