Jardan Singh vs Karan Singh

Dixit, J.—The petnr. Jardansingh presented an appln. under S. 545, Gwalior Civil P.C., St. 1968 to this Ct. for revising a decision of the Diet. J. Gwalior. After the filing of the petn. & before its bearing, the Indian Civil P.C., of 1908, was adapted & brought into force in Madhya Bharat & the Gwalior Civil P.C. was repealed. When the appln. came on for bearing before Chaturvedi J. it was contended by the applt that be was entitled to ask this Ct. under S. 515, Gwalior Civil P.C., to disturb the finding of fact arrived at by the Ct. below & that the appln. was not governed by S. 115, Civil P.C. of 1908. The learned Judge considered that the objection raised appeared to be of some importance & that the appln. should be heard by a Bench rather than by him sitting singly. He, therefore, recorded his opinion & directed that the papers be put up before the Chief Justice. Accordingly this P.B. was constituted by the Chief Justice to bear this reference.

The learned single Judge in his order of reference recognised the fact that revn. is purely a discretionary remedy but he was at the same time disposed to think that in asmuch as S. 545, Gwalior Civil P.C., provides that a party may apply for the revn. of any decree or any order against which no appeal lies within 90 days of the date of the decree or order, a right is conferred on a party of having such a decree or order revised by this Ct. on any of the grounds mentioned in S. 545, Gwalior Civil P.C. Mr. Anand, learned Counsel for the appet. argued that under S. 545, Gwalior Civil P.C. a right of having a decree or order of a lower Ct. revisad is conferred on the aggrieved party & that under the Gwalior Civil P.C. no real distinction was made between an appeal or a revn. as under s. 545 questions of fact or mixed fact & law could be raised in a revn. petn. It was further argued that to apply the provisions of S. 115, Indian Civil P.C., to revn. petns. pending on the date when the Code of 1908 came into force in Madhya Bharat, would be to destroy a vested right acquired by the petnr. to contest a finding of fact in revn. petn. & that as there is nothing in S. 115 of Code of 1908 to show that the section is to apply also to pending revn. petns. it cannot be given any retrospective operation.

The precise question for determination in this reference is whether in dealing with revn. petns. pending on the date on which Indian Civil P.C. 1908 was brought into force in .Madhya Bharat, the revisional jurisdiction of this Ct. is limited by the conditions prescribed in S. 115 of the Code of 1908 or by those mentioned in S. 545, Gwalior Civil P.C. There is no controversy as regards the general principles about retrospective operation of statutes, applicable to the question in issue. The principle is that a retrospective operation is not to be given to a statute or a section of it so as to impair an existing right of obligation, unless the statute so provides either expressly or by necessary intendment or unless the effect cannot be avoided without doing violence to the language of the enactment. If under S. 545, Gwalior Civil P.C., the remedy of the revn. is more than a matter of procedure, if it confers on the petnr. a right to claim from this Ct. that a certain finding of the fact of the lower Ct. should be revised, then the appct. is entitled to say that S. 115 is not retrospective in its operation & it cannot defeat a right in existence at the time when the Code of 1908 was brought into force in Madhya Bharat. The real question, therefore, for decision is whether S. 545, Gwalior Civil P.C. gave any such right to then petnr. It seems to be that on the plain language of S. 545, Gwalior Civil P.C., the question does not admit of any doubt. [4] Section 545, Gwalior Civil P.C., enabled the H.C. in a case in which no appeal lay to call for the record of any case at any time & to pass suck an order in the case as in the opinion of the H.C. should have been passed by the lower Ct. The words used are apt for the purposes of expressing the grant of revisional jurisdiction to the H.C. It must be noted that no right was conferred by this section on any party but a power was conferred upon the Ct, The right conferred was upon the Ct. to be exercised on its own motion or of the appln. to the Ct. As is clear from the wording of s. 545, the exercise of revisional power of the H.C. was entirely discretionary & it was open to the H.C. to decline to exercise this jurisdiction even when the circumatanes mentioned in s. 545 were present in any case. Under this section, the H.C. had the discretion when the conditions mentioned in that section were satisfied to make any order to prevent grave injustice or hardship. It may be that in making any such order the H.C. could under s. 545 interfere with a finding of fact of the lower Ct. but because the H.C. could do this it does not follow that the H.C. exercised an appellate jurisdiction & S. 545, Gwalior Civil P.C. gave to the aggrieved party a right to claim that the finding of fact of the lower Ct. should be revised by this Ct. There is a clear distinction between an appeal & an appln. for revn. This distinction has been recognised in Ss 478, 523, 525 & 545, Gwalior Civil P.C. In Ss. 478, 523, 625 in conferring an appellate jurisdiction upon a Ct. the words used are "an appeal shall lie." In the provisions of S. 545 the word ''appeal'' has nowhere been used & no right of any kind is given to any party. The right of appeal is a substantive right created by the statute & the powers of a Ct. of appeal are co-extensive with those exercised by the Ct. of original jurisdiction. The appellate--Ct. when it interferes with the decision of the lower Ct. does so, not because there has been grave injustice or hardship to the party but because it disagrees with conclusion arrived at whether on facts or .on law of the lower Ct. Even when an appeal is dismissed the appellate Ct. exercises jurisdiction. It is not so with the exercise of revisional jurisdiction. It is entirely discretionary with the H.C. whether to exercise this jurisdiction or not. When the H.C. acting in revn. interferes under S. 545 with the decision of the lower Ct. it does so, on the ground that the decision of the lower Ct. is not according to justice When the H.C. dismisses a revn. petn. it abstains from exercising the revisional jurisdiction & allows the subordinate Ct''s order to stand. Where a right of appeal is claimed by a party, the right is a vested right because it gives to the party a right to take up a matter to an appellate Ct. & challenge the finality of the order or decree of the lower Ct. Likewise the right of preventing an appeal being filed is vested right because it gives, to the party the right to claim that the finality attaching to the order or decree obtained by him should not be disturbed. The finality of an appealable decree or order cannot be challenged or disturbed except at the instance of the aggrieved party. A revisional appln. stands on a different footing; it is matter (between) a higher Ct & a lower Ct. Even under S. 545, Gwalior Civil P.C., the revisional power could he exercised without an appln. of any of the parties concurred. If then, in the exercise of its revisional powers the H.C. could under S. 546 revise an order even when there was no appln. from the aggrieved party it cannot be said that the aggrieved party or the opposite party bad any right to claim that the order of the lower Ct. should be revised or that it should not be disturbed. It must be remembered that when S. 545 of the Code speaks of a revn. petn. being filed by the party concerned within 90 days of the order, it merely provides a procedure for invoking the revisional jurisdiction of the H.C. It does not purport to confer on the party a right to have the order of the lower Ct. revised on any of the grounds stated in that section.

In my opinion the remedy of the revn. provided in S. 545, Gwalior Civil P.C. is entirely discretionary. A party could not under that section claim as of right that the decision of the lower Ct. should be revised on the ground mentioned in the section. In fact it is a contradiction in terms to say that revn. is purely a discretionary remedy & that it is also a right. The limits of the revisional jurisdiction of this Ct. are now defined in 115. Civil P.C. & this Ct. is bound by those limitations in dealing with revn. petns. whether filed before or after the coming into force in Madhya Bharat of the Code of 1908. This Ct. does not now possets the wider revisional jurisdiction under S. 545, Gwalior Civil P.C. The appct''s revn. petn, must be disposed of having regard to the provision of a. 115, Civil P.C. of 1908.

Mehta, J.

I agree.

Shinde, J.

I agree.