R K Tiwari @ R K Tripathi v. Naveen Capoor

1. The present Petition has been filed under Section 115 of the Code of Civil Procedure, 1908 [hereinafter referred to as “CPC”] seeking to challenge the order dated 18.04.2023 passed by the learned ADJ-05, South, Saket Courts, New Delhi [hereinafter referred to as “Impugned Order”]. By the Impugned Order, the Petitioner was denied the right to further crossexamination before the learned Trial Court.

2. Learned Counsel for the Respondent submits that the Petition is not maintainable in view of the proviso of Section 115, CPC. In terms of the proviso unless the lis is finally decided by the Court, the revisionary jurisdiction of the Court cannot be entertained.

3. 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] 3.[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:

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.” 3.[2] In the case of Gayatri Devi v. Shashi Pal Singh[2], the Supreme Court while relying on the Shiv Shakti Coop. Housing Society case has held that an order interim in nature or which does not finally decide the lis, cannot be challenged by way of a revision under Section 115 CPC. “14. In the first place, it appears to us that the revision petition before the High Court was wholly incompetent in view of the amended provision of Section 115 CPC. The revision petition was entertained at the stage of interlocutory proceedings. As laid down by this Court in Shiv Shakti Coop. Housing Society v. Swaraj Developers [(2003) 6 SCC 659] an order interim in nature or which does not finally decide the lis, cannot be challenged by way of a revision under Section 115 CPC.”

4. The order under challenge is concededly an interim order where the opportunity to extend for cross-examination was denied.

5. Concededly, the Impugned Order is not an order which is amenable to challenge under Section 115 of the CPC.

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

7. The present Petition is accordingly dismissed as withdrawn with the liberty as prayed for, albeit in accordance with law.

TARA VITASTA GANJU, J JULY 23, 2025