Anjani Kumar, J. - (1.) The revisionist applicant by means of this revision challenges the order passed by the trial court dated 22.8.2005, whereby the trial court recorded a finding that in the facts and circumstances of the case no ex parte temporary injunction can be granted unless the other side is heard.
(2.) According to the amended provisions of Code of Civil Procedure as amended in the State of U. P. the exercise of power under Section 115 of the Code of Civil Procedure is subject to the following conditions, namely: 115. Revision. --The High Court, in case arising out of original suits or other proceedings (of the value exceeding one lakh rupees or such higher amount not exceeding five lakh rupees as the High Court may from time to time fix, by notification published in the Official Gazette including such suits or other proceedings instituted before the date of commencement of the U. P. Civil Laws (Amendment) Act, 1991, or as the case may be, the date of commencement of such notification), 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 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 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 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 was made: Provided also that where a proceeding of the nature in which the District Court may call for the record and pass orders under this section was pending immediately before the relevant date of commencement referred to above, in the High Court, such Court shall proceed to dispose of the same. 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 proceeding
(3.) Learned Counsel for the revisionist has relied upon a decision of the Hon'ble Apex Court in A. Venkatasubbiah Naidu v. Chellappan and Ors. AIR2000 SC 3032 , 2000 (5 )ALT44 (SC ), 2001 (1 )BLJR663 , 2000 (4 )CTC358 , (2001 )1 GLR687 , JT2000 (10 )SC 599 , (2001 )1 MLJ75 (SC ), RLW2001 (1 )SC 84 , 2000 (6 )SCALE398 , (2000 )7 SCC695 , [2000 ]Supp3 SCR303 , 2000 (2 )UJ1300 (SC ). The aforesaid decision deals with the provisions of Section 115 of the Code of Civil Procedure which is not similar to that which is applicable to the State of U. P. the aforesaid decision relied upon by learned Counsel for the petitioner in my opinion, are not applicable to the present case particularly in view of the provisions of second proviso which is quoted below: 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 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 was made:;