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C.R. Shantharaj vs C.K. Kumaraswamy and Others

Karnataka High Court · Decided on 2 November 2007 · Citation: AIR 2008 Kar 631 : (2008) 3 KarLJ 175 : (2008) 2 KCCR 1175

HON’BLE JUDGES
D.V. Shylendra Kumar, J
ACTS & SECTIONS REFERRED
Civil Procedure Code, 1908 (CPC) — Section 115, 151
RESULT
Dismissed
CASE NUMBER
Civil Revision Petition No. 512 of 2007
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Judgment

5 paragraphs · 379 words

D.V. Shylendra Kumar, J.—This civil revision petition u/s 115 of the Code of Civil Procedure, 1908 is directed against the order dated 4-8-2007 passed in I.A. No. 10 in O.S. No. 5918 of 1988 pending before the I Additional City Civil and Sessions Judge, Bangalore, whereunder the learned Trial Judge had rejected the application filed u/s 151 of the CPC praying for dismissal of the suit as not tenable.

2.

Submission of Smt. B.V. Nagarathna, learned Counsel for the petitioner is that the rejection of the application by the Trial Court is not proper; that if the application should have been allowed as sought for, that would have brought the suit to an end and therefore it is a case where this Court should interfere within the scope of the proviso to Section 115 of the Code of Civil Procedure.

3.

While technically submission made may be correct and may bring it within the scope of proviso to Section 115 of the Code of Civil Procedure, an application u/s 151 of the CPC which is a residuary provision is not an application that can be pressed into service for dismissal of the suit which if at all is to be dismissed after going through trial and if found to be meritless or under any express enabling provision under the CPC itself.

4.

No express provision for dismissal of the suit having been invoked and an omnibus provision like Section 151 of the Code of Civil Procedure, if at all being a provision for saving the inherent powers of the Court which is not the power that can be called in aid for dismissal of the suit by a defendant as every defendant will plead that the suit is not tenable and is liable to be dismissed. The Trial Court has rightly dismissed the application of this nature.

5.

No scope for interference in any view of the matter either within the scope of Section 115 of the CPC or even beyond, as an order dismissing of an application filed u/s 151 of the CPC for dismissal of the suit as not tenable, cannot be termed as an order with any illegality nor can it be said such an order suffers from any material irregularity. Civil revision petition is dismissed.