RANAJIT KUMAR BANERJEE Vs. PANCHANAN ADITYA AND ORS.
HIGH COURT OF CALCUTTA
RANAJIT KUMAR BANERJEE
Panchanan Aditya And Ors.
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Bijitendra Mohan Mitra, J. -
(1.)The present revisional application is directed against Order No. 12 dated 23rd May, 1994 passed by the learned District Judge at Howrah in Civil Revision No. 281 of 1993. By the impugned order the learned District Judge has rejected a petition under Sec. 5 of the Limitation Act for condonation of delay in preference of a revisional petition before the said forum. The connected revision being Civil Revision No. 281 of 1993 is directed against Order No. 47 dated 4.8.1993 by which a petition at the instance of the defendant under order 26 Rule 1 of the Code of Civil Procedure is dismissed on contest. The said order is a composite one and by the same order a petition under Sec. 17(2) &(2A) of the West Bengal Premises Tenancy Act was also disposed of. Being aggrieved by the same the defendant has invoked the concurrent jurisdiction of the learned District Judge under Sec. 115A of the Code of Civil Procedure. By the said section concurrent jurisdiction of revisional powers has been conferred on the District Court. The said revision was filed out of time. The Court on consideration of the facts and circumstances of this case has refused to condone the delay of 32 days in presentation of the revisional application before the District Court.
(2.)The moot point which looms large in the jurisdictional matrix of the controversy is as to whether the impugned order is opened scrutiny of the High Court under Sec. 115 of the Code of Civil Procedure. It is well known in terms of the settled ratio of law as laid down by the Apex Court that revisional powers are the powers of the Appellate Forum. The mutually exclusive jurisdiction of concurrent nature has been assigned to High Court and the District Court within the terms of Sec. 115 and amended provision of Sec. 115A of the Code of Civil Procedure. To recognise a revisional power in the High Court over a revisional order passed by the District Judge would plainly defeat the object of the legislative scheme. The scheme behind the bifurcation of revisional jurisdiction between the High Court and the District Court will lose its significance. If a revisional petition is permitted to the High Court against the revisional order of the District Court, there cannot be a revision against the revisional order passed by the District Court when District Court is exercising its power in coordinate jurisdiction. There cannot be a second revision as the High Court is not vested with revisional jurisdiction under Sec. 115 over a revisional order made by a District Court under Sec. 115A of the Code of Civil Procedure. If a revisional order under Sec. 115A is allowed to be scrutinised by the High Court under Sec. 115 of the Code of Civil Procedure then a fundamental contradiction will be allowed to invade and destroy the division of revisional powers between the High Court and the District Court, as introduced by the amended provision of Sec. 115A of the Code of Civil Procedure. The High Court is not vested with revisional jurisdiction under Sec. 115 over a revisional order made by the District Court under Sec. 115A of the Court of Civil Procedure. The phrase "Case arising out of an original suit" occurring in Sec. 115 does not cover order passed in revision under Sec. 115A. In this context a reference may be made about a Full Bench decision of Allahabad High Court (F.B.) which was approved by the Supreme Court in the case of Vishesh Kumar, Vs. Shanti Prasad, AIR 1980 SC 892 . It will be noticed that a revisional power was formally entrusted exclusively to the highest Court in the State, viz. the High Court, and now the same has been divided in between High Court and District Court. There is now a sharp bifurcation of revisional jurisdiction and the High Court and District Court now enjoy mutually exclusive revisional powers. A reference may be made to the decision of Hara Prasad Singh Vs. Ramswarup, reported in AIR 1973 Allahabad 390 , (F.B.) and in the wake of the controversy that a revisional order made by the District Court was final and was itself amenable to the revisional powers of the High Court and the same was set at rest as the Full Bench has held that no such revision petition would be maintainable before the High Court. In determining whether the Legislature intended a further revision petition to the High Court, regard must be had to the principle that the construction given to a statute should, be such as would advance the object of the legislation and suppress the mischief sought to be cured by it. This Court after taking into account and giving serious consideration to the moot point of controversy and after following the Supreme Court decision as referred to above is of the view that High Court cannot exercise its revisional power under Sec. 115 over an order passed by the District Judge in a revisional proceeding under Sec. 115A of the Code of Civil Procedure as the same would otherwise plainly defeat the object of legislative scheme. Even a plain reading of Sec. 115A as it stands will make it clear that High Court is not vested with revisional jurisdiction under Sec. 115 of the Code of Civil Procedure over any order passed by the District Judge in a revisional proceeding under Sec. 115A of the Code of Civil Procedure as the same is not a case arising out of an original suit. A party litigant is off erred twin alternatives either to invoke the jurisdiction of the High Court under Sec. 115 or to approach the Court of the District Judge under Sec. 115A of the Code of Civil Procedure. Once a party elects a remedy it should not be allowed to fall back upon the alternative remedy which it has consciously abandoned in view of the well known concept of the doctrine of estoppel by election.
(3.)It appears that present petition is one under Sec. 115 of the Code of Civil Procedure and same is a distinct from an application under Art. 227 of the Constitution and one cannot be identified with the other. The scope of Art. 227 is radically different and distinct from the scope of Sec. 115 of the Code of Civil Procedure and they cannot be contemplated as alternatives to each other. Art. 227 of the Constitution has more restricted application and the same is required to be sparingly used only with a view to keep a subordinate Court within the limits of its bounds of jurisdiction. High Court has no doubt the power of superintendence over a subordinate Court functioning in the State, but the same is to be sparingly invoked and it has much more restricted application than Sec. 115 of the Code of Civil Procedure. Sec. 115 after it has suffered an amendment now the proviso has been super added as a result of which even when the order complained of has occasioned failure of justice then only the Court can interfere. The scope and ambit of Sec. 115 of the Code of Civil Procedure is wider and distinct as well as qualitatively different from Art. 227 of the Constitution of India. By any stretch of imagination it cannot be opined that Art. 227 of the Constitution is either complementary or coextensive to that of Sec. 115 of the Code of Civil Procedure. Right of superintendence of the High Court is recognised under the Constitution, in order to assure its control over subordinate Court and Tribunals to lend credence to federal structure of Indian policy.
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