Report No. 129
Revisional Jurisdiction of High Court
6.1. Section 115 of the Code of Civil Procedure, 1908 confers power on the High Court to call for the record of any case which has been decided by any court subordinate to High Court and in which no appeal lies thereto, and if such subordinate court appears-
(a) to have exercised jurisdiction not vested in it by law, or
b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. A proviso has been engrafted to this section by the Amendment Act of 1976. It is not necessary to reproduce the same here.
6.2. This jurisdiction is briefly described as revisional jurisdiction of the High Court. Experience has shown, and no statistical support need be given to substantiate the proposition, that this revisional jurisdiction has been largely responsible for holding up the trial of suits and delaying the disposal of the suits. The First Law Commission in its 14th Report examined the advisability of retention of the revisional jurisdiction and recommended its retention by providing certain checks in exercise of the jurisdiction.1 While comprehensively dealing with the Code of Civil Procedure, the Law Commission in its 27th Report reiterated its recommendation in the 14th Report.2
While re-examining the Code of Civil Procedure, the Law Commission in its 54th Report recommended total deletion of section 115 of the Code of Civil Procedure observing that often the cause of delay in the trial of suits is entertainment of petitions for revision against interlocutory orders which invariably result in stay of proceedings. In fact, in many cases, the object of the parties in invoking the revisional jurisdiction of the High Court appeared to be to delay the progress of the proceedings.3 The High Court Arrears Committee expressed the opinion that the revisional jurisdiction of the High Court against interlocutory orders should be abolished.4
1. LCI, 14th Report on Reform of Judicial Administration.
2. LCI, 27th Report on Code of Civil Procedure, 1908, para. 57.
3. LCI, 54th Report on Code of Civil Procedure, 1908.
4. Report of the High Court Arrears Committee, 1972, para. 71, p. 67.
6.3. As if this revisional jurisdiction had not done enough harm, Article 227 of the Constitution has been so interpreted as to widen the scope of revisional jurisdiction of the High Court. Article 227 of the Constitution confers power of superintendence over all court and tribunals by the High Court throughout the territories in relation to which it exercises jurisdiction. This power of superintendence has been interpreted to confer wider jurisdiction compared to one conferred by section 115, Code of Civil Procedure of correcting any and every error committed by the subordinate court through the progress of the litigation.
Whenever a constraint was felt in exercise of revisional jurisdiction under section 115 of the Code of Civil Procedure, the parties invoked the wider jurisdiction under Article 227. The State of U.P. amended section 115 of the Code of Civil Procedure in its application to the State by confining the revisional jurisdiction of the High Court to the suits wherein the value of the subject-matter of dispute was Rs. 20,000 and above or suits instituted before August 1, 1978, and in all other cases transferred the same to the District Court.
Confirming the validity of the amendment, the Supreme Court observed that 'access to justice also implies finality within reach of the rich and the poor Judicial reform is up to now a tinkering exercise, not an engineering project, but even that little tinkering is fiercely challenged as litigative anathema by the profession which is unfortunate'.1
1. Vishnu Awtar v. Shiv Awtar, AIR 1980 SC 1575.
6.4. The Satish Chandra Committee differed with the recommendation of the Law Commission and leaned in favour of the amendment made by the State of U.P. in section 115 with some further expansion of the jurisdiction of the District Court.
6.5. Has the situation improved? The answer is obviously in the negative. What is the utility of a revisional jurisdiction of the High Court or even of the District Court against interlocutory orders? One can appreciate a revision petition against a final order and the expression 'final order' should not be the subject-matter of another round of litigation. The expression 'final order' must mean final disposal of the litigation as a whole in which the order is passed and nothing further is required to be done by the court dealing with the litigation. But when it comes to interlocutory orders, experience shows that even a rejection of an application for adjournment of a suit has been the subject-matter of a revision petition.1
1. B.V. Viswanatha Aiyer The Code of Civil Procedure, 4th Echt, Vol. I, p. 351.
6.6. It is generally accepted that anyone interested in delaying the progress of the suit would make any application, though utterly irrelevant, invite an order and approach the High Court in revision. Till it is admitted, adjournment of the suit will be sought on the ground that the order of the court is already under challenge. If admitted, stay would follow as a matter of course and the progress of the suit would be held up for years. The abuse of the provision can be spelt out by an illustration. Order IX, rule 8 of the Code of Civil procedure provides that the court shall dismiss the suit for default of appearance of the plaintiff on the date when the suit is fixed for hearing.
Order IX, rule 9 provides that when the suit is so dismissed, the plaintiff may apply for an order to set aside the dismissal and if he satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon terms as to costs. Order XLIII, rule 1, clause (c) confers a right of appeal against an order made under Order IX, rule 9 rejecting an application for an order to set aside the dismissal of a suit.
The policy of the law appears to be that if the court which dismissed the suit is satisfied that there was sufficient cause for the non-appearance of the plaintiff on the date fixed for hearing the suit, it shall set aside the dismissal of the suit and if the court does not set aside the order dismissing the suit, the order of the court rejecting the application can be revised by an appeal. This necessarily implies that if the application is granted, no appeal would lie. And it should be so. If the order dismissing the suit is not set aside, the plaintiff becomes non-suited. Therefore, he is given a right of appeal. If, on the other hand, the court sets aside order dismissing the suits, the matter would proceed further.
The defendant cannot then make a grievance about it. Experience, however, shows that even though the policy of law as disclosed by a combined reading of rules 8 and 9 of Order IX and Order XLIII, rule 1(c) is that only the order dismissing the suit for default of appearance may be reviewed by an appellate court, yet the defendant generally questions the correctness of the order granting the application for setting aside the dismissal of the suit by way of revision. During the time the revision is pending further hearing of the suit will be stayed. Years after revision application is dismissed which obviously it would be, the suit would again be revived and proceeded further.
And such tactics have been often resorted to. This is the harm caused by exercise of revisional jurisdiction. The gain is little because where interlocutory orders are of some consequence, Order XLIII, rule 1 provides for appeal against the same. Therefore, having regard to all the circumstances of the matter and experience so far collected and the previous opinions expressed and the present emerging situation; the Law Commission is of the view that section 115 should be deleted so far as interlocutory orders are concerned. This would remove the stagnating phase of the progress of the suit.