U.P. Financial Corporation vs District Judge, Bareilly and others

Binod Kumar Roy and R.P. Misra, JJ.—In O.S. No. 177 of 1999. M/s. Mahavir Cement v. U.P.P.C., the Civil Judge (Senior Division), Bareilly, on 10.9.1999 passed an order to put up the petition-50 Ga (filed for hearing the petition-6 Ga) for its hearing on the date fixed Inviting objection to be filed in the meantime. Respondent No. 3 filed Civil Revision Ho. 155 of 1999 against the order aforesaid which was disposed of by the order impugned by the incharge District Judge, Bareilly, as contained in Annexure-5 behind the back of the writ petitioner directing the Civil Judge (Senior Division), Bareilly, to decide positively the application 6C on the date fixed before passing any order In the suit and further directing the writ petitioner not to take possession over the factory till disposal of the said application. The petitioner assails validity of this order before us invoking Article 226/227 of the Constitution of India.

Three fold contentions have been made by Sri Satish Chaturvedi, learned counsel for the petitioner in support of the prayers made In this writ petition : (i) Learned Incharge District Judge has committed an apparent jurisdictional error in passing the impugned order even though the order of learned Civil Judge (Senior Division) did not amount any ''case decided'' within the meaning of Section 115 of CPC and thus the impugned order is liable to be quashed on this ground alone ;

(ii) Learned incharge District Judge has committed an apparent jurisdictional error in restraining the writ petitioner which was performing its statutory duties u/s 29 of the U. P. Financial Corporation Act and that too without giving any opportunity to have its say in the matter and thereby the well-settled principles of natural justice have been nakedly breached ; and

(iii) The suit itself was not maintainable.

Sri A.C. Tripathi, learned counsel appearing on behalf of respondent No. 3 very fairly takes up a stand that in the peculiar facts and circumstances of the case the civil revision itself was not maintainable, besides no opportunity of hearing was afforded to the petitioner by the incharge District Judge.

Section 115A of the Code of Civil Procedure, as enacted by our State Legislature, reads thus :

"115A. Revision.-- The High Court, in cases arising out of original suits or other proceedings of the value of twenty thousand rupees and above, including such suits or other proceedings instituted before August 1, 1978, and the District Court in any other case, including a case arising out of an original suit or other proceedings instituted before such dale, 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 vested 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 on order deciding an issue, made in the course of a suit or other proceeding, except where :

(i) the order, if so varied or reversed, would finally dispose of the suit or other proceedings ; 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'' includes any order deciding an issue, in the course of a suit or other proceeding."

The order which was sought to be impugned in revision apparently had not decided any issue whatsoever. Thus, the civil revision was not maintainable. Yet instead of dismissing it for the said apparent reason, it is somewhat surprising that the learned incharge District Judge, Bareilly, had proceeded to entertain it and pass the order impugned which was beyond his jurisdiction. Further, the impugned order was also violative of principles of natural justice, it having been passed against the petitioner behind its back.

This writ petition is allowed. The order impugned, as contained in Annexure-5, is quashed by grant of a writ of certiorari.

However, having regard to the fair stand taken by Sri Tripathi, we make no order as to cost.

Let a copy of this order be dispatched forthwith to the District Judge. Bareilly.