Monday, 30 March 2020

Whether order rejecting application for return of plaint is revisable?

The decision of the Supreme Court reported as (2003) 6 SCC
659, Shiv Shakti Co-op. Housing Society, Nagpur Vs. Swaraj
Developers & Ors., illuminates the Court as to which order would be
revisable and which would not be revisable and that orders which are
not revisable are amenable to challenge under Article 227 of the
Constitution of India. In paragraph 32 of the decision it has been held
as under:
“32. A plain reading of Section 115 as it stands makes it
clear that the stress is on the question whether the order in
favour of the party applying for revision would have given
finality to suit or other proceeding. If the answer is “yes”
then the revision is maintainable. But on the contrary, if the
answer is “no” then the revision is not maintainable.
Therefore, if the impugned order is interim in nature or
does not finally decide the lis, the revision will not be
maintainable. The legislative intent is crystal clear. Those
orders, which are interim in nature, cannot be the subject
matter of revision under Section 115. There is marked
distinction in the language of Section 97(3) of the Old
Amendment Act and Section 32(2)(i) of the Amendment
Act. While in the former, there was clear legislative intent
to save applications admitted or pending before the
amendment came into force. Such an intent is significantly
absent in Section 32(2)(i). The amendment relates to
procedures. No person has a vested right in a course of
procedure. He has only the right of proceeding in the
manner prescribed. If by a statutory change the mode of
procedure is altered, the parties are to proceed according to
the altered mode, without exception, unless there is a
different stipulation.”
10. Following the law declared by the Supreme Court in Shiv Shakti
Co-op. Housing Society , we answer the reference by holding that an
order rejecting an application filed by a party in a suit praying that the Court, having no territorial jurisdiction, should return the plaint, is not a revisable order and challenge to such order has to be by way of a proceeding under Article 227 of the Constitution of India.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 800 OF 2010

Accent Construction & Contractors Pvt. Ltd.  Vs. M/s. Shah Nagindas Mancharam & Sons

CORAM : PRADEEP NANDRAJOG, C.J. &
SMT. BHARATI DANGRE, J.
DATE : 3 rd DECEMBER, 2019 .
ORAL JUDGMENT (Per Pradeep Nandrajog, CJ)

1. The issue which the Division Bench needs to answer is as per the
order of reference dated 04.05.2010.
2. The Writ Petition under Article 227 of the Constitution of India
challenges the order dated 30.10.2009 passed by the learned Civil Court
at Kolhapur rejecting the Petitioners’ application to return the plaint on
the plea of lack of territorial jurisdiction. The impugned order holds
that the Court has territorial jurisdiction.
3. As per Order XLIII Rule 1 Clause (a) of the Code of Civil
Procedure, 1908 an order returning the plaint to be presented to a Court
of Competent Jurisdiction is an appealable order. But, not an order
holding that the Court has territorial jurisdiction.
4. Issue arises whether such an order would be amenable to challenge

before a High Court in exercise of the Revisional Jurisdiction of the
High Court under Section 115 of the Code or the order would be liable
to be challenged in exercise of the supervisory jurisdiction of the Court
under Article 227 of the Constitution of India.
5. The proviso to Sub-section 1 of Section 115 of the Code
underwent a significant departure when Act No.46 of 1999 substituted
the then existing proviso to Sub-section 1 of Section 115 of the Code
and as substituted, the proviso reads as under:
“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.”
6. A perusal of the proviso makes it clear that the Revisional
Jurisdiction of a High Court has been restricted. Thus, only such orders
would be revisable where if the order was in favour of the party applying
for revision would have resulted in a final disposal of the suit or other
proceedings.
7. Prior to 01.07.2002 judicial verdicts were that if the order
amounted to a ‘Case Decided’, the same would be a revisable order. A
‘Case Decided’ was an order which brought to an end one or more facets
of the lis, but the lis continued.
8. Post amendment w.e.f. 01.07.2002 the position has undergone a
change. As per the proviso only such order can be challenged by way of
a revision if the decision in the revision would be of a kind where the
suit or other proceedings terminate finally disposed of.

9. The decision of the Supreme Court reported as (2003) 6 SCC
659, Shiv Shakti Co-op. Housing Society, Nagpur Vs. Swaraj
Developers & Ors., illuminates the Court as to which order would be
revisable and which would not be revisable and that orders which are
not revisable are amenable to challenge under Article 227 of the
Constitution of India. In paragraph 32 of the decision it has been held
as under:
“32. A plain reading of Section 115 as it stands makes it
clear that the stress is on the question whether the order in
favour of the party applying for revision would have given
finality to suit or other proceeding. If the answer is “yes”
then the revision is maintainable. But on the contrary, if the
answer is “no” then the revision is not maintainable.
Therefore, if the impugned order is interim in nature or
does not finally decide the lis, the revision will not be
maintainable. The legislative intent is crystal clear. Those
orders, which are interim in nature, cannot be the subject
matter of revision under Section 115. There is marked
distinction in the language of Section 97(3) of the Old
Amendment Act and Section 32(2)(i) of the Amendment
Act. While in the former, there was clear legislative intent
to save applications admitted or pending before the
amendment came into force. Such an intent is significantly
absent in Section 32(2)(i). The amendment relates to
procedures. No person has a vested right in a course of
procedure. He has only the right of proceeding in the
manner prescribed. If by a statutory change the mode of
procedure is altered, the parties are to proceed according to
the altered mode, without exception, unless there is a
different stipulation.”
10. Following the law declared by the Supreme Court in Shiv Shakti
Co-op. Housing Society , we answer the reference by holding that an
order rejecting an application filed by a party in a suit praying that the Court, having no territorial jurisdiction, should return the plaint, is not a revisable order and challenge to such order has to be by way of a proceeding under Article 227 of the Constitution of India.
11. The Writ Petition be placed before the learned Single Judge.
[SMT. BHARATI DANGRE, J.] [CHIEF JUSTICE]

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