Narinder Singh @ Narinder Bahadur vs Rajinder Prasad
2004 Latest Caselaw 261 Del

JUDGMENT

Vikramajit Sen, J.

1.This Revision has been filed by the Petitioner stating therein that "due to recent amendments in the provisions of Section 115 of the Code of Civil Procedure, a legal bar has been created to the filing of the present Revision Petition, but still there is a remedy for invoking of supervisory jurisdiction under Article 227 of the Constitution of India." It has then been prayed that the present Petition be converted into one under Article 227 of the Constitution. In this regard reference may be made to Shiv Shakti Coop. Housing Society, Nagpur vs. Swaraj Developers and Others, in which the Apex Court had clarified that a Revision is not maintainable against interlocutory Orders. The Applicant appears to be aware of this judgment. In this very decision, however, the Hon'ble Supreme Court has observed as follows:

"35. It was submitted by learned counsel for the appellants that even if the revision applications are held to be not maintainable, there should not be a bar on challenge being made under Article 227 of the Constitution. It was submitted that an opportunity may be granted to the appellants to avail the remedy.

36. If any remedy is available to a party under any statute no liberty is necessary to be granted for availing the same. If the appellants avail such remedy, the same shall be dealt with in accordance with law.

37. The appeals are dismissed. No costs".

2.Counsel for the Petitioner has sought to rely on a recent judgment of the Hon'ble Supreme Court in Surya Dev Rai Versus Ram Chander Rai and other, . The Court posed the question - "is an aggrieved person completely deprived of the remedy of judicial review if he has lost at the hands of the original court and the Appellate Court, though a case of gross failure of justice having been occasioned can be made out?" This was answered in the following paragraphs:

"In Shiv Shakti Co-op. Housing Society, Nagpur Versus M/s. Swaraj Developers and others, (2003) 4 Scale 241, another two-Judges bench of this Court dealt with Section 115 of the CPF. The Court at the end of its judgment noted the submission of the learned counsel for a party that even if the revisional applications are held to be not maintainable, there should not be a bar on a challenge being made under Article 227 of the Constitution for which an opportunity was prayed to be allowed. The Court observed,-"if any remedy is available to a party, no liberty is necessary to be granted for availing the same."

We are of the opinion that the curtailment of revisional jurisdiction of the High Court does not take away - and could not have taken away - the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court nor the power of superintendence conferred on the High Court under Article 227 of the Constitution is taken away or whittled down. The power exists, untrammelled by the amendment in Section 115 of the CPC, and is available to be exercised subject to rules of self discipline and practice which are well settled.

3.The question that arises is what would be the proper and pragmatic approach to be adopted where a prayer is made for the so called conversion of the Revision to that of a Civil Miscellaneous (Main) Petition under Article 227. It will be seen that in such cases, in the first place, a Reply is called for to the application itself entailing a few hearings at least. The neat question that arises is whether the Judge who is not simultaneously allotted the roster of Civil Revisions as well as Petitions under Article 227 of the Constitution should entertain such a plea. It is misnomer that in Surya Dev Rai (supra), the Court observed that the change prayed for before me should be granted. The Hon'ble Court had addressed the question of the jurisdiction of the High Court while exercising its constitutional powers under that Article, especially in view of the non-maintainability of a Revision.

4.This Revision is dismissed but it cannot be gainsaid that this shall not prejudice or jeopardise the filing of a Petition under Article 227 of the Constitution, if the Petitioner is advised to do so.