IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1377 of 2006 1. Uma Shankar 2. Arun Kumar Both sons of Late Yogi Lal, resident of Abusaleh Road Mohalla-Murarpur, P.O. H.P.O. P.S. Kotwali, District-Gaya 3. Abhishek Kumar Gupta, Son of Mahesh Kr. Gupta, resident of Akhauri Road, Gol Pathar, P.O.H.P.O. P.S. Kotwali Nagina Gali near Madhu Homeo Hall, District-Gaya 4. Shahabuddin, Son of Hazi Nasruddin, resident of Durga Bari Masjid near Marwari School,Kathokar Talab, P.O. H.P.O, District-Gaya. 5. Ashique Imam, Son of Late Abdul Rahaman, resident of Enait Colony A-76, P.O. H.P.O. Bari Road, Gaya 6. Md.Muzahir Ali, Son of Late Abdul Khair, resident of C/O Late Abdul Hafeez Mallick, P.O. H.P.O. Transport, Mohalla- Kathokar Talab, Gaya 7. Abdul Gaffar, Son of Late Adbul Ghani Mohalla Abgilla, Jagdishpur, Gaya, All tenants of Holding No.78/79 in Ward No.3 at G.B/K.P. Road, P.O. H.P.O. Gaya, P.S. Kotwali, District- Gaya ------------------- Plaintiff/ Appellants/Petitioners Versus 1. DR.HAMID HUSSAIN , Son of Late Abdul Wahab, resident of Mohalla-Gowal Bigha, P.O. H.P.O. P.S. Rampur Town and Distt- Gaya 2. The Municipal Corporation, P.O. H.P.O. Gaya, through its Chief Executive Officer---- Defendants/Respondents/Opp.Parties. ----------- For Petitioners : M/S Rajendra Pd.Singh, Sr. Advocate, and Rajeev Kumar Singh For Opp.Party no.2: Mr. Rabindra Kr. Priyadarshi, Advocate For Opp.Party no.1 Mr. Purusottam Jha, Advocate. ------------ 10 26-10-2009 Heard learned counsel for the petitioners and Opp.Party nos.1 and 2. Learned Counsel for Opp.Party Nos.1 and 2 have raised issue of maintainability of this revision before this Court in view of first proviso to Section 115 of the Code of Civil Procedure (hereinafter referred to as “the Code”). - 2 - It is submitted on behalf of the Opp.Parties that earlier proviso has been substituted by a new proviso by virtue of Section 12 of the Civil Procedure Amendment Act,1999 with effect from 1.7.2002 and in view thereof it is stated that the order of the appellate court upholding the trial court’s order refusing ad interim injunction, would not be revisable . In support of his submission , learned counsel for the Opp.Partie has placed reliance upon a decision of the Apex Court rendered in Surya Dev Rai Vrs. Ram Chander Rai and others, 2003(6) SCC 675. While testing the question of maintainability of writ application under Article 226 and 227 of the Constitution of India challenging the order refusing ad interim injunction of the original court as well as the appellate court, the Apex Court has held that after the substitution of the earlier proviso by the new proviso , a revision petition filed against an order disposing of the appeal against the order of the trial court whether affirming , reversing or modifying the order of injunction passed by the trial court would not be available under Section 115 of the Code. Learned counsel further places his reliance upon decision in Salem Advocate Bar Association, Tamil Nadu Vrs. Union of India reported in 2005(4) PLJR 270( SC), whereby the three Judges Bench of the Supreme Court has followed the principles laid down in Surya Dev Rai’s case (Supra) holding that no civil revision under Section 115 of the Code would be available in the cases of refusal of ad interim injunction by the original court and the appellate court . Learned counsel for the petitioners submitted that the - 3 - concerned suit has been filed for restraining the defendants from demolishing the shops concerned which were under the occupation of the plaintiffs-petitioners as tenant. It is submitted that if the ad interim injunction is not granted then the result would be that the shops would be demolished making the suit completely infructuous . In that view of the matter, it is submitted that it is not covered under the proviso , and as such, the revision would definitely lie against such order. It is further submitted on behalf of the petitioners that even if the appeal has been dismissed by the concerned appellate court the same cannot render the petitioners remediless . If the revision is not allowed to be prosecuted on their behalf, the result would be that the petitioners would become remediless. It would be apt to quote the newly inducted proviso itself to the Section 115 of the Civil Procedure Code substituted by the Code of Civil Procedure( Amendment ) Act,1999, S.12(i)( w.e.f.1-7- 2002), for former proviso as under: “ 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 finally disposed of the suit or other proceedings.” It is explicit from bare reading thereof that revision would only be available , if the impugned order, if it has been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding. In Surya Dev Rai ( supra) , the - 4 - specific case of refusal of ad interim injunction by the original court as well as the appellate court has been taken into consideration by the Apex Court and it has been held as under: “The power of the High Court under Articles 226 and 227 of the Constitution is always in addition to the revisional jurisdiction conferred on it. The curtailment of revisional jurisdiction of the High Court under Section 115 CPC by Amendment Act 46 of 1999 does not take away— and could not have taken away--- the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court, nor is the power of superintendence conferred on the High Court under Article 227 of the Constitution taken away or whittled down. The power exists , untrammeled by the amendment in Section 115 CPC, and is available to be exercise subject to rules of self- discipline and practice which are well settled” Subsequently, the Supreme Court in Salem Advocate Bar Association, Tamil Nadu (Supra) has again affirmed its aforesaid view. Subsequently a Bench of this Court in Smt.Mina Devi Vrs. Smt. Jagtarni Devi & Anr.,reported in 2008(2) PLJR451 relying upon the principle laid down in Surya Dev Rai’s case (Supra) had held that no civil revision could be entertained against an order passed in Miscellaneous Appeal affirming , reversing or modifying any order regarding ad interim injunction passed by the trial court. The other question was raised by the petitioners that if the revision is held to be not maintainable, then the same would render them remediless is also not well founded as the learned counsel - 5 - himself has pointed out that in Surya Dev Rai’s case ( Supra) , the Supreme Court has held that the High Court, in its writ jurisdiction under Articles 226 and 227 of the Constitution of India has ample power to entertain petitions challenging such orders. In view thereof this Court also respectfully follows the principle laid down by the Apex Court as well as this Court in the aforesaid decisions and holds this Civil Revision having been filed against the order refusing to grant injunction by the original court as well as the appellate court in Miscellaneous Appeal is not maintainable and, thus, is dismissed. However, the petitioners will be at liberty to seek any other remedy available to them under law. NKS/- ( Dr. Ravi Ranjan, J)