TMI Blog2003 (4) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... der been passed in favour of the party applying for revision, same would not have finally disposed of the suit or other proceeding. It has been contended by learned counsel for the appellants that the High Court went wrong in disposing of the revision applications as not maintainable, on several grounds. They are (i) the amended provisions do not apply to petitions which were admitted before the amendment, (ii) appeals and revisions stand on a parallel footing and are vested rights in the appellant/applicant, as the case may be, and as such the amended provisions would not have any application, and (iii) the applications for injunction and the like which form subject matter of the revisions relate to the expression 'other proceeding' and even if the amended provisions apply disposal of the revision would have meant final dismissal of such 'other proceeding'. With reference to Section 32(2)(i) of the Amendment Act, it is submitted that the same does not convey any meaning. The legislature always saved pending proceedings in terms of Section 6 of the General Clauses Act, 1897 (in short 'General Clauses Act') and, therefore, proceedings which were pending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit or other proceeding. Section 115 (after Amendment): (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. (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 order 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l not interfere where the order or the decree is appealable in courts subordinate to the High Court. It is interesting to note that the Law Commission of India had recommended deletion of Section 115. In the Law Commission's opinion, provisions of Section 115 are analogous to provisions of Article 227 of the Constitution of India, 1950 (in short 'the Constitution') and the litigants would not be prejudiced in any way if the entire Section is deleted. The Joint Committee of the Parliament discussed these recommendations and only thought it proper to make certain modifications in the Section. That led to amendment of Section 115 by Old Amendment Act. The deliberations of the Committee are reflected in the following words: The Committee, however, feel; that, in addition to the restrictions contained in section 115, an overall restriction on the scope of applications for revision against interlocutory orders should be imposed. Having regard to the recommendations made by the Law Commission in its Fourteenth and Twenty-Seventh Reports, the Committee recommended that Section 115 of the Code should be retained subject to the modification that no revision application sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts are involved, a legislation has to be interpreted to mean as one affecting such right to be prospectively operative. The right of appeal is only by statute. It is necessary part of the procedure in an action, but the right of entering a superior court and invoking its aid and interposition to redress the error of the courts below. It seems to this paramount right, part of the progress of the inferior tribunal. (Per Westbury See: AG vs. SILLEM 33 J.Ex 209). The appeal, strictly so called, is one in which the question is, whether the order of the Court from which the appeal is brought was right on the materials which that Court had before it (Per Lord Devuil Ponnamal vs. Arumogam 1905 AC 390). The right of appeal, where it exists, as a matter of substance and not of procedure (Colonial Sugar Refining Company vs. Irtin 1905 AC 368). Right of appeal is statutory. Right of appeal inherits in no one. When conferred by statute it becomes a vested right. In this regard there is essential distinction between right of appeal and right of suit. Where there is inherent right in every person to file a suit and for its maintainability it requires no authority of law, appeal requires ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avoided. As observed in Crawford v. Spooner (1846 (6) Moore PC 1), Courts, cannot aid the Legislatures' defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. (See The State of Gujarat and Ors. v. Dilipbhai Nathjibhai Patel and Anr. (JT 1998 (2) SC 253)). It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. (See Stock v. Frank Jones (Tiptan) Ltd. (1978 1 All ER 948 (HL). Rules of interpretation do not permit Courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans (1910) AC 445 (HL), quoted in Jamma Masjid, Mercara v. Kodimaniandra Deviah and Ors.(AIR 1962 SC 847). The question is not what may be supposed and has been intended but what has been said. Statutes should be construed not as theorems of Euclid . Judge Learned Hand said, but words must be construed with some imagination of the purposes which lie behind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 557) where at p. 577 he also observed: this is not a new problem, though our standard of drafting is such that it rarely emerges . It is then true that, when the words of a law extend not to an inconvenience rarely happening, but do to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accidunt. But, on the other hand, it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom (See Fenton v. Hampton 11 Moore, P.C. 345). A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bis existit proetereunt legislatores, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - Casus omissus et oblivioni datus dispositioni communis juris relinquitur; a casus omissus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iller v. Salomons (7 Exch. 475) it was argued that Parliament could not have intended that a Jew, before sitting in the House of Commons, must use the words on the true faith of a Christian, prescribed in the oath of abjuration of 6 Geo. 3, c.53, because any person, refusing to take the same oath when tendered by two justices, would, under the 1 Geo. 1, st.2, c.13, be deemed to be a popish recusant, and would be liable to penalties as such; and to enforce these provisions against a Jew, it was said, would be the merest tyranny. But Baron Parke thus replied to this argument: - If in the vast majority of possible cases in all of ordinary occurrence the law is in no degree inconsistent or unreasonable construed according to its plain words, it seems to me to be an untenable proposition, and unsupported by authority, to say that the construction may be varied in every case, because there is one possible but highly improbably one in which the law would operate with great severity, and against our own notions of justice. The utmost that can be reasonably contended is, that it should be varied in that particular case, so as to obviate that injustice no further. Appeal is the right o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealable. Orders that are not appealable are, generally speaking, those which are procussual i.e. interlocutory or incidental orders regulating proceedings but not deciding any of the matters of controversy in the suit. Order 43 deals with the appeals from orders . These appeals lie under Section 104 of the Code. The said Section deals with appeals from orders and specifies the orders from which appeals can lie. Sub-section (2) of Section 104 says that no appeal shall lie from any order passed in appeal under the said Section. Section 104 and Order 43 Rule I contain a full list of appealable orders. An order which amounts to a decree within Section 2(2) does not fall within Section 104 and the only applicable section is Section 96. Clauses (a) to (f) of Section 104 were omitted by Arbitration Act 1940. Section 105 relates to other orders. It, inter alia, relates to any order i.e. so appealable as well as non-appelable orders. It is in the nature of a prohibition stipulating that save as otherwise expressly provided, no appeal shall lie from any order made by a Court in exercise of original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in the statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings, then it can be reasonably inferred that the intention of the legislature is that the pending proceedings shall continue but a fresh proceeding for the same purpose may be initiated under the new provision. In view of what has been stated above the inevitable conclusion is that the High Courts were right in the conclusion about non-maintainability of revision applications. It was submitted by learned counsel for the appellants that even if the revision applications are held to be not maintainable, there should not be a bar on challenge being made under Section 227 of the Constitution. It was submitted that an opportunity may be granted to the appellants to avail the remedy. If any remedy is available to a party under any statute no liberty is necessary to be granted for availing the same. If the appellants avail such remedy, the same shall be dealt with in accordance with law. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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