Anil Kumar, J. - (1.) HEARD Sri S.C. Srivastava, learned counsel for the revisionist and perused the record.
(2.) FACTS , in brief, of the present case are that revisionist/plaintiff has filed a suit for permanent injunction registered as Regular Suit No. 758 of 2014 in which an application for temporary injunction under Order 39 Rule 1 and 2 C.P.C. has been moved. The court below/Incharge Civil Judge, (Senior Division) Court No. 15, Sultanpur prior to granting of ex parte injunction order, issue a notice to the defendants vide order dated 7.11.2014. In view of the said factual background, present revision has been filed by the plaintiff/revisionist challenging the order dated 7.11.2014 passed by court below. After hearing learned counsel for revisionist and going through the records, the first and foremost question to be decided in the present case is that against the issuing of notice, whether the present revision under Section 115 of the Code of Civil Procedure is maintainable or not.
(3.) U .P. Ordinance No. 25 of 2003 and 26 of 2003 by which second proviso has been added of Sub section 3 of the Section 115 of the Code of Civil Procedure. According to learned Standing counsel these two ordinance have been incorporated in Section 115 of the Code of Civil Procedure by Civil Procedure Code (U.P. Amendment) Act, 2003 (U.P. Act No. 14 of 2003). The said amendment has received the assent of the President on 19th December 2003 and the amended act has been published in the U.P. gazette Extra Part I, section (Ka), dated 20th December 2003. The original text of Section 115 of the Code of Civil Procedure as stood present under the Central Act as well as after U.P. Amendment of 2003, for convenience are reproduced as under: - - Original Text as per Central Act 115. 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 - (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 proceedings, 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." U.P. Amendment as per Central Act "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 the subordinate court has - (a) exercised a jurisdiction not vested in it by law; or (b) failed to exercise a jurisdiction so vested; or (c) 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 - 1. the district Court, where the valuation of a case decided by a Court subordinate to it does not exceed five lakh rupees; 2. 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.";