Revisional Power vis – a – vis Writ Proceedings
Any judgment, order or decree of a court is appeal able subject to the provisions of law. However, there are various remedies apart from appeal, which are available to the party to a suit. For example, reference, review or revision. How are these different from appeal will be discussed in this research project.
The High Court of any State is the highest adjudicating body of that State. Every High Court has been vested with the power of supervisory jurisdiction. This means that the High Court can supervise the working of all the lower courts, tribunals etc. within its jurisdiction.
Under Article 227 of the Constitution of India every High Court has the power of the superintendence over all courts and tribunals throughout the territory in relation to which it exercises jurisdiction. For this purpose the High Court may call returns from them, make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts and prescribe forms in which books, entries and accounts are to be kept by the officers of such courts, and settle table of fees to be given to the sheriff, clerks, attorneys, advocates and pleaders. However this power of superintendence of High Court does not extend over any Court or Tribunal constituted by law relating to the Armed Forces. This power of the High Court Under Article 227 is very wide. It is not confined only to administrative superintendence but also judicial superintendence over all subordinate courts within its jurisdiction.
1.2 Revisional Jurisdiction
‘Revision’ means the action of revising especially critical or careful examination on perusal with a view to correcting or improving. Section 115 of the Code of Civil Procedure invests, in all High Courts, what is called revisional jurisdiction.
As per Section 115 of the Code of civil Procedure, Revision-
(1) The High court may call for the record of may 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, or
(b) to have failed to exercised a jurisdiction so vested,
(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 proceeding.
(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 proceedings 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 presided’ includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.
It is only in cases where the subordinate court has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in exercise of its jurisdiction illegally or with material irregularity that the jurisdiction of the High Court can be properly invoked. If there is no question of jurisdiction the decision cannot be corrected by the high Court in exercise of revisional powers.
The primary object of this section is to prevent the subordinate courts from acting arbitrarily, capriciously and illegally or irregularly in the exercise of their jurisdiction. It clothes thee High Court with the powers necessary to see that the proceedings of the subordinate courts are conducted in accordance with the law within the bounds of their jurisdiction and in furtherance of justice.
In the exercise of its revisional powers, it is not the province of the High Court to enter into the merits of the evidence nor can it admit additional evidence. What inference is to be drawn from the evidence on the record is not for the High Court under S 115 to decide. However, where the order is based on a misreading of the pleadings, consequent thereto and the Court has misdirected itself n passing an order, the court under S 115 has the power to interfere.
The exercise of revisional jurisdiction by the High Court is discretionary and the High Court is not bound to interfere merely because the conditions laid down in the case are satisfied. An applicant invoking the revisional jurisdiction of the High Court must not show only that there is a jurisdictional error but also that the interests of justice call for interference.
The revisional jurisdiction of a court is a part and parcel of its appellate jurisdiction. Revisional jurisdiction is one of the modes of exercising powers conferred by the statute on a superior court. Basically and fundamentally, it is the appellate jurisdiction, which is being invoked and exercised in a wider and larger sense. However, a right to appeal carries with a right of rehearing on fact as well as on law, unless the statute conferring the right of appeal limits such rehearing. The conferment of revisional jurisdiction is to keep subordinate courts within the limits of their jurisdiction and to make the act according to the procedure established by law. The High Court may refuse to interfere in revision on equitable grounds if it is satisfied that substantial justice has been done.
2.1 Revisional Power vis-à-vis Writ Proceedings
Article 226 provides that notwithstanding anything in Article 32 every High Court shall have power, throughput the territorial limits in relation to which it exercises jurisdiction to issue to any person or authority including the appropriate cases, any nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them – (a) for the enforcement of fundamental rights conferred by Part III, and (b) for ‘any other purpose’. Thus the jurisdiction of the High Court is not limited to the protection of the fundamental rights but also other legal rights as is clear from the words “any other purpose”. Those words make the jurisdiction of the High Court more extensive than that of the Supreme Court which is confined to only for the enforcements of fundamental rights. The words “for any other purpose”, refer to the enforcement of a legal right or legal duty. They do not mean that a High Court can issue writs for any purpose it pleases.
Clause (4) of Article 226 provides that the powers conferred on a High Court shall not be in derogation of the powers conferred on the Supreme Court by clause (2), Article 32.
The writs mentioned in Article 226 are known as prerogative writs because they have their origin in the prerogative part of superintendents over its officers and subordinate courts.
There cannot be any restriction with regard to a proceeding under Articles 226 or 227 and S.115, CPC when it relates to a proceeding arising out of the order of the civil court. Whatever might be the nature of the proceeding it remains a revisional jurisdiction. Further while exercising revisional jurisdiction, the court can take into consideration, subsequent developments especially when such developments go to the root of the litigation and the cause of action.
When the jurisdiction of the High Court is invoked under the Article 226 the primary question that needs to be examined is whether the relief can be granted to the party under the Article. If the High Court finds that the relief can be granted under Article 226 for which its jurisdiction is invoked, it is not open for the High Court to hold that since, it can also grant relief under Article 227, it will grant the relief to the party under Article 227 only, because it is the right of the party to choose or elect its remedy as well as the forum. It would not, therefore, be proper to say that the nomenclature should not matter even if the jurisdiction of the High Court is invoked by the party under Article 226, it should be treated as one under Article 227, because the Court or Tribunal whose judgment is impugned before it is subject to the power of superintendents and, therefore, it should be inferred that the High Court has exercised jurisdiction under Article 227 and not under Article 226. Such approach is not in consonance with the basic principles of law.
The revisional power under section 115 of the Code is clearly is clearly in the nature of the power to issue a writ of certiorari.It is, however, not as wide as certiorari since it can be exercised only in the case of a jurisdictional error and not in the case of any other error. Power of the HC in revision is not in any manner wider than the power under Article 226 of the Constitution.
Again, if the petitioner has already filed a revision in the HC under s.115 and has obtained an order, he cannot thereafter invoke the jurisdiction of the HC under Article 226.If there are two modes of invoking the jurisdiction of the HC and one of those modes has been chosen and exhausted, it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate court.
Hidayatullah, J. stated, “The power given by s.115 of the Code is clearly limited to the keeping of the subordinate courts within the bounds of their jurisdiction. It does not comprehend the power exercisable under the writ of prohibition or mandamus. It is also not a full power of certiorari in as much as it arises only in a case of jurisdiction and not in a case of error…where there is no question of jurisdiction, the decision cannot be correted for t has been ruled that a court has jurisdiction to decide wrongly as well as rightly. But once a flaw of jurisdiction is found the HC need not quash and remit as is the practice in the English Law under the writ of certiorari but pass such order as it thinks fit.”
2.2 CPC Amendment in section 115 does not affect HC revsional jurisdiction under Articles 226 & 227.
In Surya Dev Rai v. Ram Chandra Rai, the main question which arose for consideration was as to what was the impact of amendment in section 115 of the CPC brought about by the Act of 2002 on the power and jurisdiction of the HC to entertain petitions seeking a writ of certiorari under Article 226 or invoking the power of superintendents under Article 227 of the Constitution against which earlier remedy of filing civil revision under s.115 of the CPC was available to the person aggrieved. In brief the question was whether an aggrieved person is completely deprived of the remedy of judicial review if he has lost at the hands of the original court and the appellate court though case of gross failure of justice have been occasioned can be made out. The SC has held that the amendment in s.115 of the CPC in 2002 does not affect the jurisdiction of the HC under Article 226 & 227 of the Constitution. The power exists untrammeled by the Amendment in s.115 of the CPC and available to the exercised subject to rules of self discipline and practice which are well settled.
The Court also stated differences between jurisdiction under Article 226 to issue a writ of certiorari and supervisory jurisdiction under Article 227. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the HC but supervisory jurisdiction is akin to appellate revisional or corrective jurisdiction, Secondly, in a writ of certiorari the record of the proceedings certified by the inferior courts or Tribunal is sent to the HC and if it wishes to exercise its jurisdiction it will simply annul, or quash the proceedings and then do no more. But in exercise of supervisory jurisdiction the HC may not only quash the impugned proceedings, judgment or order but it may make such directions as the facts and circumstances of the case may warrant for guiding the inferior court or Tribunal to proceed further or afresh. In appropriate cases the HC may substitute its own decision. Thirdly, the jurisdiction under Article 226 can be exercised on a prayer made on behalf of the party aggrieved, but the supervisory jurisdiction can be exercised suo moto as well.
The amendment in S.115 of the CPC in 2002 does not affect the jurisdiction of the HC under Article 226 & 227 of the Constitution. The power exists untrammeled by the Amendment in s.115 of the CPC and available to the exercised subject to rules of self discipline and practice which are well settled. The application can be filed by the party, or the High Court can suo moto take up the case. Application for revision can be filed only in jurisdictional matters and not any other.
Waryam Singh v.Amarnath, AIR 1954 SC 215.
Shankar Ram Chandra Abhyankar v. Krishanji Dattatreya Bapat, AIR 1970 SC 1.
Substituted by the Amendment Act, 1999, Section 12 (i) (with effect from 1 July 2002).
Inserted by the Amendment Act, 1999, Section 12 (ii) (with effect from 1 July 2002).
Manick Chandra Nandy v. Debdas nandy, AIR 1986 SC
S S Khanna v. F J Dhillon, AIR 1964 SC 497
Baldevdas Shivlal v. Filmistan Distributors (India) Pvt. Ltd., AIR 1970 SC 406.
Industrial & Mining Equipment Co. Pvt. Ltd. V. N L Kanodia, AIR 1986 Del 36
Melagiriyappa v. Tumalappa & Anor, AIR 1996 Kant. 150.
Brij Gopal Mathur v. Kishan Gopal Mathur, AIR 1973 SC 497.
Shanker Ram Chandra Abhyankar v. Krishnaji Dattatreya Bapat, AIR 1970 SC 1.
Sarla Ahuja v. United India Insurance Co. Ltd. (1998) 8 SCC 119.
Rohini Prasad v. Kastur Chand AIR 2000 SC 1283.
T.K.Tope, Constitutional Law of India, (1982 ed.),501.
Om Rice Mill, Jaspur v. Banaras State Bank Ltd., AIR 2000 All. 90.
Narayan Das Nathu Das v. Tarben Kalimuddin Mulla Fakhri Society, AIR 1990 Guj. 12.
Jagdish Balwantrao Abhyankar v. State of Maharashtra, AIR 1994 Bom 141 (FB).
Supra note 7.
C.K.Thakker, Civil Procedure, (Eastern Book Co.: Lucknow) Ed. 6, p 564.
Supra note 11.
Supra note 7.
AIR 2003 SC 3044.
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