Revision is filed against interlocutory order. When is it maintainable?

The Starting Point: What Is Section 115?

Section 115 vests in the High Court the power of superintendence over courts subordinate to it. This power is not a matter of right — it is not a substantive right like a right of appeal. As the Supreme Court has clearly distinguished, while the right of appeal carries with it the right to a re-hearing on both law and fact, the revisional jurisdiction is confined to a far narrower enquiry: whether the subordinate court exercised a jurisdiction not vested in it by law, failed to exercise a jurisdiction so vested, or acted in the exercise of its jurisdiction illegally or with material irregularity. These are the three pillars of the jurisdictional error which alone can sustain a revision. The revisional court is not a second or third tier of appeal, and it cannot re-appreciate evidence or substitute its own findings for those of the courts below.

The Old Law: Two Schools of Thought

Before the amendments entered the picture, there was a significant conflict among the High Courts on whether interlocutory orders could at all be brought within the expression "any case which has been decided" under Section 115. The Allahabad High Court at one time took the strict view that the word "case" referred to the entirety of the suit, and an interlocutory order, which left the suit alive and pending, was not a "case decided." On this view, revision against an interlocutory order was impermissible.

Most other High Courts — Bombay, Calcutta, Madras, Patna, Andhra Pradesh, Gujarat, Kerala, and others — took the more liberal and, it must be said, more purposive view. They held that the word "case" was of comprehensive import and included civil proceedings other than suits, and also a part of a proceeding. An interlocutory order which directly affected the rights and obligations of parties — as distinguished from a purely procedural or incidental order — was a "case decided" within the meaning of Section 115. The Supreme Court eventually settled this controversy in favour of the broader view: the Explanation inserted by the 1976 Amendment legislatively confirmed that "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.

The 1976 Amendment: Conditional Maintainability

The 1976 Amendment added a proviso to Section 115(1) which introduced two crucial qualifications. Even if an interlocutory order suffered from a jurisdictional defect, the High Court could not vary or reverse it unless the order fell within one of two categories:

(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.

The second limb — clause (b) — was of considerable practical importance. It enabled the High Court to correct interlocutory orders that, though not disposing of the suit, would visit the aggrieved party with irreparable harm if left uncorrected. Courts interpreted this with reasonable latitude: an erroneous ruling on stamping or registration of a document, an order wrongly excluding critical evidence, or an order granting injunction on meagre material — all these could be challenged under clause (b).

The 1999 Amendment: The Critical Turning Point

Then came the Code of Civil Procedure Amendment Act of 1999, which came into force on 1 July 2002, and it changed the landscape decisively. Acting on the recommendations of the Malimath Committee, the legislature deleted clause (b) of the proviso. The deletion was conscious and deliberate. The Committee noted that clause (b) had left "wide scope for the exercise of the revisional power with all types of interlocutory orders, presumably not intended," and recommended its removal to restrict interference with interlocutory proceedings and to expedite the disposal of suits.

The effect is now clear. After 1 July 2002, a revision against an interlocutory order is maintainable only under clause (a) — that is, only if the order, had it been made in favour of the revision petitioner, would have finally disposed of the suit or other proceedings. If the order is purely interim in nature and would not, even if reversed, put an end to the suit, the revision is not maintainable. The Supreme Court in Prem Bakshi v. Dharam Dev articulated this well: where a trial court holds by an interlocutory order that it has no jurisdiction to proceed, or that the suit is barred by limitation, the order would amount to finally deciding the case and is therefore revisable. But an order refusing an adjournment, or rejecting an application for summoning a witness, or allowing an amendment — none of these, if passed in favour of the revision petitioner, would terminate the suit. They are, therefore, no longer amenable to revision.

The Distinction That Determines Maintainability

The key analytical question to ask, on the post-2002 position, is this: if this order had gone the other way — if it had been passed in favour of the revision petitioner — would the suit have come to an end? If the answer is yes, the revision is maintainable. If the answer is no, it is not.

Orders that pass the test include: an order holding the suit is barred by limitation, an order finding the suit is barred by res judicata, an order finding the court lacks jurisdiction, an order rejecting the plaint (which is in fact a decree), and an order holding the suit is not maintainable for non-service of notice under Section 80. Orders that fail the test include: an order on a temporary injunction application, an order on amendment of plaint, an order refusing to summon a witness, an order on discovery, and an order on appointment of a local commissioner.

The Alternative Remedy Under Article 227

It is important to appreciate, however, that the curtailment of Section 115 does not leave the litigant without any remedy. The Supreme Court — in the landmark ruling discussed in depth in the commentary — has firmly held that the amendment to Section 115 cannot and does not affect the constitutional jurisdiction of the High Court under Article 227 of the Constitution. Interlocutory orders that are no longer amenable to revision under Section 115 remain open to challenge under the supervisory jurisdiction of the High Court under Article 227, where the subordinate court has acted without jurisdiction, in excess of jurisdiction, or in flagrant disregard of law, and where there is a grave failure of justice which, if not corrected at that stage, would become incapable of correction later. The High Court has also rightly held that in an appropriate case where a revision is not maintainable under Section 115, it can permit the revision petition to be converted into a petition under Article 227. That corrective path, though narrower and exercised with great circumspection, remains available to the aggrieved party.