- (1.)THE present writ petitions along with about three hundred other writ petitions are listed before this Court for admission wherein interlocutory orders passed by the Civil Courts during pendency of the suits are impugned. Majority of these writ petitions are filed after withdrawing civil revision applications, which were filed prior to amendment to section 115 of the Code of Civil Procedure wherein same orders, which are impugned in these writ petitions, were impugned and, therefore, before adjudicating the issue on merits, at the outset the Bar was called upon to address this Court on the legal issue as to the power under article 227 of the Constitution of India vested in the High Court, whether high Court can refuse to exercise the same, which otherwise would defeat the mandate of statutory provisions of law contained in section 115 of the Code of Civil Procedure, which stands substantially amended with effect from 1-7-2002 and interference by this Court under section 115 of the Code is called for only if order is made by this Court in favour of the party applying for revision would finally dispose of the suit or other proceedings.
(2.)THE issue was addressed by learned Counsel Shri Anjan De, Shri sunil Manohar, Shri Kaptan, Shri Sundaram, Mrs. Sirpurkar, Shri Khapre, shri Mehadia and Shri Vyawahare. The arguments and legal contentions advanced by the learned respective Counsel'and the judgments of the apex Court and High Court cited and relied upon by them are summarised as follows :.
(3.)THE learned Counsel contend that power under Article 227 of the constitution is a constitutional power vested in the High Court and amendment to section 115 neither curtails the said power nor the said power is affected in any way by such amendment. It is further contended that recommendations given by Law Commission of India for deletion of section 115 are relevant for this purpose and considered by this Court in the case of (Rajabhau s/o, Mahadeorao Rahate v. Dinkar s/o. Shantaram ingole) The relevant portion of para (19) of the said judgment is reproduced thus :
"the Joint Committee of the Parliament considered this aspect also in great details and decided to retain section 115 in spite of the recommendation of the Law Commission of India itself, but was of the view that certain modifications to that section are necessary. The observations of the Joint Committee are also noteworthy. They throw a substantial light on intention of the Legislature in amending section 115 as it did in 1976. "the question whether it is at all necessary to retain section 115 was carefully considered by the Committee. The Law Commission has expressed the view that, in view of Article 227 of the constitution, section 115 of the Code is no longer necessary. The committee, however, feel that remedy provided by Article 227 of the Constitution is likely to cause more delay and involve more expenditure. In remedy provided in section 115 is, on the other hand, cheap and easy. The Committee, therefore, feel that, in addition to the restrictions contained in section 115, an overall restriction on the scope of applications for revision against interlocutory orders should be imposed. Having regard to the recommendations made by the Law Commission in its Fourteenth and Twenty-Seventh Reports, the Committee recommended that section 115 of the Code should be retained subject to the modification that no revision application shall lie against an interlocutory order unless either of the following conditions is satisfied, namely : (i) that if the orders were made in favour of the applicant, it would finally dispose of the suit or other proceeding, or (ii) that the order, if allowed to stand, is likely to occasion failure of justice or cause an irreparable injury, the Committee feel that expression case decided should be defined so that the doubt as to whether section 115 applies to an interlocutory order may be set at rest. "
Learned Counsel contend that while recommending deletion of section 115, the Law Commission expressed that remedy provided under article 227 of the Constitution is very much available to the aggrieved litigant, even if section 115 of the Civil Procedure Code is altogether deleted against such cause of actions.