Chandu S/O Jagannath Ambekar And ... vs Digambar S/O Kisanrao Kulkarni ...
2004 Latest Caselaw 449 Bom

JUDGMENT

1. The Applicants had filed Regular Civil Suit No. 82 of 1984 in the Court of the learned Civil Judge, Junior Division at Vaijapur for declaration of title and injunction. The said suit came to be dismissed in default on 6th November, 1993 and, therefore, an application for restoration came to be filed belatedly on 6th June, 1994 along with an application for condonation of delay which came to be listed as M.A.R.J.I. No. 12 of 1994. This application for condonation of delay in filing the restoration application came to be rejected by the Court below on 21st September, 1995 and the same order has been challenged in this revision which was admitted on 8th January, 1997 and stay to the proceedings continued all along.

2. On 25th June, 2003 the learned Single Judge of this Court recorded his disagreement with the view earlier taken by another Single Bench in the case of Chandrakant v. M.K. Associates, 2003 (1) Mh.L.J. 1011 and, therefore, took a view that a revision application against rejection of an application for condonation of delay appear to be entertainable in view of the opening part of Section 115(1) of the Code of Civil Procedure (the Code, for short) subject to the limitations stated in the said order. The learned Single Judge, therefore, framed the following issue for reference to a larger bench and after this revision application was placed before the Honourable the Chief Justice a reference has been made to us for decision.

"Whether the revision petition against rejection of application for condonation of the delay in institution of proceedings passed by subordinate Courts are maintainable by virtue of Section 115(1), in view of the fact that rejection of such application has an effect of "case decided" i.e. disposal of proceedings as time-barred by a finding on the issue of limitation."

3. Shri Patni, the learned counsel for the applicant Shri Gangapurwala, the learned amicus curiae submitted that the view taken by this Court in the case of Chandrakant (supra) deserve reconsideration and an order rejecting the application for condonation of delay filed in an appeal or a restoration application is an order of final nature and hence such an order can be challenged in a revision application under Section 115 of the Code. Shri Chapalgaonkar, learned counsel appearing for the respondents on the other hand supported the view taken by this Court in Chandrakant's case (supra) and submitted that the language of the amended Section 115 of the Code is very specific and there is no ambiguity so as to doubt the view pronounced in Chandrakant's case (supra).

4. In Chandrakant's case (supra) Civil Miscellaneous Application was filed for condonation of delay in filing an appeal before the District Court and the same application came to be rejected by the learned District Judge on the ground that good and sufficient reasons were not made out to condone the delay. The said order rejecting the application for condonation of delay came to be challenged by filing a revision petition under Section 115 of the Code. By order dated 3rd December, 2002 it was held that the revision was maintainable notwithstanding the amendments in Section 115 of the Code. However, before the judgment was signed it was pointed out to the Court that the view taken was required to be reconsidered and accordingly by the judgment (supra) it was held that (a) the consequence of dismissing the application for condonation of delay in filing the appeal in law is one of disposing of the appeal as time-barred and, therefore, one passed in appeal itself; (b) revision application for challenging an order dismissing the application for condonation of delay moved in an appeal is not tenable under the amended Section 115 of the Code.

5. In the case at hand, the application for condonation of delay was moved in an application for restoration of the suit, which was dismissed and if this application was allowed the trial Court was required to decide the restoration application on merit and the result could have been either i.e. the restoration application could been rejected or allowed. If the restoration application could be allowed, the dismissed suit could have been restored to the file from the stage it was dismissed. By rejecting the application for condonation of delay the restoration application could not be registered. An application for condonation of delay moved in an appeal cannot stand exactly on the same footings of an application moved in an application for restoration of the suit or any other proceedings. In an appeal, if the application for condonation of delay is rejected it amounts to a final order and the appellant goes out of the Court.

6. Shri Patni, the learned counsel posed the following two questions for our considerations :

(i)      Whether a revision application under Section 115 of the Code challenging the order rejecting an application for condonation of delay filed in an appeal is maintainable, and
 

(ii)    Whether such an application for condonation of delay in filing an appeal is an independent proceeding from the appeal or restoration application in a suit/appeal.
 

7.   Section   115   of the Code,  as  amended by Civil  Procedure Code (Amendment) Act, 1976 (No. 104 of 1976), reads as under :--
  

"Section 115. Revision.-- (1) The High Court may call for the record of any case which has been decided by Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appeals --
  

(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 proceedings, 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.
 

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.
 

(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.
 

Explanation.-- In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding."
 

8. It was submitted that the order rejecting an application for condonation of delay filed in an appeal before the lower Court results in finality of the appeal proceedings itself and it not being an interlocutory order, can be challenged by filing a revision petition under Section 115 of the Code. In short, it was contended that a revision petition can be moved before this Court against any order which is not an interlocutory order. On the other hand, Shri Chapalgaonkar, the learned counsel for the respondent submitted that the language of the proviso below Sub-section (1) of Section 115 is unambiguous and the words employed therein cannot be deleted or made redundant by the judicial interpretations.

9. The Law Commission of India had recommended deletion of Section 115 as in its opinion the said provisions were analogous to the provision of Article 227 of the Constitution and the litigants would not be prejudiced in any way if the entire Section was deleted. The Joint Committee of the Parliament discussed these recommendations and only thought it proper to make certain modifications in the section. That led to the amendment of Section 115 and the deliberations of the committee are reflected in the following words :

"The Committee, however, 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 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 a failure of justice or cause in irreparable injury."
 

It is pertinent to note that Clause (ii) as reproduced above, has not been incorporated in the amended Section 115 w.e.f. 1st July, 2002.
 

10. It is well settled that the right of appeal is a substantial right but there is no such substantive right in making an application under Section 115 of the Code. Section 115 is essentially a source of power to the High Court to supervise the subordinate Courts. It does not, in any way, confer a right on a litigant aggrieved by any order of the subordinate Court to approach the High Court for relief and thus the scope for making a revision under Section 115 is not linked with a substantive right. In the case of Institute of Chartered Accountants of India v. Price Waterhouse and Anr., AIR 1998 SC 74 it is held that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it.

In the case of State of Gujarat and Ors. v. Dilipbhai Nathjibhai Patel and Anr., it is stated, thus :

"The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided."

While interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. The legislative casus omissus cannot be supplied by a judicial interpretative process. Commissioner of Sales Tax, M.P. v. Popular Trading Co., Ujjain, AIR 2000 SC 1578.

11. The language of the proviso added below, Sub-section (1) of Section 115 of the Code has to be read as it is and it is not permissible to delete any words therein. It governs the scope to maintain the revision applications under Section 115 and the tests for the same are set out therein. For entertaining a revision application it is necessary to examine at the first instance whether the order, if it had been made in favour of the party making revision would have finally disposed of the suit or other proceeding. When an application for condonation of delay, filed in a proposed appeal, is rejected, the said order is a final order for the applicant/appellant but that is not the test for maintaining a revision application under Section 115. The order must be such that if it had been made in favour of the party applying for revision it would have finally disposed of the suit or other proceeding. This condition would indicate that the revision applicant before the High Court must demonstrate that the order of the trial Court, if it had been made in his favour would have finally disposed of the suit or other proceeding. In the instant case if the order was passed by the trial Court in favour of the applicant the restoration application could have been decided on merits and, therefore, it would not result in finally disposing of the suit. On the other hand, if the delay condonation application is allowed by the lower Court, a revision against such an order can be maintained by the respondent opponent in such a case because if the Court below had made an order on such an application in favour of the respondent/defendant the proceeding could have been finally disposed of. The interpretation carved out by the learned Single Judge in Chandrakant's case (supra) of the language employed in the proviso below Sub-section (1) of Section 115 is in keeping with the legislative intent and it is not permissible to hold that a revision can be maintained against any order which has finally disposed of a proceeding or it could not be termed as an interlocutory order.

12. In the case of Shiv Shakti Co-op. Housing Society, Nagpur v. Swaraj Developers and Ors., while interpreting the amended provision of Section 115 it has been observed, inter alia, as under :

"32. A plain reading of Section 115 as it stands 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 of 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. ............"

13. Now coming to the second issue argued before us by Shri Patni, it is to be noted that by rejection of the application for condonation of delay, the application filed belatedly for restoration of the suit dismissed ex-parte, came to an end without being registered and decided on merits. When an application for condonation of delay in filing an appeal is rejected, the proposed appeal does not even get registered and the appellant, thus, goes out of the Court. It was, therefore, contended that an application for condonation of delay is required to be treated as an independent proceeding and not an application in a proposed appeal or a suit or any other proceeding. By referring to Rule 3A of Order XLI of the Code and the decision of this Court in the case of Bhagwan s/o Ganpatrao Godsay etc. etc. v. Kachrulal Bastimal Sandariya etc. etc, 1987 (2) BCR 153 it was contended that until the application for condonation of delay is decided the appeal does not get registered and it remains only a proposed appeal and, therefore, it cannot be treated to be a part of the appeal proceedings. This issue is no more res-integra as has been held by this Court in Chandrakant's case (supra) by relying upon the law laid down in the case of Rani Choudhury v. Lt. Col. Suraj Jit Choudhury, . It is a well settled position in law that an appeal presented out of time is an appeal and an order of dismissing it as time-barred is one passed in the appeal. Even the language of Rule 3A in Order XLI clearly shows that an application of condonation of delay is an accompaniment in an appeal which is presented after the expiry of the period of limitation specified therefor. As per Rule 11A of Order XLI of the Code every appeal shall be heard under Rule 11 as expeditiously as possible and endeavour shall be made to conclude such hearing within sixty days from the date on which the memorandum of appeal is filed. Sub-rule (i) of Rule 11 of Order XLI has been amended by Act No. 46 of 1999 and with effect from 1st July, 2002. The status of an application for condonation of delay that was filed in the instant case, was not an independent proceeding. The revision petitioner had submitted a restoration application in his dismissed suit and, therefore, it cannot be treated to be an independent proceeding. The application for condonation of delay was an accompaniment to the restoration application and unless the later was presented there was no occasion to file the application for condonation of delay. We are in agreement with the view recorded in Chandrakant's case (supra) on this issue as well.

14. Even otherwise, the present revision petitioner could not be remediless merely because the revision petition under Section 115 of the Code was not tenable. The remedy of moving a writ petition under Article 227 of Constitution continues to be available. Where a statutory right to file an appeal has been provided for, it is not open to this Court to entertain a petition under Article 227 of the Constitution but where such a statutory remedy is not available a petition under Article 227 of the constitution, against an order passed by the subordinate Court/Tribunal can be entertained subject to the limitations of supervisory jurisdiction conferred on the High Court which has been succinctly set out by a three Judge Bench in the case of Sadhana Lodh v. National Insurance Company Ltd. and Anr., in the following words :

"7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior Court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate Court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior Court or tribunal purports to have passed the order or to correct errors of law in the decision,"

In this regard we may also refer to a more recent decision in the case of Ranjeet Singh v. Ravi Prakash, 2004 (2) Supreme 582.

15. In the result, we answer both the issues framed in para No. 6 in the negative and record our agreement with the view taken by the learned Single Judge in Chandrakant's case (supra) regarding the maintainability of a civil revision application against an order rejecting an application for condonation of delay. Hence, this revision application stands dismissed as not tenable.

This order will not come in the way of the revision petitioners to resort to any alternative remedy, as may be available in law.