1. This reference has been made to resolve the conflict between two sets of Single Bench decisions of this Court viz.; Sawal Singh, 2002(4) M.P.H.T. 200 = 2002(11) MPJR 169; Narsingh, 2002(11) MPJR 165; and Hanuman Datt, 2002(4) M.P.H.T. 343 = 2002(4) MPLJ 354, on the point of tenability of revision against an order passed in appeal under Order 43 Rule 1 of the Code of Civil Procedure, arising from the order of the Trial Court deciding application for temporary injunction under Order 39 Rules 1 and 2 of the Code. The question referred for our decision is :
"Whether the order passed in appeal under
Order 43 Rule 1 of CPC deciding an application under
Order 39 Rules 1 and 2 of CPC one way or the other, can be challenged by taking recourse to revisional jurisdiction of this Court under Section 115 of CPC"
?
2. In Sawal Singh and Narsingh (supra), it is held that the order passed in appeal under Order 43 Rule 1, CPC in which application under Order 39 Rules 1 and 2, CPC was decided, cannot, on and after 1-7-2002 be challenged by taking recourse to revisional jurisdiction of this Court under Section 115. However, in Hanuman Datt (supra), contrary view has been expressed and it is held :
"that the appeal in which appellate order is passed is covered by the word 'case' used in the opening part of
Sub-section (1) of Section 115. If there is jurisdictional error or infirmity of the kind specified in
clauses (a) to (c) of this sub-section then a revision against such an appellate order would lie"
.
3. Since the question involved was of larger importance, we requested Senior Advocates of this Court Sarvashri S.D. Sanghi, G.M. Chaphekar, P.K. Saxena and B.L. Pavecha to address and assist the Court in resolving the issue. They all together with Sarvashri A.S. Kutumble, G.L. Verma and J.K. Joshi, learned Counsel for the parties, addressed the Court. Mainly the arguments were advanced by the Senior Advocates while the others merely supported one line or the other of the arguments.
4. Shri P.K. Saxena who opened the arguments contended that proceedings initiated on an application for temporary injunction fell within the perview of 'Supplemental Proceedings' as envisaged under section 94 of the code. Any order on an application for temporary injunction would not amount to a step-in-aid to trial of the suit, submitted the Counsel. He also read out definitions of 'decree', 'order' and 'judgment' as given in Section 2 of the Code to elaborate his arguments and submitted that any order passed in such a Supplemental Proceedings would not be an order passed in the course of a suit so as to attract the bar contained under the newly substituted proviso to Section 115(1). The order passed in appeal in affirmance or otherwise of the order of the Trial Court on such an application for temporary injunction, can, thus, be challenged by taking recourse to revisional jurisdiction of this Court, maintained the Counsel.
5. Shri B.L. Pavecha also expressed the same view, but for different reasons. He submitted that an order passed in appeal under Order 43 Rule 1, CPC is riot an interlocutory order passed in the course of a suit or proceedings, but a final order terminating the appeal. He contended that the dictum that an appeal is a continuation of a suit, is neither a rule of law nor a principle of universal application. Referring to a Full Bench decision of this Court in Bharat Chand (AIR 1978 MP 143), the learned Senior Counsel maintained that the appeal arising from an order passed in the suit deciding application for temporary injunction cannot be treated as a proceedings in continuation of the suit and any decision rendered in such appeal cannot be said to be an order passed in the course of a suit or other proceedings so as to attract the rigour of proviso to Section 115(1). He cautioned that this proviso stands to limit the revisional power of the High Court and should be construed strictly. In support of his argument he quoted following passage from the" Principles of Statutory Interpretation by G.P. Singh (5th Edition Page 453) :
"In India, the High Courts, part from exercising supervisory powers under the Constitution, exercise a similar power under Section 115, CPC, 1908 over all Subordinate Courts. Even this power of revision under Section 115, which can be excluded by legislative enactments, is construed as not readily excluded except by express provision to that effect."
6. Shri S.D. Sanghi, learned Senior Counsel also argued more or less on the same lines and went a step ahead contending that the proviso to Sub-section (1) of Section 115 comes into play only when the Court sits to decide the revision finally. According to him, every order, final or interlocutory, against which no appeal lies, is a case decided within the meaning of Section 115 and is, therefore, open to challenge under that section and it is only when, after hearing the petition on merits, the Courts come to the conclusion that the order is one which if made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings, that the Court would be entitled to dismiss the revision.
7. Shri G.M. Chaphekar, learned Senior Counsel, however, took a different stand and after tracing legislative history of Section 115, submitted that the broad policy behind insertion of proviso to Section 115(1) firstly in the year 1976 and then its substitution in 1999 (2002) was to cut down the life of lis by placing a bar on revisions against interlocutory order unless the order under challenge is of the nature indicated in the proviso itself. He maintained that an application for temporary injunction is in aid to the suit made in the course thereof. Object of providing appeal against an order deciding such an application is to provide a safety valve and attach finality to such matters which the legislature did not want to wait for the final adjudication of the suit. In appeal under Order 43 Rule 1, CPC only the correctness or otherwise of the order passed by the Trial Court is tested, nevertheless, the nature of the order remains interlocutory having been passed in the course of the suit. To elaborate his arguments, he pointed out that if pending decision of such an appeal, the suit is disposed of, the appeal would not survive and come to an end automatically. He, thus, submitted that any order passed in appeal would be of interlocutory nature like the one passed by the Trial Court, thus, attracting the rigour of proviso to Section 115(1).
8. In order to appreciate the rival contentions, it is necessary to read Section 115 with its legislative changes. Section 115 as it stood before the amendment of 1976, read as follows :--
"115. Revision.-- 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 ho appeal lies thereto, and if such Subordinate Court appears-
"Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings."
11. It will be thus seen that in addition to restriction contained in Section 115 an overhaul restriction on the scope of application for revision against interlocutory orders has been imposed firstly in 1976 and then in 1999. Legislative intent in this regard is very clear and can be gathered further from the Objects and Reasons contained in the two Bills (of 1976 and 1999). We do not want to burden our decision by reproducing the said Objects and Reasons as the very changes brought in Section 115 already stated hereinbefore, make the legal position abundantly clear. The proviso added by the amendment of 1976 was to limit the power of revision to only such interlocutory Order (1) which if decided in favour of the petitioner would finally dispose of the suit or proceedings, or (2) in which the order if allowed to stand is likely to cause an irreparable injury or failure of justice. These restrictions were in addition to those imposed by the terms of Sub-section (1), that is to say, a revision application against an interlocutory order must first fall within Clause (a), (b) or (c) of Sub-section (1) and then it should further satisfy either of the two conditions set out in the proviso. By the amendment of 1999, the scope of revision of interlocutory orders has been further restricted and the latter condition (b) contained in the proviso to enable the petitioner to assail interlocutory order has been omitted. So, now a revision against interlocutory order would lie only if in addition to the grounds contained in the three clauses of Sub-section (1), the order is of such a nature that if made in favour of the petitioner it would have finally disposed of the suit or proceedings.
12. The expression "any case which has been decided", occurring in Sub-section (1), is no doubt and as explained in the explanation, wide enough to include an interlocutory order made in the course of the suit, but before the High Court can revise any such order it must satisfy the condition as set out in the proviso to Sub-section (1). However, the moot question remains whether the order passed in appeal arising from an order granting or refusing prayer for temporary injunction, is an interlocutory order made in the course of a suit or other proceedings.
13. Generally speaking interlocutory order means an order made provisionally in the course of a suit or other proceeding. As per the Law Lexicon by P. Ramatha Aiyar (reprint Edition 1992 Page 611), the term "interlocutory" in Law means not that which decides the cause, but that which only settles some intervening matter relating to the cause". The expression 'interlocutory order' has been explained as follows:--
"An interlocutory order is one which is made pending the cause and before a final hearing on merits.
An interlocutory order is made to secure some end and purpose necessary and essential to the progress of the suit and generally collateral to the issues framed by the pleadings not connected with the final judgment."
The learned author quoting an English decision Smith v. Cowell (6 QBD 75) further explained : " "interlocutory order" is not necessarily confined to an order made between writ and final judgment but it means an order other than final order or judgment".
14. An order disposing of an application for temporary injunction is one which is made pending the cause and before the final adjudication of that cause. The end sought to be secured by such an order is to maintain status quo with respect to subject matter of suit or proceeding. Any order passed on such an application may not have any connection with the final judgment as it is only collateral to the issues involved in the suit. In appeal filed under Order 43 Rule 1 of CPC what is decided only is the correctness or otherwise of the order passed by the Trial Court without in any manner changing its basic character as an interim order. The effect of decision in appeal is only this that the order of the Trial Court stands merged in the appellate order. Notwithstanding with the final disposal of such an appeal, the cause still survives to be decided independently of the findings arrived at by the Trial Court or by the Appellate Court in the matter of grant of temporary injunction. On the other hand, the appeal would not survive if the suit is decided before hearing of the appeal.
15. It is true that every order passed in appeal under Order 43 Rule 1, CPC is not interlocutory. It will obviously depend on the nature of the order from which the appeal arises as also the effect of the order passed in appeal. This distinction is contained in the rule itself and can be gathered from bare reading of various clauses thereof. This rule which has to be read with Section 104 contains a list of orders from which an appeal lies under the provision of section 104, namely:--
16. The orders enumerated above can be classified in two categories. In one category are those orders which finally dispose of the suit or proceeding in which they are made. Orders enumerated in Clauses (a), (c), (d), (ja), (k), (n), (na), (t), (u) and (w) belonged to this category. Another category is of those orders enumerated in the remaining clauses (including the one passed on application for temporary injunction), which are purely interim in nature and the lis in which any such order is made survives even after passing of the order and even after disposal of the appeal against that order. The orders of latter category are obviously interlocutory and the provisional character of these orders remains unchanged even after disposal of the appeal preferred under Order 43 Rule 1. The appellate proceedings arising out of such interlocutory orders are nothing but collateral or incidental to the suit or proceedings in the course of which those orders are made. It is true that the dictum that appeal is a continuation of suit is not of universal application but it would be so in a case like the one in hand where the suit giving rise to that appeal survives even during the pendency and after disposal of the appeal. The appeal in the instant case had a limited object of testing the correctness or otherwise of the interim order passed in the course of the suit or proceedings without in any manner affecting final disposal of that lis. The order passed in appeal would, thus, fall within the perview of proviso to Sub-section (1) of Section 115 and would not be open to revision unless it satisfies the condition laid down by the said proviso in addition to the grounds as enumerated under Sub-section (1).
17. We are conscious of the rule of caution as mentioned by Justice G.P. Singh in his salutary book "Principles of Statutory Interpretation", already extracted hereinbefore that "the power of revision under Section 115 which can be excluded by legislative enactments is construed as not readily excluded except by express provision to that effect". Similar caution is contained in the Full Bench decision of this Court in S.S. Harishchandra (1977 JLJ 312). However, in the instant case, this power of revision though not taken away wholly, has been considerably limited by legislative enactments (amendments of 1976 and 1999) in the matter of revision of interlocutory orders made in the course of suit or proceeding and now this power cannot be exercised unless the order in revision is one if made in favour of petitioner would have finally disposed of the suit or proceeding. Needless to say that in the instant case this condition is not fulfilled.
18. For what we have said above, it must be held that no revision (w.e.f. 1-7-2002) shall lie against an order passed in appeal under Order 43 Rule 1 of CPC in affirmance or otherwise of the order passed in the course of suit or other proceeding on an application for temporary injunction under Order 39 Rule 1 and 2 of CPC. The view taken in Sawal Singh and Narsingh (supra), in our opinion, therefore, is correct. It must, however, be said with great respect that Hanuman Datt's case (supra) was not correctly decided. The reference is answered accordingly.
19. We thank Sarvashri S.D. Sanghi, G.M. Chaphekar, P.K. Saxena and B.L. Pavecha, Senior Advocates of this Court for their useful assistance as Amicus Curiae.
20. These two revisions be now placed before the appropriate Bench for further orders.