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2004 DIGILAW 247 (GUJ)

MAHENDRAKUMAR RAMANLAL THAKKERPROP. LAXMI ALUMINIUM IND. v. VANECHAND MORARJI DESAI - HEIROF DECD. DHANKUVERBEN VANECHAND

2004-04-05

P.B.MAJMUDAR

body2004
P. B. MAJMUDAR, J. ( 1 ) THE petitioners herein are the original defendants of H. R. P. Civil Suit No. 156/1989. The said suit is filed by the respondent herein. In the aforesaid suit, the original plaintiff-respondent herein, gave an application Exh. 40 for amending the plaint by adding additional ground for eviction. The trial Court allowed the said application by the impugned order. The said order is challenged in this revision, by which amendment is granted. ( 2 ) THIS revision was admitted by this Court on 7th April 1998, which is placed for final hearing before this Court today. It is required to be noted that in view of the amendment in Section 115 of C. P. C. , the order in question is not revisable as it would not terminate the proceedings finally. Realising this difficulty, Mr. Shah learned advocate for the petitioners submitted that he may be allowed to convert this Civil Revision Application into a petition under Article 227 of the Constitution of India. Initially, this Court was of the opinion that in view of the decision of a two-Judge Bench of the Apex Court in the case of Vishesh Kumar Vs. Shanti Prasad reported in AIR 1980 SC 892 , a revision cannot be allowed to be converted into a writ petition. Today, Mr. Shah has placed on record copy of a decision of a three-Judge Bench of the Apex Court rendered in the case of Municipal Corporation of Delhi Vs. R. P. Khaitan and Another, reported in 79 (1999) Delhi Law Times 555 (SC), wherein while examining a case of converting a revision under Section 115 of C. P. C. into a petition under Article 227 of the Constitution of India, it has been observed by the Apex Court in para 4 as under :"it is true that the extraordinary remedies provided under Articles 226 and 227 of the Constitution are dependent upon the High Court willing to interfere in a matter for which a large measure of discretion rests with it. Its power is so wide so as to envelop not only all aspects of the matter but orders can be passed of such nature as the High Court thinks fit. The jurisdiction as such is not curtailed to meet questions of parameters. On the other hand, the regular remedy under Section 115, CPC hedged by the language of the provision. Its power is so wide so as to envelop not only all aspects of the matter but orders can be passed of such nature as the High Court thinks fit. The jurisdiction as such is not curtailed to meet questions of parameters. On the other hand, the regular remedy under Section 115, CPC hedged by the language of the provision. Only errors of jurisdiction and material irregularities in the exercise of jurisdiction bring about a cause within the ambit of that provision. All the same it is worthy of notice that the Forum for the aforementioned three remedies ordinary as well as extraordinary is with the High Court itself. We see no reason then as to why the frame of the cause be determinative. It is for the litigant to choose the remedy and it is for the High Court to grant or deny relief thereon having regard to the facts and circumstances of each case. We may, however, add that the existence of an alternative remedy can by itself be a ground for the High Court refusing to exercise jurisdiction but it is not as if jurisdiction of the High Court is ousted by such existence. The High Courts dependence on Vishesh Kumar V. Shanti Prasad, AIR 1980 SC 892 in refusing to convert a petition under Section 115, CPC to be one under Article 227 of the Constitution may have been justified on the facts of that case, but the same cannot be treated as a precedent to oust jurisdiction of the High Court vested in it under the law. The High Court certainly is entitled to convert any proceeding instituted before it in one manner to be that of another provided a proper cause has been made out and in the interest of justice. " ( 3 ) RELYING upon the said judgement, it is submitted by Mr. Shah, that the Apex Court has now said that AIR 1980 SC 892 cannot be treated as a precedent. He submitted that since both the proceedings i. e. a revision under Section 115 of C. P. C. and a writ petition under Article 227 of the Constitution of India are before the same High Court, in view of the said judgement now this revision can be permitted to be converted into a writ petition under Article 227 of the Constitution of India. ( 4 ) IN my view, in view of the aforesaid Larger Bench judgement of the Apex Court in 79 (1999), Delhi Law Times, 555 (supra) and considering the fact that both the proceedings are before the same High Court and considering the fact that this revision, which is already admitted by this Court, is not maintainable in view of the amendment in C. P. C. , it would be just and proper to allow the petitioner to convert this revision application into a petition under Article 227 of the Constitution of India. Accordingly, permission to convert this revision into a writ petition is granted. The petitioner may supply copy of memo of Special Civil Application within a period of two weeks from today by affixing appropriate deficit court fee stamp. Thereafter, the office may place that Special Civil Application before appropriate Court taking such matters. Order accordingly. .