Prakash Narain, J.
1. This matter comes before us on a reference made by me to a larger bench on account of a conflict of opinion between B. C. Misra, J. and D. K. Kapur, J. in their respective judgment deciding Civil Revn. No. 20 of 1973 Lachhman Singh etc. v. C. D. Taneia etc. and Civil Revn. No. 355 of 1973 (Delhi) Ramesh Chander Jain v. Sarvdeshik Arya Pratinidhi SabhaIn point of time the decision of Kapur, J. was earlier than the decision of B. C. Misra, J. but it seems that the decision of Kapur, J. was not brought to the notice of Misra, J.
2. The two learned Judges have differed on the question of the maintainability of a revision petition against an order of a trial Court declining leave to the defendant to appear and defend a suit under 0. 37 of the Civil P. C. if a decree has also been passed against the said defendant. B. C. Misra, J. is of the opinion that the mere fact that the court below at the time of or after refusing to grant leave to the defendant to appear and defend has passed a decree does not have the effect of depriving the said defendant of his right to have the order refusing leave to appear and defend revised by the High Court in exercise of its revisional jurisdiction merely because a decree has been passed from which appeal lies.
on the other hand, takes the view that a decree having been passed the order, refusing leave to appear and defend cannot be revised under S. 115 of the Civil P. C. and an appeal must be filed against the decree and in that appeal the tenability of the order refusing leave to appear and defend can be questioned. We are, thereforee, only called upon to decide whether in a suit brought under s. 37, C. P. C. if leave to appear and defend the suit is not granted to a defendant and a decree is passed, would the order of the trial Court refusing leave to appear and defend the suit be revisable or whether the defendant in such a case must file an appeal against. the decree and in that appeal challenge the order refusing him leave to appear and defend the suit by either invoking the provisions of See. 105 of the Code of Civil Procedure or otherwise.
3. 1 would like to make it clear that the reference made to the larger bench is restricted only to answering the above question and not deciding the petition on merits.
4. Before I proceed to deal with the question referred to us. it will be necessary to deal with another point. The present petition was filed under Art. 227 of the Constitution of India, as it existed prior to the 42nd Amendment to the Constitution of India. In view of Art. 227 of the Constitution having been amended, the Petitioner has moved C. M. 399 of 1977 praying that the petition -may be treated as a revision petition under S. 115, C. P. C. The question is whether it can be done.
5. The impugned order was passed on March 14, 1974. The petition under Art. 227 of the Constitution, as then in force, was filed on May 13, 1974. So, the bar of limitation cannot be pleaded if the petition is to be treated as a revision petition under S. 115, C. P. C.
6. Section 115, C. P. C. as amended now reads as under:-
'115 (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 re verse any order made, or an y order deciding an issue, in the course of a suit or other proceeding, except where-
(a) The order, if it had been made in favor 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.
(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.
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. Reading the above section and since, admittedly, the impugned order is not an appealable order, if a case is made out a revision petition under S. 115, C. P. C. could be filed instead of a petition under the unamended Art. 227 of the Constitution. This is subject, of course, to the main question which we are 'called upon to decide. If that be the situation, we see no impediment in treating the petition under Art. 227 of the Constitution as a revision petition under Article 115, C. P. C.
8. Learned counsel for the petitioner has urged that an order like the one in question is analogous to an order passed under 0. 23, R. 3, C. P. C. and, thereforee, a revision petition would lie as of right. He further submits that a revision is entertained by the High Court in its appellate jurisdiction and just as an appeal is a procedural remedy so is a revision petition. The contention is that if a statute has provided a remedy it must be correlated to a right. The High Court, it is submitted, has Power in appeal to uphold, reverse or modify the judgment or decree or order. Similarly, the High Court has power in its revisional jurisdiction to rectify an error, if it falls within Cls. (a) or (b) or (c) of S. 115(1), C. P. C. Thus, it is the right of a litigant, it is submitted, to bring the error to the notice of the High Court which then exercises its power. In short, the argument is that a litigant has -a right to file a revision petition or has a right to invoke the jurisdiction of the High Court either by way of an appeal or revision petition and the High Court is finder duty to exercise the power conferred upon it and interfere if the circumstances so warrant.
9. In my opinion, appeals and revisions cannot be equated. There is an obvious distinction between the two. A right of appeal carries with it a right of rehearing on law as well as on fact, unless a statute conferring the right of appeal limits the rehearing only to questions of law, as has been done in the case of second appeal under the Civil P. C. In a revision the High Court is only required to satisfy itself that a particular case has been decided according to law or that a particular order does not suffer from the infirmity of having been passed without jurisdiction, in excess of jurisdiction, in denial of jurisdiction or is -otherwise not illegal or suffering from material irregularity. Indeed, revisional powers conferred upon the High Court or for that matter any other superior court or Tribunal have to be exercised within the limits of the powers conferred. In the case of S. 115, C. P.C. it is restricted to exercise, non-exercise, illegal exercise or exercise with material irregularity of -jurisdiction -and jurisdiction alone. This distinction is well settled and if any authority is needed, one has only to look at the law laid down by the Supreme Court in Hari Shankar v. Rao Girdhari Lal Chowdhury Air 1963 Sc 698
10. I am inclined to agree with the submissions made on behalf of the petitioner that if the power has been conferred upon the High Court to revise orders of courts inferior to it, as postulated by S. 115, C. P. C., there is a corresponding right in a litigant to bring to the notice of the High Court any error committed by the inferior court and to invoke the jurisdiction of the High Court to interfere under S. 115, C. P. C. if the circumstances of the case so warrant. But that does not mean that a revision petition can be filed as of right. The right is only to bring an 'error'' to the notice of the High Court. In Smt. Kalwant Kaur v.' Hazari Lal 2nd (1973) 2 Del 88 a bench of this Court, to which I was a party clearly pointed out the distinction between an appeal and a revision and also laid down what was the nature of the right in invoking the revisional jurisdiction conferred by S. 115, C. P. C. As was observed in that case:-
'It may be true that in invoking the revisional jurisdiction of the High Court the aggrieved party may be asking the court to exercise its appellate powers but the concept of appeal and revision in the Code of Civil Procedure are wholly different. The nature of the jurisdiction exercised by the High Court does not place the two proceedings at par to justify the assumption that an appeal is the same as a revision .......Further, it will also be seen that while ordinarily an appeal is in continuation of a suit this is not true in case of a revision ...... Appeal can be filed as of right but revision is a discretionary remedy depending on the facts of the case. The, scope of interference by the High Court in the two proceedings is also not the same ........'
In view of the above rule of law, it has to be held that there is an independent right with a litigant to file an appeal but there is no right as such to file a revision petition. There is, however, a right to bring an illegality or material irregularity to the notice of the High Court which in its turn would exercise the power conferred upon it, as warranted by the circumstances of the case. The right to invoke the jurisdiction of the court under S. 115, C. P. C. may be invoked not at any time but only within the period stipulated by Article 131 of the Limitation Act.
11. The various authorities cited by the learned counsel for the petitioner in support of his contention that the provisions of 0. 37, Rule 3, C. P. C. are analogous to the provisions of 0. 23, R. 3, C. P. C. need not be noticed in view of my conclusion about the nature of the right in a litigant to invoke the jurisdiction of the High Court under S. 115, C. P. C. The High Court's revisional jurisdiction is no doubt a part and parcel of the appellate jurisdiction of the High Court but all the. same the nature of the two -jurisdictions, namely, the appellate -and the revisional, have to be distinguished, as noticed earlier. (See Shankar Ramchandra v. Krishnaji Dattatraya, : 1SCR322 ). The crux. of the problem is what is the scope of S. 115, C. P. C. That section has already been read earlier. As was observed in S. S. Khanna v. F. J. Dilon, : 4SCR409 , C. P. C., consists of two parts, namely, one prescribing the conditions in which jurisdiction of the High Court arises, i.e. there is a case decided by a subordinate Court in which no appeal lies to the High Court and the other which sets out the circumstances in which the jurisdiction may be exercised, The power, of the High Court is exercisable in respect of 'any case which has been decided.' The expression 'case' was not defined in the Code nor in the General Clauses Act.
Their Lordships of the Supreme Court have observed that meaning of this expression must be sought in the nature of the jurisdiction conferred by S. 115, C. P. C. and the purpose for which the High Courts were invested with it. According to the views of Shah, J. and Sarkar, J.,: 'The expression 'case' is a word of comprehensive import: it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceeding in a civil court. To interpret the expression 'case', as an entire -proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence to which the jurisdiction to issue writs, and the supervisory jurisdiction a not subject, and may result in certain cases in denying relief to an a grieved litigant where it is most needed, and may result in the perpetration of gross injustice.' Their Lordships did not approve of the restricted view taken by the Allahabad High Court in Buddhulal v Mewa Ram Air 1921 All 1 . thereforee, if the impugned order is one which falls within the ambit of the phrase 'any case which has been decided' it would be revisable.
12. The next question which arises is whether the High Court has power to set aside an order which does not finally dispose of the suit and when from the decree or from the final order passed in the proceedings an appeal is, competent. In the Present case the order refusing to grant leave to appear and defend did not finally dispose of the suit and an appeal is competent from the decree that has been passed, but it must be kept in view that the effect of the impugned order is as given in Clause (2) of Order 37, Rule 2, C. P. C., namely that in case leave to defend and appear is not granted, the allegations in the plaint shall be deemed to be admitted. thereforee, an order like the present one has far-reaching consequences and would clearly fall within the ambit of the phrase 'any case which has been decided' for as far as the defendant is concerned, the controversy has really come to an end. If that is the correct proposition and if the expression 'case' includes a part of a case, then, as was observed in S. S. Khanna's case : 4SCR409 by the Supreme Court, 'there is no escape from the conclusion that the revisional jurisdiction of the High Court may be exercised irrespective of the question whether an appeal lies from the ultimate decree or order passed in a suit.' In my view the only interpretation that one can give is that in the present case irrespective of the decree that has been passed, a revision is competent.
13. On behalf of the respondents reliance has been placed on an observation of Hidayatullah, J. (as his Lordship then was) in the case of S. S. Khanna, : 4SCR409 mentioned above, which is, 'if the trial Judge had dismissed the suits and passed decrees, there would undoubtedly have been appeals and no revision would lie.' In my view the reliance on this observation is misplaced. In the context in which this observation was made, it could not be said that the learned Judge Was disagreeing with the majority view in S. S. Khanna's case. Even if it could be said that the view of Hidayatullah, J. is different, then I say with respect that it is the minority view.
14. In view, of the clear pronouncement of the Supreme Court, I consider it unnecessary to dilate upon the correctness or otherwise of the views expressed in various cases cited by learned counsel.
15. It has been urged on behalf of the respondent that thee is one other important reason why it should be held that in case like the present one a revision is not competent and the petitioner's only remedy is to file an appeal against the decree. The argument is that a decree once passed remains effective till set aside and so, revising the order by which leave to appear and defend has been refused would be an exercise in futility because the decree will still subsist. There is a fallacy in this contention. When leave is refused to the defendant to appear and defend a suit under 0. 37, C. P. C., the effect of the refusal of leave to appear and defend is that the allegations in the plaint by a deeming provision stand admitted. The allegations in the plaint being admitted, a decree has to follow. This means that the decree follows as a consequence of the earlier order of refusal to grant leave to appear and defend. In my opinion, when a subsequent order, even if it be a decree, is a consequential order to an earlier order and the earlier order is set aside the latter that effect have to be given.
In Rangiah v. Peddireddi Air 1957 A.P 330 Subba Rao, C. J. (as his Lordship then was) following the dicta of the Privy Council in Shama Purshad Ray Chowdry v. Hurro Purshad Ray Chowdry (1863) 10 MI A 203 observed: 'It is a well-settled principle of law that certain orders and decrees which are subordinate and dependant upon earlier orders and decrees could only remain in force so long as the orders or decrees on which they were dependent are not reversed or superseded.' The same view was expressed by S. N. Andley, C. 1. in the Chamber of Colours and Chemicals (P) Ltd. Delhi v. Trilok Chand Jain 1973 Del Lt 510 His Lordship construing the effect of S. 38(1) of the Delhi Rent Control Act, 1958, observed that 'it cannot be doubted that the appeal when filed was competent, if so, it cannot be rendered incompetent merely because a final order has been passed. If the appeal against the order under sub-see. (7) of Section 15 which may be described as an interlocutory order or even as a preliminary order succeeds the final order even if passed in the meantime will have to be suitably modified.' I, thereforee, hold that if the impugned order is reversed or modified the consequential order or decree will also have to be modified or directions will have to be given that the same is of no effect.
16. There is another aspect which I may advert to and that is the effect of the proviso to sub-section (1) to S. 115, C. P. C. added by the recent amendment to S. 115, C. P. C.
17. Obviously, the impugned order in this case does not fall under Clause (a) of the Proviso. In my opinion it, however, does fall under Clause (b), It will be a great failure of justice if revision is barred at the threshold on account of the proviso because under 0. 37, R. 2 the effect of refusal to grant leave to appear and defend can be the automatic passing of a decree against the defendant. I should not be taken to mean that I am making any observations on the merits as to whether the impugned order should or should not have been passed by the trial Court. The above observations are being made by me only in the context of the competency of the revision petition. The amendment to S. 115, C. P, C., thereforee, does not detract from the principles enunciated above. Indeed, it will be worth noticing that the Explanationn to the newly added sub-section (2) of S. 115, C. P. C. makes it clear that the expression 'any case which has been decided' is to be given the meaning which their Lordships of the Supreme Court had given to the phrase in S. S. Khanna's case : 4SCR409 .
18. The result is that I am of the opinion that the revision in the circumstances of the case is competent. The civil revision be now laid before a single Judge for disposal. No costs at this stage.
19. Pritam Singh Safeer, J.