Uttarakhand High Court
23Rd February vs Procedure Would Not Be ... on 23 February, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
WRIT PETITION (M/S) NO. 476 OF 2023
23RD FEBRUARY, 2023
BETWEEN:
Bright Angels Educational Society & another .....Petitioners.
And
Rakesh Tomar & others ....Respondents.
Counsel for the Petitioners : Mr. Siddhartha Singh, learned
counsel.
The Court made the following:
ORDER: (per Hon'ble The Chief Justice Sri Vipin Sanghi)
The present writ petition, under Article 227 of the
Constitution of India, has been preferred by the petitioners to
assail the order dated 13.02.2023, passed by the Court of the
Senior Civil Judge, Vikasnagar, Dehradun, in O.S. No.25 of
2023.
2. By the impugned order, the learned Senior Civil
Judge has refused to pass an ex parte interim injunction
order on the petitioners' (who are the plaintiffs in the Suit)
application for injunction against the respondents-defendants.
Notice has been issued to the defendants for filing of their
objections, returnable on 13.03.2023.
3. Learned counsel for the petitioners submits that the
present writ petition, under Article 227 of the Constitution of
India, is maintainable. In this regard, he submits that no
appeal is maintainable under Order 43 Rule 1(v) of the CPC,
as no order granting, or refusing to grant interim injunction
has been passed. He also places reliance on the judgment of
the Division Bench of the Allahabad High Court in Ram Dhani
& others vs. Raja Ram & others, 2011 (2) ARC 465,
wherein the Division Bench of the Allahabad High Court held
that a revision under Section 115 of the Code of Civil
Procedure would not be maintainable against an order of
issuance of notice to the defendants, before grant of an
injunction. Thus, the only remedy available to the petitioners
is under Article 227 of the Constitution of India.
4. Learned counsel submits that the basis of the said
decision is the language of Section 115 of CPC, as is
applicable in the State of Uttar Pradesh. He submits that the
language of Section 115 of CPC, as applicable in the State of
Uttarakhand, is pari materia with that as applicable in the
State of Uttar Pradesh.
5. Section 115 (1) of CPC, as applicable in the State of
Uttarakhand, reads as follows:-
"Section 115. Revision. (1) A superior court may revise
an order passed in a case decided in an original suit or other
proceeding by a subordinate court where no appeal lies against
the order and where the subordinate court has-
(a) exercised a jurisdiction not vested in it by law; or
(b) failed to exercise a jurisdiction so vested; or
(c) acted in the exercise of its jurisdiction illegally or with
material irregularity. (emphasis supplied)
6. It appears that the revision has been held to be not
maintainable on account of the use of words "in a case
decided" in Section 115(1) of CPC, as applicable to the State
of Uttar Pradesh, and also as applicable to the State of
Uttarakhand.
7. To me, it appears, that the said words are a
surplusage, and are liable to be ignored. I say so, because if
Section 115(1) of CPC were to be read literally, while giving
the said words "in a case decided", their literal meaning, it
would follow that revision would be maintainable only once
the Original Suit or other proceeding is decided, and that no
revision would be maintainable against an interlocutory order
passed in an Original Suit, or other proceeding, even though,
the conditions laid down in clauses (a), (b), and (c) of Section
115(1) of CPC are satisfied in respect of an order passed
during the pendency of the Original Suit or other proceeding.
8. Moreover, it would also mean that there would be
two parallel remedies available against an interlocutory order
after the Original Suit or other proceeding is finally decided,
i.e. (i) under Section 96 read with Section 105 of CPC, and;
(ii) under Section 115 of CPC, as applicable to the State of
Uttarakhand, if the conditions of clauses (a), (b) and (c) of
Section 115(1) of CPC are satisfied. It appears to me, that
the legislative intent could not have been to provide two
different and parallel remedies against the same order, while,
also completely denying the remedy provided under Section
115 of CPC, as originally framed.
9. The State amendment, if literally read, has the
effect of completely destroying the remedy provided under
Section 115 of CPC as framed by the Parliament. Could the
State legislature have carried out an amendment in Section
115 of CPC, which has the effect of completely destroying it-
is the issue which requires consideration. Pertinently, Entry
13 of List III- Concurrent list is "Civil Procedure, including all
matters included in the Code of Civil Procedure at the
commencement of this Constitution, limitation and
arbitration." The Code of Civil Procedure is a Central
enactment. Prima facie, the State amendments cannot have
the effect of destroying the provision of the Central
enactment.
10. I am, therefore, of the view that the interpretation
of Section 115 of CPC, as applicable to the State of
Uttarakhand, is an important issue having wide ramifications,
which requires due consideration. I, therefore, refer this issue
to a larger Bench of three Judges for its consideration.
11. Considering the fact that no ex parte ad interim
order of injunction is granted to the petitioners, and the
proceedings are now fixed before the learned Senior Civil
Judge on 13.03.2023, I direct the learned Senior Civil Judge
to proceed to hear the application of the petitioners/ plaintiffs
for injunction on the said date, i.e. 13.03.2023, and not to
adjourn the proceedings for hearing on the said application
any further. I, however, make it clear that I have not
examined the merits of the petitioners' case, and this order
shall not be construed as an expression of opinion in the
matter, one way or another.
12. List this case before the larger Bench on
12.04.2023
(VIPIN SANGHI, C.J.)
Dated: 23rd February, 2023
NISHANT
