- (1.) HEARD the parties. Title Suit No. 104 of 2002 has been filed by the opposite party No. 1 for dissolution of the partnership firm, namely, Shiva Fuel Industries with further direction to defendant No. 1 to render the accounts of the said firm and for injunction restraining him from doing any business, including taking supply of coal from the defendant No. 2 and sell the same in the market.
(2.) DURING pendency of the suit, aseparate petition under Order XXXIX Rules 1 and 2, read with Section 151 of the Code of Civil Procedure was filed by the plaintiff for interim injunction restraining the defendant No. 2 from issuing delivery orders to the defendant No. 1 to lift the stock of coal from the collieries. The defendant No. 1 filed show cause in the interim injunction matter and by order dated 12.8.2002 the trial Court rejected the prayer for interim injunction on the ground that both the plaintiff and the defendant No. 1 were partners to the extent of half and half and the plaintiff had paid 50% of the capital to the defendant No. 1 and, therefore. claim of the defendant No. 1 that the plaintiff did not pay the entire amount of Rs. 10,50,000/ -was not acceptable at this stage. The plaintiff was found to have prima facie case but balance of convenience was not in his favour because he had dissolved the unregistered firm by notice dated 5.2.2002 asper condition of the partnership deed and so there was no loss or irreparable injury to him, which cannot be compensated in terms of money. He was held not entitled to any interim order of injunction in the aforesaid terms. The plaintiff preferred Misc. Appeal No. 15 of 2002, under Order 43 Rule 1 of the Code of Civil Procedure, against the said order which has been allowed by the impugned order dated 5.7,2003, by the Additional Judicial Commissioner, Ranchi, and the order of the trial Court has been set aside and the defendant -respondent No.1 has been restrained by temporary injunction from doing any business including taking supply of coal from the defendant -respondent No. 2 and selling it in the market. They were also restrained from lifting coal from the collieries on the basis of the delivery orders till disposal of the suit. The defendant No. 1 has, therefore, preferred the present Civil Revision Application, under Section 115 of the Code of Civil Procedure, challenging the aforesaid order dated 5.7.2003.
(3.) AFTER coming into force of the Civil Procedure Code Amendment Act, 2002, with effect from 1.7.2002, it came to be considered before the Apex Court as to whether under the amended proviso to Section 115 a revision application was maintainable against the interlocutory orders, passed in the suit or proceedings by the Courts below in Shiv Shakti Coop. Housing Society, Nagpur V/s. Swaraj Development and others, (2003) 6 SCC 659 : 2003 (4) JCR 22 (SC). In the said case, the Apex Court also considered as to whether applications for injunction and the like which formed the subject matter of the revisions related to the expression "other proceedings" and even if the amended provision applied, disposal of the revision would have amounted final disposal of such "other proceedings". It was observed that Section 115 is essentially a source of power for the High Court to supervise the subordinate Courts. It does not in any way confer a right on alitigant, aggrieved by any order of the Subordinate Court, to approach the High Court for relief. The scope for making a revision under Section 115 is not linked with a substantive right. The Apex Court in the said case held as under : '' "A plaint reading of Section 115 asit stand 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 be 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 anintent is significantly absent in Section32(2)(i). The amendment relates to procedure. No person has a vested right in a course of proceeding. He has only right of proceeding in the matter prescribed. If by a statutory change the mode of procedure is altered, the parties are to proceed according to the altered mode, without exception, unless there is different stipulation." ;