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S.115 CPC | Decisions Of District Courts Rendered In Appeal/ Revision Are Beyond Revisional Jurisdiction Of High Court: Orissa HC

Jyoti Prakash Dutta
18 April 2022 8:15 AM GMT
S.115 CPC | Decisions Of District Courts Rendered In Appeal/ Revision Are Beyond Revisional Jurisdiction Of High Court: Orissa HC
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Order must have been made under 'original jurisdiction' of District Court to attract the provision.

The Orissa High Court has held that a revision petition under Section 115 of the Code of Civil Procedure ('CPC') is not maintainable before the High Court against an order of District Court which is passed in the appellate or revisional jurisdiction. It clarified that an order must have been made under the 'original jurisdiction' of District Court to attract applicability...

The Orissa High Court has held that a revision petition under Section 115 of the Code of Civil Procedure ('CPC') is not maintainable before the High Court against an order of District Court which is passed in the appellate or revisional jurisdiction. It clarified that an order must have been made under the 'original jurisdiction' of District Court to attract applicability of the provision.

While explaining the true purport of the terms 'other proceedings' appearing under Section 115, a Single Judge Bench of Justice Biswajit Mohanty observed,

"The words "or other proceedings" have to be read ejusdem generis with the words "original suits". In other words, the phrase 'other proceedings' will not cover cases arising out of decisions made in the appeals or revisions. If the District Court has not decided in its original jurisdiction, then such order is not amenable to the revisional jurisdiction of High Court."

Factual Background:

The petitioners had filed a civil suit valued at Rs.49,000/- in the Court of Civil Judge (Jr. Divn.), Dharamgarh for declaration of their right title and interest and confirmation of possession over the suit schedule tank. Further they prayed for declaration of their right to fish, water for irrigation and improvements over the suit tank. They also prayed for permanent injunction against the opposite parties from interfering with the possession and ownership of the plaintiffs. The said suit was decreed.

The opposite parties challenged the said judgment and decree in a Regular First Appeal (RFA) before the Additional District Judge (ADJ), Dharamgarh, tagging the present petitioners as respondents along with a petition under Section 5 of the Limitation Act, 1963 for condonation of delay. The delay condonation petition having been allowed subject to payment of cost of Rs.10,000/-, the said order has been challenged here in this civil revision.

Contentions:

Mr. B.P. Pradhan, advocate appearing for the petitioners, contended that the impugned order passed in a petition for condonation of delay is clearly covered by the phrase 'other proceedings' appearing under Section 115, CPC, as is presently in force in the State of Odisha pursuant to the Code of Civil Procedure (Orissa Amendment) Act, 2010. He further stressed that the impugned order cannot be construed as an order passed in an appeal as no appeal exists in the eyes of law unless the petition under Section 5 of the Limitation Act, 1963 is allowed condoning the delay. Accordingly, he reiterated that the civil revision is maintainable.

Observations and Decision of the Court:

The Court held that in view of the authoritative pronouncement of the Supreme Court in the case of Vishnu Awatar v. Shiv Autar & Ors., (1980) 4 SCC 81, to the effect that the phrase 'other proceedings' occurring in Section 115 of CPC can only mean proceedings of an original nature and the same will not cover decisions pronounced in appeals and revisions.

While referring to the language of Section 115 of the Code of Civil Procedure (Uttar Pradesh Amendment) Act, 1978, which is almost in pari materia with the provision of Section 115 of CPC as in force in State of Odisha so far as the use of phrase "other proceeding" is concerned, the Supreme Court pronounced clearly that the decisions of the District Courts rendered in appeal or revision are beyond revisional jurisdiction of High Court.

However, it was clarified that where original jurisdiction is exercised by District Court, the High Court's revisional power will come into play. The same was authoritatively reiterated by the High Court in Banarasi Devi Saha v. Basudev Lal Dhanuka, Vol. 34 (1992) O.J.D. 462 (Civil), where issue involved was whether a civil revision under Section 115 would lie against a revisional order passed by the District Judge exercising the jurisdiction under the same section as amended. There the Court held that a revision does not lie to the High Court against a revisional order passed by the High Court.

To the contention of the petitioner that the impugned order cannot be construed to have been passed in an appeal, the Court held that as limitation petition has no independent existence bereft of appeal, the contention cannot be countenanced. Further, the petition for condonation of delay was not separately numbered from the appeal. So, it was held that order passed therein cannot be segregated from the appellate jurisdiction of the District Judge and it cannot be said that order passed in the limitation petition was passed in any original or independent proceeding.

In such background since the impugned order pertained to an order passed in connection with a lis styled as appeal, the Civil Revision was held to be not maintainable.

Case Title: Kailash Chandra Panda & Ors. v. State of Orissa & Ors.

Case No.: C.R.P. No. 6 of 2022

Judgment Dated: 30 March 2022

Coram: Justice Biswajit Mohanty

Counsel for the Petitioners: Mr. B.P. Pradhan, Advocate

Counsel for the Respondents: Mr. Sk. Zafrulla, Addl. Standing Counsel

Citation: 2022 LiveLaw (Ori) 48

Click Here To Read/Download Order 


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