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Legal Analysis Of Revision Under Section 115 Of The Civil Procedure Code, 1908

"Jurisdiction is not given for the sake of the judge, but for that of the litigant."-Blaise Pascal

In law, common law1 (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. The defining characteristic of "common law" is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision (a principle known as stare decisis).

If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue (one party or the other has to win, and on disagreements of law, judges make that decision).

The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch (the interactions among these different sources of law are explained later in this article). Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.

The common law: so named because it was "common" to all the king's courts across England-originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. The British Empire later spread the English legal system to its far-flung colonies, many of which retain the common law system today. These "common law systems" are legal systems that give great weight to judicial precedent, and to the style of reasoning inherited from the English legal system.

Post-partition, India retained its common law system. Much of contemporary Indian law shows substantial European and American influence. Legislation first introduced by the British is still in effect in modified form today. During the drafting of the Indian Constitution, laws from Ireland, the United States, Britain, and France were all synthesized to produce a refined set of Indian laws.

Indian laws also adhere to the United Nations guidelines on human rights law and environmental law. Certain international trade laws, such as those on intellectual property, are also enforced in India. The exception to this rule is in the state of Goa, annexed in stages in the 1960s through 1980s. In Goa, a Portuguese uniform civil code is in place, in which all religions have a common law regarding marriages, divorces and adoption.

The Code of Civil Procedure2, 1908 is a procedural law related to the administration of civil proceedings in India. The Code is divided into two parts: the first part contains 158 sections and the second part contains the First Schedule, which has 51 Orders and Rules. The sections provide provisions related to general principles of jurisdiction whereas the Orders and Rules prescribe procedures and method that govern civil proceedings in India.

To give uniformity to Civil Procedure, Legislative Council of India, enacted Code of Civil Procedure, 1858, which received the assent of Governor-General on 23 March 1859. The Code however, was not applicable to the Supreme Court in the Presidency Towns and to the Presidency Small Cause Courts. It did not meet the challenges and was replaced by Code of Civil Procedure Code, 1877.

But still it did not fulfill the requirements of time and large amendments were introduced. In 1882, the Code of Civil Procedure, 1882 was introduced. With passing of time it is felt that it needed flexibility for timeliness and effectiveness. To meet these problems Code of Civil Procedure, 1908 was enacted. Though it has been amended number of times it has withstood the test of time.

Indian Civil Procedure Code

The law can be broadly classified as:
  • Substantive Law, and
  • Procedural Law.
The Substantive Law, whether it is based on statute law or common law, defines what facts are constituting a fact or liability. To say, in other words, the Substantive law defines various principles regarding the rights and liabilities. (Example: The Indian Penal Code, 1860 which describes various offenses punishable under Criminal acts).

On the contrary, the Procedural law or adjective law, on the other hand, prescribes the procedure and machinery for the enforcement of those rights and liabilities. To say, in other words, the procedural law is concerned with enforcement of those rights and liabilities determined in accordance with the rules of the substantive law. (Example: The Code of Civil Procedure 1908, The Code of Criminal Procedure, 1973 etc).

The Law regulating the procedure to be followed in civil court is governed by the Civil Procedure Code and this Civil Procedure Code is one of the most important branches of the procedural law. The Law relating to the practices and procedure to be followed in the Civil Courts is regulated by the Code of Civil Procedure, 1908. The word CODE means 'a systematic collection of statutes, body of laws so arranged as to avoid inconsistency and overlapping '.

The main object of this civil procedure code is to consolidate and amend the laws relating to the procedure and practices followed in the Civil Courts in India. As such, it was enshrined in the preamble of the code that it was enacted to consolidate and amend the laws relating to the procedure to be followed in the civil courts having civil jurisdiction in India. The Civil Procedure Code regulates every action in civil courts and the parties before it till the execution of the degree and order. The Aim of the Procedural law is to implement the principles of Substantive law. This Code ensures fair justice by enforcing the rights and liabilities.

The Code is exhaustive on the matters directly dealt by it but it is comprehensive in other issues. The framers of the code could not foresee the possible circumstances which may arise in the future litigations and could not provide the procedure for such situations. Hence the framers of the code (legislature) provided inherent powers to the court to meet such circumstances (where the code could not provide a procedure) according to the principles of natural justice, equity and good conscience.

As this Code is a general procedural law, it does not contradict with the local or special law in force. In the event of any conflict between the civil procedure code and the special law, the special law will prevail over the civil procedure code. In case the local or general law is silent on any matter, then the provisions of the civil procedure code will prevail.

In simple words3 jurisdiction can be defined as the limit of judicial authority or the extent to which a court of law can exercise its authority over suits, cases, appeals and other proceedings. The rationale behind introducing the concept of jurisdiction in law is that a court should be able to try and adjudicate only in those matters with which it has some connection or which falls within the territorial or pecuniary limits of its authority.

Section 9 of the Civil Procedure Code, 1908 confers jurisdiction over the civil courts to adjudicate upon all suits of civil nature, except such suits the cognizance of which is either expressly or implied barred. In other words whenever the object of the proceedings is the enforcement of civil rights, a civil court would have jurisdiction to entertain the suit unless the cognizance of the same is barred through a legislative instrument.

Disputes relating to property, breach of contracts, wrongs committed in money transactions, etc. are categorized as civil wrongs and could be subject to a civil process. In such cases civil suits should be instituted by the aggrieved persons. Civil wrongs are redressed before civil courts by granting injunctions or by payment of damages or compensation to the aggrieved party. As a matter of fact, every suit should be instituted before the court of lowest jurisdiction.

In the civil side the Munsif's Court is the court of lowest of the jurisdiction. Hence, it is clear that the jurisdiction of the Civil Court does not extend to all matters but might be limited in certain cases. Thus, the current position regarding the jurisdiction of Civil Courts is that they have inherent jurisdiction to heat into all civil matters unless it is expressly or implied excluded by a statute.

"Order" means the formal expression of any decision of a civil Court which is not a decree.
So, the adjudication of the court which is not a decree is an order. As a general rule, an order of a court is founded on the objective considerations and as such judicial order must contain a discussion of the question at issue and the reasons which prevailed the court which led to the passing of the order.

Orders are of 2 kinds: Appealable and Non appealable 5

CPC does not define the term 'appeal' nor is it defined in the General Clauses Act, 1897. According to Black's law dictionary, appeal is a legal proceeding wherein a case is taken to a higher judiciary to review and/or revise the decree or judgment pronounced by a lower court. The right to the first appeal is not a natural right. It means that a person does not have a right to appeal by virtue of the fact that a decision has been made by a court against him. Right to the first appeal is a statutory right which is granted in certain circumstances by the statute and unless it is specifically granted, it cannot be exercised.

"Non-Appealable Order" means an order, judgment, or other decree5 (including any modification or amendment thereof) that remains in effect and is final and has not been reversed, withdrawn, vacated, or stayed, and as to which the time to appeal or seek review, rehearing, or writ of certiorari has expired and as to which no appeal, petition for certiorari, or other proceedings for re-argument or rehearing shall then be pending or as to which, if such an appeal, writ of certiorari, review, re-argument, or rehearing has been sought, (a) appeal, c.ertiorari, review, reargument, or rehearing has been denied or dismissed and the time to take any further appeal or petition for certiorari, review, re-argument, or rehearing has expired; or (b) such order has been affirmed by the highest court to or in which such order was appealed, reviewed, reargued, or reheard, or that granted certiorari, and the time to take any further appeal or petition for certiorari, review, reargument, or rehearing has expired.

Revision means to go through something carefully, thoroughly and diligently. Cases can be revised by the High Court as it possesses revisional jurisdiction as defined under Section 115 of the Code of Civil Procedure. The High Court has the right to revise cases decided by subordinate courts to ensure delivery of justice and maintenance of fairness.

Jurisdiction can be elucidated as the limitation of judicial authority or the extent to which a court of law can exercise its authority over suits, cases, appeals and other proceedings. The logic of introducing the concept of jurisdiction in law is that a court should be able to try and adjudicate only in those matters with which it has some connection or which falls within the territorial or pecuniary limits of its authority. If a court of law doesn' t stick to its jurisdictional authority, that is, it goes ultra-vires, it may lead to a miscarriage of law. To err is human, and judges are after all humans too and do have the potential to commit some legal mistakes. And when it does, we the people of India have a right to appeal against such injustice.

This is where Section 115 of the CPC comes in. Section 115 of CPC is firmly established as a key instrument in correcting jurisdictional errors by judges of subordinate courts. Investigating and understanding Section 115 of CPC is a continuing concern within Indian legal academia. In recent years, there has been an increasing interest in this particular section, owing to the fact that novice judges do as they please.

However, the core problem of this section is that very few people are aware or understand it, which is a bad situation as it leaves open the possibilities of failure of justice. This research paper seeks to remedy these problems by analyzing the section by taking a look at the law in general and landmark case laws to clarify our understanding of Section 115 of the CPC.

Types Of Jurisdictions

Before we move4 further on, It is necessary to look at the various types of jurisdiction, as its necessary to understand this aspect given the fact that Section 115 of the CPC deals with jurisdiction related issues only.
  1. Territorial or local jurisdiction
    Under this territorial or local jurisdiction, the geographical limits of a court's authority are clearly delineated and specified. It cannot exercise authority beyond that geographical/ territorial limit. For example, if a certain crime is committed in Madhya Pradesh, only the courts of law within the borders of Madhya Pradesh can hear and decide the case. Furthermore, Section 16 of the Code of Civil Procedure explains the territorial jurisdiction on the grounds of the location of the immovable property.

    In the case of Harshad Chiman Lal Modi Vs D.L.F Universal Ltd , the court interpreted Section 16 that the suit pertaining to immovable property should be brought to the court. The court does not have the power to decide the rights of property which are not situated. However, the court can still pass a relief if the opposite party agrees to try the suit in such a case.
     
  2. Pecuniary jurisdiction
    Pecuniary means 'related to capital.' It approaches the question of whether the court is competent to try the case of the financial value. The code allows analysing the case unless the suit's value exceeds the financial limit of the court. Section 15 of the Code of Civil Procedure commands the organisation of the suit in the court of the low grade. It refers to pecuniary jurisdiction of Civil court. It is a course of the method and it does not affect the jurisdiction of the court.

    The main objective of establishing pecuniary jurisdiction is to prevent the court of a higher level from getting burdened and to provide assistance to the parties. However, the court shall interfere if it finds the judgment to be wrong. For example, 'A 'wants to accuse 'B' due to a violation of the contract to obtain Rs 5000 in Bombay.

    The Bombay High Court has original jurisdiction and small causes court with the jurisdiction up to Rs 50000. So, a suit to obtain Rs 5000 should ideally be dealt with small causes court. In the case of Karan Singh Vs Chaman Paswan the plaintiff filed a suit in the subordinate court involving an amount of Rs 2950, but the court rejected the case. Later his next appeal was allowed by the High Court, but it ordered him to pay the deficit amount.

    The appellant contested that the decision of the district court will be a nullity, but the High Court dismissed the claim. Later the Supreme Court confirmed the decision of the High Court declaring that the decision of district court won't be void.
     
  3. Jurisdiction as to the subject matter
    The subject matter can be defined as the authority vested in a court to understand and try cases concerning a special type of subject matter. In other words, it means that some courts are banned from hearing cases of a certain nature. No question of choices can be decided by the court which do not have subject matter jurisdiction. Section 21 of the Code of Civil Procedure is related to the stage challenging the jurisdiction.

    For Example, "Ranveer", a resident of Sonipat bought a food item of 'AA' brand that was plagued with pests. He should prosecute 'ZZ' company in Sonipat District forum rather than District Civil Court of Sonipat.
     
  4. Original and appellate jurisdiction
    Appellate jurisdiction refers to the court's authority to review or rehearsal the cases that have been already decided in the lower courts. In the Indian circumstances, both the High Court and Supreme Court have the appellate jurisdiction to take the subjects that are bought in the form of appeals.

    Original Jurisdiction refers to the court's authority to take notice of cases that could be decided in these courts in the first instance itself. Unlike appellate jurisdiction wherein courts review the previously decided matter, here the cases are heard afresh.
     
  5. Exclusive and concurrent jurisdiction
    In Civil Procedure, exclusive jurisdiction means where a single court has the authority to decide a case to the rejection of all the courts. This jurisdiction is decided on the basis of the subject matter dealt with by a specific court. For example, the U.S District courts have particular jurisdiction on insolvency topics.

    Concurrent jurisdiction exists where two or more courts from different systems simultaneously have jurisdiction over a particular case. In this situation, parties will try to have their civil or criminal case heard in the court that they perceive will be most favourable to them.
     
  6. General and special jurisdiction
    General jurisdiction means that general courts do not limit themselves to hearing only one type of cases. This type of jurisdiction means that a court has the power to hear all types of cases. So the court that has general jurisdiction can hear criminal, civil, family court case and much more.

    Specific jurisdiction is the ability of the court to hear a lawsuit in a state other than the defendant's home state if that defendant has minimum contacts within the state where the suit will be tried.
     
  7. Legal and equitable jurisdiction
    Equitable jurisdiction belongs to the authorities of the courts to take specific actions and pass some orders in order to deliver an equitable and reasonable outcome. These judgments are usually outside the purview of law, in the sense that support provided by the courts may not be necessarily confirmed by the statue.

    In the case of K.K.Velusamy Vs N.Palanisamy, the Supreme Court of India held that Section 151 does not give any special jurisdiction to civil courts, but only presents for the application of discretionary power to achieve the ends of justice. This suggests that the court cannot give any such order which may be denied under any law in such an order that may be prohibited under any law in order to achieve the ends of justice. This would lead to the conclusion that such equitable jurisdiction is secondary to the authority of the courts to implement the law.
     
  8. Expounding and expanding jurisdiction
    Expounding jurisdiction means to describe, clarify and explain jurisdiction. Expanding jurisdiction means to develop, expand or prolong jurisdiction. It is the duty of the court to clarify its jurisdiction and it is not proper for the court to extend its jurisdiction.


Relevant Laws And Doctrine

Section 115 of CPC. Revision

  1. The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears:
    1. to have exercised a jurisdiction not vested in it by law, or
    2. to have failed to exercise a jurisdiction so vested, or
    3. to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit
  2. Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings.
  3. The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto
  4. A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.

Explanation:
In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue in the course of a suit or other proceeding.]

Article 131 of the Schedule of Limitation Act provides a limitation period of 90 days for filing the revision under the Code of Civil Procedure from the date of decree or order or sentence sought to be revised. Thus, the limitation period prescribed for filing the revision against the impugned order is 90 days. The application for revision must be filed with the High Court within the limitation period.

Article 226 in The Constitution Of India 1949

226. Power of High Courts to issue certain writs
  1. Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
  2. The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories
  3. Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without:
    1. Furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
    2. Giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated
  4. The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause ( 2 ) of Article 32

Article 227 in The Constitution Of India 1949

227. Power of superintendence over all courts by the High Court
  1. Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction
  2. Without prejudice to the generality of the foregoing provisions, the High Court may:
    1. call for returns from such courts;
    2. make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
    3. prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts
  3. The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause ( 2 ) or clause ( 3 ) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor
  4. Nothing in this article shall be deemed to confer on a High Court power of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces

In law, certiorari7 is a court process to seek judicial review of a decision of a lower court or government agency. Certiorari comes from the name of an English prerogative writ, issued by a superior court to direct that the record of the lower court be sent to the superior court for review. The term is Latin for "to be made certain", and comes from the opening line of such writs, which traditionally began with the Latin words "Certiorari volumus..." (We wish to be made certain...).

A writ of certiorari or a writ in the nature of certiorari can only be issued by the Supreme court under Art. 32 and a High court under Art. 226 to direct inferior courts, tribunals or authorities to transmit to the court the record of proceedings disposed of or pending therein for scrutiny and , if necessary, for quashing the same. But a writ of certiorari can never be issued to call for the record or papers and proceedings of an Act or Ordinance and for quashing such an Act or Ordinance.

Certiorari under Art. 226 is issued for correcting gross error of jurisdiction i.e. when a subordinate court is found to have acted (1) without jurisdiction or by assuming jurisdiction where there exists none, or (2) in excess of its jurisdiction by over stepping or crossing the limits of jurisdiction or (3) acting in flagrant disregard of law or rules of procedure or acting in violation of principles of natural justice where there is no procedure specified and thereby occasioning failure of justice.

Landmark And Influential Cases (PU Atlest 3 Cases)

  1. Major S. S. Khanna vs Brig. F.J. Dillon on 14 August, 1963
    Facts: The appellant and the respondent entered into a partnership to do business as Construction Engineers but in February 1956 they agreed to dissolve it. It was agreed that the respondent was to take over all the assets and liabilities of the partnership and keep the appellant indemnified from all liability.

    Later on, a suit was filed by the appellant for dissolution of partnership and rendition of accounts. That suit ended in a compromise which provided that all realizations of the old partnership would be converted into cash and placed in joint account in the name of the two partners before being paid towards the liabilities of the partnership.

    The respondent filed two suits against the appellant for recovery of certain amounts on the allegation that the appellant had taken that amount as loan. The defense of the appellant was that as the money was still in the joint name of the two partners and he had taken the money from the joint account, suits between the two partners were not maintainable.

    Trial Judge:
    In preliminary issues raised in the suits the trial Judge held that the suits were not maintainable, but instead of dismissing the suits there and then, he set them down for a future date.

    Revision Petitions Filed:
    Against the findings of the trial Judge, revision petitions were filed in the High Court under s. 115 of the Code of Civil Procedure. The High Court set aside the orders passed by the Trial judge and held that the suits could not be held as not maintainable.

    Appeal Against Hc Judgment:
    The appellant appealed by special leave. The appellant challenged the order of the High Court on the ground that the order of the trial Judge did not amount to "a case which has been decided" within the meaning of s. 115 of Code of Civil Procedure, that the decrees which may be passed in the suits being subject to appeal to the High Court, the power of the High Court was by the express terms of s. 115 excluded, and that the orders of the trial Judge did not fall within any of the three clauses (a), (b) and (c) of s. 115.

    Supreme Court:
    The High Court was right in setting aside the order passed by the trial Judge and in holding that without investigation as to the respective claims made by the parties by their pleadings on the matters in dispute, the suits could not be held as not maintainable. The decision of the trial Judge affected the rights and obligations of the parties directly. It was the decision on an issue relating to the jurisdiction of the court to entertain the suit filed by the respondent. The decision attracted cl. (c) of s. 115 of the Code of Civil Procedure.

    Revisional Jurisdiction Of The HC:
    High Court is not bound to interfere merely because the conditions are satisfied. The interlocutory character of the order, existence of another remedy to the aggrieved party by way of appeal from the ultimate order or decree in the proceeding or by a suit, and the general equities of the case being served by the order made are all matters to be taken into account in considering whether the High Court even in cases where the conditions which attract the jurisdiction exist, should exercise its jurisdiction.

    Revisional jurisdiction of the high Court may be exercised irrespective of the question whether ;an appeal lies thereto from the ultimate decree or order passed in the suit or not. The expression "in which no appeal lies thereto" does not mean that it excludes the exercise of the revisional jurisdiction when an appeal may be competent to the High Court from the final order.

    If an appeal lies against the adjudication directly to the-High Court or to another court from the decision of which an appeal lies to the High Court, it has no power to exercise its revisional jurisdiction against the adjudication, but where the decision itself is not appealable to the High Court directly or indirectly, exercise of the revisional jurisdiction by the High Court would not be deemed excluded.

    A decision of the subordinate Court is amenable to the revisional jurisdiction of the High Court unless that jurisdiction is clearly barred by a special law or an appeal lies there from. The decision of the trial Judge was erroneous because he denied himself the jurisdiction of holding that the suits were not maintainable.

    The fact that he did not dismiss the suits and did not draw up decrees for that purpose, was itself an exercise of jurisdiction with material irregularity, if not also illegality. In so far as the parties were concerned, the suits were no longer live suits as the decision had put an end to them. The word "case" in s. 115 does not mean a concluded suit or proceeding but each decision which terminates a part of the controversy involving a matter of jurisdiction.
     
  2. Amir Hasan vs Sheo Baksh Singh, (11 I.A. 237)
    Facts:
    The facts of the case were as under: Raja Amir Hasan Khan brought a suit for possession on redemption of a three-fourths share in Kaka Khanpur. The trial court, viz., the Assistant Commissioner decreed the suit and the decree were affirmed by the District Judge of Sitapur.

    The decree became final under Section 622 of Act X of 1877. On an application in revision filed by Sheo Baksh Singh, the Judicial Commissioner did not find that the first court had no jurisdiction, but found that the courts below had exercised their jurisdiction illegally and to the material prejudice of the applicant; and thereon founded the decree appealed from. Thereupon the plaintiff Amir Hasan preferred an appeal to the Privy Council.

    Question for determination:
    The question that fell for decision of their Lordships of the Judicial Committee was as to whether the Judicial Commissioner had under Section 622 of Act X of 1877 as amended by Section 92 of Act XII of 1879, jurisdiction in the case.

    Judgment:
    Sir Barnes Peacock, in delivering the judgment of the Board, observed: "According to Section 21 of Act XII of 1879, there was no appeal in this case from the lower Court of Appeal to the Judicial Commissioner.

    But Section 622 of Act X of 1877 enacted that the "High Court"-and in this respect the Judicial Commissioner exercised the same powers as the High Court-may call for the record of any case In which no appeal lies to the High Court if the court by which the case was decided appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested and may pass such order in the case as the High Court thinks fit.

    By Section 92 of Act XII of 1879 that section was amended by the insertion after the words "so vested' the following words "or to have acted in the exercise of its jurisdiction illegally or with material irregularity."

    The question then is, did the judges of the lower courts in this case, in the exercise of their jurisdiction, act illegally or with material irregularity. It appears that they had perfect jurisdiction to decide it. Whether they decided it rightly or wrongly, they had jurisdiction to decide the case and even if they decided wrongly they did not exercise their jurisdiction illegally or with material irregularity.

    The Judicial Commissioner had no jurisdiction in the case. It was accordingly held that the appeal is allowed, judgment of the Judicial Commissioner be reversed and respondents pay the costs incurred before the Judicial Commissioner and also of the Privy Council appeal.
     
  3. Surya Dev Rai vs. Ram Chander Rai and Ors. Civil Appeal No. 6110 of 2003 [Arising out of S.L.P. (c) No. 12492 of 2002]
    Facts:
    The appellant filed a suit, for issuance of permanent preventive injunction based on his title and possession over the suit property which is a piece of agricultural land, in the Court of Civil Judge. He also sought for relief by way of ad interim injunction under Order XXXIX Rules 1 and 2 of the C.P.C. The prayer was rejected by the trial court as also by the appellate court. Feeling aggrieved thereby the appellant filed a petition (C.M.W.P.No. 20038 of 2002) In the High Court labeling it as one under Article 226 of the Constitution.

    The High Court has summarily dismissed the petition forming an opinion that the petition was not maintainable as the appellant was seeking interim injunction against private respondents. Reference is made in the impugned order to a Full Bench decision Allahabad High Court in Ganga Saran v. Civil Judge, Hapur, Ghaziabad and Ors. MANU/UP/0025/1991 : AIR1991All114 . Earlier the remedy of final civil revision under Section 115 of the C.P.C. could have been availed of by the appellant herein but that remedy is not available to the appellant because of the amendment made in Section 115 of the C.P.C. by Amendment Act 46 of 1999 w.e.f. 01.07.2002.

    Issue:
    This appeal raises a question of frequent occurrence before the High Courts as to what is the impact of the amendment in Section 115 of the C.P.C. brought in by Act 46 of 1999 w.e.f. 01.07.2002.

    On the power and jurisdiction of the High Court to entertain petitions seeking a writ of certiorari under Article 226 of the Constitution or invoking the power of superintendence under Article 227 of the Constitution as against similar orders, acts or proceedings of the courts subordinate to the High Courts, against which earlier the remedy of filing civil revision under Section 115 of the C.P.C. was available to the person aggrieved. Is an aggrieved person completely deprived of the remedy of judicial review, if he has lost at the hands of the original court and the appellate court though a case of gross failure of justice having been occasioned, can be made out?

Judgement:
Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:
  1. Amendment by Act No. 46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
     
  2. Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
     
  3. Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted:
    1. without jurisdiction - by assuming jurisdiction where there exists none, or
    2. in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or
    3. acting in flagrant disregard of law or the rules or procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
       
  4. Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
     
  5. Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
     
  6. A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.
     
  7. The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings.

    The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
     
  8. The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
     
  9. In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions.

    While exercising jurisdiction to issue a writ of certiorari the High Court may annual or set aside the at, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.


Conclusion And Personal Opinion
Current research paper was to understand, analyze and investigate Section 115 of the CPC, Revision means to go through something carefully, thoroughly and diligently. Cases can be revised by the High Court as it possesses revisional jurisdiction as defined under Section 115 of the Code of Civil Procedure. The High Court has the right to revise cases decided by subordinate courts to ensure delivery of justice and maintenance of fairness.

After a comprehensive perusal of all the research material, I can conclude that in my opinion the primary objective of a revisional authority of the High Court empowered by Section 115 is to ensure that no subordinate court acts arbitrarily, illegally, capriciously, irregularly or exceeds its jurisdiction; and allows the High Court to guarantee the delivery of justice while ensuring that the proceedings are conducted in accordance with the rule of law and furtherance of fairness.

It must be noted that the judges of subordinate courts have the absolute authority to decide on cases. They do not commit any "jurisdictional error" even when they wrongfully or extra-judicially decide a case. The High Court has the power to revise these jurisdictional errors committed by subordinate courts. This provides an opportunity to any aggrieved party to rectify a non-appealable order by a subordinate court.

The High Court can revise any case by a subordinate court in which no appeal lies when:
  • The subordinate court has exercised jurisdiction not vested in it by law.
  • The subordinate court has failed to exercise jurisdiction vested in it by law.
  • The subordinate court exercises its jurisdiction illegally or with material irregularity or in breach of some provision of the law or by committing some errors of procedure in the course of the trial which may have affected the ultimate decision.
     
The High Court's revisional power cannot be invoked unless the following conditions exist:
  • There Must Be A Case Decided;
  • The Court Deciding The Case Must Be Subordinate To The High Court;
  • No Appeal Should Lie To The High Court Against The Decision;
  • In Deciding The Case The Subordinate Court Must Appear To Have:
    1. Exercised A Jurisdiction Not Vested In It By Law; Or
    2. Failed To Exercise A Jurisdiction Vested In It By Law; Or
    3. Acted In The Exercise Of Its Jurisdiction Illegally Or With Material Irregularity.

The power of revision of the High Court is exceptional and should be exercised when necessary in cases where there is a defect in the proceedings due to jurisdictional error in the subordinate courts which may result in a miscarriage of justice and beats the purpose of the rule of law. In the exercise of revisional powers it is not the duty of the High Court to enter into the merits of the evidence.

It has only to see whether the requirements of the law have been duly and properly obeyed by the court whose order is the subject of revision and whether the irregularity as to failure of exercise of jurisdiction is such as to justify interference with the order. Unless the lower appellate court had exercised jurisdiction where it had none or exercised it illegally or with material irregularity, the High Court cannot interfere with the order of the lower appellate court even when the order sought be revised be erroneous or not in accordance with the law.

Section 115 applies to jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it. But the mere fact that the decision of the lower court is erroneous whether it be upon question of fact or of law does not amount to an illegality or material irregularity

The unique features of revision that I've noticed and noted down are: An application for revision can only be made to the High Court challenging any decision of the subordinate court when no appeal lies against the decision in the specified case. The revisional power is under the discretion of the High Court and cannot be claimed as a right by any aggrieved party. Any case can be revised on the grounds of jurisdictional error by the subordinate court.The High Court can exercise the powers of revision by suo moto and filing an application is not necessary.

A revision can be invoked only when no appeal (either first or second) lies in the High Court or any subordinate court., The High Court cannot interfere with an order passed by the subordinate court even if it is unlawful and wrong as long as it lies under the court's jurisdiction., A question of fact cannot be decided during the exercise of revisional jurisdiction., The High Court may decide to decline an application for revision if it is felt that substantial justice has been done.

Revisional proceedings can begin either by an application filed by an aggrieved party or suo moto by the High Court. Revision is done on the grounds of jurisdictional errors committed by a subordinate court which is to be rectified by the High Court. The order passed to exercise revisional jurisdiction is non-appealable and cannot be challenged.

The authority of revision can only be exercised by the High Court under which revisional jurisdiction lies. Power of revision is only judicial and not administrative. Power of revision is statutory and can be abolished by the new legislation. Revisional powers have less application and cannot be exercised in all conditions as Section 115 is restricted.

To conclude, one of the more significant findings to emerge from this study is that The power of revision of the High Court is exceptional and should be exercised when necessary, in cases where there is a defect in the proceedings due to jurisdictional error in the subordinate courts which may result in a miscarriage of justice and beats the purpose of the rule of law.

The revisional powers are granted to the High Courts to ensure that there is a remedy to the aggrieved party in case the system of justice falters due to jurisdictional errors. The High Court has been granted the power to revise a case if it is observed that a subordinate court has not acted according to the power vested in it by law under its jurisdiction.

This research extends our knowledge of section 115 of the CPC specifically and Jurisdictional powers of our courts in general. The findings of this study should have a number of important implications for future practicing lawyers and judges if they have any confusions regarding the jurisdictional scope of courts in the Indian legal system and how to solve such problems should they arise.

Bibliography:
  1. https://en.wikipedia.org/wiki/Common_law
  2. https://en.wikipedia.org/wiki/Code_of_Civil_Procedure_(India)
  3. https://blog.ipleaders.in/jurisdiction-of-civil-courts-2/#Introduction
  4. https://www.mondaq.com/advicecentre/content/2810/Determining-Jurisdiction
  5. https://blog.ipleaders.in/appeal-from-orders/
  6. https://bnblegal.com/article/decree-judgment-and-order-under-code-of-civil-procedure-1908/
  7. https://en.wikipedia.org/wiki/Certiorari
Written By: Mohammed Arafat Mujib Khan

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