Law Web: 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