1. This revision is directed against an order dated 12-12-1983 whereby the trial Court has rejected the objection raised against the preliminary decree which was passed by the trial Court in a suit for dissolution of partnership and accounts.
2. For purposes of taking accounts, Shri Bedekar, Advocate, Khandwa was appointed as Commissioner but it is said that he, without examining the account-books, submitted his report. Therefore, both the parties had filed their objections before the trial Court which were decided by the impugned order dated 12-12-1983 against which the present revision petition has been filed on 9-1-1984 by the applicant-defendant but at the request of the applicant's counsel, the revision was adjourned from time to time and lastly on 8-2-1984 it was admitted for hearing parties. Further proceedings in the trial Court are also stayed.
3. Shri R.P. Verma and Shri S.C. Jain, counsel for the non-applicant raised a perliminary objection that in the trial Court, the suit has been finally decided by the judgment and decree dated 2-1-1984. Therefore, the impugned order dated 12-12-1983 which is under challenge in this revision petition is merged in the judgment and decree dated 25-1-1984 and hence this revision has become infructuous and now the applicant may vindicate his grievances against the order dated 12-12-1983 by filing a regular appeal and may challenge the validity of the impugned order in accordance with the provisions of S. 105, Code of Civil Procedure. Therefore, on this short ground this revision must be dismissed being infructuous.
4. Shri R.K. Pandey counsel for the applicant contended that despite the final judgment and decree passed by the trial Court, this revision has not become infructuous and he submitted that the revision may be heard on merits and be decided accordingly. In support of his contention, he submitted that the provisions of Section 115, C.P.C. give ample and unfettered powers to this Court to decide the revision notwithstanding the fact that a final decree has been passed against which a regular appeal lies. In support of his contention, he cited authorities right from different High Courts in this country to the Supreme Court of India. He, however, based his arguments on the decisions reported in Yaqoob Ali v. Firm Haji Tajkhanji Ibrahimji, Udaipur, AIR 1984 Raj 1, Assanand v. Harish Kumar, AIR 1983 Punj & Har 23, Shrikishan Bharadwaj v. Manoharlal Gupta, (AIR 1977 Delhi 226), Smt. Pushpa Rani v. Ramchandra, AIR 1977 Orissa 23, Damodar v. Santosh Singh. 1978 Jab LJ 769 and Maj.' S.S. Khanna v. Brig. F.J. Dhillon AIR 1964 SC 497.
5. For the sake of convenience, it 'is necessary to reproduce the relevant provisions of Section 115 of the Code of Civil Procedure which are as under: --
"115(1). The High Court may call for the record of "any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto", and if such subordinate Court appears......
(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto."
Shri Pandey laid much emphasis on the words "any case which has been decided" and argued that "case" is a word of comprehensive import. It includes further proceedings other than suits and is not restricted by anything contained in the section to the entirety of the proceedings in Civil Court. Therefore, if the impugned order is one which falls within the ambit of the phrase "any case which has been decided" k would be revisable. In support of this submission, he relied upon the decisions of Delhi High Court in Shrikishan Bharadwaj's case, (AIR 1977 Delhi 226) (supra) and of Maj. S.S. Khanna's case, (AIR 1964 SC 497) (supra) and in this context, he also cited the above referred other decisions of Rajasthan, Orissa and Punjab and Haryana High Courts.
6. The words of limitation used in Section 115 C.P.C. are "in which no appeal lies thereto" have been considered by their Lordships of the Supreme Court in the case of Smt. Vidyawati v. Devidas, AIR 1977 SC 397. Their Lordships of the Supreme Court held that under Section 115 of the Code of Civ,il Procedure a revision can lie before the High Court from an order made by a subordinate Court in which no appeal lies from that order to the High Court, But after the amendment of 1976, Section 115 has been radically amended and a new provision i.e. Sub-clause (2) has been enacted which specifically bars the hearing of revision against an order which is either appealable before the lower Court or before the High Court. For this season, if there is overlapping or any conflict in the statute then on the settled principles of statutory interpretation of law, the statute must be read as a whole and the real intention of the Legislature is to be judged by reading the entire section as a whole.
7. In dealing with this aspect of interpretation of statute, their Lordships of the Supreme Court have dealt this point in various decisions. In Commr. of Income-tax v. National Taj Traders, AIR 1980 SC 485 in para 10, their Lordships have held that--
"Every clause of a statute should be construed with reference to the context."
In State of Bihar v. Hiralal Kejriwal, AIR 1960 SC 47 in para 6, their Lordships have held:
"To ascertain the meaning of a section, it is not permissible to omit any part of it. The whole section should be read together and an attempt should be made to reconcile both the parts."
Similarly, in Ashwani Kumar Ghose v. Arbindra Bose, AIR 1952 SC 369 in para 55, their Lordships have held:
"It is one of the settled rules of construction that to ascertain the legislative intention, all the constitutional parts of a statute are to be taken together and each word, phrase or sentence is to be considered in the light of the general purpose and object of the Act itself.
Similarly, in K.M. Nanawati v. State of Bombay, AIR 1961 SC 112 in para 80(6)(e), it is laid down that--
"If two sections are repugnant, the known 'rule is that last must prevail."
Similarly, in Raj Krushna Bose v. Vinod Kanungo, AIR 1954 SC 202 in para 11, it has been held--
"It is the duty of the Court to avoid a head on clash."
Similarly, in Madanlal Fakirchand v. Shri Changdeo Sugar Mills, Limited, AIR 1962 SC 1543 in para 17, their Lordships have held that-- .
"It is necessary that the said two sub-sections must be read as part of an integral whole and as being inter-dependent. An attempt should be made in construing them to recpncile them if it is reasonably possible to do so and to avoid the repugnancy."
8. The principle of harmonious construction has very often been applied in construction of apparently conflicting legislative entries in Schedule VII of the Constitution of India and in cases of overlapping, inconsistency and repugnancy in the statute, it has always been avoided by giving the true legislative intent to the statute. If two sections or sub-sections of an Act cannot be reconciled as there may be absolute contradictions, it is often held that last must prevail.
9. Shri Pandey further laid stress on Damodar's case (1978 Jab LJ 769) (supra) decided by this Court. In that case, the trial Court held that the applicant was not an indigent person and granted time to pay the Court-fees but no Court-fee was paid and against that a revision was filed. During the pendency of the revision, an application made under Order 33 Rule 2 was dismissed. In that context, this Court held that revision against earlier order in which a consequential order was passed later on, does not become infructuous. If the earlier order is set aside, all further orders fall to the ground. The facts of Damodar's case (supra) are quite distinguishable from the facts of the instant case and, therefore, the ratio laid down in that case has no application. Further, the effect of 1976 amendment was neither brought to the notice of the Court nor its effect was considered Hence, Damodar's case (supra) is of no avail to the applicant.
10. Applying the above principles, if the provisions of Section 115 Sub-sections (1) and (2) are tested with the principle of interpretation of' statutes, referred to in the above Supreme Court decisions, the true position which emerges is that Sub-section (2) of Section 115 C.P.C. prevails upon Sub-section. (1) of that section and the words,-
"any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto"
as interpreted by their Lordships of the Supreme Court in Smt. Vidyawati's case (
AIR 1977 SC 397) (supra), are of no help in view of
1976 amendment (sub-sec. (2) of Section 115) which was not the subject-matter for consideration before the Supreme Court either in Smt. Vidyawati's case (supra) or Maj. S.S. Khanna's case (
AIR 1964 SC 497) (supra) as there was no occasion for it.
11. Hence, the decisions cited by the learned counsel appearing for the applicant which have been referred to in para 4 of this order are of no avail to him for the reason, first, that in most of the decisions effect of 1976 amendment is not considered at all and secondly, even if in some of the decisions the amendment is referred to but the same are without applying the principles of golden rule of interpretation of statute as have been discussed by their Lordships of the Supreme Court in the above referred decisions which is the true acid test to know the real intention of the Legislature in legislating the particular statute. Therefore, the decisions, of Orissa, Rajasthan, Punjab and Haryana and Delhi High Courts are also of no avail to the applicant.
12. In view of the decisions referred to above, I have definitely reached the conclusion that the order dated 12-12-1983 having been merged in the final judgment and decree dated 25-1-1984, no revision lies against that order in view of specific and mandatory provision of Sub-section. (2) of Section 115 of the Code of Civil Procedure and therefore, the present revision petition has become infructuous and the only remedy which is available to the applicant is that he may vindicate his grievance against the order dated 12-12-1983 by raising grounds in the regular appeal, if so advised.
13. From the discussion aforesaid, the preliminary objection succeeds and in view thereof this revision petition fails and is hereby dismissed accordingly with costs. Counsel's fee Rs. 500/-, if certified.