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1997 DIGILAW 276 (HP)

JAGDISH CHAND v. THE BOARD OF SCHOOL EDUCATION

1997-07-11

M.SRINIVASAN

body1997
JUDGMENT M. SRINIVASAN, C.J.—This is a most frivolous review petition I have come across in this Court. The first submission of learned Counsel is that when the revision petition was taken up, he was not present in the Court and he came only when the judgment was being dictated. Even assuming so he was not prevented by the Court from making his submissions. Paragraph 6 of the judgment says that he put forward a point of limitation. That was considered and decided in the judgment. If learned Counsel had other points, he ought to have put forward the same before the Court at that time itself. He did not do so. There is no explanation for not doing so. In this review petition, it is stated that the arguments in detail could not be addressed on 30-11-1996. There is no explanation as to why they could not be addressed on that date by learned Counsel at that time when he was present in the Court. 2. The following contentions are now urged. These contentions ought to have been put foward by learned Counsel when the revision petition was being disposed of, but none of them was put forward. Hence, he is not entitled to raise the same at this stage. As has been held by the Supreme Court in Collector of 24 Parganas and others v. Lalith Mohan Mullick and others, AIR 1988 SC 2121, a new ground cannot be raised for the first time in a reviw petition and it cannot be considered. However, I proceed to hear him and will dispose of every one of the contentions at present. 3. The first contention is that the revision petition has become infructuous inasmuch as the suit was dismissed already. That fact has been taken note of by my judgment in Paragraph 7. It was brought to my notice by the Counsel that the suit was dismissed for default already, but an application to restore the suit had been preferred and was still pending. Taking note of that fact, I have observed that if the application to restore the suit was allowed, the revisional order will be given effect and if the application was dismissed, the order passed in the revision petition will have no effect. Hence, there is no merits in this contention. Taking note of that fact, I have observed that if the application to restore the suit was allowed, the revisional order will be given effect and if the application was dismissed, the order passed in the revision petition will have no effect. Hence, there is no merits in this contention. Reliance is placed upon the judgment of the Supreme Court in Anokhe Lal v. Radhamohan Bansal and others, AIR 1997 SC 257. In that case, the Court observed that no suit was pending either in the trial Court or in the Appellate Court when the High Court took up the revision of the 1st respondent for argument and there was no need or occasion to pass an order for impleading a person as a new party in the suit. On the facts of that case, it is seen that there was no application for restoring the suit. When the suit was disposed of and there was no application of restoring the suit, in the circumstances the Supreme Court held that the revision petition could not have been considered and no order should have been made for impleading the new party in the suit. That ruling will have no application whatever in .he present case. 4. The next contention is that the revision petition was admitted on 11 -8-1994, but the suit was dismissed already on 24-5-1994 and the revision petition ought not to have been entertained because on the date of admission, there was no suit pending. This is also covered by my directions given in the judgment. If there was an application to restore the suit and if that application was ordered, then the order in the revision petition will govern. When the party had filed an application to restore the suit and that was entertained by the Court in accordance with law, there was no question of dismissing the revision petition in limine by saying that there was no suit pending between the parties. The party had a right to get the suit restored by satisfying the Court that there was sufficient cause for him to be absent when the suit was called. If the Court was satisfied that there was sufficient cause and restored the suit, that right cannot be defeated by saying that on the date of revision, there was no suit pending. Hence, this contention has no merits. 5. If the Court was satisfied that there was sufficient cause and restored the suit, that right cannot be defeated by saying that on the date of revision, there was no suit pending. Hence, this contention has no merits. 5. The next contention is that the order under revision is an appealable order under Order 43 Rule (na) and no revision should have been entertained by this Court. There is no merits in this contention inasmuch as the order passed by the Court below is not one covered by Order 43 Rule 1-A The Court below decided that at that stage a composited application could not be entertained both under Order 6 Rule 17 and under Order 33 Rules 1 and 2 of the Code of Civil Procedure. On that footing, the Court below dismissed the application. It was that order which was being considered by this Court under Section 115 of the Code of Civil Procedure. The revision was maintainable as no appeal would lie against such an order passed by the Court below which did not fall within the scope of Order 343 Rule 1 (na) CPC. 6. The next contention is that an application under Order 33 Rules 1 and 2 should have been presented by the party himself in the court below and the Advocate could not have been considered as a representative of the said party. There is no merits in the contention. What has been done in the revision petition as has been recorded in the judgment that the Advocate has made a representation that his client will pay the Court fee whatever due on the amended plaint. Hence, the relief prayed under Order 33 Rules 1 and 2 of the Code of Civil Procedure was given up and the client has represented to the Court though the Advocate that he would pay the Court fee. In such circumstances, this contention has no force whatever. 7. The last contention is that there was a direction in the judgment in the second appeal under RSA No. 92/93, which had become final and the order in the revision petition runs counter to the said direction given in the second appeal. There is no merit in this contention also I have Extracted the relevant passage in the judgment rendered in the second appeal in the order passed by me in the revision petition. There is no merit in this contention also I have Extracted the relevant passage in the judgment rendered in the second appeal in the order passed by me in the revision petition. I do not find anything contrary to the direction given in the second appeal. Hence, the direction given by me in the revision petition is sustainable inspite of the judgment in the second appeal. 8. In the circumstances, this review petition is dismissed. Petition dismissed.