# T. Srinivasan v. Mrs. T. Varalakshmi

- **Citation:** (2006) 2 ILRA 632
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-02-01
- **Case number:** Civil Misc. Writ Petition No. 6432 of 2006
- **Bench:** Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/t-srinivasan-v-mrs-t-varalakshmi-40626
- **Pages:** 5

## Headnote

Code of Civil Procedure-Section-115 Civil
Revision-of Trail Court-under challengemerely issuance of Notice on application
for T.I. can not be termed as case
decided, held revision not maintainable.

Held: Para 10

In view of the aforesaid settled position
of law, an order directing issue of notice
on a temporary injunction application
under Order XXXIX, Rule 1 C.P.C. is
definitely not an order, which though
may come within the ambit of 'case
decided' but it would not amount to
dispose of the injunction application or
terminate
the
proceedings
of
the
temporary injunction. Obviously, as the
law is settled on this point, the revision
as was preferred before the District
Judge by the plaintiff on the order
passed by the trial court issuing notice
on temporary injunction application, was
definitely not maintainable and any
order
directing
admission
of
such
2 All] Mohd. Rais Khan V. Shri Naseeb Ullah Khan and others
633
revision and granting interim relief to
the revisionist is, thus, unsustainable
and requires to be quashed.
Case law discussed:
2005 (5) SCC-527
2006 (62) ALR-278
2005 (60) ALR 512
2004 (6) AWC-502

## Text

632 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
of the facts contained in the plaint, except
as against a person under a disability, but
the Court may, in its discretion, require
any such fact to be proved."

7. It is not the case of the appellants
that they had been under disability nor the
State instrumentalities can be said to be
under some disability. No explanation
was ever furnished as to why the counter
affidavit had not been filed. Appellants
cannot be permitted to take advantage of
their own mistake. A person alleging his
own infamy cannot be heard at any forum,
what to talk of a Writ Court, as explained
by the legal maxim ''allegans suam
turpetudinem non est audiendus. If the
appellants have committed a wrong by not
filing the counter affidavit, they cannot be
permitted to take the benefit of their own
wrong. (Vide G.S. Lamba & Ors. Vs.
Union of India & Ors., AIR 1985 SC
1019; Narender Chadha & Ors. Vs. Union
of India & Ors., AIR 1986 SC 638; Jose
Vs. Alice & Anr., (1996) 6 SCC 342; and
T. Srinivasan Vs. Mrs. T. Varalakshmi,
(1998) 3 SCC 112).

8. In Ram Ji Lal Vs. Balwant Singh,
1967 ALJ 410 this Court held that the
Court cannot recognize a claim or cause
of action based on a turpitude. Therefore,
a person approaching the Court has to
satisfy that his action/inaction was lawful,
otherwise, he cannot be heard. In such an
eventuality, the legal maxim ''ex turpi
causa non oritur actio' applies.

9. In view of the above, if the
counter affidavit was not filed, the Court
was justified in deciding the case on the
basis of the averments in the petition.

If the case is examined in the light of
the aforesaid settled legal proposition and
statutory provisions, no interference is
called for. Appeal lacks merit and is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.02.2006

BEFORE
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 6432 of 2006

Mohd. Rais Khan

...Petitioner
Versus
Shri Naseeb Ullah Khan and others

 ...Respondents

Counsel for the Petitioner:
Sri A.K. Mehrotra
Sri Nishant Mehrotra

Counsel for the Respondents:
Sri Narayan Singh

Code of Civil Procedure-Section-115 Civil
Revision-of Trail Court-under challengemerely issuance of Notice on application
for T.I. can not be termed as case
decided, held revision not maintainable.

Held: Para 10

In view of the aforesaid settled position
of law, an order directing issue of notice
on a temporary injunction application
under Order XXXIX, Rule 1 C.P.C. is
definitely not an order, which though
may come within the ambit of 'case
decided' but it would not amount to
dispose of the injunction application or
terminate
the
proceedings
of
the
temporary injunction. Obviously, as the
law is settled on this point, the revision
as was preferred before the District
Judge by the plaintiff on the order
passed by the trial court issuing notice
on temporary injunction application, was
definitely not maintainable and any
order
directing
admission
of
such
2 All] Mohd. Rais Khan V. Shri Naseeb Ullah Khan and others
633
revision and granting interim relief to
the revisionist is, thus, unsustainable
and requires to be quashed.
Case law discussed:
2005 (5) SCC-527
2006 (62) ALR-278
2005 (60) ALR 512
2004 (6) AWC-502

(Delivered by Hon'ble Umeshwar Pandey, J.)

1. Heard learned counsel for the
parties.

2. In this writ petition the petitioner
has challenged the order dated 23.12.2005
passed by the revisional court.

3. A suit for permanent injunction
filed by the contesting respondent No. 1
an application under Order XXXIX, Rule
1 and 2 C.P.C. was also moved for grant
of temporary injunction. The trial court
not being fully satisfied for granting
exparte injunction order directed notices
to be issued to the defendant petitioner as
well as proforma respondents.

4. Aggrieved against that order Civil
Revision No. 219 of 2005 was preferred
by the plaintiff before the District Judge
and by the impugned order the District
Judge admitted the same and directed the
notice to be issued to the petitioner
defendant
and
proforma
respondents/defendants.
He
has
also
passed the interim order directing both the
parties to maintain status quo regarding
property in question.

5. It has been submitted from the
side of petitioner that the very order of
entertaining the revision is illegal as the
revision was not at all maintainable. The
learned counsel has cited the case law of
Gayatri Devi and others Vs. Shashi Pal
Singh, (2005) 5 SCC 527, Rajpal
SinghVs. Richh Pal Sing & others,
(2006) 62 ALR 278, Bhagwati prasad
Lohar and others Vs. State of U.P.
through Secretary of Legal Department,
Lucknow, U.P. and others, 2005 (60)
ALR 512, Rajendra Singh and others Vs.
Brij Mohan Agarwal and another, AIR
2003 Allahabad 180, Brij Bhushan Vs.
District Judge, Saharanpur and others,
2004 (1) AWC 502 and Shiv Shakti
Coop. Housing Society, Nagpur Vs. M/s
Swaraj Developers, 2003 (4) Apex
Decisions (S.C.) 238. With the strength of
the aforesaid cases, the learned counsel
has emphasised that an order directing
issue of notices to the defendants on a
temporary injunction matter by the court,
is not revisable under Section 115 of
C.P.C.

6. The provisions of Section 115
C.P.C. has been amended by Code of
Civil Procedure (Amendment) Act, 1999
and in that proviso it has been added
substituting earlier one and this Section
for convenience is reproduced as below:

Revision.- [(1)] The High Court may
call for the record of any 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
exercise
a
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
634 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
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.]
[(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.]
Explanation.-- In this section, the
expression, "any case which has been
decided" includes any order made, or any
order deciding an issue, in the course of a
suit or other proceeding.]

7. The aforesaid proviso, which has
substituted the earlier proviso of Section
115
C.P.C.,
has
been
subject
of
interpretation in the aforesaid cases by the
Hon'ble Apex Court as well as this Court.
After this amendment of 1999, U.P.
Amendment of Section 115 C.P.C. has
been
incorporated,
which
also
for
convenience is reproduced as below:-

"115. Revision.-- (1) A superior
Court may revise an order passed in a
case decided in an original suit or other
proceeding by a subordinate Court where
no appeal lies against the order and where
the subordinate Court has-
(a) exercised a jurisdiction not
vested in it by law; or
(b)
failed
to
exercise
of
its
jurisdiction so vested; or
(c)
acted
in
exercise
of
its
jurisdiction illegally or with material
irregularity.
(2) A revision application under subsection (1), when filed in the High Court,
shall contain a certificate on the first
page of such application, below the title
of the case, to the effect that no revision in
the case lies to the district Court but lies
only to the High Court either because of
valuation or because the order sought to
be revised was passed by the district
Court.
(3) The superior Court shall not, under
this section, vary or reverse any order
made except where,-
(i) 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
(ii) the order, if allowed to stand,
would occasion a failure of justice or
cause irreparable injury to the party
against whom it is made.
(4) 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 Supreme
Court.
Explanation I.- In this section, -
(i) the expression "superior Court"
means--
(a) the district Court, where the
valuation of a case decided by a Court
subordinate to it does not exceed five lakh
rupees;
(b) the High Court, where the order
sought to be revised was passed in a case
decided by the district Court or where the
value of the original suit or other
proceedings in a case decided by a Court
subordinate to the Court exceed five lakh
rupees.
(ii) the expression"order" includes
an order deciding an issue in any original
suit or other proceedings.
Explanation II.-- The provisions of
this section shall also be applicable to
2 All] Mohd. Rais Khan V. Shri Naseeb Ullah Khan and others
635
orders passed, before or after the
commencement of this section, in original
suits or other proceedings instituted
before such commencement."

8. The proviso, which substituted
earlier proviso of Central Act introduced
in the year 1999 (w.e.f. 01.07.2002) as
reproduced above, mandates that no
revision shall be cognizable by the High
Court unless the order challenged is not to
the effect of finally disposing of the suit
or other proceeding. The substituted
provision of the State amendment under
Section 115 C.P.C. also contemplates in
sub-rule (3) clause (i) that superior court
shall not under this section vary or reverse
any order made 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. It
is in this view of the matter that this court
in the case of Rajendra Singh (supra) has
held that an order of issue of notice on
injunction application does not dispose of
the suit. It also does not dispose of
application either. In case the injunction
application were to be rejected or allowed
it would dispose of the application but
such an order would be appealable and
hence not open to revision. However, if
an exparte injunction is not granted and
only notice is issued on the injunction
application it would not dispose of
application as final orders in the matters
are yet to be passed after inviting
objections of the opposite party and the
injunction application remains pending.
The proviso as it now stands (after 1999
amendment) restrains the power of
interference in revision to a situation
where the case decided disposes of the
suit or proceedings. While refusing
exparte temporary injunction by merely
issuing notice upon such application may
amount to a case decided but the proviso
restrains the power of the High Court and
precludes it from interfering in revision in
such a case as the order of exparte
injunction would not have disposed of the
injunction application or terminated the
proceedings for temporary injunction. A
revision against such an order is,
therefore, not maintainable.

9. The same interpretation of the
proviso has been given by this court in
Rajpal Singh's case also after placing
reliance on the case of Shiv Shakti
(supra). In that case of Shiv Shakti (supra)
also it has been propounded as below:-

"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 of interim in nature
or does not finally decide the lis, the
revision will not be maintainable. The
legislative intent is crystal clear, cannot
be the subject matter of revision under
Section 115. There is marked distinction
in 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
procedure. 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
636 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
are to proceed according to the altered
mode, without exception, unless there is a
different stipulation."

10. In view of the aforesaid settled
position of law, an order directing issue of
notice
on
a
temporary
injunction
application under Order XXXIX, Rule 1
C.P.C. is definitely not an order, which
though may come within the ambit of
'case decided' but it would not amount to
dispose of the injunction application or
terminate
the
proceedings
of
the
temporary injunction. Obviously, as the
law is settled on this point, the revision as
was preferred before the District Judge by
the plaintiff on the order passed by the
trial court issuing notice on temporary
injunction application, was definitely not
maintainable and any order directing
admission of such revision and granting
interim relief to the revisionist is, thus,
unsustainable and requires to be quashed.

11. In the aforesaid facts and
circumstances,
this
writ
petition
is
allowed and the impugned order dated
23.12.2005 is hereby quashed.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.01.2006

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 7424 of 2001

Ramesh Kumar Srivastava ...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri B.G. Yadav
Sri R.K. Nigam
Counsel for the Respondents:
Sri K.R. Sirohi
Sri Amit Sthalekar
S.C.

U.P. Fundamental Rules-Rule 56 (C)-
Compulsory retirement-Order passed by
the
competent
authority-after
scrutinizing the entire service recordCourt itself perused the original service
record-held order compulsory retirement
is
perfectally
justified-can
not
be
interfered.

Held: Para 20

In view of the aforesaid fact the
controversy regarding an order passing
the compulsory retirement cannot be
said to be illegal, malafide, if the same
has been passed by the competent
authority after scrutinizing the entire
service record of an employee. As
mentioned above, the Court has perused
the complete service record of the
petitioner, therefore, the contention of
the petitioner to this effect cannot be
accepted that the order of compulsory
retirement against the petitioner is in
any way illegal, punitive and has been
passed without taking into consideration
the performance of the petitioner.
Case law discussed:
AIR 1995 SC-111
1992 SCD-155
AIR 1992 SC-1020
AIR 1995 SC-1161
2005 A.D.J. IX ?
AIR 1999 SC-1661
AIR 1973 SC-1065
1999 (5) SCC-529
AIR 1995 SC-1161

(Delivered by Hon'ble Shishir Kumar, J.)

1. The present writ petition has been
filed
for
quashing
the
order-dated
3.2.2001; Annexure-1 to the writ petition
passed by respondent no.2 and further for
quashing the Government Order dated