- (1.) THE matter is placed on the board for orders as the notices for plaintiff non-petitioners No. 4/2 are received unserved.
(2.) SHRI Alok Garg, the learned counsel for the plaintiff non- petitioners No. 1 and 5 raised a preliminary objection that this revision petition is not maintained in view of the amended provisions of Section 115 of the C.P.C. 1908. Shri K.K. Sharma, the learned counsel for the defendant petitioner, on the other hand, contended that this revision petition is maintainable. In his submission amended provisions of C.P.C. are not applicable to the matters pending on the date on which the same are brought in force. It is urged that this revision petition has been filed much before the amended provisions of the C.P.C. were brought in force. It has next been contended that under the amended Section 115 of the C.P.C. the revision petition is maintainable as in case the order of the learned trial court challenged therein is varied or reversed it will result in final disposal of the proceedings i.e. the application filed by the petitioner under Section 90 of the Indian Evidence Act. As the preliminary objection raised by the learned counsel for the non-petitioners No. 1 and 5 is a pure question of law and to answer the same it is not necessary to go in detail on the factual aspect of the matter, thus the brief narration thereof would be suffice. Prior to the amendment brought into Section 115 of the C.P.C. by Code of Civil Procedure (Amendment) Act 1976 (Act No. 104 of 76) (hereinafter shall be referred to as `the Act, 1976'), this Section read as under, "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. (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."
(3.) VIDE Section 43 of the Code of Civil Procedure (Amendment) Act, 1976, Section 115 is renumbered as sub-section (1) and proviso to sub-section (1), sub-section (2) and explanation have been added which read as under, "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 (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." Clause (b) of proviso to sub-section (1) of Section 115 has been deleted by the Code of Civil Procedure (Amendment) Act, 1999 (Act No. 46 of 1999) (hereinafter shall be referred to as `the Act, 1999') with effect from 1.7.2002 vide its Section 12. Sub- section (3) has been inserted. These two amendments brought into the Section 115 of the C.P.C. by deletion and insertion as aforesaid, read as under, "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. (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." Section 32 of the Code of Civil Procedure (Amendment) Act of 1999 is the provision of Repeal and Saving. Sub-section (1) of Section 32 of the Act aforesaid provides that any amendment made or any provision inserted in the principal Act by State Legislature or High Court before the commencement of this Act shall, except insofar as such amendment or provisions is consistent with the provisions of the principal Act as amended by this Act, stand repealed. ;