- (1.) S. 115, C.P.C. has been substituted altogether by U.P. Amendment Act No. XXXI of 1978 with effect from 1-8-1978. The substituted provision reads as follows : "115. Revision.- The High Court, in cases arising out of original suits or other proceedings of the value of twenty thousand rupees and above, including such suits or other proceedings instituted before 1/08/1978, and the District Court in any other case, including a case arising out of an original suit or other proceedings instituted before such date, may call for the record of any case which has been decided by any court subordinate to such High Court or District Court, as the case may be, and in which no appeal lies thereto, and 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 or the District Court, as the case may be, may make such order in the case as it thinks fit : Provided that in respect of cases arising out of original suits or other proceedings of any valuation, decided by the District Court, the High Court alone shall be competent to make an order under this section : Provided further that the High Court or the District Court shall not under this section, vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceeding, except where - (i) The order, if so varied or reversed, would finally dispose of the suit or other proceedings; or (ii) the order, If allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. Explanation.- In this section, the expression 'any case which has been decided' includes any order deciding an issue in the course of a suit or other proceedings."
(2.) A Full Bench considered the meaning and effect of this provision in Jupiter Chit Fund (Pvt.) Ltd. v. Dwarka Diesh Dayal, AIR 1979 All 218. Insofar as it is relevnt for our purposes two principles enunciated in the Full Bench are:- (1) Against orders made in suits valued at less than rupees twenty thousand a revision lies only to the District Judge and against the orders of the District Judge in revision no revision lies to High Court. (2) Against an order made by the District Judge in an appeal no revision lies to the High Court provided the suit is valued at less than rupees twenty thousand. Both these aspects were affirmed by the Supreme Court in Vishesh Kumar v. Shanti Prasad AIR 1980 SC 892 and Sri Vishnu Awatar v. Shiv Awatar, AIR 1980 SC 1575 respectively. In Vishesh Kumar v. Shanti Prasad, the Supreme Court held that S.115 as amended by U.P. Amendment Act assigns mutually exclusive jurisdiction to High Court and District Court and that recognising a revisional power in High Court over a revisional order passed by the District Judge would defeat the legislative scheme and object underlying it. In vishnu Awatar v. Shiv Awatar it was held that against an order of the District Judge made in appeal no revision lies to the High Court provided the suit is valued at less than rupees twenty thousand. This has been the well accepted law in this State. However, in a case arising from this State reported in Qamaruddin v. Rasul Baksh 1990 All WC 308 the Supreme Court disposed of the matter without noticing the U.P. amendment. It appears that by an unfortunate omission it was not brought to the notice of the Supreme Court that the said case was from U.P. and was governed by S. 115 as substituted by U.P. Amendment Act. The matter was disposed of as if it arises under S.115 as enacted by the Central Legislature. The Supreme Court held that against an order made under O. 39 R. 1 and 2 an appeal lies under O. 43 R. 1 to the District Judge and the order of the District Judge on such appeal is amenable to the revisional jurisdiction of this Court u/ S. 115. In that view of the matter the Court expressed its surprise as to how the High Court could have entertained a writ petition under Art. 226 of the Constitution for issuance of a writ of certiorari and mandamus against such an appellate order of the District Judge. After narrating the facts, the appeal before the Supreme Court was disposed of in the following words : "After hearing learned counsel for the parties we are surprised as to how the High Court entertained the writ petition under Art. 226 of the Constitution for issuing a writ of certiorari and mandamus. When a suit is filed before a Civil Court having jurisdiction to entertain the same it may issue interim injunction and the party aggrieved may pursue its remedy before the Appellate Court and if it is further aggrieved it may invoke the revisional jurisdiction of the High Court under the Code of Civil Procedure. Ordinarily an interlocutory order passed in a civil suit is not amenable to extraordinary jurisdiction of the High Court under Art. 226 of the Constitution. More so when the aggrieved party has not exhausted the remedy available to it under the Code of Civil Procedure. The High Court in the instant case failed to realise that the defendant respondents had not approached the High Court u/S. 115 of the Code of Civil Procedure. The question whether an interim injunction should be granted or not is discretionary in nature, although the exercise of discretion is regulated by the principles set out in O. 39, Rules 1 and 2 of the Code of Civil Procedure. If the order of injunction is passed by a competent court having jurisdiction in the matter, it is not permissible for the High Court under Art. 226 of the Constitution to quash the same by issuing a writ of certiorari. In the instant case the learned single Judge of the High Court further failed to realise that a writ of mandamus could not be issued in this case. A writ of mandamus cannot be issued to a private individual unless he is under a statutory duty to perform a public duty. The dispute involved in the instant case was entirely between two private parties, which could not be a subject matter of writ of mandamus under Art. 226 of the Constitution. The learned single Judge ignored this basic principle of writ jurisdiction conferred on the High Court under Art. 226 of the Constitution. There was no occasion or justification for issue of a writ of certiorari or mandamus. The High Court committed serious error of jurisdiction in interfering with the order of the District Judge. We, accordingly, allow the appeal, set aside the order of the High Court dated 5/08/1988 and restore the order of the District Judge, dated 3-2-1988. The appellant is entitled to his costs."
(3.) It is this judgment which has led Hon. R. A. Sharma, J. to refer these two writ petitions to a larger Bench. The learned Judge was of the opinion that inasmuch as in Qamruddin's case (1990 All WC 308), the Supreme Court has declared that a revision is maintainable against an appellate order of the District Judge made under O.43, though without noticing the U.P. Amendment Act, the matter requires to be considered by a larger Bench to determine the effect of the said judgment on the state of law obtaining in this State.;