Prem Narayan Dwivedi vs Sri Udit Narayan

Manoj Misra, J.—Heard learned counsel for the petitioner and perused the record.

The respondent had instituted O.S. No.40 of 2014 in the court of Civil Judge (Senior Division), Hamirpur. The plaint of the said suit was ordered to be returned to the plaintiff vide order dated 21.07.2015 on account of lack of territorial jurisdiction. Against the said order, on 03.08.2015, a revision was filed in the court of District Judge, Hamirpur. An objection was taken on 17.03.2016 by the petitioner, who was a respondent in the revisional proceeding, that revision would not lie because against an order returning the plaint an appeal would be maintainable under Order 43, Rule 1 (a) of the Code of Civil Procedure. It appears that in the meantime, as no interim order was passed in the revision proceedings, the revisionist, who is the opposite party herein, filed petition under Article 227 No.5907 of 2016 in this Court. On the said petition, this Court passed an interim order directing the parties to maintain status quo till disposal of the interim injunction application or for a period of three months whichever is earlier. In the meantime, realizing that the revision was erroneously filed and, in fact, an appeal should have been filed, an application was moved by the revisionist to convert the revision into an appeal. The said application was allowed by order dated 20.01.2017, which is under challenge in this petition. Pursuant to the said order, on 30.01.2017, the appeal was also admitted after conversion.

The learned counsel for the petitioner has assailed the order dated 20.01.2017 on the ground that there is no provision under the Code of Civil Procedure to convert a revision into an appeal and, therefore, the order dated 20.01.2017 is illegal and without jurisdiction. It has been submitted that since the order of conversion has been passed after expiry of the period of limitation fixed for filing of an appeal, the conversion ought not to have been allowed without first dealing with the aspect as to whether the appeal was within the period of limitation. It has also been submitted that at the stage of admission of the appeal at least the petitioner should have been heard and since he has not been heard at the stage of admission of the appeal, the order dated 30.01.2017 is vitiated.

In support of the aforesaid submission, a judgement of Calcutta High Court reported in 1994 AIR Calcutta 229: Malati Santra and others v. Nanda Dulal Banik and others has also been cited.

I have considered the submission of the learned counsel for the petitioner. The record reflects that the revision was filed within 30 days of passing of the order dated 21.07.2015 and, therefore, if an appeal would have been filed, it would have been within the period of limitation. This Court in Umardeen v. Additional District Judge, Muzaffarnagar and others, 2008 AIHC 1056, relying upon an earlier decision of this Court in Bahori v. Vidya Ram, AIR 1978 All 299, held that the court has discretion to permit conversion of a revision into an appeal in exercise of inherent power under Section 151 CPC. In so far as the submission that there has to be conversion only after condonation of delay, suffice it to say that choice of remedy is always at the instance of a counsel and it is settled legal principle that a litigant should not suffer for the mistake of his counsel. Further, in the case of Bahori (supra) it was observed that since there is no specific provision in the Code for the conversion of an appeal into revision or vice versa there can be no restriction on conversion except that imposed under Section 151 of the Code. It was observed that there is nothing like a period of limitation for making an application for conversion of an appeal into revision or vice versa. All that is required to be seen if the appeal or revision had been filed within the time prescribed. Under the circumstances, if, upon legal advice, a party chose a wrong legal remedy but the right forum and, thereafter, upon realizing that the proper remedy would be under a different provision, an application is filed for converting the application preferred, the ends of justice demands that such conversion be allowed. Under the circumstances, it is not appropriate for a constitutional court to interfere with such an order in exercise of power under Article 227 of the Constitution of India. In so far the grievance of the petitioner that he was not heard at the time of admission of the appeal is concerned, this Court is of the view that at the time of admission of an appeal it is not necessary for the court to hear the other side but when the court proceeds to consider a prayer for interim relief or proceed further to take decision on merits, then it is always necessary for the court to issue notice and ensure that the other side is given opportunity in the matter.

In view of the above, this Court does not find any good reason to interfere with the order passed by the court below. The petition is dismissed.