Attar Singh v. Nitin Shokeen & Anr.

1. This is an Application filed by the Petitioner seeking restoration of the present Petition.

2. In view of the order that the Court proposes to pass today and for the reasons as stated in the Application, the present Petition is restored.

3. The Application stands disposed of.

4. The present Petition has been filed by the Petitioner under Section 115 of the Code of Civil Procedure, 1908 (‘CPC’) seeking to challenge an order dated 01.07.2022 passed by Ld. ADJ-03, Saket Court, New Delhi [hereinafter referred to as ‘Impugned Order’]. By the Impugned Order, an Application filed by the Petitioner under Order I Rule 10 of the CPC has been dismissed.

5. The maintainability of this Petition is a subject matter of challenge. It is no longer res integra that the provisions of Section 115 of the CPC cannot be invoked except where an order, if made in favour of the revisionist, would have finally disposed of the suit or proceedings. This is set out in the proviso to Section 115 of the CPC below: “Section 115 – Revision 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 appears (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: 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.” [Emphasis Supplied] 5.[1] The Supreme Court in Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers & Ors.[1] has held that unless the order if given in favour of the party applying for the revision would have given finality to the suit or other proceeding, a revision is not maintainable. The relevant extract of the Shiv Shakti case is set out below:

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 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 change the mode of procedure is altered, the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation.” [Emphasis Supplied]

6. After some arguments, learned Counsel for the Petitioner seeks and is granted permission to withdraw the present Petition with liberty to agitate all the contentions before the appropriate forum in accordance with law.

7. The present Petition is accordingly dismissed as withdrawn with the liberty as prayed for.