Report No. 14
24. Deposit condition precedent to revision (Recommendations of the Rankin Committee) (Its reason).-
The idea of making a deposit of the decretal amount a condition precedent was strongly recommended by the Civil Justice Committee. They relief on the analogy of the proviso to section 17 of the Provincial Small Cause Courts Act, 1887, under which an applicant for an order to set aside an ex parte decree is required to deposit in Court the decretal amount or to give security. The Committee stated: "We believed these conditions are admitted on all hands to have made for justice and indeed to be highly necessary to prevent gross abuse; we have some difficulty in seeing why an application asking for the special interference of the High Court should not be subjected to similar conditions."1
In making this recommendation the Committee was influenced by the need of giving protection to the respondents in these applications who were dragged to the High Court in a large number of cases which were ultimately dismissed. It further thought, that there was a tendency in some of the High Courts to regard section 25 as though it gave a right of appeal on a point of law similar to that conferred by section 100 of the Civil Procedure Code. It observed: " there are Judges who consider even under section 25 that if on a Small Cause Court judgment a point of law can be raised which they are not prepared to dismiss forthwith as bad, they ought to issue a rule on the respondent to show cause why his decree should not be set aside."2
They recommended that in order to give some protection to the respondent it was necessary that a compulsory deposit limited at any rate to Rs. 400 should in all cases be made with the petition without prejudice to the right of the court to require a deposit of the whole amount if it thought fit.3
1. Report, p. 369, para. 9.
2. Report, p. 366, para. 3.
3. Report, p. 370, para. 9.
25. Admission of revision petitions.-
We entirely agree with the Committee in deprecating the practice adopted by some of the High Courts. We have dealt at some length with the duty of the courts in admitting appeals under section 100, Civil Procedure Code and the need for a very careful scrutiny under Order VLI, rule 11 of the memorandum of appeal in these cases. We have also indicated the principles which should guide the courts in deciding whether an appeal should be admitted. We have, earlier in this chapter, emphasized the necessity for a closer scrutiny of the applications for revision made under section 115 of the Civil Procedure Code.
In our view, analogous principles should be applied in admitting applications under section 25 of the Provincial Small Cause Courts Act, 1887. Under section 25, as in section 115 of the Code, it is for the High Court to satisfy itself that the requirements laid down in these sections have been complied with. There is no right vested in a party to a revision. The granting of it is entirely a matter for the discretion of the court. The court, therefore, has to strictly satisfy itself that the conditions laid down in the section have been fulfilled, before it decides that the case is one in which this extraordinary jurisdiction of the court should be exercised.
The true remedy.- It is, however, difficult to see why this erroneous practice in some of the High Courts, which results in the courts freely granting rules in undeserving cases in disregard of the principles to be followed, should result in subjecting an applicant in a genuine case to the hardship of having to deposit the decretal amount or a part of it in cash. The true remedy lies, in our view, in emphasizing the principles on which the High Court should act in these matters and in insistence on the observance of these principles.
26. views of the Rankin Committee examined.-
It may be mentioned that the Committee could not obtain the statistical data in regard to the number of applications under section 25, the number of cases in which notices had been issued to the respondents, the number of cases in which the courts ultimately revised the decree of the lower court and the average duration of the revisions under that section. The Committee seems to have examined in Madras a hundred applications under this section for the purpose of supporting its criticism against the practice which then prevailed in Madras of the Deputy Registrar admitting such applications.
It was found that out of these hundred applications so admitted by the Deputy Registrar, sixty three per cent. had failed. The Committee appear to have taken the view that if as many as sixty per cent. of the applications made ultimately resulted in failure, it would be consonant with justice to require a deposit in the case of all such applications. We are unable to accept this view. Assuming that the figures of ultimate dismissal are as high as sixty per cent., that would seem to indicate the necessity of a closer scrutiny of these applications at the stage of admission. The high percentage of dismissals would not, we think, justify a rule which would subject the genuine applicant to the hardship mentioned above.
27. Deposit unnecessary (Amendment of section 17, Provincial Small Cause Courts Act).-
Having given careful consideration to the matter, we feel ourselves unable to recommend an amendment of the law requiring such a deposit to be made. Indeed, it appears to us that the proviso to section 17 of the Provincial Small Cause Courts Act relief on by the Civil Justice Committee in so far as it requires a deposit of the decretal amount or security from an applicant for setting aside a decree passed ex parte inflicts an unjustified hardship on such an applicant. There would appear to be no reason why, if a person seeking to have an ex parte decree set aside under Order IX, rule 13, Code of Civil Procedure is not necessarily required to make a deposit of the decretal amount or to give security, a different rule should apply to a person seeking to have an ex parte decree passed by a small cause court.
28. Transfer of revisional jurisdictions to the District Court.-
The question of transferring this revisional jurisdiction from the High Court to the District Court was considered by the High Court Arrears Committee who recommended the adoption of that course. It may be mentioned that the State of Uttar Pradesh has accepted that recommendation and passed legislations 1 substituting an amended section 25 for the existing section, which enables a district judge to exercise the powers hitherto exercised by the High Court under the section.
1. The Provincial Small Cause Courts (Uttar Pradesh Amendment) Act, 1957 (Uttar Pradesh Act No. 17 of 1957).
Number of petitions not large.- In order to ascertain whether the number of these revision applications really imposed a burden on the High Courts which required to be relieved, we have collected the number of these applications filed in the years 1953, 1954 and 1955 in some of the States in respect of which figures could be made available. Unfortunately, we have not been able to obtain figures for all these States showing how many of these applications were summarily rejected and in how many of them the High Court passed orders reversing or varying the decree of the small cause court. The figures collected by us are set out in the Table below.
Comparative Table Showing The Number of Civil Revision Petitions Instituted Under Section 25 of The Provincial Small Cause Courts Act and Under Other Acts In The High Courts Certain States In The Years 1953, 1954 and 1955
Name of the State |
Number of petitions field under section 25 of the Provincial Small Cause Courts Act |
Number of revision petitions field under other Acts |
Remarks |
||||
1953 1955 |
1954 |
1953 |
1954 |
1955 |
(A) The figures shown against this State do not include rules connected with appeals. |
||
Assam(A) |
4 |
... |
... |
39 |
61 |
61 |
|
Bihar |
172 |
158 |
N.A |
887 |
977 |
N.A. |
|
Madras |
613 |
501 |
192 |
1792 |
1433 |
1430 |
|
Madhya Pradesh |
469 |
359 |
N.A. |
488 |
623 |
N.A. |
|
West Bengal |
161 |
486 |
104 |
2000 |
1699 |
1856 |
|
Note.- These figure have been taken from the reports on the administration of justice published by the High Courts.
29. Transfer of jurisdiction to district judge undesirable.-
It will be noticed that the number of these applications is not considerable; and in some of the States the number seems to be decreasing. We, therefore, do not feel justified in recommending the transfer of this revisional jurisdiction to the District Court and barring a further revision to the High Court for the following reasons:-
Firstly, as appears from the above Table, the number of petitions filed in the High Court under this section is not considerable.
Secondly, a transfer of this jurisdiction to the district courts may probably result in an increase in the number of these applications.
Thirdly, as questions of law would arise for disposal in these applications, there is a possibility of divergence of views among different District Courts dealing with the applications which would disturb the uniformity of law throughout the State which is now attained by the High Court dealing with these matters.
Fourthly, it is but appropriate that the special and extraordinary remedy of revision which enables the Court to correct jurisdictional errors or errors in law should rest with the highest court in the State.
30. Summary of Recommendation.-
Our recommendations regarding civil revisions are set out below:-
(1) The right of revision against interlocutory orders is a valuable one and should not be abolished.
(2) A rule nisi should not be issued except upon strict scrutiny.
(3) The records of the lower court should not be sent for, except when a stay order is passed.
(4) In other cases, if the court requires the records, it should call upon the parties to file certified coppies of the records necessary for disposing of the revision.
(5) An effort should be made to dispose of all revisions in which stay orders have been granted within a period of two or three months.
(6) The High Court should obtain from subordinate courts, a periodical return showing the cases which have been held up on account of the pendency of revision petitions.
(7) A rule similar to that contained in Order XLI, rule 5 Civil Procedure Code should be enacted regulating the power of the High Courts to grant stay in revision applications.
(8) Section 115 of the Civil Procedure Code should be amended so as to make it clear that the expression "case decided" includes an interlocutory order including an order deciding an issue, from which no appeal lies.
(9) It should be made clear by a suitable amendment in section 115 that the power of revision is limited 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.
(10) Section 115 of the Civil Procedure Code should be amended so as to make the views of the Rajasthan High Court set out in para 16 ante untenable and to permit a revision application to be filed against an order, if otherwise capable of being revised, in cases in which no appeal lies either to the High Court or to the district court from the order in question.
(11) The revisional power of the High Courts under Article 227 of the Constitution should be left untouched.
(12) It is not desirable to make the admission of a revision petition under section 25 of the Provincial Small Cause Courts Act conditional on the petitioner depositing the decretal amount in court.
(13) The courts should scrutinise such applications for revision carefully at the stage of their admission.
(14) The revisional jurisdiction under section 25 of the Provincial Small Cause Courts Act should continue to remain with the High Court and not be transferred to the District Judge.
(15) The proviso to section 17 of the Provincial Small Cause Courts Act, in so far as it requires a deposit of the decretal amount or security from an applicant for setting aside an ex parte decree should be repealed.
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