KOTHARI, J. - (1.) THIS writ petition under Article 227 of the Constitution of India is directed against the order dtd. 26. 5. 2008 passed by the learned trial Court rejecting the application of the defendant filed under Order 8 rule 1a (3) of the C. P. C. seeking to produce on record certain additional documents in an eviction matter.
(2.) THE suit filed by the plaintiff was for seeking eviction of the suit shop in question on the ground of personal and bonafide necessary of the landlord. After the evidence of the plaintiff- defendant was complete on 17. 11. 2006 and the case was fixed for final arguments on 8. 12. 2006 after taking several opportunities for arguing the case, the defendant filed the aforesaid application under Order 8 Rule 1 (A) (3) of the C. P. C. and the said defendant wanted to produce the documents viz. application for registration under the Sales Tax Law by one M/s. Arihant Metals, proprietorship concern of father of the plaintiff, which was purportedly signed as Manager by the plaintiff; the marriage invitation card showing marriage of the plaintiff and his brother on 25. 2. 2005 and 27. 2. 2005 respectively and a copy of the registered sale-deed of the suit property in favour of the plaintiff and his brother, certified copy whereof was issued by the Office of Sub-Registrar, Jodhpur on 28. 9. 2007. The learned counsel for the petitioner-defendant submits that the said documents were relevant for showing that the plaintiff had no personal and bonafide need of the shop in question and therefore, the same deserve to be taken on record and the learned trial Court has erred in rejecting the application. He submitted that after the amendment of C. P. C. w. e. f. 1. 7. 2002, the rule relating to production of additional documents has been liberalized with simultaneous deletion of Order 13 Rule 2 w. e. f. from the same date which provided for effect of non-production of documents, therefore, the learned trial Court ought to have allowed production of these documents and cross-examination of the plaintiff though the matter was fixed for final arguments. He, therefore, prays for quashing of the impugned order. I have heard the learned counsel at length. After amendment of Section 115 C. P. C. relating to revision by Act. No. 104 of 1976 w. e. f. 1. 2. 1977 and insertion of proviso w. e. f. 1. 7. 2002 providing that 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. After the said proviso, the revision petitions against the interlocutory orders passed by the learned trial Courts are not maintainable. The said amendment w. e. f. 1. 7. 2002 has also rendered the revision petition already filed before 1. 7. 2002 against the interlocutory orders as not maintainable. This was so held by the Hon'ble Supreme Court in the case of Shiv Shakti Coop. Housing Society, Nagpur vs. Swaraj Developers and others reported in (2003) 6 SCC 659. It would be appropriate to reproduce para 32, 34 and 35 of the said judgment:      " 32. A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is "yes" then the revision is maintainable. But on the contrary, if the answer is "no" then the revision is not maintainable. Therefore, if the impugned order is interim in nature or does not finally decide the lis, the revision will not maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject-matter of revision under Section 115. There is marked distinction in the language of Section 97 (3) of the Old Amendment Act and Section 32 (2) (i) of the Amendment Act. While in the former, there was a clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in Section 32 (2) (i ). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory only the right of proceeding is altered, the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation. '' 34. In view of what has been stated above, the inevitable conclusion is that the High Courts were right in the conclusion about non-maintainability of revision applications. 35. It was submitted by the learned counsel for the appellants that even if the revision application are held to be not maintainable, there should not be a bar on challenge being made Article 227 of the Constitution. It was submitted that an opportunity may be granted to the appellant to avail the remedy. 36. If any remedy is available to a party under any statute no liberty is necessary to be granted for availing the same. If the appellants avail such remedy, the same shall be dealt with in accordance with law. " In the same sequence, another reported judgment of Hon'ble Supreme Court in the case of Surya Dev Rai vs. Ram Chander Rai and Ors. reported in (2003) (6) SCC 675 in the same volume of SCC, follows the judgment in Shiv Shakti's case (supra) and the coordinate bench of the Hon'ble Supreme Court held that even though the revision petition under Section 115 C. P. C. against the interlocutory order was not maintainable, the remedy under Article 226 and 227 of the Constitution of India could still be available because that was a constitutional remedy and that could not be taken away by amendment in the Civil Procedure Code. The Hon'ble Supreme Court held in the said judgment as under:      " The power of the High Court under Articles 226 and 227 of the Constitution is always in addition to the revisional jurisdiction conferred on it. The curtailment of revisional jurisdiction of the High Court under Section 115 C. P. C. by Amendment Act 46 of 1999 does not take away- and could not have taken away- the constitutional jurisdiction of the High Court to issue a writ of certiorari to a Civil Court, nor is the power of superintendence conferred on the High Court under Article 227 of the Constitution taken away or whitted down. The power exists, untrammelled by the amendment in Section 115 CPC, and is available to be exercised subject to rules of self-discipline and practice which are well settled. " Section 115 CPC, as amended by Act 46 of 1999, does not now permit a revision petition being filed against an order disposing of an appeal against the order of the trial Court whether confirming, reversing or modifying the order of injunction granted by the trial Court. The reason is that the order of the High Court passed either way would not have the effect of finally disposing of the suit or other proceedings. The exercise of revisional jurisdiction in such a case is taken away by the substitution of the proviso to Section 115 (1) CPC by said Amendment Act 46 of 1999. The amendment is based on the Malimath Committee's recommendations. The Committee was of the opinion that the expression employed in Section 115 CPC, which enables interference in revision on the ground that the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made, left open wide scope for the exercise of the revisional power with all types of interlocutory orders and this was substantially contributing towards delay in the disposal of cases. The Committee did not favour denuding the High Court of the power of revision but strongly felt that the power should be suitably curtailed. The effect of erstwhile clause (b) of the proviso being deleted and a new proviso having been inserted, is that the revisional jurisdiction, in respect of an interlocutory order passed in a trial or other proceedings, is substantially curtailed. The revisional jurisdiction cannot be exercised unless the requirement of the proviso is satisfied. Interlocutory orders, passed by the courts subordinate to the High Court against which remedy of revision has been excluded by the CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari ad supervisory jurisdiction of the High Court under Articles 226 and 227. Hence, the order of the High Court refusing to entertain the petition filed by the appellant holding it not maintainable, is set aside. The petitioner shall stand restored on the file of the High Court, to be dealt with by an appropriate Bench, consistently with the rules of the High Court, depending on whether the petitioner before the High Court is seeking a writ of certiorari or invoking the supervisory jurisdiction of the High Court. "
(3.) IN para 26 of the said judgment is Surya Dev Rai's case (supra), the Hon'ble Supreme Court held as under:      " Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. In para 38, the Hon'ble Apex Court concluded thus:      " The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. In the exercise of certiorari jurisdiction the High Court proceeds on an assumption that a court which has jurisdiction over a subject matter has the jurisdiction to decide wrongly as well as rightly. The High Court would not, therefore, for the purpose of certiorari assign it itself the role of an appellate Court and step into reappreciating or evaluating the evidence and substitute its own findings in place of those arrived at by the inferior Court. " The very purpose of restricting the scope of revision under Section 115 C. P. C. was to curtail the length of trial and to achieve the object of early disposal of the civil suits which had become notoriously famous for encapsulating generation within them. Every now and then, against interlocutory orders, revision petitions were filed before the High Courts not only lengthening the time of trial before the trial Court but also added to the burden of the High Courts. While it is true that the power of issuing writ or certiorari under Article 226 and of superintendence under Article 227 of the Constitution of India could not have been curtailed by said amendment of Section 115 C. P. C. as held by the Hon'ble Supreme Court in the case of Ram Chander Rai (supra), the ground reality is that what could not be done by filing revision petition, after amendment w. e. f. 1. 7. 2002 is now done by invariably and indiscriminately filing writ petitions under Article 226 and 227 of the Constitution of India and the fact is that what was earlier tilted as revision petition under Section 115 C. P. C. is now titled as writ petition under Article 226/227 of the Constitution of India against the same interlocutory orders. The fact situation is that burden remains the same and very objective of the amendment in the CPC is frustrated by litigants and lawyers ingenuity finding a bypass into a remedy under Article 226/227 of the Constitution of India. ;