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1973 DIGILAW 340 (KAR)

N. BANSIDHAR v. DWARAKALAL

1973-12-03

RANGE GOWDA

body1973
( 1 ) THIS revision petition is directed against the order passed by the Munsiff, yadgir, on 5-7-1972 in Misc. Case No. 12/1971 rejecting the application file by the petitioner herein presumably under S. 144 CPC. the, relief sought in that application was to direct the respondent-landlord to refund the amount of rent drawn by him which the petitioner had deposited as per the orders of the Court passed in the eviction proceedings initiated on a petition hied by the respondent against him on the ground that he was in arrears of rent. ( 2 ) THE trial court ultimately allowed the petition fued by the respondent and passed an order of eviction against the, petitioner on the said ground, and the District Judge, Guloarga, confirmed that order. But, this court, in revision, set aside both the orders and remitted the case to the trial court to, dispose of the matter afresh, and it was thereafter the. application out of which this revision petition arises was filed.- ( 3 ) SRI Muralidhar Rao learned counsel for the respondent raised a preliminary objection regarding the maintainability of this revision petition. He contended that the impugned order purports to be one passed under S. 144 CPC. and that no revision under S. 115 CPC. lies against it. ( 4 ) SRI Manohar Rao, Jagirdar learned counsel for the petitioner did not dispute the correctness of the above contention, and indeed he conceded that no revision lies against such an order. But, what he submitted was that instead of dismissing this revision petition on the ground of non- maintainability it may be returned to the petitioner for being presented in the iorm of an appeal before the Civil Judge. ( 5 ) NOW the question is whether the said prayer of Sri Jagirdar can be countenanced. In support of his submission that such a prayer is tenable even though the revision petition is not maintainable, Sri Jagirdar relied upon the following passage in Vishnumoorthi v. Rudra Shedthi (1973) 2 Mys. L. J. 395 (399):"8. The above discussion will necessarily lead to the conclusion that this revision petition is not maintainable. I have no doubt in my mind that the petitioners have bona fide pursued their remedy in a wrong forum, viz. this Court. L. J. 395 (399):"8. The above discussion will necessarily lead to the conclusion that this revision petition is not maintainable. I have no doubt in my mind that the petitioners have bona fide pursued their remedy in a wrong forum, viz. this Court. Instead of filing an appeal, before the court of Civil Judge, the petitioners have, under a bona -fide impression that a revision is competent, filed this revision petition. The petitioners cannot be blamed for approaching this Court instead of preferring an appeal to the Court of Civil Judge. The wordings employed by the. Court of first instance themselves were responsible for this situation. Instead of the Munsiff holding that the suit has abated against defendants 2 and 3, if he had dismissed the suit on the ground that the necessary parties are not before him, the petitioners would have been posted with the information that a decree dismissing their suit has been passed and that the remedy available to them is to prefer an appeal to the court of Civil Judge. The petitioners, in these circumstances, should not be penalised for no fault of theirs in approaching this court in revision, instead of firing an appeal to the Court of the civil Judge. 9. For the reasons stated above, I direct that the) memorandum of revision petition be returned to the petitioners for being presented as a memorandum of regular appeal in the court of the Civil Judge, accompanied by appropriate court-fee. The petitioners shall be entitled to make an appropriate application for condonation of delay and I have no doubt that the application will be dealt with in accordance with law. No costs. "and further submitted that this CRP. also may be disposed of on the same lines. I do not think it is possible to accede to the said submission. No, doubt in the case relied upon by Sri Jagirdar this Court despite holding that the revision petition was not maintainable ordered the) same to, be returned for being presented as a memorandum of regular appeal before the Civil Judge. I do not think it is possible to accede to the said submission. No, doubt in the case relied upon by Sri Jagirdar this Court despite holding that the revision petition was not maintainable ordered the) same to, be returned for being presented as a memorandum of regular appeal before the Civil Judge. But, what circumstances weighed with the Court in making that order are fully set out in paragraphs 8 and 9 which I have extracted above, and it was in those circumstances this Court made that order It appears to me that the question whether a revision petition filed to this Court under S. 115 CPC which is not maintainable can be returned for being presente-1 in the form of an appeal to a, Court subordinate to it, did not come up for consideration in that case, and, if I may say so with respect, the observations made in that case cannot be understood as haying considered this question and answered it in the manner suggested by Sri jagirdar. Therefore, the said observations on which he strongly relied are not of much assistance to him. ( 6 ) SRI Jagirdar did not point out any other decision of this Court in which a view he pressed before me is taken. On the other hand, Sri Murlidhar rao submitted that what this Court has consistently done in dealing with such petitions is to dismiss them, and he also drew my attention to two cases viz. K. C. D. Swamy v. Leela Marathey (1971) 1 Mys. L. J 305. and Umamaheshwar c. G. P. P. v. Ramarao (1971) 1 Mys. L. J. 397. in suport of his submission. In my opinion, when the revision petition itself is not maintainable, the question of returning it for presentation to another Court subqrdinate to this Court in the form of an appeal does not at all arise, and the benefit of Rule 10 of Or. 7, cpc cannot be extended to such cases because it is inconsistent with the principle underlying the said Rule. When a petition of this type cannot ba re-presented in its existing form in any Court, the question of returning it for presentation to the proper Court in the form of an appeal does not at all arise. 7, cpc cannot be extended to such cases because it is inconsistent with the principle underlying the said Rule. When a petition of this type cannot ba re-presented in its existing form in any Court, the question of returning it for presentation to the proper Court in the form of an appeal does not at all arise. In other words, when a revision petition filed under S. 115 CPC is not maintainable and the] Court to which it is sought to be re-presented in the form of an appeal cannot take cognizance of such a petition in its existing form, it is not permissible to return the same for presentation to the Court to which an appeal lies, and, such a thing, in my opinion, is not contemplated by the provisions of Order 7, Rule 10 CPC even if it is to be said that the said rule applies when read with S. 141 CPC. A similar question came up for consideration before the Madras High Court in Rama kurup v. Kunthipathumma AIR. 1942 Mad. 657, 658. and dealing with that question this is what Pantanjali Sastri, J as he then was, said :" The petitioner asks for return of the memo of civil revision petition for presentation to the District Court as an appeal as in view of the decision in (1942) 1 MLJ. 390 an appeal lies in case like this to the disrtrict Court and civil revision petition is therefore incompetent. Mr. Govinda, Menon for the petitioners relies on the provisions of or. 7, R. 10 read with Ss. 107 (2) and 141 CPC as supporting the prayer. I do not consider that these provisions are applicable to the case as revisional jurisdiction is peculiar to this Court and there, can be no question of returning the civil revision petition for presentation as a civil revision petition to anv other Court in the province. The prayer cannot therefore be allowed. . . . . . "the above view also accords with the view T have taken. Therefore, when the revision petition itself is not maintainable under S. 115 CPC. , no question of returning it lor presentation in the form of an appeal to the Court to which such appeal lies arises. Hence, the prayer of Sri Jagirdar cannot be acceded to. . . . "the above view also accords with the view T have taken. Therefore, when the revision petition itself is not maintainable under S. 115 CPC. , no question of returning it lor presentation in the form of an appeal to the Court to which such appeal lies arises. Hence, the prayer of Sri Jagirdar cannot be acceded to. ( 7 ) HOWEVER, it appears to me that the petitioner was pursuing his remedy in this Court under a bona fide impression that a revision would lie against such an order, instead of filing an appeal, and I have no doubt that if he files an appeal against the order under revision and makes an application for condonation of delay in preferring that appeal the appropriate court will deal with that application in accordance with law. With this observation, this revision petition is dismissed. No costs. --- *** --- .