ORDER
1. This revision by the defendants has been filed against the judgment and order dated 7-4-1993 passed by the IV Additional District Judge, Hamirpur rejecting the application No. 80-Ka filed by the defendant-
revisionists for temporary injunction and clarification of the order dated 11-12-1990, in Civil Appeal No. 9 of 1990.
2. The contesting opposite parties had filed a caveat in this Court. A preliminary objection has been raised by the learned counsel for the caveators that this revision filed against the order of the appellate court is not maintainable in view of the law laid down in the case of All 218; (1979 All LJ 685) (FB). It may be mentioned that the report of the Stamp Reporter is also to the same effect. Learned counsel for the revisionist has, however, contended that the revision in the present case is not barred and is very much maintainable before this Court. Learned counsel has tried to distinguish the Full Bench Decision.
3. To appreciate the argument of the learned counsel for the parties it will be necessary to refer to the provisions of Section 115, C.P.C. as it stands at present after it was amended by the Code of Civil Procedure (Uttar Pradesh Amendment) Act No. 31 of 1978, which read as follows:--
"115. Revision -- The High Court in cases arising out of original suits or other proceedings of the value of twenty thousand rupees and above, including suits or other proceedings instituted before Ist August, 1978, and the District Court in any other case including a case arising out of an original suit or other proceedings instituted before such date, may call for the record of any case which has been decided by any court subordinate to such High Court or District Court, as the case may be, 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; or
(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 or the District Court, as the case may be, may make such order in the case as it thinks fit;
Provided that in respect of cases arising out of original suits or other proceedings of any valuation, decided by the District Court, the High Court alone shall be competent to make an order under this section:
Provided further that the High Court or the District Court shall not under this Section, vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceeding, except there,--
(i) the order, if so varied or reversed, would finally dispose 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 was made.
Explanation -- In this section, the expression 'any case which has been decided' 'including any order deciding an issue in the course of a suit or other proceeding."
4. One of the questions referred to the Full Bench in the case of Jupitar Chit Fund (supra) was as follows:
Question (2) Whether the phrase "case arising out of an original suit" occurring in Section 115 of the Code of Civil Procednre covers orders passed in an appeal or revision?
5. The Full Bench after considering the amendments made in Section 115, C.P.C. from time to time, held that the decision of an appeal or revision by the District Court was not amenable to the revisional jurisdiction under Section 115, C.P.C. after its amendment and answered the aforesaid question referred to the Full Bench in the negative. Learned counsel for the applicant has, however, contended that the Full Bench was only considering the question whether a revision under Section 115, C.P.C. as it stands at present lies to the High Court against an order passed in appeal or revision, and it was not called upon to decide whether any revision lies against an order passed by the appellate or the revisional court during the pendency of the appeal or revision. According to the learned counsel, a revision against the final orders passed in appeal or revision may not be maintainable but against the orders passed in appeal or revision while the same are pending before the appellate or the revisional court, revision under Section 115, C.P.C. before the High Court will be maintainable. Placing reliance upon paragraph 23 of the Full Bench decision in the case of Jupitar Chit Fund (supra) learned counsel contended that if any order is passed by the revisional court or the appellate court during the pendency of the revision or the appeal it can be treated to have been passed in the suit itself as the proceedings of the appeal or the revision are continuation of the suit and till the decision of the trial court merges with the final orders passed in the appeal or revision the proceedings continue as if they were proceedings of the suit.
6. Learned counsel for the opposite parties has, however, urged that this argument was not open to the applicant in view of the answer given by the Full Bench to the second question referred to it which has been quoted above, it was contended that the Full Bench has held while answering the question in paragraph 38 of the said judgment that "a case arising out of an original suit" occurring in Section 115, C.P.C. does not cover orders passed in appeal or revision.
7. Having heard learned counsel for the parties at some length and having considered the matter, I find myself unable to agree with the contention of the learned counsel for the applicant-revisionist. An appeal or revision may be considered as continuation of the suit in some respects but the appellate or revisional court does not become a court of original jurisdiction while exercising its powers to pass incidental orders. The provisions of Sections 104 and 105 and Order 43, Rule 1, C.P.C. also go to show that an interim order passed by an appellate court cannot be deemed to be an order passed by the said court in exercise of its original jurisdiction. The Madras High Court in the case of Kalahasti v. P.C. Munnuswami Chetty, AIR 1975 Mad 3 has taken the view that use of the words "original or appellate jurisdiction" in Section 105, C.P.C. makes it abundantly clear that a court can exercise either original or appellate jurisdiction but cannot exercise both at one and the same time. The Madras High Court repelled the argument that an order passed by the appellate court under Order 39, Rule 1, C.P.C. or any other order of like nature must be construed to be one passed by the said court in exercise of its original jurisdiction and held that the fact that the order was passed in an interlocutory application will not make the order nonetheless an order passed in appeal. A similar view was expressed by the Kerala High Court in the case of Chellapan v. Varughese, AIR 1964 Kerala 23 where an identical question arose and it was held that the power given to an appellate Court under Section 107, C.P.C. is only part of its appellate jurisdiction and it cannot be categorised as an original jurisdiction in an appellate court. It confers powers on the appellate Court not only to dispose of the appeal on its merits but also to pass any interlocutory or incidental order deemed necessary in the circumstances of the case to maintain status quo or to preserve the subject-matter of the appeal till the disposal of the appeal just like an original court is empowered to do in the case of a suit before it. Incidental orders passed by the appellate court in interlocutory applications moved in an appeal before it are "orders passed in appeal."
8. I am in respectful agreement with the aforesaid view taken by the Kerala High Court and the Madras High Court. The same reasoning equally applies to the revision, with which we are concerned in the present case. Apart from what is discussed above, it may be noticed that the legislature had emphasized the words "original suit" in Section 115, C.P.C. it lays down that a revision will lie to the High Court "in cases arising out of original suit or other proceedings of the value of twenty thousand rupees and above". The proceedings pending in appeal or revision filed against a decision of the trial court cannot be held to be original suit." "Other proceedings" referred to in the section has been held by the aforesaid Full Bench to refer to proceedings of final nature, which are not in the nature of suits, like arbitration proceedings and cannot include decisions of appeal or revision and have to be read ejusdem generis with the words "original suits."
9. There is yet another aspect of the matter. It is well settled that for interpreting the words of statute the intention of the legislature, which can be gathered from the objects and reasons for which the provisions has been enacted, must be borne in mind. The amendment in S. 115, C.P.C. was necessitated, s is apparent from the statement of objects and reasons appended to the 1970 Amendment Act, to help in reducing the pressure of work on the High Court. For that purpose legislature had in its wisdom laid down that the decision of an appeal or revision by the District Court was not amenable to the revisional jurisdiction under Section 115, C.P.C. If the contention of learned counsel for the applicant was to be accepted it would mean that orders passed by an appellate court on an intelocutory application are to be placed on a better footing than the orders passed in an appeal or revision arising out of decisions of the trial court. Surely, this could not have been the intention of the legislature. Therefore, if this interpretation is accepted the intention of the legislature, as laid down in the objects and reasons for amendment of this provision, will not fructify.
10. Shri B.B. Paul the learned counsel for the applicant has, however, placed strong reliance on the following cases:
(i) Shri Vishnu Awatar v. Shiv Awatar reported in AIR 1980 SC 1575 : 1980 All LJ 751.
(ii) Kamruddin v. Rasul Baksh reported in 1990 (1) ARC page 250.
(iii) Ganga Saran v. Civil Judge, reported in 1991 (1) All CJ page 187 :(AIR 1991 All 114).
(iv). Hazi Abdul Rashid v. III Addl. Civil Judge, reported in 1992 (2) ARC page 259.
11. He has also referred to an order passed by Hon'ble D. S. Sinha, J. in Civil Revision No. 108 of 1992 overruling the report of the Stamp reporter regarding the maintainability of the civil revision.
12. I have carefully examined the aforesaid decisions cited by the learned counsel. I am of the view that none of these cases help the applicant to decide the point which is under considetion before me.
13. In Vishnu Awatar's case (supra) what has been held by the Supreme Court is that the decisions of District Court rendered in appeal or revision are beyond revision by High Court, if the suit is of less than Rs. 20,000/. But an exception has been in drafted by the first proviso to section to the effect that where original decision has been made by a District Court the High Court appellate or revisional power will come into play. In the present case, the impugned order has been passed in proceedings in appeal and are not original proceedings. Besides, it is noteworthy that in this case, the Full Bench decision in Jupitar Chit Fund's case (supra) has been approved. In Qamruddin's case (supra) the Supreme Court was considering the question whether a writ petition filed against an order allowing the appeal and granting temporary injunction, was maintainable. It was observed that a writ of certiorari was not entertainable unless alternative remedy of revision against the order is exhausted. It was further held that a writ of mandamus cannot be issued against a private individual unless he is under statutory duty to perform a public duty. This decision was considered by Full Bench of our Court in the case of Ganga Saran (supra) and it was held as follows:
"A perusal of the judgment of the Supreme Court in Qamruddin's case (supra) indicate that it was not brought to the notice of the Bench deciding the case that it was a case from Uttar Pradesh and that Section 115, C.P.C. amended by U.P. Amendment Act XXXI of 1978 governed the matter. The matter was disposed of as if Section 115, C.P.C. as originally enacted applied ..... it must be held that the decision of the Supreme Court in Qamruddin's case (supra) to the extent it holds that revision against an appellate or revisional order passed by the District Court is maintainable under Section 115, C.P.C. (as amended by U.P. Act No. 31 of 1978) to the High Court does not state the matter accurately or overrule the decision of the Full Bench of this Court in Jupitar Chit Fund (P) Limited v. Dwarikadhish (supra) particularly when it has specifically been approved by the two earlier decisions of the Supreme Court."
14. In the case of Haji Abdul Rasid (supra), Katju, J. had some doubts whether the point decided in Ganga Saran's case regarding the maintainability of writ petition against the order of grant of temporary injunction, was correctly decided and had referred the matter for reconsideration by a larger Bench. None of these cases, therefore, are of any help in deciding the point-under consideration before me regarding the maintainability of the Civil Revision.
15. I have also perused the order passed by Hon'ble D. S. Sinha, J. in civil revision No. 108 of 1992 overruling the report of the Stamp reporter regarding the maintainability of the said revision. There the question was different and the said order is of no help in the present case.
16. In view of the aforesaid reasons, I uphold the report of the Stamp Reporter and the preliminary objection of the learned counsel for the opposite parties and hold the present revision under Section 115, C.P.C. is not maintainable. The learned counsel for the parties had advanced arguments on merits of the revision as well. However, since I have taken the view that this revision under Section 115, C.P.C. is not maintainable, it will not be proper and legal to decide the revision on merits.
17. The revision is hereby dismissed as not maintainable. The parties shall bear their own costs of this revision.
18. Revision dismissed.