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2003 DIGILAW 557 (ORI)

Makaradhwaja Dharua v. Naba Bhoi

2003-09-05

P.K.TRIPATHY

body2003
JUDGMENT P. K. TRIPATHY, J. — The Civil Revision is directed against the judgment passed on 26.9.1997 by the Additional District Judge, Bolangir in Misc.Judicial Appeal No.14/16 of 1995-96. 2. Petitioner is the defendant in Title Suit No.81/64 of 1984 of the Court of Addl.Civil Judge (Jr. Division), Loisinga. That suit had been posted to 5.10.1994 for filing of written statement. Defendant did not take any step and therefore, he was set ex parte. On 24.10.1994 that suit was heard ex parte and judgment was delivered on 27.10.1994 granting an ex parte decree in favour of the plaintiff/opp.party members. Defendant filed application under Order 9, Rule 13 of the Code of Civil Proce¬dure, 1908 (in short, ‘the Code’), and that was registered as M.J.C. No.33 of 1994. After hearing the parties, learned Civil Judge on 31.7.1995 rejected the application under Order 9, Rule 13 of the Code. As against that, petitioner preferred the above noted appeal, which was heard and disposed of by learned Addl. District Judge, Bolangir. In the Civil Revision the sole prayer of the defendant/petitioner is to set aside the ex parte decree by interfering with the impugned orders and to grant an opportun¬ity to him to contest the suit. In course of hearing of the Revi¬sion it was stated by learned counsel for the plaintiff/opp.parties and not disputed by learned counsel for the defendant/petitioner that another suit was instituted in the Court of Civil Judge (Senior Division), Bolangir, registered as Title Suit No.1 of 1996. The subject matter of dispute in the suit of the year 1994 is also a part of the disputed property in the suit of the year 1996. Mr. H.S. Mishra, learned counsel for the opposite parties also stated that the suit of the year 1996 has also been disposed of in the meantime. Mr. B. Pujari, learned counsel for the petitioner after obtaining instruction made a submission on 25.8.2003 that no appeal has been preferred as against the judgment and decree passed in the suit of the year 1996. 3. Besides arguing on the question of maintainability of the Civil Revision, both the parties argued on merit. Mr. B. Pujari, learned counsel for the petitioner after obtaining instruction made a submission on 25.8.2003 that no appeal has been preferred as against the judgment and decree passed in the suit of the year 1996. 3. Besides arguing on the question of maintainability of the Civil Revision, both the parties argued on merit. For the reasons indicated below, this Court finds that the Civil Revision is not maintainable and, therefore, does not discuss the factual aspect on merit to pass appropriate equitable order in favour of the petitioner and that is a matter left to be considered by appropriate forum in the event petitioner shall invoke the juris¬diction of such forum in accordance with law. 4. M.J.C. No.33 of 1994 under Order 9, Rule 13 of the Code, is a proceeding arising out of Title Suit No.81/64 of 1984. This Court, in the case of M/s. Simplex Engineering and Foundary Works Ltd. and two others v. Bhubaneswar Pattnaik, 2003 (I) OLR-508, has held that a proceeding which is appealable under Order 43, Rule 1 of the Code and covered by the provision under Rule 431 of the General Rules and Circular Orders (Civil Vol.I) should be construed to be ‘a proceeding’ within the meaning of the term “other proceeding” as provided in Section 115 of the Code. At that time the ratio in the case of Sri Vishnu Awatar etc. etc. v. Shiv Autar and others, A.I.R. 1980 S.C. 1575, was not brought to the notice of this Court on the matter relating to applying the principle of ejudem generis so as to construe the meaning of the term “other proceeding”. In the said reported case the Apex Court while considering the extent of the revisional jurisdiction under Section 115 of the Code, have been pleased to propound that : “The words ‘or other proceedings’ have to be read ejusdem generis with the words “original suits”. They will not include appeals or revi¬sions.” Their Lordships referred to the term “cases arising out of original suits or other proceedings”. Such provision carries the same meaning and expression when it is stated in Section 115 of the Code that “in the course of a suit or other proceeding”. They will not include appeals or revi¬sions.” Their Lordships referred to the term “cases arising out of original suits or other proceedings”. Such provision carries the same meaning and expression when it is stated in Section 115 of the Code that “in the course of a suit or other proceeding”. Their Lordships further propounded that :- “......These words have been added in order to bring within the purview of the revisional jurisdiction orders passed in proceedings of an original nature, which are not of the nature of the suits, like arbitration proceedings. This phrase cannot include decisions of appeals or revisions, because then the legislature will be deemed to have contradicted itself......” 5. Apart from that, after the amendment of Section 115 by Act 46 of 1999, it has been held by the Apex Court in the case of Shiv Shakti Coop. Housing Society, Nagpur v. M/s. Swaraj Develo¬pers and others, 2003 (I) OLR (SC) 673, that a dispute which has gone through the process of an appeal under Section 104 read with Order 43, Rule 1 of the Code, then a revision against the appellate order is not maintainable unless that stands the test that :- “32. A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given final¬ity to suit or other proceeding. If the answer is ‘yes’ then the revision is maintainable. But on the contrary, if the answer is ‘no’ then the revision is not maintainable. Therefore, if the impugned order is of interim in nature or does not finally decide the lis the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under Section 115. xxx xxx xxx xxx xxx xxx. That ratio also operates against maintainability of the Civil Revision. 6. Thus, it appears that the Civil Revision is not maintainable and accordingly the same stands dismissed. It is left open to the petitioner to ventilate his grievance before appropriate forum, and in that event the question on limitation may be duly considered because petitioner pursued this revision in this forum on the basis of procedural law which was prevailing on the date of filing the Civil Revision. It is left open to the petitioner to ventilate his grievance before appropriate forum, and in that event the question on limitation may be duly considered because petitioner pursued this revision in this forum on the basis of procedural law which was prevailing on the date of filing the Civil Revision. For the reasons indicated above, without discussing the facts on merit, the Civil Revision stands dismissed as not main¬tainable. Send back the L.C.R. to the Court below. Revision dismissed.