Uttam Chand Kothari vs Gauri Shankar Jalan and Others

B. Lamare, J.—Heard Mr. S.J. Sarma, learned counsel for the petitioner and Mr. B. K. Goswami, learned counsel for the respondents.

In this application u/s 115 read with Section 151 of the CPC the petitioner has assailed the order dated 26-7-2002 passed by the learned Civil Judge (Senior Division) No. 1, Guwahati in Title Suit No. 171/96 rejecting the application for amendment of the written statement.

The said Title Suit No. 171/96 was instituted by the respondents as plaintiff against the petitioner for eviction of the petitioner and for recovery of arrears of rent. The petitioner as defendant contested the suit by filing written statement. The learned trial Court proceeded with the suit and one witness was examined on behalf of the plaintiff/respondents. At that stage the petitioner filed petition No. 636/02 under Order 6, Rule 17 of the CPC praying for amendment of the written statement. The prayer of the petitioner was rejected by the impugned order dated 26-7-2002.

The order impugned in this petition is admittedly an interlocutory order rejecting the application for amendment of the written statement. The suit has not been finally decided by the trial Court. Section 115 of the CPC was amended by the Amendment Act 46 of 1999 and it came into force with effect from 1-7-2002. This amendment of Section 115 of the CPC and its impact was dealt with by the Apex Court in Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and Others, In the said case the Apex Court has held that it is to be seen as to whether the order passed in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is ''yes'' then the revision is maintainable. If the answer is ''no'' then the revision is not maintainable. In the instant case the impugned order has not given finality to the suit. This is only an interlocutory order refusing to allow amendment of the written statement. Therefore, according to the law laid down by the Apex Court, the revision petition is not maintainable.

The learned counsel for the petitioner, however, raised a question as to whether the petitioner is entitled to approach the Court under Article 227 of the Constitution of India or not? The answer to this question has also been given by the Apex Court in the aforesaid case of Shiv Shakati Co-op. Housing Society, Nagpur (supra) wherein a similar submission was made by the counsel for the appellants. In Paras 35 and 36 of the said judgment the Apex Court has held that if the remedy is available to a party under any statute the party may avail the same. Meaning thereby, the present petitioner is also at liberty to avail the remedy under Article 227 of the Constitution.

The learned counsel further submitted that the present revision petition can be converted into a petition under Article 227 of the Constitution and submitted that as per the judgment rendered by the Apex Court in Surya Dev Rai Vs. Ram Chander Rai and Others, this Court has ample power to convert this petition to a petition under Article 227 of the Constitution of India. The Apex Court in Para 38(4) of the said judgment has laid down the criteria with regard to the supervisory power under Article 227 of the Constitution. A petition u/s 115 of the CPC is under the procedural law whereas Article 227 provides for supervisory power of the High Court over the subordinate Courts under the Constitution of India. A petition u/s 115 in quite distinct from a petition under Article 227. Therefore, a petition u/s 15 of the CPC cannot be converted to enable this Court to exercise supervisory powers under Article 227 of the Constitution. Similar is the view taken by the Apex Court in the case of Vishesh Kumar Vs. Shanti Prasad, In Para 22 of the said judgment the Apex Court held as follows :--

"It has been urged by the appellant in Vishesh Kumar v. Shanti Prasad (Civil Appeal No. 2844 of 1979) that in case this Court is of the opinion that a revision petition u/s 115, Code of Civil Procedure, is not maintainable, the case should be remitted to the High Court for consideration as a petition under Article 227 of the Constitution. We arc unable to accept that prayer. A revision petition u/s 115 is a separate and distinct proceeding from a petition under Article 227 of the Constitution, and one cannot be identified with the other."

For the aforesaid reasons this revision petition is not maintainable and hence, the same is dismissed.

Considering the facts and circumstances of the case there will be no order as to costs.