Research › Search › Judgment

Calcutta High Court · body

2000 DIGILAW 579 (CAL)

Amorendra Nath Jana v. Food Corporation of India

2000-11-27

Subhro Kamal Mukherjee

body2000
JUDGMENT Subhro Kamal Mukherjee, J. The learned Advocate for the petitioner submits that the deficit court fees of Rs. 90 have been put in on November 14, 2000 under filing No. A 14326. The office is directed to check up and incorporate the same in the present file. 2. The present application under Article 227 of the Constitution of India is directed against the judgment and order dated June 8, 2000, passed by Shri P.S. Banerjee, learned Additional District Judge, First Court at Howrah in Misc. Appeal No.1 of 1996. The learned Additional District Judge by the order impugned dismissed the appeal as not maintainable and at the same time rejected the prayer of the defendant/petitioner for conversion of the memorandum appeal to a revisional application. 3. The plaintiff/opposite party, Food Corporation of India, instituted Title Suit No. 107 of 1974 which was subsequently transferred and re-numbered as Title Suit No. 68 of 1975 of the court of learned Assistant District Judge, Second Court at Howrah. 4. The said Title Suit No. 68 of 1975 was dismissed for default on July 7, 1992 and as such an application under Order 9, Rule 9 of the Code of Civil Procedure was filed for setting aside the order of dismissal dated July 7, 1992. 5. By Order No. 228 dated November 18,1995, learned Civil Judge (Senior Division), Second Court at Howrah, allowed the said application on contest, but without any order as to costs and consequently the order of dismissal of the suit dated July 7, 1992 was vacated and Title Suit No. 68 of 1975 was restored to its original file and number. 6. The defendant/petitioner herein aggrieved by the said Order No. 228 dated November 18, 1995 preferred Misc. Appeal No.1 of 1996 in the court of the learned District Judge, Howrah and eventually the Misc. Appeal No.1 of 1996 was transferred to the court of learned Additional District Judge, First Court at Howrah. 7. During the pendency of the aforesaid Misc. 6. The defendant/petitioner herein aggrieved by the said Order No. 228 dated November 18, 1995 preferred Misc. Appeal No.1 of 1996 in the court of the learned District Judge, Howrah and eventually the Misc. Appeal No.1 of 1996 was transferred to the court of learned Additional District Judge, First Court at Howrah. 7. During the pendency of the aforesaid Misc. Appeal No.1 of1996 an application under section 151 of the Code of Civil Procedure was filed by the defendant/petitioner, inter alia, for conversion of the memorandum appeal into a revisional application contending, inter alia, in the said application, that it was detected, at the time of holding conference with the learned senior Advocate in connection with hearing of the application for stay, that the said appeal was not maintainable, but the petitioner could filed a revisional application. It was, also, pointed out in the said application that the learned District Judge has, also, power to entertain a revisional application as well. It was, therefore, prayed in the said application that, for ends of justice, the memorandum of appeal should be converted into a revisional application. 8. The learned Additional District Judge dismissed the Misc. Appeal holding that the Misc. Appeal was not maintainable, but, at the same time, declined to convert the memorandum of appeal into a revisional application holding "As per decision of our own High Court, a Misc. Appeal can never be converted into revisional application though a revisional application can be converted into Misc. Appeal." 9. The aforesaid proposition of law by the learned Additional Judge is absolutely incorrect. The courts have power, for ends of justice, to convert a memorandum of appeal into a revisional application. The Supreme Court of India in the case of The Reliable Water Supply Service of India (P) Ltd. vs. The Union of India and Ors., reported in AIR 1971 Supreme Court 2083, expressly held that an appeal court can convert an appeal into a revision. 10. The learned Advocate for the plaintiff/opposite party has drawn my attention to the fact that a misc. case has been initiated by the defendant/petitioner herein for reviewing and/or recalling of the order dated June 8, 2000 passed in Misc. 10. The learned Advocate for the plaintiff/opposite party has drawn my attention to the fact that a misc. case has been initiated by the defendant/petitioner herein for reviewing and/or recalling of the order dated June 8, 2000 passed in Misc. Appeal No.1 of 1996 and the same is pending in the court of learned Additional District Judge, First Court at Howrah and as such the petitioner is not entitled to move before this court under Article 227 of the Constitution of India. It is settled law that a party against whom an order is passed he has following two courses open:- (a) he may approach the Superior Court and (b) he may apply for review of the order. Therefore, the contention of the learned Advocate for the opposite party, as the defendant/petitioner has filed an application for review and/or recalling of the order impugned, the present application under Article 227 of the Constitution of India is not maintainable, can not be accepted. But once the present revisional application is disposed of by this court, other considerations would arise. Since, the revisional application is disposed of on merits and the order impugned is set aside, the order of the court below would be merged in that of this court and, therefore, the court below which passed the original order would cease to have jurisdiction to proceed with the application for review and/or recalling of the order. 11. I, therefore, set aside the order impugned and direct conversion of the memorandum of appeal in Misc. Appeal No.1 of 1996 into a revisional application and direct the learned Judge in the court below to dispose of the revisional application within three months from the date of communication of this order to him. 12. I make it clear that I have not gone into the merits of the case and the learned Judge in the court below will be free to dispose of the revisional application in accordance with law. 13. There will be no order as to costs. 14. Let this order be communicated to the court below by a special messenger at the cost of the petitioner and such cost to be put in by Monday next. Revisional application disposed of.