ORDER Umeshwar Pandey, J.
1. Heard learned Counsel for the parties.
2. In this writ petition the petitioner has challenged the order dated 23-12-2005 passed by the revisional court.
3. A Suit for permanent injunction filed by the contesting respondent No. 1 an application under Order XXXIX, Rule 1 and 2 C.P.C was also moved for grant of temporary injunction. The trial court not being fully satisfied for granting exparte injunction order directed notices to be issued to the defendant petitioner as well as proforma respondents.
4. Aggrieved against that order Civil Re- vision No. 219 of 2005 was preferred by the plaintiff before the District Judge an by the impugned order the District Judge admitted the same and directed the notice to be issued to the petitioner defendant and proforma respondents/ defendants. He has also passed the interim order directing both the parties to maintain status quo regarding property in question.
5. It has been submitted from the side of petitioner that the very order of entertaining the revision is illegal as the revision was not at all maintainable. The learned Counsel has cited the case law of Gayatri Devi and Ors. v. Shashi Pal Singh , Rajpal Singh v. Richh Pal Sing and Ors. (2006) 62 ALR 278 : 2006 All LJ 532, Bhagwati Prasad Lohar and Ors. v. State of U.P. through Secretary of Legal Department, Lucknow, U.P. and Ors. 2005 (60) ALR 512 : AIR 2005 SC 331 Rajendra Singh and Ors. v. Brji Mohan Agarwal and Anr. , Brij Bhushan v. District Judge, Saharanpur and Ors. 2004 (1) AWC 502 : and Shiv Shankti Coop. Housing Society, Nagpur v. Swaraj Developers . With the strength of the aforesaid cases, the learned Counsel has emphasised that an order directing issue of notices to the defendants on a temporary function matter by the court, is not revisable under Section 115 of C.P.C.
6. The provisions of Section 115 C.P.C. has been amended by Code of Civil Procedure (Amendment) Act, 1999 and in that proviso it has been added substituting earlier one and this Section for convenience is reproduced as below:
Revision.:- [(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 -
(a) to have exercised a jurisdiction not vested in it by law,
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:
[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.) [(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.
[(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.] Explanation.- In this section, the expression, "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.]
7. The aforesaid proviso, which has substituted the earlier proviso of Section 115 C.P.C., has been subject of interpretation in the aforesaid cases by the Hon'ble Apex Court as well as this Court. After this amendment of 1999, U.P. Amendment of Section 115 C.P.C. has been incorporated, which also for convenience is reproduced as below:
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 of its jurisdiction so vested; or
(c) acted in exercise of its jurisdiction illegally or with material irregularity.
(2) A revision application under Sub-section (1), when filed in the High Court, shall contain a certificate on the first page of such application, below the title of the case, to the effect that no revision in the case lies to the district Court but lies only to the High Court either because of valuation or because the order sought to be revised was passed by the district Court.
(3) The superior Court shall not, under this section, vary or reverse any order made except where,-
(i) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding; or
(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made.
(4) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the Supreme Court.
Explanation I - In this section, -(i) the expression "superior Court" means-
(a) the district Court, where the valuation of a case decided by a Court subordinate to it does not exceed five lakh rupees;
(b) the High Court, where the order sought to be revised was passed in a case decided by the district Court or where the value of the original suit or other proceedings in a case decided by a Court subordinate to the Court exceed five lakh rupees.
(ii) the expression "order" includes an order deciding an issue in any original suit or other proceedings.
Explanation //.- The provisions of this section shall also be applicable to orders passed, before or after the commencement of this section, in original suits or other proceedings instituted before such commencement.
8. The proviso, which substituted earlier proviso of Central Act introduced in the year 1999 (w.e.f. 01-07-2002) as reproduced above, mandates that no revision shall be cognizable by the High Court unless the Order challenged is not to the effect of finally disposing of the suit or other proceeding. The substituted provision of the State amendment under Section 115 C.P.C. also contemplates in Sub-rule (3) Clause (i) that superior court shall not under this section vary or reverse any order made 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 proceeding. It is in this view of the matter that this Court in the case of Rajendra Singh (supra) has held that an order of issue of notice on injunction application does not dispose of the suit. It also does not dispose of application either. In case the injunction application were to be rejected or allowed it would dispose of the application but such an order would be appealable and hence not open to revision. However, if an exparte injunction is not granted and only notice is issued on the injunction application it would not dispose of application as final orders in the matters are yet to be passed after inviting objections of the opposite party and the injunction application remains pending. The proviso as it now stands (after 1999 amendment) restrains the power of interference in revision to a situation where the case decided disposes of the suit or proceedings. While refusing exparte temporary injunction by merely issuing notice upon such application may amount to a case decided but the proviso restrains the power of the High Court and precludes it from interfering in revision in such a case as the order of exparte injunction would not have disposed of the injunction application or terminated the proceedings for temporary injunction. A revision against such an order is, therefore, not maintainable.
9. The same interpretation of the proviso has been given by this Court in Rajpal Singh's case also after placing reliance on the case of Shiv Shakti (supra). In that case of Shiv Shakti (supra) also it has been propounded as below:
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 of interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear, cannot be the subject matter of revision under Section 115, There is marked distinction in 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 procedure. 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. In view of the aforesaid settled position of law, an order directing issue of notice on a temporary injunction application under Order XXXIX, Rule 1 C.P.C. is definitely not an order, which though may come within the ambit of 'case decided' but it would not amount to dispose of the injunction application or terminate the proceedings of the temporary injunction. Obviously, as the law is settled on this point, the revision 'as was preferred before the District Judge by the plaintiff on the order passed by the trial court issuing notice on temporary injunction application, was definitely not maintainable and any order directing admission of such revision and granting interim relief to the revisionist is, thus, unsustainable and requires to be quashed.
11. In the aforesaid facts and circumstances, this writ petition is allowed and the impugned order dated 23-12-2005 is hereby quashed.