# Smt. Akhtari Begum and others v. Nasim Ahmad and another

- **Citation:** (2003) 1 ILRA 238
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-03-24
- **Case number:** Civil Misc. Application No. 7 of 2003
- **Bench:** Tarun Chatterjee, C.J. R.K. Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-akhtari-begum-and-others-v-nasim-ahmad-and-another-39993
- **Pages:** 6

## Headnote

Constitution
of
India-
Art.
227
Supervisory Power of High Court- order
under challenge by which the application
for summoning Original Deed- Rejected-
specific provision under section 115
C.P.C. provides for revision- power under
Article 227 can not be exercised- can be
used
sparingly
and
extra
ordinary
circumstances.

Held- Para 13

Accordingly, it is not a fit case where the
High Court will exercise its power under
Article 227 of the Constitution which has
to be sparingly used and in our view it is
not a case where such interference is
needed. At the same time, as held herein
earlier, we are of the view that the
application under Article 227 of the
Constitution is not maintainable.
Case law discussed:
AIR 1964 Cal. 439

## Text

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238 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
impugned order dated 31.3.1999 passed
by the Deputy Director consolidation
contained in annexure 7 to the petition, is
quashed. The matter is relegated to the
Deputy Director of Consolidation for
decision afresh in observance of the
mandatory provisions of section 48 of the
U.P. Consolidation of Holdings Act.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.3.2003

BEFORE
THE HON'BLE TARUN CHATTERJEE, C.J.
THE HON'BLE R.K. AGARWAL, J.

Civil Misc. Application No. 7 of 2003

Smt. Akhtari Begum and others

 ...Applicants
Versus
Nasim Ahmad & another ...Respondents

Counsel for the Applicants:
Sri J.J. Munir

Counsel for the Respondents:

Constitution
of
India-
Art.
227
Supervisory Power of High Court- order
under challenge by which the application
for summoning Original Deed- Rejected-
specific provision under section 115
C.P.C. provides for revision- power under
Article 227 can not be exercised- can be
used
sparingly
and
extra
ordinary
circumstances.

Held- Para 13

Accordingly, it is not a fit case where the
High Court will exercise its power under
Article 227 of the Constitution which has
to be sparingly used and in our view it is
not a case where such interference is
needed. At the same time, as held herein
earlier, we are of the view that the
application under Article 227 of the
Constitution is not maintainable.
Case law discussed:
AIR 1964 Cal. 439

(Delivered by Hon'ble Tarun Chatterjee, J.)

1. This is an Application under
Article
227
of
the
Constitution
challenging the order dated 22nd January,
2003 passed by the civil judge (junior
division), Najibabad in O.S.No. 62 of
1992 whereby an application filed by the
petitioners seeking to summon original
Will dated 14th July, 1987 in the court of
Judge, Small Causes, Bijnor was rejected.
It is not in dispute that this order was
passed in the suit filed by the plaintiff-
opposite parties in which the petitioners
were the defendants.

2. A question of some importance
has arisen for decision before us whether
the order rejecting the application seeking
to summon the original Will dated 14th
July, 1987 in the court of Judge, Small
Causes, Bijnor could be challenged by
way of proceedings under Article 227 of
the Constitution in view of the specific
provisions contained in Section 115 of the
Code of Civil Procedure.

3. According to the learned counsel
for the petitioners, in view of the
amendment
in
the
Code
of
Civil
Procedure, no application for revision of
the
impugned
order
would
be
maintainable. Learned counsel for the
petitioners
further
contended
that
according to law, an application under
Article 227 of the Constitution against the
impugned order is maintainable. We are
unable to accept this contention of the
learned counsel for the petitioners. In our
view when there is specific provision for
filing a revision application under section
115 of the Code of Civil Procedure, the
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1All] Smt. Akhtari Begum and others V. Nasim Ahmad and another 239
question of filing an application under
Article 227 of the Constitution does not
arise.

4. The Code of Civil Procedure,
1908 was amended in the year 1977.
Before the present amendment of the
Code of Civil Procedure, section 115 of
the Code of Civil Procedure was to the
following effect.

"115. (1) The High Court may call
for the record of any case which has been
decided by any court subordinate of such
High Court and in which no appeal lies
thereto, and if such subordinate court
appears-
(a) to have exercise a jurisdiction not
vested in it by law, or
(b) to have failed to exercise the
jurisdiction so vested, or
(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
proceedings, except where-
(a) 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 or
(b) The order, if allowed to stand, would
occasion a failure of justice or cause
irreparable injury to the party against
whom it was made.)

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."

5. By a plain reading of section 115
of the Code of Civil Procedure it appears
to us that the power of the High Court to
interfere with the order is very much
limited. The High Court in revision can
interfere with an order passed by the
subordinate court only if it appears to the
High Court that the subordinate court had
exercised its jurisdiction, not vested in it
by law and failed to exercise its
jurisdiction or had acted in the exercise of
its jurisdiction illegally and with material
irregularity.

6. A controversy had arisen 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 proceedings except where-

(a) 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, or
(b) the order, if allowed to stand, would
occasion a failure of justice or cause
irreparable injury to the party against
whom it was made.

7. The proviso to section 115 of the
Code of Civil Procedure, before its
amendment, clearly indicates that the
High Court in exercise of powers under
section 115 of the Code of Civil
Procedure shall not vary or reverse any
order made or any order deciding an issue
except where the conditions (a) and (b)
mentioned above are satisfied. Therefore,
from the perusal of the relevant provisions
of section 115 of the Code of Civil
Procedure, it may be safely quoted that
under section 115 of the Code of Civil
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240 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Procedure, High Court has been conferred
with power to interfere with an order
passed in a suit or proceeding in case the
conditions indicated in Section 115 of the
Code of Civil Procedure have been
satisfied. It cannot be a case that an
application under section 115 of the Code
of
Civil
Procedure
would
not
be
maintainable in law but the High Court, in
exercise of its power conferred under
Section 115 of the Code of Civil
Procedure, can not interfere with an order
until and unless the conditions laid down
in the said section, referred to above, are
fully satisfied.

8. Subsequently, section 115 of the
Code of Civil Procedure has again been
amended in the following manner -

"115. Revision- (1) The High Court
may call for the record of any case which
has been decided by any court subordinate
of such High Court and in which no
appeal
lies
thereto,
and
if
such
subordinate court appears-
(d) to have exercises a jurisdiction not
vested in it by law, or
(e) to
have
failed
to
exercise
or
jurisdiction so vested,
(f) 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
disposed of the suit or other proceedings)
(a) 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, or
(b) the order, if allowed to stand, would
occasion a failure of justice or cause
irreparable injury to the party against
whom it was made.
(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 proceeding before the
Court except where such suit or other
proceeding is stayed by the High Court.

9. In Uttar Pradesh, by way of further
amendment, the following words have
been substituted in section 115 of the
Code of Civil Procedure-

"115. Revision- The High Court, in
cases arising out of original suits or other
proceedings (of the value exceeding one
lakh rupees or such higher amount not
exceeding five lakh rupees as the High
Court may from time to time fix, by
notification publishing in the official
Gazettee including such suits or other
proceedings instituted before the date of
commencement of the U.P. Civil Laws
(Amendment) Act, 1991, or as the case
may be, the date of commencement of
such notification) 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
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1All] Smt. Akhtari Begum and others V. Nasim Ahmad and another 241
has been decided by any court subordinate
of such High Court and in which no
appeal
lies
thereto,
and
if
such
subordinate court appears-
(a) to have exercises a jurisdiction not
vested in it by law, or
(b) to
have
failed
to
exercise
or
jurisdiction so vested,
(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 the section-
Provided further that the High Court
or the District 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 -
(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.
(Provided also that where a proceeding of
the nature in which the District Court may
call for the record and pass orders under
this section was pending immediately
before
the
relevant
date
of
commencement referred to above, in the
High Court such court shall proceed to
dispose of the same.")
10. Learned counsel appearing on
behalf of the petitioner in support of his
contention relied upon a Division Bench
decision of the Calcutta High Court in
Sukumar Chatterjee vs. Kiran Chandra
Mitter (AIR 1964 Calcutta 439). We have
carefully
considered
the
relevant
provisions of section 115 of the Code of
Civil Procedure and also the decision on
which the learned counsel for the
petitioner has placed implicit reliance in
the present case. We are unable to hold
that an application under Article 227 of
the Constitution is maintainable in view
of the fact that second proviso to section
115 of the Code of Civil Procedure in the
Uttar Pradesh amendment having been
deleted from section 115 of the Code of
Civil Procedure.
11. As noted herein earlier, on
careful consideration of section 115 of the
Code of Civil Procedure, before its
amendment and also after the present
amendment, it cannot be said that a
revision application under section 115 of
the Code of Civil Procedure is not
maintainable in law. Only exercise of
power under section 115 of the Code of
Civil Procedure has been restricted on the
ground mentioned in the section. If the
order of the trial court does not come
within the ambit of that section and the
conditions laid down therein are not
satisfied then only a conclusion is arrived
at that the High Court in its revisional
jurisdiction cannot interfere with the order
impugned in the revision application. This
does not amount that in a revision
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242 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
application the High Court, in a case
where the conditions imposed in section
115 of the Code of Civil Procedure have
been fully satisfied, is powerless to
exercise its revisional jurisdiction. Where
an order impugned in the revision
application is brought within the ambit of
section 115 of the code of civil procedure,
the High Court while exercising its power
under section 115 of the Code of Civil
Procedure will go into that question and
come to the conclusion that since the
limitations laid down in section 115 of the
Code of civil procedure for interference
under section 115 of the code of civil
procedure had not been satisfied the High
Court was not entitled to invoke its
revisional power under section 115 of the
code
of
civil
procedure
against
a
particular order of the trial court.
Therefore, we are unable to accept the
contention of the learned counsel for the
petitioners that in view of second proviso
to section 115 of the code of civil
procedure power of the High Court to
exercise jurisdiction under section 115 of
the code of civil procedure has been
further limited, the application under
Article 227 of the Constitution must be
held to be maintainable in law.
12. So far as the decision in
Sukumar Chatterjee vs. Kiran Chandra
Mitter (AIR 1964 Calcutta 439) is
concerned the Division Bench of the
Calcutta High Court held that even if the
order refusing to amend a pleading under
Order 6 rule 17 is revisable under section
115 of the Code of civil procedure such
an order can also be revised under Article
227 of the Constitution. This decision
does not apply to the present case simply
because of the fact that an amendment
was made in the year 1977 when a
proviso was added in which it has been
stated that High Court shall not under
section 115 of the code of civil procedure,
vary or reverse any order made or any
order deciding an issue, in the course of a
suit or other proceeding, except where (a)
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, or (b) the order, if allowed to
stand, would occasion a failure of justice
or cause irreparable injury to the party
against whom it was made.
It is true that under Article 227 of the
Constitution the High Court has power of
superintendence over all subordinate
courts and tribunals but when there is
specific provision under section 115 of
the Code of Civil Procedure to file an
application under section 115 of the code
of civil procedure against an order passed
in a suit such power under Article 227 of
the Constitution cannot be exercised. It is
well settled that exercise of power under
Article 227 of the Constitution has to be
sparingly
used.
Assuming
that
an
application under Article 227 of the
Constitution is maintainable against the
impugned order even then we find no
reason to interfere with the order passed
by the trial court. We can only direct that
certified copy of the Will from the court
of Judge, Small Causes, Bijnor will meet
the purpose for which the original Will
was sought to be produced.
13. Accordingly, it is not a fit case
where the High Court will exercise its
power
under
Article
227
of
the
Constitution which has to be sparingly
used and in our view it is not a case where
such interference is needed. At the same
time, as held herein earlier, we are of the
view that the application under Article
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1All] Smt. Akhtari Begum and others V. Nasim Ahmad and another 243
227
of
the
Constitution
is
not
maintainable.
14. For the reasons aforesaid, we
reject this application under Article 227 of
the Constitution. There will be no order as
to costs.
---------