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2004 DIGILAW 816 (MAD)

Vijaya Coal Sales v. N. Krishnamoorthy Mudaliar Trust, Rep. by its Managing Trustee, T. Paranthaman

2004-06-25

P.K.MISRA

body2004
Judgment :- 1. Petitioner is the appellant in A.S. No. 19 of 1993, pending before the Sub Judge, Vellore. During pendency of such appeal, the petitioner filed a petition purporting to be under Section 151 CPC and Order VIII Rule 1 CPC seeking permission to file additional written statement. It was contended in the said petition that while filing the written statement in the trial court, certain technical and legal pleas were not raised by mistake and such pleas, even though argued at the time of final hearing of the suit, were not considered by the trial court. It was contended that such pleas had been inadvertently omitted and the appellant should be permitted to raise such pleas. Objection was filed on behalf of the plaintiff/respondent in the appeal stating that such pleas raised at the belated stage should not be entertained as such petition has been filed to drag on the proceedings. 2. The trial court rejected such application under the impugned order. 3. In the Civil Revision, counsels for both the parties had been heard and order had been reserved. One of the main contentions raised by the learned counsel appearing for the respondent is to the effect that in view of amendment of Section 115 CPC., revision is not maintainable. Learned counsel appearing for the petitioner has submitted that even assuming that revision is not maintainable, the court can exercise power under Section 151 CPC in the interest of justice. 4. The scope and ambit of the amended provisions contained in Section 115 are no longer in dispute, particularly in view of the decisions of the Supreme Court reported in JT 2003(4) SC 255=2003-3-L.W. 791 Shivashakthi Co-operative Society Nagpur v. Swaraj Developers and JT 2003 (6) SC 465=2003-3-L.W. 693 Surya Devi Rai v. Ram Chander Rai and others. 5. In view of the aforesaid two decisions, there is no escape from the conclusion that the civil revision itself is not maintainable. Civil Revision Petition is therefore liable to be rejected as not maintainable. In view of the observation of the Supreme Court in the latter case, it would be obviously open to the petitioner to pursue his remedy in accordance with law. 6. Subject to the aforesaid observation, the civil revision petition is dismissed as not maintainable. Certified copy of the trial court order may be returned to the counsel for the petitioner. Consequently, CMP. 6. Subject to the aforesaid observation, the civil revision petition is dismissed as not maintainable. Certified copy of the trial court order may be returned to the counsel for the petitioner. Consequently, CMP. No. 3851 of 2003 is closed.