G.D Sharma, J.:— This revision is directed against the order passed on 1-9-1993 by the City Munsiff, Srinagar in Suit No. 131 of 1993 titled Ghulam Rasool v. State. During the year 1993, the respondent herein was working as Senior Assistant in the office of the Executive Engineer, Transmission Line, Construction Division-II, PDD, Railway Station, Jammu, vide order No. DC/PD/ADM-2.Camp/9 of 1993 dated 17-8-1993, petitioner-1 herein transferred the respondent from the construction wing of Power Development Department, Jammu to the Procurement and Material Management Wing of the Power Development Department, Jammu. This order of transfer was challenged by the respondent in the abovesaid suit wherein it was prayed that the order may be declared as null and void. Consequential relief in the form of perpetual injunction was also sought that the petitioners be restrained from giving effect to the order in question. The plaint was accompanied by the application made under O. 39, Rr. 1 and 2, C.P.C wherein relief of temporary injunction was sought for not giving effect to the above stated transfer order. On 1-9-1993, the City Munsiff, Srinagar in the said application passed ex parte order whereby the transfer order in question was kept in abeyance. The interim order is the subject matter of the dispute in this revision petition which has been referred to larger Bench by the learned single Judge vide his order dated 31-1-1997 who did not agree with the ratio of single Judge decision given in Civil Revision Petition No. 44/95. The reason for dis-agreement is the newly engrafted sub-section (2) in section 115, C.P.C which stipulates that “High Court shall not under this section vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.” In the abovesaid revision petition No. 44/95, it was held that revision petition is maintainable even where the appeal lies either to the High Court or to the Court subordinate thereto.
2. Mr. S.K Anand, learned counsel appearing for the petitioners has contended that the revision petition in the present case is maintainable because the City Munsiff, Srinagar has not passed the impugned order under the provisions of O. 39, Rr. 1 and 2, C.P.C as main suit was not maintainable before him because of lack of territorial and statutory jurisdiction. He had sought the relief of declaring the transfer order as ‘null and void’ and by virtue of the impugned order sought the temporary relief of injunction in his favour not to give effect to the order of transfer in question. His prayer was accepted on the allegations made in the application that balance of convenience was in his favour and he had a prima facie case also. He had also alleged that in case the temporary relief was not granted he had to suffer irreparable loss. It may be noted that the State and the functionaries were arrayed as defendants in the suit. No notice as is contemplated under S. 80, C.P.C was given to the defendants. The temporary relief was granted in complete dis-regard of sub-clause (3) to S. 80, C.P.C which provides that a suit and/or an application for interim relief against the Government or any public officer in respect of any act purporting to be done by the public officer in his official capacity, may be instituted with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit. The plaint had not disclosed how the Munsiff had jurisdiction in Srinagar when the impugned order was passed in Jammu and its area of operation was in Jammu itself. Section 56 of the Specific Relief Act provides that an injunction cannot be granted to interfere with the public duties of any department of the Government or the State or with the sovereign acts of foreign Government. In the instant case, vires of transfer order were challenged which was passed by the petitioners herein while performing their public duties. So the cognizance of the case by the learned Munsiff was also prohibited by this specific provision of law.
3. Undoubtedly, the impugned order has been passed by taking aid of O. 39, Rr. 1 and 2, C.P.C which is appealable under O. 43, R. 1 Cl. (R), C.P.C The appeal could lie before the learned District Judge, Srinagar.
4. Now, it has to be seen whether such an order which though is appealable under the provisions of the Civil Procedure Code can be revised by invoking the revisional jurisdiction vested in this Court under S. 115, C.P.C and the bar created under sub-cl. (2) under Proviso of the section, can come in the way or not. In the instant case the City Munsiff, Srinagar has exercised the jurisdiction not vested in him by statute as well as he has not followed the procedure laid down by law. This is an illegality in the exercise of jurisdiction and the High Court has the power to exercise the revisional jurisdiction which is of the nature of supervisory superintendence and control of subordinate courts is the constitutional function of this Court vested in it by S. 104 of the J. & K. Constitution. Shorn of its un-essentials, this constitutional power under S. 104 of the Constitution is of the following nature—
“(1) The High Court shall have superintendence and control over all Courts for the time being subject to its appellate or revisional jurisdiction and all such Courts shall be subordinate to High Court. x x x x x x x x x x”.
5. The word ‘superintendence’ as pointed out by the Calcutta High Court in Manmatha Nath Biswas… v. Emperor…Opposite Party., AIR 1933 Cal 132 : (34 Cri LJ 299) is a term of legal force and significance involving the responsibility to keep the Courts and Tribunals within the bounds of their authority to see that they do their duty and that they do it in a legal manner. To the same effect is the decision of the Supreme Court in Waryam Singh v. Amar Nath, AIR 1954 SC 215 wherein it has been held that the powers of superintendence cover both administrative and judicial matters and it should be invoked in all cases of non-exercise or illegal exercise of the jurisdiction vested by law in any Court or Tribunal.
6. In the Law of Lexicon the word ‘superintendence’ has been defined as under:
“Superintendence connotes supervision which employs a hierarchy, viz., superior and the one supervised. It would, therefore, mean keeping in view a check and watch over the work of another who may be a subordinate in hierarchy of authority. It would also comprehend that supervision is not merely negative thing so as to keep a watch, but it cannot give a direction, guidance, even instructions and in a given situation dragging one who is being supervised to forebear from doing a thing and directing someone else to do that thing.”
7. The Apex Court in the case of Chandrika Singh v. Raja Vishwa Nath Pratap Singh, 1992 (3) SCC 90 : (AIR 1992 SC 1318) has held:
“Where Civil Judge exercises jurisdiction not vested in him by statute and not followed the procedure laid down by the statute and thus committed an illegality in exercise of his jurisdiction, the High Court must rectify the error in exercise of its revisional jurisdiction.”
8. Again the Apex Court in the case of Chander Kumar v. Union of India, AIR 1997 SC 1125 : (1997 Lab IC 1069) has held, “that the powers vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and tribunals within their respective jurisdiction is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided.”
9. This constitutional power vested in the High Court of supervising the Court hierarchy to be invoked in appropriate cases of non-exercise or illegal exercise of the jurisdiction vested by law in any Court cannot be taken away by incorporating any amendment in any law including the procedural law and if it comes in conflict with the constitutional provision it will be a dead letter on the statute. Revisional jurisdiction vested in this Court under S. 115, C.P.C is limited one. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. The Court has to satisfy itself on three matters—
(a) that the order of the subordinate Court is within its jurisdiction;
(b) that the case is one in which the Court ought to exercise jurisdiction; and
(c) that in exercising jurisdiction the Court has not acted illegally; that is, in breach of some provision of law, or with material irregularity by committing some error of procedure in the Court of the trial which is material in that it may have affected the ultimate decision.
And if the High Court is satisfied on these three matters it has no power to interfere because it differs from the conclusions of the subordinate Court on question of fact or law. Sub-clause (2) of Section 115, CPC states that the High Court shall not under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. This clause has not to be read in contradistinction to sub-clause (I) of the section but it only supplements the former. This can be said so because revisional powers under sub-clause (1) touch upon jurisdiction, viz., its exercise, the refusal to exercise it, or the irregular or illegal exercise of it. The Apex Court in the case of Shri M.L Sethi v. Shri R.P Kapoor AIR 1972 SC 2379, has held that an erroneous decision on a question of law reached by the subordinate Court which has no relation to questions of jurisdiction of that Court, cannot be corrected by High Court under Section 115, CPC. The appellate Courts have distinct demarcated jurisdictions of their spheres. Thus, the revisional and appellate powers never overlap each other. This is the only harmonious interpretation which can be given to these two sub-sections incorporated in the section. An unwanted restriction on the exercise of powers of superintendence which is supervisory can in some cases result in denying relief to aggrieved litigant when it is most needed and may result in the perpetration of gross injustice. In this way, an order which is though appeal-able yet cannot be taken away from the purview of the paternal revisional jurisdiction if it falls within the ambit of sub-clause (I) of Section 115, C.P.C
10. Adverting to the facts of the present case, it is found that impugned order is appealable under Order 43, Rule 1, Clause (R), C.P.C and the appeal thereto lies before the learned District Judge, Srinagar. But as the order has been passed without jurisdiction so it is reviseable under sub-clause (I) of Section 115, C.P.C Accordingly, the petition is accepted and the order in question is set aside. As the trial judge has passed the order in complete disregard of the law of the land so an explanation as to his conduct is warranted. The Registrar General (High Court) is directed to obtain explanation from him within three months and the same be placed before the Lord Chief Justice for appropriate administrative action.
Bilal Nazki, J.:— 11. I have gone through the judgment proposed by my learned brother (Sharma-J) and I agree with the opinion of my learned brother but I would like to go a step further in the matter.
12. Civil Procedure Code was amended by Act XI of 1983 with effect from 15th of August 1983, by which sub-section (2) was inserted into Section 115 of the Civil Procedure Code. Till 1983 there was no confusion with regard to the power of the High Court for entertaining a revision against the orders passed by subordinate Courts but sub-section created an anomalous position. Sub-section reads as under:—
“The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.”
13. The power of the revision of the High Court of the orders passed by the subordinate Courts have been conferred on this Court by the provisions of Constitution of the State. Section 102 of the Constitution of the State saves the jurisdiction of this Court which it had when the constitution came into force. Section 103 gives the power to issue writ to this Court and Section 104 gives this Court the power of superintendence and control over the subordinate Courts.
14. The law is no longer res-integra that the power of the High Court under Articles 226 and 227 which is pari materia with Section 103 and 104 of the State Constitution is a power of judicial superintendence and only administrative superintendence, and power of judicial superintendence over the subordinate Courts is a part of basic structure of the Constitution. What sub-section (2) of Section 115 has laid down is that it has excluded the revisional jurisdiction of the High Court in the matters in which an appeal lies; either to the High Court or to any Court Subordinate to it. In practice, it would mean that if a Munsiff passes an order which is erroneous and is appelable before the District Judge, the High Court cannot intervene in the matter. This situation cannot be permitted to exist in view of Section 104 of the Constitution of State, and such a situation will be against the basic structure of the Constitution. Therefore, in my view, sub-section (2) of Section 115 of Code of Civil Procedure is ultra vires to the Constitution. Prior to the amendment of Section 115, no revision would lie against an order of the Subordinate Court in which an appeal lay to the High Court, but by the amendment, even those cases have been taken out of the revisional jurisdiction of the High Court, in which appeal lies even before a Subordinate Court. Therefore, Section 115 of the Code of Civil Procedure is ultra vires to the Constitution, to the extent it takes away the jurisdiction of the High Court in entertaining a rivision against an order, against which an appeal lies before a Subordinate Court.
15. Therefore, I strike down sub-section (2) of Section 115 of the Code of Civil Procedure to the extent mentioned above, on the ground of being ultra vires to the Constitution.
Order accordingly.