Victor Benjamin vs Arockiam

M. Venugopal, J.—The revision petitioner/Defendant has filed this Civil Revision Petition praying for a direction of this Court to be issued to

the learned District Sessions Judge at Nagercoil, Kanyakumari District to number the unnumbered C.M.A. /08 in SR. No. 7385 of 2008.

The main grievance of the revision petitioner is that as against the order dated 05.11.2008 in I.A. No. 292 of 2006 in O.S. No. 140 of 2002,

passed by the learned Sub Judge, Padmanabhapuram, an appeal has been preferred by the revision petitioner as an appellant and the same has not

been taken on file and returned on 27.11.2008 with an endorsement ""as to how the CMA lies under Order 43 Rule 1 of CPC.

The learned District Judge has granted one month''s time to the revision petitioner for compliance of the said return. It appears that the revision

petitioner has not answered the query of maintainability of Civil Miscellaneous Appeal, but simply made an endorsement that ""the same has been

complied with and represented"". Again, the office of the District Court has once again returned the Civil Miscellaneous Appeal papers stating that

already the Civil Miscellaneous Appeal is returned and to state how the Civil Miscellaneous Appeal lies before this Court under Order 43 Rule 1

CPC granting fifteen days time. The revision petitioner instead of answering the query raised by the office of the District Court, has approached this

Court straight away under Article 227 of the Constitution of India.

It is to be borne in mind that I.A. No. 292 of 2006 in O.S. No. 140 of 2002 on the file of the learned sub Judge, Padmanabhapuram has been

filed by the revision petitioner/defendant under Order 9, Rule 13 and Section 151 of Civil Procedure Code. The Trial Court has passed an order

of dismissal of IA No. 292 of 2006 on 05.11.2008.

One cannot loose sight of an important fact that Order 43, Rule 1 (d) of the CPC enjoins that, as against an order passed under Order 9, Rule

13, CPC an appeal is provided to an aggrieved party.

The learned Counsel for the revision petitioner cites the decision of the Honourable Supreme Court of India in Bhanu Kumar Jain Vs. Archana

Kumar and Another, whereby and whereunder it is observed,

Moreover the application under Order 9,Rule 13 is dismissed, the defendant can only avail a remedy available thereagainst viz. to prefer an appeal

in terms of Order 43 Rule 1(d) CPC

In view of the clear-cut provision of Order 43, Rule 1(d) of the CPC and in view of the principle laid down by the Honourable Supreme Court

in the aforesaid decision mentioned supra, this Court in the interest of justice, directs the learned Sessions Judge at Nagercoil, Kanyakumari

District, to number the unnumbered CMA /08 on his file which has been preferred by the revision petitioner as an appellant and to take the same

on his file and to dispose of the said appeal on merits within a period of four weeks from the date of receipt of the copy of this order.

With the above observation and direction, the Civil Revision Petition is disposed of without costs. Consequently, the connected Miscellaneous

petition is closed.