Conditions in which Revision u/s 115 CPC may be exercised
Under what circumstances a revision can be filed?
Though a non- appeal able order may be attacked in an appeal against the final decree yet where error of jurisdiction are committed, they should be rectified at the earliest. Revisional jurisdiction u/s 115 C.P.C does not confer any substantive right and a right to move in a revision is merely a privilege granted to a party. The proceedings in substance being proceedings between a higher court and a lower court.
Conditions and grounds:
The provisions of s.115 C.P.C are in two parts. The first part enumerates the conditions under which the court can interfere and the second part specifies the types of the orders that are susceptible to revision.
The court can interfere in revision of the following conditions are fulfilled:
- There should be a case decided.
- The decision should be of a court subordinate to a revisional court.
- No appeal should lie to the revisional court from such decision.
Where the above conditions are fulfilled, the court my interfere, where the subordinate court has
- Exercised a jurisdiction not vested in it or
- Failed to exercise a jurisdiction vested in it, or
- Acted in the exercise of its jurisdiction illegally or with material irregularity.
Where the above conditions are not satisfied, the High Court cannot interfere in revision. (PLD 1971 B.J 53)
The terms decree, order and judgment are not used in S.115. A revision lies against a case decided which term is not defined by the code, and not against judgment or decree. Case decided does not necessarily refer to an order which determines the whole case or all matters in dispute. As is the case of a decree, but to any state of facts judicially considered, which will ultimately affect the rights of the parties, even though the order may be passed in the course of the trial of the suit and includes a step on aid of the determination of the controversy. In this sense even an interlocutory order which deals with a substantive question in controversy between the parties and affect their rights will be case decided.
A revision lies against the decision given by a court subordinate to the court to which the application for revision is made. A court is subordinate to the revisional court if it is subject to the appellate jurisdiction of the court, though in a particular case an appeal may not lie to the court.
In which no appeal lies thereto:
A revision will only be competent if no appeal lies to the court against the decision. For instance, a decree passed u/s 9 of the S.R.A 1877 or where no second appeal lies. In the case of interlocutory orders appeal means direct appeal and not one against the final determination.
Exercised a jurisdiction not vested in it:
A court may exercise jurisdiction not vested in it, consequent to an erroneous construction of the law or mis-apprehension of facts. An order made by a court which does not have jurisdiction over the matter is a nullity and may be ignored. Thus, where a court exercises jurisdiction not vested in it, one remedy available against it is a revision u/s 115. The following are instances where the court exercises jurisdiction not vested in it.
- Entertaining an appeal against a non-appeal able order.
- Entertaining an appeal or suit where jurisdiction to entertain is barred.
- Allowing an appeal in a case beyond the course. Pecuniary jurisdiction.
Failure to exercise jurisdiction so vested:
A refusal by a court to exercise a jurisdiction, is subject to correction in revision. Such refusal may be consequent upon an erroneous decision, or a misapprehension of law or facts however, where a court rightly assumes jurisdiction but thereafter decides wrongly, this will not be a ground for revision, unless a question of jurisdiction is involved in the determination.
The following are instances where a court fails to exercise a jurisdiction vested in it.
- Failure to adjudicate or decide a matter.
- Refusal to pass an order on the ground that the court does not have jurisdiction to do so.
- Omissions to give finding on a necessary issue.
- Refusal to entertain plaint, application etc.
Exercise of jurisdiction illegally or with material irregularity:
The term acting illegally means acting in breach of some provision of law and the term acted with material irregularity refer to the committing of some error of procedure in the course of trial which is material, in the sense that it may affect the ultimate decision. The word illegally or with material irregularity have reference to material defects of procedure and not to errors of law or facts after the formalities which the law prescribes have been complied with.
Merely because the decision is erroneous does not mean that the court has acted illegally or with material irregularity. The revisional jurisdiction is not attracted merely because another view is possible. The following are examples of case where the court can be side to have acted illegally or with material irregularity:
- Order not based on any evidence.
- Order based on inadmissible evidence
- Order based misreading and no n reading of evidence.
- Deciding a case without hearing parties.