Manickam Moopan vs Lakshmi and others

P. Devadass, J.—Since Second Appeals Nos. 912 and 913 of 2006 arise out of a common judgment rendered by the first appellate Court

and the parties are same and the evidence and question of law involved are same, they are heard together and are being disposed of by this

common judgment. Admittedly, the defendant is a cultivating tenant under the plaintiffs with respect to certain lands situate in Melapandamangalam

in Tiruchirappalli District. Plaintiff filed the suit in O.S.No.37 of 2003 in the Court of the District Munsif, Tiruchirappalli for recovery of Rs. 19,

125/- towards arrears of rent. It was hotly contested by the defendant. Ultimately, the trial Court decreed the suit for Rs. 11,061/- only together

with 6% future interest. Aggrieved, the defendant filed A.S.No.200 of 2004, while the plaintiff filed Cross Appeal as against the disallowed portion

of the suit claim. The first appellate Court modified the trial court''s decree by decreeing the suit for Rs. 17,025/- with 6% future interest, thus, it

allowed the plaintiff''s cross-appeal. Now, as against modifying the trial court''s decree, the defendant filed Second Appeal (MD) No. 912 of 2006

and as against allowing the Cross appeal, he filed Second Appeal (MD) No. 913 of 2006.

Mr. S. Muthukrishnan, learned counsel for the respondent referring to Section 102 C.P.C. submitted that the appeals are not maintainable in this

Court.

In the circumstances, Janab Mohamad Ihram Saibu, learned counsel for the respondent submitted that when an appeal was not maintainable in

view of the pecuniary limit mentioned in Section 102 C.P.C., on that account an appeal cannot be dismissed, however, the court can grant leave to

convert it as a revision.

On this aspect, the learned counsel for the appellant cited the following decisions:

(i) N. Bansidhar vs. Dwarakalal AIR 1974 Kar 17.

(ii) Jiwan Das Vs. Narain Das, .

(iii) R.S. SPillai vs. M.L. Peratchi @ Selvi & others [2000 (IV) CTC 543 (DB) : 2000-3-L.W. 11]

The learned counsel for the appellant also filed a memo that the appeals may be converted as revision petitions.

Since Mr. Muthukrishnan is the root cause for filing this memo, he cannot now say otherwise.

Now, the question arises whether in the circumstances, these Second Appeals could be converted as revisions or not?

As per Section 102 C.P.C. no second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not

exceeding twenty five thousand rupees.

So, Section 102 C.P.C. prescribes a monetary limit of Rs. 25,000/- to file Second Appeal. Thus to file a second appeal, the subject matter of

the suit should be above Rs. 25,000/-. Admittedly, the subject matter of the suit in these appeals are below Rs. 25,000/-. So, Section 102 C.P.C.

is a bar to maintain these second appeals.

A revision is provided u/s 115 C.P.C.

Ban Sidhar Vs. Dwarakalal [AIR 1974 Karnataka 117] deals with a plea for conversion of a revision as an appeal and also deals with return

of that petition for presentation before proper court. That is not the situation before us. It is not applicable to the facts of our case.

12 Jiwan Das Vs. Narain Das, ] is near us. The Delhi High Court held as under:

It is now a settled law that the label placed on a cause is not conclusive and does not ordinarily affect the jurisdiction of the court to allow the label

to be corrected by treating an appeal on a revision or a revision as an appeal. Provided of course the cause of justice so demands. In cases where

no appeal lies but an appeal has been wrongly preferred, the Court has the wide discretion to treat it as a revision where the conditions laid down

u/s 115 C.P.C. are satisfied,

(emphasis supplied by me.)

In R.S. Pillai Vs. Peratchi @ Selvi & Others [2000 (IV) CTC 543 : 2000-3-L.W. 11] in view of the peculiar facts and circumstances of the

case, a Division Bench of this Court in the interest of justice converted an appeal as a revision.

In K. Chockalingam Vs. K.R. Ramasamy Iyer and Jenbagam, exactly similar question as before us arose. A memo was tiled seeking the leave

of the court to convert the second appeal as a revision. There a controversy arose whether under such circumstances, the revision could be filed

u/s 115 C.P.C. or under Article 227 of the Constitution of India.

It is profitable here to note the following portions of the judgment in K. Chockalingam Vs. K.R. Ramasamy Iyer and Jenbagam, :

This revision is filed only u/s 115 C.P.C. The suit is one for the recovery of less than a sum of Rs. 25,000/-. After the suit was decreed, an

appeal has been preferred, which was allowed nullifying the lower courts decree and judgment. Section 102 of CPC Code says, no second appeal

shall lie from any decree. When the subject matter of the original suit is for recovery of money, not exceeding Rs. 25,000/-. In view oil this

provision, a second appeal is barred and that is why, a revision is tiled u/s 115 C.P.C. which is not maintainable, according to the learned counsel

for the respondents. When there is a specific bar for filing the second appeal, when the suit is for recovery of money, not exceeding Rs. 25,000/-,

it should be held, a revision is also not maintainable u/s 115 C.P.C. Section 115 C.P.C. empowers the High Court, to call for the record of any

case which has been decided by any Court Subordinate to such High Court in which no appeal lies thereto. From the wordings deployed in the

above Section, it is clear, the High Court is empowered to entertain a revision, when no appeal is provided or where no appeal lies. In other

words, if the code provides, an appeal provision, from the decree and judgment of the subordinate court, then ordinarily invoking Section 115

C.P.C. is not possible. In this case, against the decree and judgment passed by the District Munsif Court, in O.S.No.147/97 an appeal provision is

provided, and an appeal has been preferred also. Then, considering the pecuniary jurisdiction of the suit, the second appeal is prohibited or barred.

In this view, it cannot be said, no appeal is provided against the decree and judgment, thereby to invoke Section 115 C.P.C. under the guise of

revisional power. If the cases of this nature are allowed to be entertained u/s 115 C.P.C. it would amount to eclipsing Section 102 C.P.C., which

aims the curtailment of Second appeal, in the sense, prolonged litigation. Where the subject matter is less than Rs. 25,000/-, the High Court

invoking Section 115 C.P.C. if maintains the revision, it would amount to second appeal under the label of Civil Revision Petition, thereby allowing

the parties, to file second appeal, indirectly, ignoring Section 102, thereby defeating the intention of the legislature, which should not be allowed. In

this view of the matter, I am of the considered opinion, the revision petition u/s 115 is not maintainable.

The learned counsel for the petitioner realising this difficulty alone, as aforementioned, has filed a memo for the conversion of Cr. P.C u/s 227

Cr. P.C which is permissible. In Sadhana Lodh Vs. National Insurance Company Ltd. and Another, , the Hon''ble Supreme Court has held, when

alternative remedy is available, interference under Article 226/227 of the Constitution of India, is not permissible. It is observed:

Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the

Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the

remedy available to the aggrieved person is to file a revision before the High Court u/s 115 C.P.C. Where remedy for filing a revision before the

High Court u/s 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would

lie and not under Article 226 of the Constitution.

In this view, it is held, where a remedy for filing a revision petition u/s 115 is barred in such cases, petition under article 227 of the Constitution

of India, is maintainable. In this view, this petition could be treated, as one filed under Article 227 of the Constitution of India, and not u/s 115

C.P.C.

In the circumstances, in view of the above position of law explained and described in K. Chockalingam Vs. K.R. Ramasamy Iyer and

Jenbagam, , I am preferred to follow Chockalingam (supra).

Thus, the leave now sought for could be granted to convert the second appeal as a Civil Revision Petition under Article 227 of the Constitution

of India. In the result,

(1) The second appeals shall be converted as Civil Revision petitions under Article 227 of the Constitution of India.

(2) The Registrar (Judicial) of this Bench shall convert the second appeals as Civil Revision petitions under Article 227 of the Constitution of India

and take further necessary administrative actions.