SHARMA, J. - (1.) THE petitioner seeks to challenge the order dated August 1, 1998 of the learned Civil Judge (Senior Division) Sikar whereby the appeal preferred by the defendant non-petitioner under Order 43 Rule 1 CPC was allowed and the order of the learned Additional Munsiff and Judicial Magistrate No. 2 Sikar dated November 17. 1993 granting temporary injunction in favour of the plaintiff petitioner was set-aside.
(2.) BRIEF resume of the facts is that the petitioner is muslim Kaji by caste and is authorised to perform the function of a Kaji (Nikah Khani ). A suit for permanent injunction was instituted by the plaintiff petitioner against the defendant non-petitioner seeking injunction against him restraining the defendant non-petitioner from ceremonising the Nikah Khani and infringing the customary rights of the plaintiff petitioner. An application under Order 39 Rules 1 and 2 CPC was also filed. The learned Addl. Munsiff and Judicial Magistrate No. 2 Sikar allowed the application vide order dated November 17, 1993 restraining the non-petitioner from ceremonising the Nikhan Khani till the decision of the suit. The defendant non-petitio-ner preferred appeal under Order 43 Rule 1 CPC assailing the said order of the learned Addl. Munsiff and Judicial Magistrate No. 2 Sikar. The learned Civil Judge (Senior Division) Sikar vide order dated August 1, 1998 allowed the appeal and set-aside the order of the learned Munsif and rejected the application of the plaintiff petitioner filed under Order 39 Rules 1 and CPC. I have pondered over the submissions advanced by Mr. Syed Manzoor Ali, learned counsel appearing for the petitioner and carefully scanned the material on record. Sec. 4 of the Kazis Act, 1880 provides thus- " 4 Nothing in Act to confer judicial or administrative powers; or to render the presence of Kazi necessary or to prevent any one acting as Kazi-Nothing herein contained, and no appointment made hereunder, shall be deemed- (a) to confer any judicial or administrative powers on any Kazi or Naib Kazi appointed hereunder;or (b) to render the presence of a Kazi or Naib Kazi necessary at the celebration of any marriage or the performance of any rite or ceremony;or (c) to prevent any person discharging any of the functions of a Kazi," A look at sub-section (c) of Sec. 4 of the Kazis Act provides that if Kaji is appointed under the Act, no such appointment shall prevent any person discharging any of the functions of a Kazi. The learned appellate court also referred Sec. 4 of the Kazis Act 1880 and observed that no prima-facie case was established by the plaintiff appellant. In my considered opinion the impugned order is clearly not revisable by this court in view of the specific interdict embodied in the proviso to Sec. 115 (1) of the Code of Civil Procedure. Under the same sub-Section, this court is empowered to call for the records of any case which has been decided by any court subordinate thereto if it had exceeded or failed to exercise the jurisdiction vested in it, or had acted illegally or with material irregularity. The restriction against exercise of such a general power has been incorporated in the proviso which was inserted in the sub-section by the CPC Amendment Act of 1976. That proviso reads thus- " Provided that the High Court shall not under this section, vary or re-verse any order made, or any order deciding an issue, in the course of a suit or other proceedings, except where- (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. "
(3.) AT this stage, I do not want to express any opinion on the merits of the case, but I am of the view that if the impugned order is allowed to stand it would not occasion failure of justice and the petitioner shall not suffer any irreparable in-jury on account of it. In this view of the matter, the provisions contained in Sec. 115 CPC are not attracted in the facts and circumstances of this case. The revision petition is accordingly dismissed summarily. .;