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2007 DIGILAW 719 (KAR)

C. R. SHANTHARAJ v. C. K. KUMARASWAMY

2007-11-02

D.V.SHYLENDRA KUMAR

body2007
ORDER D.V. Shylendra Kumar, J This civil revision petition under section 115 of the Code of Civil Procedure is directed against the order dated 4.8.2007 passed on IA No.10 in OS No.5918 of 1988 pending before the I Additional City Civil & Sessions Judge, Bangalore, where under the learned trial Judge had rejected the application filed under Section 151 of the Code of Civil Procedure praying for dismissal of the suit as not tenable. 2. Submission of Smt. B.V. Nagarathna, learned counsel for the petitioner is that the rejection of the application by the trial court is not proper; that if the application should have been allowed as sought for, that would have brought the suit to an end and therefore it is a case where this court should interfere within the scope of the proviso to section 115 of the Code of Civil Procedure. 3. While technically submission made may be correct and may bring it within the scope of proviso to section 115 of the Code of Civil Procedure, an application under section 151 of the Code of Civil Procedure which is a residuary provision is not an application that can be, pressed into service for dismissal of the suit which if at all is to be dismissed after going through trial and if found to be meritless or under any express enabling provision under the Code of Civil Procedure itself. 4. No express provision for dismissal of the suit having been invoked and an omni bus provision like section 151 of the Code of Civil Procedure, if at all being a provision for saving the inherent powers of the court which is not the power that can be called in aid for dismissal of the suit by a defendant as every defendant will plead that the suit is not tenable and is liable to be dismissed. The trial Court has rightly dismissed the application of this nature. 5. No scope for interference in any view of the matter either within the scope of section 115 of the Code of Civil Procedure or even beyond, as an order dismissing of an application filed under section 151 of Code of Civil Procedure for dismissal of the suit as not tenable, cannot be termed as an order with any illegality nor can it be said such an order sufferers from any material irregularity. 6. Civil Revision Petition is dismissed.