Sushanta Kumar Kabi vs Aabsys Information Technology
2025 Latest Caselaw 3939 Ori

Orissa High Court

Sushanta Kumar Kabi vs Aabsys Information Technology on 13 February, 2025

              ORISSA HIGH COURT : CUTTACK

                    C.R.P. No.38 of 2023

     In the matter of an Application under Section 115 of
              the Code of Civil Procedure, 1908

                            ***

Sushanta Kumar Kabi Aged about 46 years, Son of Sita Nath Kabi Present Address:

HIG-157, Kanan Vihar, Phase-1 Bhubaneswar, Odisha, India, Permanent Address:

Son of Sita Nath Kabi Qrs. No.C/10, Tensa P.S.: Lahunipada District: Sundargarh - 770 042.... Petitioner.

-VERSUS-

1. AABSyS Information Technology, Registered Office:

At: E-54 & E-54/1, Infocity, Chandaka Industrial Estate, Patia, Bhubaneswar - 751 024, Odisha, India.

Represented by Mrs. Namita Priya, Aged about 51 years Wife of Dr. Sanjeev Gupta Working at address:

E-54&E-54/1, Infocity Chandaka Industrial Estate, Patia Bhubaneswar - 751 024, Odisha, India Working as AGM, Human Resource Department at

AABSyS Information Technology Private Limited. ... Opposite Party.

(Plaintiff in Court Below)

2. Prasant Kumar Kabi Aged about 42 years, Permanent Address:

Son of Sita Nath Kabi Qrs.No.C/10, Tensa, P.S.: Lahunipada District: Sundargarh - 770 042, Tensa, Odisha, India.

3. IBAK Consultancy Services (OPC) Pvt. Ltd.

Having its Registered Office:

At: HIG-155, 2nd Floor, Kanan Vihar, Phase-1, Patia, Bhubaneswar - 751 024, Odisha. At present: Qrs. No.C/10, Tensa P.S.: Lahunipada, District: Sundargarh - 770 042 Tensa, Odisha, India. ...Proforma Opposite Parties.

(Defendant No.2&3 in the Court below)

Counsel appeared for the parties:

For the Petitioners : M/s. Pradeep Kumar Mohapatra and Nalini Kanta Sahoo, Advocates.

For the Opposite Parties : Mr. Yasobant Das, Senior Advocate along with Mr. Animesh Singh, Advocate.

P R E S E N T:

HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN

Date of Hearing : 16.01.2025 :: Date of Judgment : 13.02.2025

J UDGMENT

MURAHARI SRI RAMAN, J.--

Assailing Order dated 06.05.2023 passed by the learned Senior Civil Judge (Commercial Court), Bhubaneswar in C.S. No.49 of 2022, rejecting petition under Order VII, Rule 11, the petitioner has approached this Court invoking provisions of under Section 115 of the Code of Civil Procedure, 1908 with the following prayer(s):

"The petitioner therefore humbly prays that, this Hon‟ble Court may be pleased to admit this Revision, issue notice to the opposite parties, call for the lower court records and after hearing the parties, allow this revision by setting aside the impugned Order dated 06.05.2023 passed by the learned Senior Civil Judge (Commercial Court), Bhubaneswar."

Facts:

2. It is unfurled from the pleadings and documents available on record that the Civil Suit No.49 of 2022 was filed by the plaintiff-opposite party No.1 against the petitioner-defendant No.1 which is pending before the learned Senior Civil Judge (Commercial Court), Bhubaneswar ("Commercial Court", for convenience) wherein the present petitioner-defendant No.1 filed an application for rejection of plaint under the provisions as contained under Order VII, Rule 11 of the Code of Civil

Procedure, 1908 ("CPC", for short) on the ground that the plaintiff has no cause of action to file the suit in Bhubaneswar as well as the plaint is barred by other laws.

2.1. The sum and substance of said petition filed to reject plaint in the Civil Suit No.49 of 2022 is that the plaintiff-

opposite party No.1 filed the suit against the petitioner- defendant No.1 and others wherein the said plaint did not disclose cause of action for institution of the suit. This apart, the purported agreement as has been mentioned in the subject matter of suit between the plaintiff and the petitioner-defendant No.1 specifically permitted that any dispute between the parties must be raised and the case, if at all, is to be filed before the Court of Cuttack jurisdiction only. Such fact is alleged to have been agreed between the parties. The learned Commercial Court lacks territorial jurisdiction to entertain the same as law specifies that parties are to be bounded by the terms of agreement. Accordingly, it was prayed in the said petition under Order VII, Rule 11 of the CPC to reject the plaint.

2.2. After hearing, the learned Senior Civil Judge (Commercial Court), Bhubaneswar (be referred to as "the trial Court") having considered submissions and material on record and observed in his Order dated 06.05.2023 that,

"*** The dispute arise in between the parties comes under the provision under Section 2(1)(C)(xvii) and in view of the fact that rival pleadings advanced by the parties involve controversial questions of law, the provision as contained in Order VII, Rule 11, CPC cannot be attracted as the bare reading of the plaint indicates about the existence of cause of action. Besides, it is also not forthcoming from the plaint averments that the suit is barred by any law. Accordingly, the petition filed by the defendant dated 21.09.2022 hereby rejected."

2.3. Against such Order of the learned trial Court, the defendant No.1 preferred the revision petition under Section 115 of the CPC.

Hearing:

3. This matter was on board on many occasions and lastly on 16.01.2024. On objection in terms of paragraph 4 read with paragraph 5(e) being pressed into service by the opposite party No.1, this matter is taken up for consideration of maintainability of revision under Section 115, CPC against Order dated 06.05.2023 rejecting application under Order VII, Rule 11, CPC.

3.1. Accordingly, heard Sri Pradeep Kumar Mohapatra, learned Advocate for the petitioner; Sri Yasobant Das, learned Senior Advocate assisted by Animesh Singh, learned Advocate for the opposite party No.1.

Consideration of rival contentions:

4. The objection as to maintainability of the revision petition as stated in the counter affidavit filed by the opposite party No.1 runs as follows:

"Aggrieved by the same Order dated 06.05.2023, the present petitioner filed Civil Revision before the learned District Court at Khurda, Bhubaneswar. The said revision was barred by statutory provision of the Commercial Court Act, 2015 as no revision lies against any Commercial suit filed under the Commercial Courts Act, 2015. Therefore the same was appropriately objected by the present opposite party No.1 and the present petitioner realising the ignorance of law withdrew their revision application praying for liberty to file before this Hon‟ble High Court."

5. It is submitted by Sri Pradeep Kumar Mohapatra, learned Advocate that the present petitioner has been arrayed as defendant No.1 and proforma opposite parties have been arrayed as defendant Nos.2 and 3 respectively in the civil suit. The opposite party No.1-plaintiff has filed the Civil Suit against the petitioner-defendant No.1 in learned trial Court wherein the present opposite party No.1-plaintiff made following prayer(s):

"a. Pass a decree of permanent injunction restraining the Defendants and their principal Officers, directors, partners, managers, employees, assigns, agents and representatives from committing act of infringement of copy right misuse of confidential information, trade secrets, know how, intellectual property, etc of the Plaintiffs;

b. Pass a decree of restraining the Defendants and their principal officers, directors, partners, managers, employees, assigns, agents, representatives from indulging in competing business or solicitation of customers/ clients, vendors/suppliers or employees of the Plaintiff or indulging in acts of unfair competition and unfair trade practices;

c. Pass a decree of mandatory injunction directing the lifting of corporate veil of Defendant No.3 incorporated by Defendant no.1 in collusion with Defendant No.2 or any other person directly or indirectly during course of employment of Defendant no.1 with the Plaintiff and further directing the Defendants to handover/transfer the control and management of the Defendant No.3 to the Plaintiff;

d. Pass a decree of rendition of true and appropriate accounts of income of the Defendant No.3 and any other business entry that is found to have been set up by Defendant No.1 and 2 and all income of Defendant No.1 & 2 during the course of employment of Defendant No.1 with the Plaintiff in breach of his employment terms with the Plaintiff, and a decree of the ascertained amount be passed in favour of the Plaintiffs;

e. Pass a decree of delivery up of all materials, including client lists, presentations, business plans, employees list, pricing, project information, project reports business proposals, promotional business development materials and any other confidential material of the Plaintiff or derived from misuse of confidential information of the Plaintiff in possession of the Defendants and their principal officers,

directors, partners, managers, employees assigns, agents, representatives, and for destruction/seizure thereof, at the Defendant‟s expenses;

f. Costs including exemplary costs;

g. Pass any other or further order in favour of the Plaintiff and against the Defendants, as this Hon‟ble Court deems fit and proper in the interest of justice."

5.1. Learned counsel appearing for the petitioner submitted that the opposite party No.1-plaintiff earlier filed a suit in the Civil Court in Cuttack, which was returned to be filed before the Court of the learned Senior Civil Judge (Commercial Court), Bhubaneswar.

5.2. The petitioner-defendant No.1 was employed in the AABSys Information Technology, Infocity, Patia, Bhubaneswar - 751 024 as a Senior Manager-Geospatial Business by Opposite party No.1 vide an appointment letter dated 09.09.2014, whereas the opposite party No.1-plaintiff made allegations against the present petitioner-defendant No.1 pertaining to violation of terms of his employment and unauthorizedly used confidential information, trade secrets, intellectual property as well as infrastructure and resources of the present opposite party No.1 for his own benefit. But the content of the plaint and its relevant document does not disclose any specific allegation or imputation leading to institution of a suit against the present petitioner. Accordingly, the

petitioner-defendant No.1 filed his written statement along with an application under Order VII, Rule 11 of the CPC praying therein to reject the plaint on the ground of territorial jurisdiction in terms of agreements made between the parties. Besides this, it is pleaded that the suit is not maintainable as it is in clear contravention of Section 27 of the Contract Act, 1872 as well as in presence of arbitration clause in the agreement.

5.3. Sri Nalini Kanta Sahoo, learned Advocate while assisting Sri Pradeep Kumar Mohapatra, learned Advocate for the petitioner stated that after hearing both the parties the learned Commercial Court although took note of the fact of jurisdiction clause as was pleaded in the plaint, failed to appreciate the proposition of law with regard to exclusive jurisdiction and illegally exercised jurisdiction by rejecting the petition filed under Order VII, Rule 11 of the CPC.

5.4. It is submitted by the counsel for the petitioner that since the present case does not fall within ambit of sub- section (1A) of Section 13 of the Commercial Courts Act, 2015 (for brevity, "CC Act"), there is no other remedy available than to approach this Court under Section 115 of the CPC notwithstanding prohibition contained in Section 8. What has been essentially contended by the learned counsel that proviso appended to sub-section

(1A) of Section 13 would also apply as if it is a proviso to sub-section (1) of Section 13 also.

6. Sri Yasobant Das, learned Senior Advocate for the opposite party No.1, being the plaintiff before the learned trial Court, would argue that sub-section (1) is ended with "full stop" (.) at the end and thereafter sub-section (1A) has been incorporated in Section 13 which appends a proviso. Therefore, proviso to sub-section (1A) cannot be read as a circumstance to carve out exception to sub- section (1) of Section 13 of the CC Act.

6.1. The plaint discloses several causes of action and triable issues which are liable to be adjudicated. The contents of the plaint and supporting documents disclose several legal and valid cause of action and triable issues against the present petitioner. The Court established in Bhubaneswar has the territorial jurisdiction as the cause of action as detailed in the plaint has arisen within the territory of Bhubaneswar. The agreements between the parties have been entered into in Bhubaneswar. In view of such matter, it is urged to reject the petition in question as not maintainable in view of specific bar under Section 8 of the CC Act.

6.2. Sri Yasobant Das, learned Senior Counsel appearing for opposite party No.1-AABSys Information Technology, Infocity, Bhubaneswar submitted that challenging the

rejection Order dated 06.05.2023, the present petitioner approached the learned District and Sessions Judge, Khurda at Bhubaneswar in C.R. No.12 of 2023, which was allowed to be withdrawn on objection being raised by the present opposite party No.1. He submitted that if grievance arises out of any Commercial Court‟s order or judgment, revision under Section 115 of the CPC is not maintainable.

6.3. He further submits that the learned Commercial Court, Bhubaneswar heard the matter on merit from both the sides and rightly rejected the petition under Order VII, Rule 11 of the CPC.

6.4. It is submitted by Sri Yasobant Das, learned Senior Advocate that the present petitioner has approached this Court to decide the validity of the rejection of the petition under Order VII, Rule 11 of the CPC by the Senior Civil Judge (Commercial Court), Bhubaneswar. Without restricting to the limited issue in question the petitioner appears to have sought to raise question of law on infringement of the fundamental rights of the present petitioner through this civil revision. By virtue of Section 8 of the CC Act no civil revision is maintainable nor has the petitioner remedy under Section 13 as the nature of order passed which is subject matter of challenge herein does not fall within the scope and ambit of Order XLIII, CPC. The objective of the CC Act being immediate and

efficacious adjudication of commercial matters, the proceedings before such Courts require to be concluded without unreasonable delay. He submitted that the petitioner is not remediless; rather option to prefer appeal after final adjudication is made by the Commercial Court. The express restriction in pursuing remedy under Section 115 of the CPC takes away right of revision. Therefore, he strenuously urged to dismiss the civil revision in limine.

Statutory provisions:

7. At this juncture it may be pertinent to reproduce Section 8 and Section 13 of the CC Act for better appreciation of the contentions of respective parties:

"8. Bar against revision application or petition against an interlocutory order.--

Notwithstanding anything contained in any other law for the time being in force, no civil revision application or petition shall be entertained against any interlocutory order of a Commercial Court, including an order on the issue of jurisdiction, and any such challenge, subject to the provisions of Section 13, shall be raised only in an appeal against the decree of the Commercial Court.

13. Appeals from decrees of Commercial Courts and Commercial Divisions.--

(1) Any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge

may appeal to the Commercial Appellate Court within a period of sixty days from the date of judgment or order.

(1A) Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of the judgment or order:

Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 (5 of 1908) as amended by this Act and Section 37 of the Arbitration and Conciliation Act, 1996 (26 of 1996).

(2) Notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act."

Decisions on interpretation of "subject to" and "proviso":

8. In Adani Gas Limited Vrs. Union of India, (2021) 14 SCR 1146 it has been observed as follows:

"76. The other reason for holding that the deeming fiction of authorization in the proviso to Section 16 does not apply to all entities, is that the clause is "subject to other provisions of this chapter". This means that not

all entities can be termed as "deemed authorized"

entities.

In K.R.C.S. Balakrishna Chetty Vrs. State of Madras, (1961) 2 SCR 736 this Court explained the use of the term "subject to" in the following manner:

„The use of the words "subject to" has reference to effectuating the intention of the law and the correct meaning, in our opinion, is „conditional upon‟.‟

77. In Ashok Leyland Ltd. Vrs. State of Tamil Nadu, (2004) 3 SCC 1 this Court held that "subject to" is an expression of subordination:

„93. Furthermore, the expression „subject to‟ must be given effect to.

94. In Black‟s Law Dictionary, Fifth Edition at page 1278 the expression „Subject to‟ has been defined as under:

„Liable, subordinate, subservient, inferior, obedient to; governed or affected by; provided that; provided, answerable for. Homan Vrs. Employers Reinsurance Corporation, 345 Mo. 650, 136 S.W. 2d 289, 302‟ ***"

8.1. In Jantia Hill Truck Owners Association Vrs. Shailang Area Coal Dealer and Truck Owner Association, (2009) 10 SCR 536, it is restated as follows:

"The said decision has been noticed by this Court in Surinder Singh Vrs. Central Govt., (1986) 4 SCC 667. It was held therein:

„6. The High Court has held that the disposal of property forming part of the compensation pool was „subject‟ to the rules framed as contemplated by Sections 8 and 40 of the Act and since no rules had been framed by the Central Government with regard to the disposal of the urban agricultural property forming part of the compensation pool, the authority constituted under the Act had no jurisdiction to dispose of urban agricultural property by auction- sale. Unless rules were framed as contemplated by the Act, according to the High Court the Central Government had no authority in law to issue executive directions for the sale and disposal of urban agricultural property. This view was taken, placing reliance on an earlier decision of a Division Bench of that court in Bishan Singh Vrs. Central Government, AIR 1961 P&H 451. The Division Bench in Bishan case took the view that since the disposal of the compensation pool property was subject to the rules that may be made, and as no rules had been framed, the Central Government had no authority in law to issue administrative directions providing for the transfer of the urban agricultural land by auction-sale. In our opinion the view taken by the High Court is incorrect. Where a statute confers powers on an authority to do certain acts or exercise power in respect of certain matters, subject to rules, the exercise of power conferred by the statute does not depend on the existence of rules unless the statute expressly provides for the same. In other words framing of the rules is not condition precedent to the exercise of the power expressly and unconditionally conferred by the statute. The expression „subject to the rules‟ only means, in accordance with the rules, if

any. If rules are framed, the powers so conferred on authority could be exercised in accordance with these rules. But if no rules are framed there is no void and the authority is not precluded from exercising the power conferred by the statute."

Decisions on interpretation of "proviso"

9. The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso, would fall within the main enactment. Ordinarily it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment. It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso. Therefore, it is to be construed harmoniously with the main enactment. There may be cases in which the language of the statute may be so clear that a proviso may be construed as restricting the main provision or as a substantive clause, it cannot be divorced from the provision to which it stands as a proviso. It must be construed harmoniously with the main enactment. See, CIT Vrs. Indo-Mercantile Bank Ltd., AIR 1959 SC 713 = (1959) Supp.2 SCR 256; CIT Vrs. Ajax Products Ltd., (1965) 1 SCR 700.

9.1. In Kedarnath Jute Mfg. Co. Ltd. Vrs. CTO, AIR 1966 SC 12 it has been held as,

"It is well settled that „the effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it‟ : see "Craies on Statute Law", 6th Edn., p.

217."

Interlocutory order:

10. The Hon‟ble Supreme Court of India in Shyam Sel and Power Limited Vrs. Shyam Steel Industries Limited, 2022 SCC OnLine SC 313 held,

"18. It has been held that most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of Order XLIII Rule 1 CPC and would be „judgments‟ within the meaning of the letters patent and, therefore, appealable.

However, there may be interlocutory orders which are not covered by Order XLIII Rule 1 CPC but which also possess the characteristics and trappings of finality inasmuch as such orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. It has further been held that however, for such an order to be a „judgment‟, an adverse effect on the party concerned must be direct and immediate rather than indirect or remote. Various illustrations of interlocutory orders have been given by this Court in para (120), which could be held to

be appealable. This Court held that though any discretion exercised or routine orders passed by the trial Judge in the course of the suit may cause some inconvenience or, to some extent, prejudice to one party or the other, they cannot be treated as a „judgment‟ unless they contain the traits and trappings of finality. This Court has expressed in para (122) that though it had, by way of sample, laid down various illustrative examples of an order which may amount to a judgment, it would not be possible to give such an exhaustive list as may cover all possible areas. This Court, in the facts of the said case, held that an order of the Single Judge refusing appointment of a receiver and grant of an ad-interim injunction was undoubtedly a „judgment‟ within the meaning of Letters Patent, both because Order XLIII Rule 1 CPC applies to internal appeals in the High Court and that such an order even on merits contains the quality of finality and would therefore be a „judgment‟ within the meaning of Clause 15 of the Letters Patent."

10.1. The conceptual understanding of "interlocutory order"

has been discussed illuminatingly in the case of P. Udaya Bhaskara Reddy Vrs. Sreepada Real Estates, 2024 SCC Online AP 4102 in the following manner, which needs no variation of this Court:

"39. In Madhu Limaye Vrs. State of Maharashtra, (1977) 4 SCC 551, the question was with respect to maintainability of the revision application under Section 397(1) of Code of Criminal Procedure (in short „Cr.P.C‟), in view of sub-section (2) of Section 397 Cr.P.C. which barred revision against an

interlocutory order. The question was also if the revision was barred by sub-section (2) of Section 397 Cr.P.C the same also operated as a bar in entertaining the petition under Section 482 Cr.P.C. In that context, the Hon'ble Apex Court considered interlocutory order and final order, as also the intermediate order. The Hon'ble Apex Court considered Amar Nath Vrs. State of Haryana, (1977) 4 SCC 137 as also Mohan Lal Magan Lal Thacker v. State of Gujarat, (1968) 2 SCR 685. The Hon‟ble Apex Court held as under in para-12:

„12. Ordinarily and generally the expression "interlocutory order" has been understood and taken to mean as a converse of the term "final order". In volume 22 of the third edition of Halsbury‟s Laws of England at p. 742, however, it has been stated in para 1606:

„... a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of the two words must therefore be considered separately in relation to the particular purpose for which it is required.‟

In para 1607 it is said:

„In general a judgment or order which determines the principal matter in question is termed „final‟.‟

In para 1608 at pp. 744 and 745 we find the words:

„An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on

the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declaration of right already given in the final judgment, are to be worked out, is termed „interlocutory‟. An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals.‟

40. In Madhu Limaye (supra), the Hon‟ble Apex Court further observed that the bar of revision against the interlocutory order under sub-section (2) of Section 397 Cr.P.C operated in the exercise of the revisional power of the High Court. But if an interlocutory order brought about a situation which was an abuse of the process of the Court or for the purpose of securing the ends of justice, interference by the High Court was absolutely necessary, then nothing contained in sub-section (2) of Section 397 Cr.P.C could limit or affect the exercise of the inherent power by the High Court, though it was further observed that the High Court must exercise the inherent power very sparingly.

41. In State Vrs. N.M.T. Joy Immaculate, (2004) 5 SCC 729 in the context of Section 397 Code of Criminal Procedure, the Hon‟ble Apex Court observed, referring to the meaning given in some of the dictionaries that, ordinarily and generally, the expression „interlocutory order‟ has been understood and taken to mean as a converse of the term „final order‟. The Hon‟ble Apex Court referred to the judgment of the Privy Council in S. Kuppuswami Rao Vrs. R., AIR 1949 FC 1 = 49 Cri LJ 625 and

observed that the test laid down therein was that if the objection of the accused succeeded, the proceeding could have ended but not vice versa. The order can be said to be a final order only if, in either event, the action will be determined. The Hon‟ble Apex Court further observed that however, in Madhu Limaye (supra), such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order was not accepted. The Hon‟ble Apex Court further referred the case of K.K. Patel Vrs. State of Gujarat, (2000) 6 SCC 195 that if the objections raised by the accused were upheld, the entire prosecution proceedings would have been terminated, the order was therefore not an interlocutory order, and consequently, it was revisable under Section 397 Cr.P.C. In N.M.T. Joy Immaculate (supra), the Hon‟ble Apex Court held that if an order of remand was found to be illegal, it could not result in acquittal of the accused or in termination of proceedings. A remand order could not affect the progress of the trial or its decision in any manner. The said order was therefore a pure and simple interlocutory order.

42. Paragraphs-8, 9, 10 and 11 of N.M.T. Joy Immaculate (supra) are reproduced as under:

„8. *** The expression "interlocutory order" has not been defined in the Code. It will, therefore, be useful to refer to its meaning as given in some of the dictionaries:

The New Lexicon Webster‟s Dictionary

„Pronounced and arising during legal procedure, not final.‟

Webster‟s Third New International Dictionary

„not final or definitive : made or done during the progress of an action.‟

Wharton‟s Law Lexicon

„An interlocutory order or judgment is one made or given during the progress of action, but which does not finally dispose of the rights of the parties e.g. an order appointing a receiver or granting an injunction, and a motion for such an order is termed an interlocutory motion.‟

Black‟s Law Dictionary

„Provisional; interim; temporary; not final. Something intervening between the commencement and the end of a suit which decides some point or matter, but is not a final decision of the whole controversy.‟

9. Ordinarily and generally, the expression "interlocutory order" has been understood and taken to mean as a converse of the term "final order". In Vol. 26 of Halsbury‟s Laws of England (4th Edn.) it has been stated as under in para 504:

„[A] judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. It is impossible to lay down principles about what is final and what is interlocutory. It is better to

look at the nature of the application and not at the nature of the order eventually made. In general, orders in the nature of summary judgment where there has been no trial of the issues are interlocutory.‟

9.1. In para 505 it is said that in general a judgment or order which determines the principal matter in question is termed "final".

9.2. In para 506 it is stated as under:

„An order which does not deal with the final rights of the parties, but either

(1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or

(2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed „interlocutory‟.

An interlocutory order, even though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals.‟

10. In S. Kuppuswami Rao Vrs. R., AIR 1949 FC 1 = 49 Cri LJ 625 the following principle laid down in Salaman Vrs. Warner, (1891) 1 Q.B. 734 = 60 LJQB 624 (CA) was quoted with approval : (AIR p. 3, para 6)

„If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in

dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory.‟

10.1. The test laid down therein was that if the objection of the accused succeeded, the proceeding could have ended but not vice versa. The order can be said to be a final order only if, in either event, the action will be determined.

11. However, in Madhu Limaye Vrs. State of Maharashtra, (1977) 4 SCC 551 = 1978 SCC (Cri) 10 = AIR 1978 SC 47 such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order was not accepted as this will render the revisional power conferred by Section 397(1) nugatory. After taking into consideration the scheme of the Code of Criminal Procedure and the object of conferring a power of revision on the Court of Session and the High Court, it was observed as follows :

(SCC p. 558, para 13)

„In such a situation it appears to us that the real intention of the legislature was not to equate the expression „interlocutory order‟ as invariably being converse of the words „final order‟. There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami case, AIR 1949 FC 1 = 49 Cri LJ

625 but, yet it may not be an interlocutory order-- pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in subsection (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders.‟

43. In Bhaskar Industries Ltd. Vrs. Bhiwani Denim & Apparels Ltd., (2001) 7 SCC 401 the Hon‟ble Apex Court observed that whether an order is interlocutory or not, cannot be decided by merely looking at the order or merely because the order was passed at the interlocutory stage. The safe test is that if the contention of the petitioner who moves the superior court in revision, as against the order under challenge is upheld, would the criminal proceedings as a whole culminate? If they would, then the order is not interlocutory in spite of the fact that it was passed during any interlocutory stage.

44. Paragraph-10 of Bhaskar Industries Ltd.

(supra) is reproduced as under:

„10. The above position was reiterated in Rajendra Kumar Sitaram Pande Vrs. Uttam, (1999) 3 SCC 134 = 1999 SCC (Cri) 393. Again in K.K. Patel Vrs. State of Gujarat, (2000) 6 SCC 195 this Court stated thus:

„It is now well-nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2)

of the Code, the sole test is not whether such order was passed during the interim stage (vide Amar Nath Vrs. State of Haryana, (1977) 4 SCC 137, Madhu Limaye Vrs. State of Maharashtra, (1977) 4 SCC 551 = 1978 SCC (Cri) 10 = AIR 1978 SC 47, V.C. Shukla Vrs.

State through CBI, 1980 Supp SCC 92 = 1980 SCC (Cri) 695 = AIR 1980 SC 962 and Rajendra Kumar Sitaram Pande Vrs. Uttam, (1999) 3 SCC 134 = 1999 SCC (Cri) 393). The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable.‟

45. We may now refer to Shah Babulal Khimji Vrs.

Jayaben D. Kania (1981) 4 SCC 8 in which the Hon‟ble Apex Court observed that as a judgment constitutes the reasons for the decree it follows, as a matter of course that the judgment must be a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy. It cannot be said that any order passed by a Trial Judge would amount to a judgment. The word „judgment‟ as defined in Code of Civil Procedure (CPC) has undoubtedly a concept of finality in a broader and not a

narrower sense. The Hon‟ble Apex Court observed that a judgment can be of three kinds, viz., a final judgment, a preliminary judgment and intermediary or interlocutory judgment.

46. It is apt to reproduce para-113 of Shah Babulal Khimji (supra) as under:

„113. Thus, under the Code of Civil Procedure, a judgment consists of the reasons and grounds for a decree passed by a court. As a judgment constitutes the reasons for the decree it follows as a matter of course that the judgment must be a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy. The concept of a judgment as defined by the Code of Civil Procedure seems to be rather narrow and the limitations engrafted by sub-section (2) of Section 2 cannot be physically imported into the definition of the word "judgment" as used in clause 15 of the letters patent because the letters patent has advisedly not used the terms "order" or "decree" anywhere. The intention, therefore, of the givers of the letters patent was that the word "judgment" should receive a much wider and more liberal interpretation than the word "judgment" used in the Code of Civil Procedure. At the same time, it cannot be said that any order passed by a trial Judge would amount to a

judgment; otherwise there will be no end to the number of orders which would be appealable under the letters patent. It seems to us that the word "judgment" has undoubtedly a concept of finality in a broader and not a narrower sense. In other words, a judgment can be of three kinds:

(1) A final judgment.--

A judgment which decides all the questions or issues in controversy so far as the trial Judge is concerned and leaves nothing else to be decided. This would mean that by virtue of the judgment, the suit or action brought by the plaintiff is dismissed or decreed in part or in full. Such an order passed by the trial Judge indisputably and unquestionably is a judgment within the meaning of the letters patent and even amounts to a decree so that an appeal would lie from such a judgment to a Division Bench.

(2) A preliminary judgment.--

This kind of a judgment may take two forms--

(a) where the trial Judge by an order dismisses the suit without going into the merits of the suit but only on a

preliminary objection raised by the defendant or the party opposing on the ground that the suit is not maintainable.

Here also, as the suit is finally decided one way or the other, the order passed by the trial Judge would be a judgment finally deciding the cause so far as the Trial Judge is concerned and therefore appealable to the larger Bench.

(b) Another shape which a preliminary judgment may take is that where the trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit, e.g., bar of jurisdiction, res judicata, a manifest defect in the suit, absence of notice under Section 80 and the like, and these objections are decided by the trial Judge against the defendant, the suit is not terminated but continues and has to be tried on merits but the order of the trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant who, if his objections are valid,

is entitled to get the suit dismissed on preliminary grounds. Thus, such an order even though it keeps the suit alive, undoubtedly decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be construed to be a judgment so as to be appealable to a larger Bench.

(3) Intermediary or interlocutory judgment.--

Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of Order 43 Rule 1 and have already been held by us to be judgments within the meaning of the letters patent and, therefore, appealable.

There may also be interlocutory orders which are not covered by Order 43 Rule 1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an order can be a judgment the adverse effect on the party concerned

must be direct and immediate rather than indirect or remote.

For instance, where the trial Judge in a suit under Order 37 of the Code of Civil Procedure refuses the defendant leave to defend the suit, the order directly affects the defendant because he loses a valuable right to defend the suit and his remedy is confined only to contest the plaintiff's case on his own evidence without being given a chance to rebut that evidence. As such an order vitally affects a valuable right of the defendant it will undoubtedly be treated as a judgment within the meaning of the letters patent so as to be appealable to a larger Bench. Take the converse case in a similar suit where the trial Judge allows the defendant to defend the suit in which case although the plaintiff is adversely affected but the damage or prejudice caused to him is not direct or immediate but of a minimal nature and rather too remote because the plaintiff still possesses his full right to show that the defence is false and succeed in the suit. Thus, such an order passed by the trial Judge would not amount to a judgment within the meaning of clause 15 of the letters patent but

will be purely an interlocutory order. Similarly, suppose the trial Judge passes an order setting aside an ex parte decree against the defendant, which is not appealable under any of the clauses of Order 43 Rule 1 though an order rejecting an application to set aside the decree passed ex parte falls within Order 43 Rule 1 clause

(d) and is appealable, the serious question that arises is whether or not the order first mentioned is a judgment within the meaning of letters patent. The fact, however, remains that the order setting aside the ex parte decree puts the defendant to a great advantage and works serious injustice to the plaintiff because as a consequence of the order, the plaintiff has now to contest the suit and is deprived of the fruits of the decree passed in his favour. In these circumstances, therefore, the order passed by the trial Judge setting aside the ex parte decree vitally affects the valuable rights of the plaintiff and hence amounts to an interlocutory judgment and is therefore, appealable to a larger Bench.‟

47. In Shah Babulal Khimji (supra), the Hon‟ble Apex Court held that most of the interlocutory orders which contain the quality of finality are

clearly specified in clauses (a) to (w) of Order 43 Rule 1. Further, there may also be interlocutory orders which are not covered by Order 43 Rule 1, but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an order can be a judgment, the adverse effect on the party concerned must be direct and immediate rather than indirect or remote.

48. The Hon‟ble Apex Court was considering the meaning of the „judgment‟ in relation to Letters Patent Appeal, but the law which has been laid down on „interlocutory order‟ having quality of „finality‟ would equally apply, to determine if the order is purely interlocutory as opposed to an interlocutory order having quality of finality. It was held that an order which vitally effect the valuable right will undoubtedly be treated as a interlocutory judgment. The Hon‟ble Apex Court further observed and held that in the course of trial, the Trial Judge may pass a number of orders whereby some of the various steps to be taken by the parties in prosecution of the suit may be of a routine nature while other orders may cause some inconvenience to one party or the other. Every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. The Hon‟ble Apex Court also observed that the orders

passed by the Trial Judge deciding question of admissibility or relevancy of a document could not be treated as judgments because the grievance on that score could be corrected by the appellate Court in appeal against the final judgment. The Hon‟ble Apex Court, in para- 120, gave illustrations of interlocutory orders which might be treated as judgments.

49. Paragraphs-114, 115, 116 and 120 of Shah Babulal Khimji (supra) are reproduced as under:

„114. In the course of the trial, the trial Judge may pass a number of orders whereby some of the various steps to be taken by the parties in prosecution of the suit may be of a routine nature while other orders may cause some inconvenience to one party or the other, e.g., an order refusing an adjournment, an order refusing to summon an additional witness or documents, an order refusing to condone delay in filing documents, after the first date of hearing an order of costs to one of the parties for its default or an order exercising discretion in respect of a procedural matter against one party or the other. Such orders are purely interlocutory and cannot constitute judgments because it will always be open to the aggrieved party to make a grievance of the order passed against the party concerned in the appeal against the final judgment passed by the trial Judge.

115. Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment.

116. We might give another instance of an interlocutory order which amounts to an exercise of discretion and which may yet amount to a judgment within the meaning of the letters patent. Suppose the trial Judge allows the plaintiff to amend his plaint or include a cause of action or a relief as a result of which a vested right of limitation accrued to the defendant is taken away and rendered nugatory. It is manifest that in such cases, although the order passed by the trial Judge is purely discretionary and interlocutory, it causes gross injustice to the defendant who is deprived of a valuable right of defence to the suit. Such an order, therefore, though interlocutory in nature contains the attributes and characteristics of finality and must be treated as a judgment within the meaning of the letters patent. This is

what was held by this Court in Shanti Kumar case, (1974) 2 SCC 387 = AIR 1974 SC 1719 = (1975) 1 SCR 550, as discussed above.‟

„120. Thus, these are some of the principles which might guide a Division Bench in deciding whether an order passed by the trial Judge amounts to a judgment within the meaning of the letters patent. We might, however, at the risk of repetition give illustrations of interlocutory orders which may be treated as judgments:

(1) An order granting leave to amend the plaint by introducing a new cause of action which completely alters the nature of the suit and takes away a vested right of limitation or any other valuable right accrued to the defendant.

(2) An order rejecting the plaint.

(3) An order refusing leave to defend the suit in an action under Order 37, of the Code of Civil Procedure.

(4) An order rescinding leave of the trial Judge granted by him under clause 12 of the letters patent.

(5) An order deciding a preliminary objection to the maintainability of the suit on the ground of limitation, absence of notice under Section 80, bar against competency of the suit

against the defendant even though the suit is kept alive.

(6) An order rejecting an application for a judgment on admission under Order 12 Rule 6.

(7) An order refusing to add necessary parties in a suit under Section 92 of the Code of Civil Procedure.

(8) An order varying or amending a decree.

(9) An order refusing leave to sue in forma pauperis.

(10) An order granting review.

(11) An order allowing withdrawal of the suit with liberty to file a fresh one.

(12) An order holding that the defendants are not agriculturists within the meaning of the special law.

(13) An order staying or refusing to stay a suit under Section 10 of the Code of Civil Procedure.

(14) An order granting or refusing to stay execution of the decree.

(15) An order deciding payment of court fees against the plaintiff."

Section 13 of the CC Act:

11. In P. Udaya Bhaskara Reddy Vrs. Sreepada Real Estates, 2024 SCC Online AP 4102 it has been observed that,

"26. Section 13 of the Commercial Courts Act, 2015 provides that any person aggrieved by the judgment or order of the Commercial Court below the level of District Judge may appeal to the Commercial Appellate Court, but where the judgment or order is of a Commercial Court at the level of the District Judge, exercising original civil jurisdiction or of Commercial Division of a High Court, he may appeal to the Commercial Appellate Division of that High Court. So, the judgment or order both have been made appealable under Section 13(1) and 13(1A).

However, the proviso to sub-section (1) of Section 13, provides that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure (in short „CPC‟), as amended by the Commercial Courts Act and Section 37 of the Arbitration and Conciliation Act, 1996. Sub-section (2) of Section 13 of the Commercial Courts Act, 2015 further provides that notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of the Act.

27. Section 13 of the Commercial Courts Act, which provides for appeals, uses two expressions, judgment or order. The proviso is confined to „orders‟ When we read Section 8 along with Section 13, we find that Section 8 uses the expression „interlocutory

order‟. Section 13(1), (1A) or proviso to sub-section (1) or even sub-section (2) does not use expression „interlocutory order‟. The expression used therein is the „order‟. Section 8 which uses the expression „interlocutory order‟ and bars the remedy of revision, makes the same subject to Section 13. So, in our view, the expression „order‟ in Section 13 would include the „interlocutory order‟ as also the „final order‟, which is other than the „judgment‟ or „decree‟. So, the order may be interlocutory order, or it may be final order, in the sense, not deciding the commercial dispute vide judgment or decree, but maintaining its character as „order‟, such order if covered under any of the clauses (a) to (w) of Order 43 CPC, would be appealable under Section 13(1) read with its proviso. In other words, if the order is interlocutory, then the remedy of appeal would be there, but subject to the proviso to Section 13(1A). When it comes to the final order, the remedy would again be of the appeal, but subject to the same proviso. In our view, for the purposes of Order XLIII Rule 1 CPC and the appeal against such order under sub-section (1) of Section 13 of the Commercial Courts Act, the distinction between interlocutory or final order loses importance.

28. The combined effect of these sections, in our view, is that the remedy of revision is barred under Section 8 against the interlocutory order, other than the order covered under Order XLIII Rule 1 CPC. Such an interlocutory order not covered under Order 43 CPC, would also not be appealable. However, the challenge to such an interlocutory order, can be made at the time the appeal is filed against the judgment and decree passed by the Commercial

Court i.e., against the final judgment, if it goes against the applicant, then while challenging the final judgment/decree in appeal under Section 13, the challenge to such an interlocutory order, as may not be appealable order under Order XLIII in view of sub-section (1) of Section 13, can be made.

29. In Kandla Export Corpn. Vrs. OCI Corpn., (2018) 14 SCC 715 the Hon‟ble Apex Court held that Section 13(1) of the Commercial Courts Act, is in two parts. The main provision is a provision which provides for appeals from judgments, orders and decrees of the Commercial Division of the High Court. To this main provision, an exception is carved out by the proviso. It was observed that the proviso goes on to state that an appeal shall lie from such orders passed by the Commercial Division of the High Court that are specifically enumerated under Order 43 of the Civil Procedure Code, 1908 and Section 37 of the Arbitration Act. The Hon‟ble Apex Court held that it will be noticed that orders that are not specifically enumerated under Order 43 CPC would, not be appealable.

30. Paragraphs-13 and 14 of Kandla Export Corpn.

(supra) are reproduced as under:

"13. Section 13(1) of the Commercial Courts Act, with which we are immediately concerned in these appeals, is in two parts. The main provision is, as has been correctly submitted by Shri. Giri, a provision which provides for appeals from judgments, orders and decrees of the Commercial Division of the High Court. To this main provision, an exception is carved out by the proviso. The primary purpose of a

proviso is to qualify the generality of the main part by providing an exception, which has been set out with great felicity in CIT Vrs. Indo- Mercantile Bank Ltd., 1959 Supp (2) SCR 256 = AIR 1959 SC 713, thus: (SCR pp. 266-67 = AIR pp. 71718, paras 9-10)

„9. *** The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment.

„8. *** it is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso.‟ Therefore, it is to be construed harmoniously with the main enactment. (Per Das, C.J. in Abdul Jabar Butt Vrs. State of J&K, 1957 SCR 51 = AIR 1957 SC 281, SCR p. 59 : AIR p. 284, para 8).

Bhagwati, J., in Ram Narain Sons Ltd. Vrs. CST, (1955) 2 SCR 483 = AIR 1955 SC 765], said : (SCR p.

493 : AIR p. 769, para 10)

„10. It is a cardinal rule of interpretation that a proviso to

a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other.‟

10. Lord Macmillan in Madras & Southern Mahratta Railway Co. Ltd. Vrs. Bezwada Municipality, 1944 SCC OnLine PC 7 = (1943-44) 71 IA 113 laid down the sphere of a proviso as follows : (IA p. 122 = SCC OnLine PC)

„... The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case. Where, as in the present case, the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to exclude, from it by implication what clearly falls within its express terms.‟

The territory of a proviso therefore is to carve out an exception to the main enactment and exclude something which otherwise would have been within the section. It has to operate in the same field and if the language of the main enactment is clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the

proviso are such that that is its necessary effect. (Vide also Toronto Corpn. Vrs. Attorney- General of Canada, (1946) A.C. 32 (PC), AC p.

37.)"

14. The proviso goes on to state that an appeal shall lie from such orders passed by the Commercial Division of the High Court that are specifically enumerated under Order 43 of the Code of Civil Procedure Code, 1908, and Section 37 of the Arbitration Act. It will at once be noticed that orders that are not specifically enumerated under Order 43 CPC would, therefore, not be appealable, and appeals that are mentioned in Section 37 of the Arbitration Act alone are appeals that can be made to the Commercial Appellate Division of a High Court.‟

31. Order XLIII CPC provides for the appeals from orders of specified nature as mentioned therein in clauses

(a) to (w). It reads as under:

„ORDER XLIII--

Appeals from Orders

Rule 1 : Appeals from orders--

An appeal shall lie from the following orders under the provisions of Section 104, namely:--

(a) an order under Rule 10 of Order VII returning a plaint to be presented to the proper Court except where the procedure specified in Rule 10-A of Order VII has been followed;

(c) an order under Rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

(d) an order under Rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;

(f) an order under Rule 21 of Order XI;

(i) an order under Rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;

(j) an order under Rule 72 or Rule 92 of Order XXI setting aside or refusing to set aside a sale;

(ja) an order rejecting an application made under sub-rule (1) of Rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of Rule 105 of that Order is appealable;

(k) an order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;

(l) an order under Rule 10 of Order XXII giving or refusing to give leave;

(n) an order under Rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

(na) an order under Rule 5 or Rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;

(p) orders in interpleader-suit under Rule 3, Rule 4 or Rule 6 of Order XXXV;

(q) an order under Rule 2, Rule 3 or Rule 6 of Order XXXVIII;

(r) an order under Rule 1, Rule 2, Rule 2-A, Rule 4 or Rule 10 of Order XXXIX;

(s) an order under Rule 1 or Rule 4 of Order XL;

(t) an order of refusal under Rule 19 of Order XLI to readmit, or under Rule 21 of Order XLI to rehear, an appeal;

(u) an order under Rule 23 or Rule 23-A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;

(w) an order under Rule 4 of Order XLVII granting an application for review.‟

32. The Commercial Courts Act, pursuant to Section 16, has amended some provisions of CPC, which amended provisions, as specified in the Schedule to the Commercial Courts Act, shall apply to suits in respect of a commercial dispute of a specified value in the Commercial Courts. Section 16(3) specifically provides that in case of conflict, the provisions of Code of Civil Procedure as amended by Section 16 of Commercial Courts Act shall prevail.

33. Section 16 however does not make any amendment to Order XLIII CPC. It is so clear from perusal of the Schedule.

34. In the present case, the nature of the order is that the petitioner‟s application under Order 13 Rules 3

and 4 of CPC has been decided. Perusal of Order XLIII Rule 1 CPC shows that an order of the nature passed under Order 13 Rules 3 & 4 CPC is not mentioned therein. In other words, such an order is not appealable under Order XLIII. Once it is not appealable under Order XLIII CPC it will also not be appealable under Section 13 of the Commercial Courts Act."

11.1. Bombay High Court in Bank of India Vrs. Maruti Civil Works, 2023 SCC OnLine Bom 2667 while examining maintainability of appeal under Section 13 of the CC Act against rejection of petition field under Order VII, Rule 11, CPC held that:

"12. At the outset of the arguments, the question which cropped up for consideration of this Court is to the maintainability of this appeal before the Division Bench of this Court keeping in view the proviso appended to Section 13(1) of the Act of 2015 which provides that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court which are enumerated specifically under Order XLIII of the CPC and Section 37 of the Arbitration and Conciliation Act, 1996. The objection as to the maintainability of this appeal, thus, is that since the order under challenge herein is not enumerated under Order XLIII of the CPC and hence this appeal, in view of operation of the proviso appended to Section 13(1A) of the Act of 2015, is not entertainable and hence is liable to be dismissed.

***

15. If we compare the unamended provision with the amended provision of Section 13 of the Act of 2015, what we find is that earlier an appeal was provided against a "decision" of a Commercial Court or Commercial Division of a High Court to the Commercial Division of that High Court, whereas, after the amendment the expression "decision" has been substituted by the expression "judgment or order". It is also noticeable that the proviso appended to sub-section (1) of Section 13 which earlier existed has been retained in the amended provision as well. To determine as to whether the instant appeal is maintainable, we may also refer to sub-section (2) of Section 13 of the Commercial Courts Act which begins with a non-obstante clause and provides that notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree under Section 13 otherwise than in accordance with the provisions of the said Act.

16. In our opinion, sub-section (2) of Section 13 unequivocally provides that any appeal against a decree or order of a Commercial Court or Commercial Division shall lie only in accordance with the provisions of the Act and in view of what has been provided for in sub-section (2) of Section 13, the proviso appended to Section 13 assumes importance.

17. Sub-section (1A) of Section 13 provides that a person aggrieved by a judgment or order can file an appeal, however, the said provision is to be read in conjunction with the proviso which specifically states

that an appeal shall lie only from orders which are specifically enumerated under Order XLIII of the CPC. The occurrences of the expression "shall" and "specifically" in the proviso has to be noted for correctly understanding the legislative intent in framing the scheme of Section 13 of the Act of 2015. It is also noteworthy that the order under challenge in this appeal has been passed by the learned trial court rejecting the Application moved by the Defendants under Order VII Rule 10 and Rule 11(d) of the CPC. Such an order is not enumerated in Order XLIII of the CPC, though Rule 1(a) of Order XLIII enlists an order passed under Order VII Rule 10 for returning the plaint. Thus, Order XLIII enlists the order passed on an Application under Order VII Rule 10 if it is allowed, however, it does not enlist the order in case such an Application is rejected. Order XLIII also does not enlist any order passed on an Application under Order VII Rule 11(d) of the CPC.

***

25. The Division Bench of this Court in the case of Skil-

Himachal Infrastructure & Tourism Ltd. Vrs. IL and FS Financial Services Ltd., 2022 SCC OnLine Bom 3152 has taken note of the judgment in the case of Shailendra Bhadauria Vrs. Matrix Partners India Investment Holdings LLC, 2018 SCC OnLine Bom 13804 wherein it has been held that the judgments in the case of Hubtown Ltd. Vrs. IDBI Trusteeship Services Ltd., 2016 SCC OnLine Bom 9019 and Sigmarq Technologies Pvt. Ltd. Vrs. Manugraph India Ltd., 2017 SCC OnLine Bom 9191. Paragraph 44 of the judgment in the case of Shailendra

Bhadauria (supra) is relevant which is extracted hereunder:

„44. Now, the Commercial Courts (Amendment) Act, 2018 amends the Act 4 of 2016 and deletes the word "decision" from Section 13. We have already reproduced it above. Thus, the earlier view in Hubtown Ltd. Vrs. IDBI Trusteeship Services Ltd., 2016 SCC OnLine Bom 9019 and Sigmarq Technologies Pvt. Ltd. Vrs. Manugraph India Ltd., 2017 SCC OnLine Bom 9191 will have to give way and all the more after the Judgments of the Hon‟ble Supreme Court delivered in the case of Fuerst Day Lawson Limited Vrs. Jindal Exports Limited, (2011) 8 SCC 333 and the authoritative and binding pronouncement in the case of Kandla Export Corporation Vrs. OCI Corporation, (2018) 14 SCC 715. The statute has to confer a right of appeal. That has to be conferred in clear words. We cannot, as suggested by Mr. Andhyarujina, by an interpretative process carve out a right of appeal, when the law is not creating it.‟

26. The judgment in the case of Skil-Himachal Infrastructure & Tourism Ltd. (supra) also takes note of the law laid down by the Supreme Court in the case of Kandla Export Corporation Vrs. OCI Corporation, (2018) 14 SCC 715. The observations made by the Division in paragraph 44 of the Skil-

Himacahal Infrastructure & Tourism Ltd. (supra) is also relevant which is extracted hereunder:

„44. In the Supreme Court decision in Kandla Export Corporation, Section 13 was addressed like

this. First, that Section 13(1) of the CC Act is in two parts. The main provision deals with appeals from judgments, orders and decrees to the Commercial Division of the High Court. To this, the proviso is an exception. Second, the proviso must be construed harmoniously with the main provision, not in derogation of it. It operates in the same field. If main provision is in clear language, the proviso cannot be used to „interpret‟ the main part, or to exclude-- let along by implication-- any part of the main provision; except, of courts, if the proviso plainly contemplates such an exclusion. Under the proviso, appeals against orders are restricted to those orders under Order 43 of the CPC, and Section 37 of the Arbitration Act. Therefore, no appeal lies to the Commercial Appellate Division against any order not specifically listed in Order 43 of the CPC (or an order not under Section 37 of the Arbitration Act).

27. Referring to the order which was under appeal in Skil-Himachal Infrastructure & Tourism Ltd. (supra), the Division Bench in this case held that an order of conditional leave under Order XXXVII of the CPC is not enumerated in Order XLIII and that it is only an order and not a decree and therefore, in view of the law laid down in Kandla Export Corporation and Shailendra Bhadauria (supra), such an order is not appealable under the Act of 2015.

27. Referring to the order which was under appeal in Skil-Himachal Infrastructure & Tourism Ltd.

(supra), the Division Bench in this case held that an order of conditional leave under Order XXXVII of the CPC is not enumerated in Order XLIII and that it is only an order and not a decree and therefore, in view of the law laid down in Kandla Export Corporation and Shailendra Bhadauria (supra), such an order is not appealable under the Act of 2015.

28. Thus, from the discussion made above, we are clear in our mind that an appeal under Section 13(1A) of the Act of 2015 would lie only against the judgment and orders which are enumerated or enlisted under Order XLIII of the CPC. An order rejecting an Application moved under Order VII Rule 10 or Order VII Rule 11(d) of the CPC is not enumerated or enlisted in Order XLIII of the CPC hence, such an order is not appealable following the law laid down by this court in the case of Skil-Himachal Infrastructure & Tourism Ltd. (supra)."

Scope of Section 8 of the CC Act:

12. In Ashok Kumar Puri Vrs. S. Suncon Realtors (P) Ltd., 2021 SCC OnLine Del 5220 it has been observed as follows:

"8. The scope of Section 8 of the Commercial Courts Act, 2015 was considered by Division Bench of this Court in Black Diamond Track Parts (P) Ltd. Vrs. Black Diamond Motors (P) Ltd., 2021 SCC OnLine Del 3946, of which I was a part. The observations of the Division Bench in this respect are set out below:

„29. The reasoning in the aforesaid judgments gave rise to the question, that since the remedy of revision under Section 115, CPC though available under the CPC against the order of dismissal of application under Order 7 Rule 10, CPC, has been taken away under the Commercial Courts Act, whether a petition under Article 227 would lie.

30. We are of the view that once the Commercial Courts Act has expressly barred the remedy of a revision application under Section 115, CPC, with respect to the suits within its ambit, the purpose thereof cannot be permitted to be defeated by opening up the gates of Article 227 of the Constitution of India. The scope and ambit of a petition under Article 227 is much wider than the scope and ambit of a revision application under Section 115, CPC; whatever can be done in exercise of powers under Section 115, CPC, can also be done in exercise of powers under Article 227 of the Constitution. Allowing petitions under Article 227 to be preferred even against orders against which a revision application under Section 115, CPC would have been maintainable but for the bar of Section 8 of the Commercial Courts Act, would nullify the legislative mandate of the Commercial Courts Act. Recently, in Deep Industries Ltd. Vrs. ONGC, (2020) 15 SCC 706, in the context of petitions under Article 227 of the Constitution of India with respect to orders in an appeal against an order of the Arbitral Tribunal under Section 17 of the Arbitration and Conciliation Act, 1996, it was held that if

petitions under Article 226 of 227 of the Constitution against orders passed in appeals under the Arbitration Act were entertained, the entire arbitral process would be derailed and would not come to fruition for many years. It was observed that though Article 227 is a constitutional provision which remains untouched by an non obstante Clause 5 of the Arbitration Act but what is important to note is that though petitions can be filed under Article 227 against judgments allowing or dismissing first appeals under the Arbitration Act, yet the High Court would be extremely circumspect in interfering with the same taking into account the statutory policy, so that interference is restricted to orders which are patently lacking in inherent jurisdiction. Thus, though we are of the view that gates of Article 227 ought not to be opened with respect to orders in commercial suits at the level of the District Judge against which a revision application under CPC was maintainable but which remedy has been taken away by the Commercial Courts Act, but abiding by the judgments aforesaid, hold that it cannot be said to be the law that jurisdiction under Article 227 is completely barred. However the said jurisdiction is to be exercised very sparingly and more sparingly with respect to orders in such suits which under the CPC were revisable and which remedy has been taken away by a subsequent legislation i.e. the Commercial Courts Act, and ensuring that such exercise of jurisdiction by the High Court does not negate the legislative intent and purpose behind the Commercial Courts Act and does

not come in the way of expeditious disposal of commercial suits.

31. We thus hold the petition under Article 227 of the Constitution of India to be maintainable with respect to the order impugned in CM(M) No. 132 of 2021. However the discretion, whether in the facts and circumstances such petition is to be entertained or not, having under the roster been vested in the Single Judge, we leave it to the Single Judge to exercise such discretion.‟

9. The above observations of the Division Bench are fully applicable in the facts and circumstances of the present case. In the present case also, if it were not a commercial matter, the remedy of the petitioner against the impugned order would be to file a revision petition under Section 115 of the Civil Procedure Code, 1908 (CPC). However, the said remedy has been barred under Section 8 of the Commercial Courts Act, 2015 in respect of commercial matters. Therefore, the scope of interference by this Court in exercise of jurisdiction under Article 227 of the Constitution of India is extremely narrow and limited only in respect of orders that are patently lacking inherent jurisdiction. This is not a case where the impugned order was passed by the commercial court without inherent jurisdiction."

12.1. In Vaijanath Dayanand Kale Vrs. Nerkar Properties LLP, 2020 SCC OnLine Bom 906, it has been observed as follows:-

"5. The scheme of the Commercial Courts Act, as indicated by Section 8, envisages that no civil revision application or petition shall be entertained against any interlocutory order of a commercial Court, including an order on an issue of jurisdiction; any such challenge, subject to the provisions of Section 13 of the Act, shall be raised only in an appeal against the decree of the commercial Court. Section 8 is a non-obstante provision and has an overriding effect over other provisions of law. The bar exists evidently to ensure that no suit, filed as a commercial suit, is obstructed in its hearing before the commercial Court by filing of challenges from interlocutory orders including, of course, an order on the issue of jurisdiction. This bar, obviously, would not apply to the jurisdiction of this Court under Article 226 or 227, but the writ Court, equally obviously, would restrict its interference with interlocutory orders of commercial Courts only to those exceptional cases, where the Courts have made patent jurisdictional errors. The present challenge involves an interlocutory or miscellaneous order passed by a commercial Court concerning its jurisdiction on a fair assessment of the Plaintiffs case and there is no reason why the matter should be treated by this Court as a special matter for making an exception for interfering in its writ jurisdiction. After all, if the defendants are right in their objection to the jurisdiction of the Court, the same may well form part of their appeal from the final decree passed by the commercial Court."

Decisions relating to consideration of remedy against interlocutory orders under the CC Act:

13. In M.V. Ramana Rao Vrs. N. Subash, 2019 SCC OnLine TS 3530 it has been observed as follows:

"Aggrieved by an order passed by the Commercial Court allowing an application for amendment of the written statement so as to include a plea of set-off, the plaintiff in a suit for recovery of money has come up with the above revision under Article 227 of the Constitution of India.

Maintainability under Section 8:

12. Before considering the rival contentions on merits, it is necessary to deal with the preliminary objection raised by the learned counsel for the respondent/defendant about the maintainability of a revision in view of Section 8 of the Commercial Courts Act, 2015. The contention of the learned counsel for the respondent is that there is a specific bar under Section 8 of the Commercial Courts Act, 2015 to the maintainability of, a revision as against interlocutory orders and that the only remedy open to the petitioner is to reserve his objections to the impugned order, at the time of filing of an appeal against the judgment of the Commercial Court, if the judgment went against him. His contention is that the petitioner has a remedy as against the impugned order only under Section 13 of the Commercial Courts Act, 2015 and a revision is barred under Section 8.

13. But before we answer this question, we should point out that it is a case of pot calling the kettle black. As against the dismissal of his application under Order VII, Rule 11 of CPC, the respondent came up by way

of a revision under Article 227 of the Constitution of India and after the dismissal of the same he took the matter to the Supreme Court and also filed a review application. At that time, a revision as against an interlocutory order was considered by the respondent as maintainable.

14. It is true that at the time when the respondent/ defendant filed a revision against the dismissal of his application under Order VII Rule 11 of CPC, the suit was not before the Commercial Court and hence at that time Section 8 could have had no application.

But, nevertheless Section 115 of CPC, had already been amended by Act 46 of 1999 w.e.f. 01.07.2002. The proviso to sub-section (1) of Section 115 of CPC, which came into force on 01.07.2002, prohibited the reversing of any order except where the order would have had the effect of finally disposing of the suit or other proceedings. Therefore, what finds a place in Section 8 of the Commercial Act, 2015 is a very lucid and sophisticated or at least an advanced version of the amended Section 115 of CPC.

15. In many cases that came up before Courts after the 2002 amendment to the CPC, the Supreme Court highlighted the distinction between a power of revision under Section 115 of CPC and a power of revision under Article 227 of the Constitution of India.

16. What is barred by Section 8 of the Commercial Courts Act, 2015 is only a revision under Section 115 of CPC. The power of judicial review available under Articles 226/727 of the Constitution of India cannot be and has not

been taken away by Section 8 of the Commercial Courts Act, 2015.

17. This is not to say that Article 227 can be used as a ruse to circumvent Section 8 of the Commercial Courts Act, 2015. Wherever Article 227 is sought to be used as a ruse, the Commercial Appellate Division will necessarily have to call the bluff. There are self-imposed restrictions for exercising the power under Article 227 which we shall always keep in mind. It may be open always to the respondent in a revision under Article 227 to contend mat the case on hand would not qualify to be entertained within the parameters of Article 227. But, it cannot be contended that Section 8 is an absolute bar even for the maintainability of a revision under Article 227. This issue is also settled by a decision of another bench of this Court in M/s. Harpreet Singh Chhabra Vrs. Mrs. Suneet Kaur Sahney (1), (2018) 5 ALT 681 (D.B.) = (2019) 2 ALD 62 (D.B.). Therefore, we reject the contention regarding maintainability and hold that the revision1 is maintainable."

13.1. It is observed in Beyond Malls LLP Vrs. Lifestyle International Pvt. Ltd., 2020 SCC OnLine MP 4161 as follows:

"8. At the outset, we may record that Section 8 of the Commercial Courts Act cannot be read to mean that supervisory jurisdiction of this Court under Article 227 of the Constitution is taken away in any manner. A Constitution Bench of Supreme Court in L. Chandra Kumar Vrs. Union of India, (1997) 1 MP LJ

1 Revision under Article 227 of the Constitution of India.

621 has taken this view. The same view is taken by the Apex Court in Shalini Shyam Shetty Vrs. Rajendra Shankar Patil, (2010) 4 MP LJ 590 = (2010) 8 SCC 329."

Conclusion:

14. The contention of the learned counsel for the petitioner that proviso appended to sub-section (1A) must be read as forming part of sub-section (1) of Section 13 of the CC Act is repelled, inasmuch as the function of a proviso is to restrict, but it does not enlarge the meaning of the provision to which it is appended. The proviso is clearly meant to qualify what has been enacted in the sub- section. It does not contain any matter which is extraneous to that sub-section and thus, does not constitute a substantive provision independently with any matter specified therein. Taking cue from the decisions cited and referred to above, this Court feels persuaded by the interpretation of Section 8 vis-à-vis Section 13 of the CC Act that revision under Section 115 of CPC is not maintainable assailing the Order of rejection of petition under Order VII, Rule 11 of the CPC by the Senior Civil Judge (Commercial Court).

14.1. It needs no statement that had it not been a "commercial dispute" falling within the ken of the CC Act, the remedy of the petitioner against the impugned Order would have been to file a revision petition under Section 115 of the

CPC. However, the said remedy has been barred under Section 8 of the Commercial Courts Act, 2015 in respect of matters falling within the purview of said Act. Therefore, the scope of interference by this Court in exercise of jurisdiction under Article 227 of the Constitution of India is also extremely narrow and limited only in respect of orders that are patently lacking inherent jurisdiction.

14.2. This Court is required to see that by questioning the interlocutory orders, the purport of the CC Act does not get completely frustrated and the objective behind the CC Act is that commercial matters should be decided expeditiously and parties may not challenge interlocutory orders passed in the proceedings, except those which are specifically appealable. Therefore, the expression "any such challenge, subject to the provisions of section 13, shall be raised only in an appeal against the decree of the Commercial Court"

employed in Section 8 of the CC Act has significance.

14.3. The Hon‟ble Supreme Court of India in Frost (International) Ltd. Vrs. Milan Developers & Builders (P) Ltd., (2022) 8 SCC 633 considering the Odisha Amendment in Section 115 of the CPC laid down as follows:

"22. On a perusal of the same it is noted that the Orissa Amendment differs from the main Section 115CPC in the following ways:

22.1. Firstly, the main Section 115 deals with revisional powers of the High Court only, whereas, Section 115, CPC (Orissa Amendment) confers the power of revision not only on the High Court but also on the District Court which may call for the record of any case which has been decided by any court subordinate to the High Court or the District Court, as the case may be, and in which no appeal lies thereto, 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.

In such a case, the High Court or the District Court, as the case may be, may make such order in the case as it thinks fit.

22.2. Secondly, sub-section (2) of Section 115 of the main provision, states that the High Court shall not, under the said Section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto. But under the second proviso to Section 115, CPC (Orissa Amendment), the High Court or the District Court shall not under the said Section, vary or reverse any order, including an order deciding an issue, made in

the course of a suit or other proceeding, except where:

(i) the order, if so varied or reversed would finally dispose of the suit or other proceedings; or

(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

23. Thus, the first proviso to main Section 115, CPC restricts the revisional power of the High Court inasmuch as a revision is maintainable only if it is filed by a party who is aggrieved by an order passed by the court subordinate to the High Court on an order deciding an issue which, had it been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding. But as per the second proviso to Section 115, CPC (Orissa Amendment), the High Court or the District Court, as the case may be, under the said Section can vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceeding only if the order if so varied or reversed would finally dispose of the suit or other proceeding or the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made. In other words, under Orissa Amendment to Section 115, CPC, an express power is conferred on the High Court or the District Court, as the case may be, being the Revisional Courts, to vary or reverse an order of the court subordinate thereto only when it would finally dispose of the suit or other proceedings or if the impugned order [Million Developer Vrs. Frost International, 2016 SCC OnLine Ori 1051] is allowed

to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

24. It would also be pertinent to mention that the instant suit was filed in the year 2009 and therefore the Orissa Amendment to Section 115, CPC vide Orissa Act 26 of 1991, Section 2, would be applicable. However, by Orissa Act 14 of 2010, sub-section (2), Section 115 was amended by the Orissa Legislature and second proviso to Section 115 has been amended and sub-section (2) of Section 115 has been added which states that the High Court or the District Court, as the case may be, shall not under this Section, vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceeding, except where the order, if it has been made in favour of the party applying for revision, would finally dispose of the suit or other proceeding.

25. Further, clause 1 of the second proviso of Section 115 has been omitted by the amendment made in the year 2010 and sub-section (3) has been added. This provision states that 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 or the District Court, as the case may be. Sub-section (1) of Section 115 is in pari materia with the Orissa Amendment of 1991 except its reference to the Orissa Amendment Act of 2010.

***

29.2. Nariman, J. while discussing Section 115, CPC and proviso thereto held that revision petitions filed

under Section 115, CPC are not maintainable against interlocutory orders in Tek Singh Vrs. Shashi Verma, (2019) 16 SCC 678. The following observations were made in the said case:

„6. Even otherwise, it is well settled that the revisional jurisdiction under Section 115, CPC is to be exercised to correct jurisdictional errors only. This is well settled. In D.L.F. Housing & Construction Co. (P) Ltd. Vrs. Sarup Singh, (1969) 3 SCC 807 this Court held:

„5. The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words "illegally" and "with material irregularity"

as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with.‟ ***‟

30. Therefore, in the instant case the High Court was not right in holding that the Revisional Court had no jurisdiction to reject the plaint filed under Order 7 Rule 11CPC. The reasoning of the High Court is contrary to the express proviso of Section 115 (Orissa Amendment).

31. No doubt rejection of a plaint is a decree within the meaning of Section 2(2), CPC and an appeal lies from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeals from a decision of such court. However, it must be borne in mind that when a Revisional Court rejects a plaint, in substance, an application filed under Order 7 Rule 11 is being allowed. Under such circumstances, the remedy by way of a writ petition under Article 227 of the Constitution could be availed and Respondent 1/the plaintiff has resorted to the said remedy in the instant case; although if the plaint had been rejected by the trial court i.e. court of original jurisdiction, it would have resulted in a right of appeal under Section 96, CPC."

14.4. Such being the general perspective of Section 115, CPC, in the instant case, the Senior Civil Judge (Commercial Court) having rejected the petition under Order VII, Rule 11, CPC, order passed by him would be encompassed within sub-section (1) of Section 13 of the CC Act, i.e., "Any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial Appellate Court within a period of sixty days from the date of judgment or order." The proviso to sub-section (1A) of Section 13 of the CC Act has no application as suggested by the learned counsel for the petitioner as "a proviso qualifies the generality of the main enactment by providing an exception and taking out from the main provision, a portion, which, but for the proviso would be a part of the main provision. A proviso must, therefore, be considered in relation to the principal matter to which it stands as a proviso. A proviso should not be read as if providing something by way of addition to the main provision which is foreign to the main provision itself. [extracted from The Mavilayi Service Cooperative Bank Ltd. Vrs. Commissioner of Income Tax, Calicut, (2021) 1 SCR 78].

14.5. As has already been discussed in the foregoing paragraphs, an Order rejecting petition under Order VII, Rule 11 of the CPC is in the nature of interlocutory order, thus the words negatively couched in Section 8(1)

of the CC Act, i.e., "no civil revision application or petition shall be entertained against any interlocutory order of a Commercial Court" shall have to be construed strictly.

14.6. Conspectus of State of Bihar Vrs. Sir Kameshwar Singh of Darbhanga, AIR 1952 SC 252; K. Pentiah Vrs. Muddala Veeramallappa, AIR 1961 SC 1107; Bhikraj Jaipuria Vrs. Union of India, AIR 1962 SC 113; Mannalal Khetan Vrs. Kedar Nath Khetan, (1977) 2 SCC 424 = 1977 Tax LR 1638 (SC) would lay down the concept qua negatively worded provision is this, that the purpose for which the provision in the statute has been made, its nature, the intention of Legislature in making the provision, the general inconvenience or injustice which may result to the person from reading the provision one way or the other, the relation of the particular provision to other provisions dealing with the same subject and the language of the provision are all to be considered. Prohibition and negative words can rarely be directory. It has been aptly stated that there is one way to obey the command and that is completely to refrain from doing the forbidden act. Therefore, negative, prohibitory and exclusive words are indicative of the legislative intent when the statute is mandatory. Where the provision uses the words in the negative like „shall not...‟, the mandatory character is strengthened by the negative

form of the language. Negative language is worded to emphasise the insistence of compliance with the provisions of the Act. Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statutory provision imperative.

14.7. Applying the safe test as devised by the Hon‟ble Supreme Court of India with respect to interlocutory orders to the present context, it is quite obvious that had the petition under Order VII, Rule 11 of the CPC been allowed, it would have concluded the suit as a whole. Therefore, the interlocutory order being passed by rejecting the petition of the petitioner herein, there is no scope for the petitioner to question the impugned Order dated 06.05.2023 of the Senior Civil Judge (Commercial Court) in revision under Section 115.

14.8. In the wake of discussions supra, this Court is of clear opinion that civil revision under Section 115 is not maintainable assailing Order dated 06.05.2023 passed by the learned Senior Civil Judge (Commercial Court), Bhubaneswar in C.S. No.49 of 2022, rejecting petition under Order VII, Rule 11, of the CPC.

15. It needs to be clarified that there has been no expression by this Court on the merits of the grounds raised by the petitioner in the present case.

16. Considering the submission and averments made by the learned counsel for the parties, it is held that by virtue of interdiction in Section 8 with conditions hedged in Section 13 of the CC Act, this civil revision deserves to be dismissed as not maintainable.

17. In the result, the CRP stands dismissed, but in the circumstances, there shall be no order as to costs.

18. As a consequence thereof, interim orders passed stand vacated.

(MURAHARI SRI RAMAN) JUDGE

Designation: JUNIOR STENOGRAPHER

Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 17:03:43

High Court of Orissa, Cuttack The 13th February, 2025//MRS/Laxmikant/Suchitra