Kuldip Chand and Others vs Shiv Ram and Another

M.R. Verma, J.—This revision petition is directed against the order dated June 1, 1998 passed by the learned District Judge, Shimla whereby the review petition, i.e. C.M.P. No. 128-S/6 of 95 under Order 47 Rule 1 of the Code of Civil Procedure, has been allowed and Civil Appeal No. 112-S/13 of 1995/91 has been ordered to be re-heard after recalling the earlier order dated 10-11-1995 dismissing the appeal.

The learned counsel for the respondents have raised a preliminary objection that this revision petition is not maintainable.

I have heard the learned counsel for the parties on the said preliminary objections and have perused the relevant material on record.

The impugned order has, admittedly, been passed in a review petition under Order 47, Rule 1 of the CPC by granting the same. To find out the answer to the question as to what remedy in such situation is available to the petitioners, reference may be made to the relevant provisions of law.

The relevant provisions of Order 43, Rule 1 (w) of the CPC provides as follows :

"1. Appeals from orders.-- An appeal shall lie from the following orders under the provisions of Section 104, namely :--

(a) - (v) xxxxx

(w) an order under Rule 4 of Order XLVII granting an application for review."

Order 47 Rule 7 of the Code provides as follows :--

"7. Order of rejection not appealable; objections to order granting application.--

(1) An order of the Court rejecting the application shall not be appealable; but an order granting the application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit.

(2) Where the application has been rejected in consequence of the failure of the applicant to appear, he may apply for an order to have the rejected application restored to the file, and, where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing when such application was called on for hearing, the Court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same.

(3) No order shall be made under sub-rule (2) unless notice of the application has been served on the opposite party.

Section 115 of the Code reads as follows :--

"115. Revision.-- (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 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 reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where --

(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.

(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."

A bare reading of Section 115 supra makes it clear that the revisional powers thereunder can be exercised by the High Court only in respect of such order/decision of the subordinate Court against which no appeal lies. Sub-section (2) specifically bars the High Court from reversing any order etc. against which an appeal lies to the High Court or to a Court subordinate thereto. In view of the provisions of Order 43, Rule 1(w) supra, an appeal lies against an order granting the review. One of the remedy provided for to a party aggrieved by an order granting review under Order 47 Rule 7 of the CPC is an appeal. Thus the remedy of filing appeal against the impugned order was available to the petitioners, therefore, a revision petition u/s 115 of the CPC is not competent and maintainable.

It was prayed by the learned counsel for the petitioners in the alternative that in case the present revision is held not maintainable, it may be treated as an appeal and may be ordered to be heard as such.

Though there is no specific provision in the CPC to convert a revision into appeal or vice versa but the Courts have been permitting such conversion in the interest of justice in exercise of powers u/s 151 of the Code. However, these powers are discretionary and are to be exercised to prevent the abuse of the process of the Court and to prevent miscarriage of justice provided that other conditions Including limitation are satisfied. (See Rupam Pictures and Another Vs. Brijmohan and Others, and Bahori Vs. Vidya Ram,

Since I am inclined to allow the conversion, as prayed for, therefore, it will not be appropriate to comment on the merits of the impugned order. Suffice it to say that all requisite conditions to permit conversion of this revision into an appeal are satisfied.

As a result, the prayer to treat the present case an appeal is allowed and it is directed that the present case which has been registered as a Civil Revision will now be treated as an appeal for order.

List for further hearing as appeal.