- (1.) A learned Judge, noticing conflicting judgments of this Court, has been pleased to refer the following question for our consideration: Whether a revision under Section 115 of the Code of Civil Procedure is maintainable against an order issuing a notice to the Defendant on an application for a grant of a temporary injunction filed under Order 39 Rule 1 and 2 of the Code of Civil Procedure?
(2.) The learned Single Judge, in the referral order, has noted- (A) Following judgments, holding that a civil revision is not maintainable: (1) Rajendra Singh and Ors. v. Brij Mohan Agarwal and Anr, 2003 AIR(All) 180 (2) Debi Das v. State of U.P. and Ors, 2003 3 AWC 1921. (3) Bhagwati Prasad Lohar and Ors. v. State of U.P., 2005 60 AllLR 512 through Secretary of Legal Department, Lucknow, U.P. and Ors. (4) Debi Das (deceased) v. State of U.P. and Ors,2002 2 ARC 565. (B) Following judgments, holding that a civil revision is not maintainable after amendment in Section 115 by U.P. Act No. 14 of 2003: (1) Mohd. Rais Khan v. Shree Naseeb Ullah Khan and Ors, 2006 1 ARC 606. (2) Narendra Kumar v. Nagar Nigam Bareilly and 3 Ors, 2006 63 AllLR 237. (3) Lucknow Diocesan Trust Association v. Sri B.C. Jain and Ors,2006 1 ARC 153. (4) Rajpal Singh v. Richh Pal Singh and Ors, 2006 62 AllLR 278. (5) Writ Petition No. 1609 (M/S) of 2006, Cantonment Board Lucknow and Anr. v. District Judge (Incharge) Lucknow and Ors. decided on 27.4.2006. (C) Following judgments, holding that a civil revision is maintainable: (1) Smt. Urmila Devi and Ors. v. Nagar Nigam,2003 51 AllLR 101 Lucknow through Mukhya Nagar Adhikari. (2) Smt. Soni v. District Judge, Allahabad and Ors, 2002 3 AWC 2469. (3) Jagdish v. State of U.P.,2003 Supp1 RevDec 345 (D) Following judgments, holding that a civil revision is maintainable after amendment in Section 115 by U.P. Act No. 14 of 2003: (1) Algu v. Bhola and Ors, 2006 64 AllLR 383. (2) Guru Dutt v. Anju Khatri and Anr.,2004 55 AllLR 327 (3) Nagar Nigam Gorakhpur v. Gorakhpur Development Authority Gorakhpur and Ors, 2004 4 AWC 3236.
(3.) To answer the issue, we may first refer to Section 115 of the Code of Civil Procedure (hereinafter referred to as the 'Code of Civil Procedure) before its amendment, which read as under: 115. (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- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) 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: 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- (a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. (2) 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. 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. Section 115, after the amendment in Code of Civil Procedure, reads as under: 115. (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- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) 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: 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. (2) 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. (3) 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. Section 115, after the amendment in Uttar Pradesh, by the Code of Civil Procedure (Uttar Pradesh Amendment) Act, 2003, reads as under: 115. Revision. (1) A superior Court may revise an order passed in a case decided in an original suit or other proceeding by a subordinate Court where no appeal lies against the order and where the subordinate Court has- (a) exercised a jurisdiction not vested in it by law, or (a) failed to exercise a jurisdiction so vested, or (b) acted in exercise of its jurisdiction illegally or with material irregularity, (2) A revision application under Sub-section (1), when filed in the High Court, shall contain a certificate on the first page of such application, below the title of the case, to the effect that no revision in the case lies to the district Court but lies only to the High Court either because of valuation or because the order sought to be revised was passed by the district Court. (3) The superior Court shall not, under this section, vary or reverse any order made except where,- (i) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or (ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made. (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 superior Court. Explanation I. In this section,- (i) the expression 'superior Court' means- (a) the district Court, where the valuation of a case decided by a Court subordinate to it does not exceed five lakh rupees; (b) the High Court, where the order sought to be revised was passed in a case decided by the district Court or where the value of the original suit or other proceedings in a case decided by a Court subordinate to the district Court exceed five lakh rupees; (ii) the expression 'order' includes an order deciding an issue in any original suit or other proceedings. Explanation II.- The provisions of this section shall also be applicable to orders passed, before or after the commencement of this section, in original suits or other proceedings instituted before such commencement.;