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Madhya Pradesh High Court · body

2009 DIGILAW 1186 (MP)

JOHRA BI v. JAGESHWAR

2009-10-09

ARUN MISHRA, SUSHMA SHRIVASTAVA

body2009
Judgment Arun Mishra, J. ( 1. ) The question has been raised with respect to maintainability of writ petitions as against the orders which have been impugned in the instant cases in view of proviso to sub-section (1) of Section 115CPC; whether writ would be maintainable or revision. ( 2. ) In WPNo.8714/2007 (Johra Bi and others vs. Jageshwar and others) impugned order (P/7) passed on 15th February, 2007 by the Addl.District Judge, Mandla has been assailed. Plaintiff had filed civil suit no.41-A/03 which was dismissed for want of prosecution, restoration of the suit was applied, the trial Court had dismissed the application filed under Order 9 Rule 9 CPC for restoration of the suit, aggrieved thereby said misc. appeal was preferred before the Addl. District Judge which appeal has been dismissed. Aggrieved thereby, the writ petition has been preferred. ( 3. ) In WPNo.8447/09 (Amir Islam vs. Paris Grih Nirman Sahkari Sanstha Mary adit and others) matter relates to rejection of an application filed under Order 7 Rule 11 read with Section 151CPC to reject the plaint on the ground that valuation was not appropriate, adequate court fees has not been paid and necessary party has not been impleaded. ( 4. ) In WPNo.13378/07 (Arjundas Priyani vs. Arjundas Lalwani and another) there is rejection of an application filed on behalf of defendant under Order 7 Rule 11 GPC. Question posed for consideration is whether in case application would have been allowed, the proceeding would have been finally disposed of ? Said order passed by the trial Court rejecting the application vide Order (P.5) dated 6.8.07 has been assailed in the writ petition. ( 5. ) In WPNos.7664/07 (Shri Jagat Guru Shankrachariya Swami Swaroopanand Sdraswati Badrika Dwarika Peethhadhishwar Ashram vs. Kalam Scooter Service and others), 4993/08 (Shri Jagat Guru Shankrachariya Swami Swaroopanand Saraswati Badrika- Dwarika Peethhadhishwar Ashram vs.Kallu Scooter Service), 4994/08 (Shri Jagat Guru Shankrachariya Swami Swaroopanand Saraswati Badrika -Dwarika Peethhadhishwar Ashram vs. Siddhu Engineering Works) and in WP No.4995/ 08 (Shri Jagat Gurv Shankrachariya Swami Swaroopanand Saraswati Badrika- Dwarika Peethhadhishwar Ashram vs. Bhatia Tyres) the facts are that plaintiff had filed a suit for eviction of tenant on the ground of arrears of rent as also on the ground of bona fide need for carrying out the construction. Ex parte decrees were passed. Applications under Order 9 Rule 13CPC were filed in aforesaid cases. Ex parte decrees were passed. Applications under Order 9 Rule 13CPC were filed in aforesaid cases. The trial Court vide order dated 23.4.07 dismissed the applications, aggrieved thereby misc. appeals were preferred before the Court of District Judge, Jabalpur. The matter was remanded to the trial Court. Aggrieved thereby aforesaid writ petitions have been preferred on behalf of the petitioner before this Court. Initial!} the writ petitions were decided by common order dated 5.5.08 passed by esteemed brother Rajendra Menon, J., against which four Writ Appeals Surajmal s/o Siddhanathji vs. Sundarlal s/o Nanuram and others, 2003 2 MPLJ 408 no. 704/ 08, 705/08,706/08 and WA70J/08 were preferred . Division Bench vide order dated 28.8.2008 has observed that learned single Judge shall take up the issue relating to maintainability of the writ application under Article 227 of the Constitution of India or in case a revision is maintainable under Section 115 of CPC. If the learned single Bench is of the opinion that the judgment in the matter of Shakuntala Singh vs. Basant Kumar Thakur and others 2003 (3) MPLJ 414 may be referred to a larger Bench in case of disagreement. It was made clear by the Division Bench that "we make it clear that we are deciding the writ appeals on the preliminary submissions and are not touching the merits of the matter which are still to be decided by the learned Single Judge while exercising his powers either under Article 227 of the Constitution of India or under Article 226 of the Constitution of India. It was also observed that Single Judge is requested to provide proper opportunity to the parties to raise their submissions not only on the technical objection or legal ground but even on the merits of the matters. As now as per MP High Court Rules such petitions are to be heard by Division Bench, matters have been placed before us. ( 6. ) We have been assisted ably by amicus curiae Shri Ravish Agarwal, learned Sr. Advocate who was requested to assist the Court in these matters. As now as per MP High Court Rules such petitions are to be heard by Division Bench, matters have been placed before us. ( 6. ) We have been assisted ably by amicus curiae Shri Ravish Agarwal, learned Sr. Advocate who was requested to assist the Court in these matters. Shri Ravish Agarwal has submitted that for the purpose of considering the scope of revision under proviso to sub-section (1) of section 115CPC, it has to be considered by the Court "proceeding" would stand finally disposed of in case order had been passed in favour of a party applying for the revision, in case suit or other proceedings would stand disposed of finally, revision would be maintainable not writ petition. He has submitted that word "proceeding" has not been defined in the CPC. The meaning of that has to be understood in common parlance. He has referred to Law Lexicon and Blacks Law Dictionary. He has also placed reliance on a decision of Apex Court in Surya Dev Rai vs. Ram Chander Rai and others (2003) 6 SCC675 . He has also placed reliance on a Division Bench decision of this Court rendered in Surajmal s/o Siddhanathji vs. Sundarlal s/o Nanuram and others 2003 (2) MPLJ408. He has also referred to the decision rendered by single Bench of this Court in Sawal Singh vs. Smt. Ramsakhi and others 2003 (1) MPLJ31 considering what is the meaning of "other proceedings" in proviso to sub section (1) of section 115CPC. ( 7. ) Shri Ashok Lalwani, learned counsel appearing for petitioners in WPNos.13378/07 and 8447/09 has submitted that as against the impugned orders writ petition is maintainable. Even if this Court comes to the conclusion that writ petition is not maintainable, then too placing reliance on a decision of Apex Court in Nawab Shaqafath Ali Khan and others vs. Nawab Imdad Jah Bahadur and others (2009) 5 SCC 162 he contended that conversion can be made of writ petition into a revision. ( 8. ) Ms. D.K.Bohre, learned counsel appearing for respondents in WP1338/07 has submitted that revision would be maintainable not the writ petition. Shri Ankit Saxena, learned counsel appearing for respondents in WP8447/09 has also submitted that writ petition is not maintainable. ( 9. ( 8. ) Ms. D.K.Bohre, learned counsel appearing for respondents in WP1338/07 has submitted that revision would be maintainable not the writ petition. Shri Ankit Saxena, learned counsel appearing for respondents in WP8447/09 has also submitted that writ petition is not maintainable. ( 9. ) Ms Neelam Goel, learned counsel appearing for petitioners in WP7664/07, 4993/08, 4994/08 and WP4995/08 has submitted that there is no bar for exercising the jurisdiction under Article 227 of the Constitution of India. She has submitted that even if revision is maintainable, as no appeal lies against the revisional order, this Court cannot exercise the writ jurisdiction in such a matter. She has also submitted that against the orders which have been impugned in the writ petitions, writ petitions would be maintainable not the revision. She has also submitted that certain observations have been made by the Division Bench while dealing with the writ appeals that in case decision in Shakuntala Singh vs. Basant Kumar Thakur and others (supra) requires consideration, the matter should have been referred by the single Bench to a larger Bench, in case revision is held to be maintainable, it would delay the decision of the case as case pertains to senior citizens, it requires to be heard at an early date as matter is before Division Bench. Thus, the Division Bench should decide the aforesaid question on merits, as per amended High Court of MP Rules,2008 writ petitions have been listed now before the Division Bench for consideration after the order passed by the single Bench was set aside by the writ appeal Court. ( 10. ) Shri R.K.Verma, learned counsel appearing for respondents in aforesaid four writ petitions has submitted that writ applications cannot be said to be maintainable as against the impugned orders. That is the first question to be dealt with as per decision rendered by this Court in writ appeals vide judgment dated 28.8.08. Question of examination on merits and legality of the order and correctness of decision in Shakuntala Singh vs. Basant Kumar Thakur and others (supra) would arise only in revision, which is maintainable not in writ petition. Thus, when writ petition is not maintainable, merits of the decision of Shakuntala Singh vs. Basant Kumar Thakur and others (supra) cannot be gone into and it be left open for decision by the single Bench which has to hear matter. ( 11. Thus, when writ petition is not maintainable, merits of the decision of Shakuntala Singh vs. Basant Kumar Thakur and others (supra) cannot be gone into and it be left open for decision by the single Bench which has to hear matter. ( 11. ) Every day this question is arising in large number of petitions against which order revision is maintainable and which orders passed by Civil Court are amenable to writ jurisdiction of this Court under Article 227 of the Constitution of India. Earlier the power to deal with the matters of interlocutory orders arising out of Civil Courts under old High Court of MP Rules was with the single Bench. Now under the High Court of MP Rules, 2008, the Division Bench has to hear the matters under Chapter 4 clause (d) of sub-rule (7) of Rule 2 as substituted with effect from 15th May,2009 Division Bench has to hear the matters pertaining to challenging interlocutory or final orders passed by the Courts/Tribunals constituted under section 3 of the MP Civil Courts Act, 1958 and a Family Court under the Family Courts Act, 1984. Problem arises of overlapping of jurisdiction everyday whether the matter is required to be heard by a single Bench in revision or by a Division Bench in a writ petition. ( 12. ) Section-115 of CPC which has been amended with effect from 1.7.2002 by substituting the proviso is required to be considered in order to cull out the scope of maintainability of revision under Section 115 CPC. ( 12. ) Section-115 of CPC which has been amended with effect from 1.7.2002 by substituting the proviso is required to be considered in order to cull out the scope of maintainability of revision under Section 115 CPC. Section 115 CPC is quoted below :- "115.Revision - (1) The High Court may call of the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lied thereto, and if such subordinate Court appears- (a) to have exercised a jurisdiction not vested in it by law;or (b) to have failed to exercise a jurisdiction so vested; or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. (2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court. Explanation - In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding." First imbroglio created to exercise the revisional jurisdiction is that order should not be appealable. Power can be exercised if subordinate Court has exercised jurisdiction not vested in it by law or it has failed to exercise the jurisdiction so vested or exercise of its jurisdiction illegally or with material irregularity. Power can be exercised if subordinate Court has exercised jurisdiction not vested in it by law or it has failed to exercise the jurisdiction so vested or exercise of its jurisdiction illegally or with material irregularity. Proviso which has been substituted with effect from 1.7.2002 provides that High Court shall not, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. ( 13. ) When we consider in the common parlance the meaning of word "proceeding", Blacks Law Dictionary Sixth Edition deals with the word "proceeding" at page 1204. In a general sense, the form and manner of conducting juridical business before a court or judicial officer is called "proceeding", and includes all possible steps in an action from its commencement till the end. It may refer not only to a complete remedy but also to a mere procedural step that is part of a larger action or special proceeding. In general "proceeding" means any action, hearing, investigation, inquest, or inquiry (whether conducted by a court, administrative agency, hearing officer, arbitrator, legislative body, or any other person authorized by law) in which, pursuant to law, testimony can be compelled to be given. Law Lexicon by P.Ramanatha Aiyar 1977 Edition at page 1524 defines "proceeding". A proceeding in a civil action is an act necessary to be done in order to attain a given end. It is a prescribed mode of action for carrying into effect a legal right. In its general acceptation, "proceeding" means the form in which actions are to be brought and defended. Its meaning in general sense may also apply to other proceedings and the civil proceedings. It may also include administrative proceedings. Corpus Juris Secundum deals with "proceeding" at page 972 thus :- "Proceeding- The terms "proceeding" and "proceedings" are discussed generally in Actions 1 h (c) and, with reference to bankruptcy, in Bankruptcy 1. The terms have been held to be synonymous with "ease" see Actions 1 b(l), and "cause" see Actions 1 e(l), and also have been held synonymous with, or have been distinguished from, "action", "judgment", "process", "prosecution", and "suit" see Actions 1 h (l)(b)." ( 14. The terms have been held to be synonymous with "ease" see Actions 1 b(l), and "cause" see Actions 1 e(l), and also have been held synonymous with, or have been distinguished from, "action", "judgment", "process", "prosecution", and "suit" see Actions 1 h (l)(b)." ( 14. ) The word "proceeding" is of larger connotation in Word and Phrases, Permanent Edition 34, published by West Publishing Co. deals with expression "proceeding" at page 141 onwards and it has been observed that the term "proceeding" in its most comprehensive sense includes every step taken in a civil revision except the pleadings. "Proceeding" may assume different acts and different meanings. Even in administration there may be some proceedings. ( 15. ) Section 141 of CPC, particularly explanation to Section 141CPC has been inserted by the Code of Civil Procedure (Amendment) Act, 1976 with effect from 1.2.1977. Amended Section 141 CPC is with respect to applicability of Section 141 to various types of proceedings . Earlier there was controversy particularly whether section applies where an application to set aside ex parte proceedings or orders of dismissal for default are themselves dismissed for default or decided ex parte. Considering the legal imbroglio created whether section 141CPC applied or section 151, it was considered appropriate to provide the aforesaid explanation. It was also clarified that section 141CPC does not apply to a "proceeding" under Article 226 of the Constitution. Section 141CPC is quoted below :- "141.Miscellaneous proceedings- The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. Explanation- In this section, the expression, "proceedings" includes proceedings under Order IX, but does not include any proceeding under article 226 of the Constitution." Explanation to Section 141 set at naught any doubt that "proceeding" includes the proceeding under Order 9 and the procedure provided in the Code in regard to the suit shall be followed in the proceeding under Order 9 also, but it excludes the proceeding under Article 226 of Constitution of India. ( 16. ) In Rathindra Nath Bose vs. Jyoti Bikash Ghosh and others AIR 1975 Calcutta 377, single Bench opined that in a proceeding under Order 9 Rule 9 CPC, Section 141CPC does not apply. ( 16. ) In Rathindra Nath Bose vs. Jyoti Bikash Ghosh and others AIR 1975 Calcutta 377, single Bench opined that in a proceeding under Order 9 Rule 9 CPC, Section 141CPC does not apply. However, the said decision was rendered under the unamended provision, after explanation has been added to Section 141 CPC, aforesaid decision cannot be said to be of any utility. ( 17. ) No doubt about it that a bare reading of proviso to sub-section (1) of Section 115CPC makes it clear that power of the High Court has been restricted to exercise the revisional jurisdiction. It can be exercised only keeping in view the proviso to Section 115 (1)CPC which has been added by way of amendment with effect from 1.7.2002. It is also trite law that right of revision is not a vested right. It can be taken away, it belongs to procedural matter whereas right of appeal is a substantive and vested right, it cannot be taken away,its a statutory creation. At the same time, the constitutional jurisdiction of the High Court under Article 226/227 is not abridged away by any manner by restriction put on revisional power by virtue of proviso to section 115 (1) CPC. It is not at all whittled down. In the cases where revision is not maintainable by virtue of proviso, this Court subject to the well defined self-imposed restrictions to which power under Article 227 of the Constitution can be exercised, exercise the power in supervisory jurisdiction to meet the ends of justice and interfere even in interlocutory orders. However, the powers must be exercised sparingly. The power is not to be exercised readily to correct mere errors whether on the facts or law and cannot be exercised as an appellate power. ( 18. ) The Apex Court has considered the proviso after amendment added to Section 115 (1)CPC with effect from 1.7.2002 in Shiv Shakti Coop.Housing Society, Nagpur vs. Swaraj Developers and others (2003) 6 SCC659 . The question posed before the Apex Court was about the scope of aforesaid amended proviso. High Court held that because of amended Section 115CPC the revision filed before it was not maintainable as had an order been passed in favour of a party applying for revision, the same would not have finally disposed of suit or other proceedings. The question posed before the Apex Court was about the scope of aforesaid amended proviso. High Court held that because of amended Section 115CPC the revision filed before it was not maintainable as had an order been passed in favour of a party applying for revision, the same would not have finally disposed of suit or other proceedings. The Apex Court considered the provision before Amendment Act and after amendment and has laid down in para 32 thus :- "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 finality 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 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. There is marked distinction in the language of Section 97 (3) of the Old Amendment Act and Section 32(2)(i) of the Amendment Act. While in the former, there was a clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in Section 32(2)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered, the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation." The Apex Court has laid down that in case order is interim, it cannot be subject matter of revision under Section 115CPC. Stress now is on the question whether the order in favour of a party applying for revision would have given finality to suit or other proceedings. If the answer is "yes" then the revision is maintainable. But if answer is "no" revision is not maintainable. This test has to be applied in every case so as to find out whether order is interim or would dispose of the suit or other proceedings. ( 19. If the answer is "yes" then the revision is maintainable. But if answer is "no" revision is not maintainable. This test has to be applied in every case so as to find out whether order is interim or would dispose of the suit or other proceedings. ( 19. ) The Apex Court in Surya Dev Rai vs. Ram Chander Rai and others (2003) 6SCC 675 has laid down that section 1.15CPC does not permit a revision petition being filed against an order disposing of an appeal against the order of the trial Court whether confirming,reversing or modifying the order of injunction granted by the trial Court. The reason is that the order of the High Court passed either way would not have the effect of finally disposing of the suit or other proceedings. The exercise of revisional jurisdiction in such a ease is taken away by the substitution of the proviso to Section 115(1)CPC by said Amendment Act 46 of 1999. Apex Court has observed thus :- "4. Section 115 of the Code of Civil Procedure ,as amended, does not now permit a revision-petition being filed against an order disposing of an appeal against the order of the Trial Court whether confirming, reversing or modifying the order of injunction granted by the trial Court. The reason is that the order of the High Court passed either way would not have the effect of finally disposing of the suit or other proceedings. The exercise of revisional jurisdiction in such a case is taken away by the proviso inserted under sub-section (1) of S. 115 of the C:P.C. The amendment is based on the Malimath Committees recommendations. The Committee was of the opinion that the expression employed in S. 115C.P.C., which enables interference in revision on the ground that the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made, left open wide scope for the exercise of the revisional power with all types of interlocutory orders and this was substantially contributing towards delay in the disposal of cases. The Committee did not favour denuding the High Court of the power of revision but strongly felt that the power should be suitably curtailed. The Committee did not favour denuding the High Court of the power of revision but strongly felt that the power should be suitably curtailed. The effect of the erstwhile clause (b) of the proviso, being deleted and a new proviso having been inserted, is that the revisional jurisdiction, in respect of an interlocutory order passed in a trial or other proceedings, is substantially curtailed. A revisional jurisdiction cannot be exercised unless the requirement of the proviso is satisfied. In interlocutory matters this Court can exercise supervisory jurisdiction and amendment in Section 115CPC does not have any impact on the jurisdiction under Article 226/227 of the Constitution. The Apex Court in Surya Dev Rai vs. Ram Chander Rai and others (supra) has laid down thus ;- "32. The principles deducible, well-settled as they are, have been well summed up and stated by a two-Judges Bench of this Court recently in State v. Navjot Sandhu, JT2003 (4) SC605= (2003) 6 SCC641, SCCpp.656-57, para 28. This Court held; (i) the jurisdiction under Article 227 cannot be limited or fettered p by any Act of the State Legislature; (ii) the supervisory jurisdiction is wide and can be used to meet the ends of justice, also to interfere even with interlocutory order; (iii) the power must be exercised sparingly, only to move subordinate courts and Tribunals within the bounds of their authority to see that they obey the law. The power is not available to be exercised to correct mere errors (whether on the facts or laws) and also cannot be exercised "as the cloak of an appeal in disguise". 34. We are of the opinion that the curtailment of revisional jurisdiction of the High Court does not take away - and could not have taken away - the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court nor the power of superintendence conferred on the High Court under Article 227 of the Constitution is taken away or whittled down. The power exists, untrammelled by the amendment in Section 115 of the CPC, and is available to be exercised subject to rules of self discipline and practice which are well settled." ( 20. ) The question still subsist what is the meaning to be given to "other proceedings". In our opinion, there is no reason to restrict the meaning of "proceeding" akin to the suit. ) The question still subsist what is the meaning to be given to "other proceedings". In our opinion, there is no reason to restrict the meaning of "proceeding" akin to the suit. There may be proceedings parallel to the suit which may be independent proceedings. The phrase used in proviso to Section 115 is suit or proceeding. Proceeding has to be given wide meaning. Some light is thrown by the explanation added to Section 141CPC as to the meaning of "proceeding" so as to clarify that provision of CPC is applicable to proceeding under Order 9CPC also. Several applications which require independent adjudication before filing of suit as to maintainability of suit before its registration can be "proceeding" within proviso to Section 115(1) CPC, therefore, once an application is decided revision would be maintainable if would have an effect of finally disposing off the "proceeding" though it has no effect on the suit at that point of time. Proceedings may also arise from the suit itself and those may be the proceedings within the meaning of proviso to Section 115 (1) of CPC- ( 21. ) In Surajmal s/o Siddhanathji vs. Sundarlal s/o Nanuram and others (supra) Division Bench of this Court has considered the effect of the proviso added to sub-section (1) of Section 115CPC with effect from 1.7.2002. The Division Bench held that the revisional power cannot be exercised unless the order in revision is one if made in favour of petitioner would have finally disposed of the suit or proceedings. Against order of temporary injunction revision cannot be said to be maintainable. Their Lordships also considered the scheme of Order 43 Rule 1CPC and observed that every order passed in appeal is not interlocutory. It will depend on the nature of the order from which appeal arises as also the effect of the order passed in appeal. This distinction is contained in the rule itself and can be gathered from bare reading of various clauses thereof. Section 104 contains a list of orders from which an appeal lies under the provision of section 1104 considered by Division Bench thus :- "15. It is true that every order passed in appeal under Order 43 Rule 1CPC is not interlocutory. It will obviously depend on the nature of the order from which the appeal arises, as also the effect of the order passed in appeal. It is true that every order passed in appeal under Order 43 Rule 1CPC is not interlocutory. It will obviously depend on the nature of the order from which the appeal arises, as also the effect of the order passed in appeal. This distinction is contained in the rule itself and can be gathered from bare reading of various clauses thereof. It will obviously depend on the nature of the order from which the appeal arises, as also the effect of the order passed in appeal. This distinction is contained in the rule itself and can be gathered from bare reading of various clauses thereof. This rule which has to be read with section 104 contains a list of orders from which an appeal lies under the provision of section 104, namely :- (a) an order under Rule 10 of Order VII returning a plaint to be presented to the proper Court (except where the procedure specified in Rule 10-A of Order VII has been followed); (c) an order under Rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; (d) an order under Rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte; (f) an order under Rule 21 of Order XI; (i) an order under Rule 34 of Order XXI on an objection to the draft of a document or of an endorsement; (i) an order under Rule 72 or Rule 92 of Order XXI setting aside or refusing to set aside a sale; (ja) an order rejecting an application made under sub-rule (1) of Rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of Rule 105 of that Order is appealable; (k) an order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit; (1) an order under Rule 10 of Order XXII giving or refusing to give leave; (n) an order under Rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; (na) an order under Rule 5 or Rule 7 of Order XXXII rejecting an application for permission to sue as an indigent person; (p) orders in interpleader suits under Rule 3, Rule 4 or Rule 6 of Order XXXV- (q) an order under Rule 2,Rule 3 or Rule 6 of Order XXXVIII; (r) an order under Rule 1, Rule 2 (Rule 2-a), Rule 4 or Rule 10 of Order XXXIX; (s) an order under Rule 1 or Rule 4 of Order XL; (t) an order of refusal under Rule 19 of Order XLI to readmit, or under Rule 21 of Order XLI to re-hear, an appeal; (u) an order under Rule 23 (or Rule 23-A) of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court. (w) an order under Rule 4 of Order XLVII granting an application for review." Division Bench of this Court has held with respect to the orders under clause (a) dealing with an order under Rule 10 of Order 7CPC returning a plaint to be presented to the proper Court (except where the procedure specified in Rule 10-A of Order 7CPC has been followed) which finally dispose of the suit or proceeding in which they are made, an order under Rule 9 of Order 9CPC rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit would dispose of the suit or other proceedings as contained in under proviso to sub-section (1) of section 115CPC. With respect to clause (d) of Section 104, an order under Rule 13 of Order 9CPC rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte has been considered to be a "proceeding" as contemplated under proviso to Section 115 (1) CPC. Similarly under clause (ja) an order rejecting an application made under sub-rule (1) of Rule 106 of Order 21CPC, provided that an order on the original application, that is to say, the application referred to in sub-rule (I) of Rule 105 of that Order is appealable. In clause (k) an order under Rule 9 of Order 22CPC refusing to set aside the abatement or dismissal of a suit has been held to be covered under proviso to Section 115(1)CPC. Under clause (n) an order passed under Rule 2 of Order 25CPC rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit has been held to be a proceeding. Similarly under clause (na) an Order under Rule 5 or Rule 7 of Order 33CPC rejecting an application for permission to sue as an indigent person has been held to be a proceeding against which revision would be maintainable. Division Bench of this Court has applied the word "proceeding" to the aforesaid matters. We do not find any ground so as to take a different view than taken by Division Bench of this Court in Surajmal s/o Siddhanathji vs. Sundarlal s/o Nanuram and others (supra). ( 22. Division Bench of this Court has applied the word "proceeding" to the aforesaid matters. We do not find any ground so as to take a different view than taken by Division Bench of this Court in Surajmal s/o Siddhanathji vs. Sundarlal s/o Nanuram and others (supra). ( 22. ) A single Bench decision rendered in Sawal Singh vs. Smt. Ramsakhi and others 2003 (1) MPLJ31 opined the term "other proceedings". The proviso to Section 115(1) CPC as amended by Act 46 of 1999 have wide meaning and they should not be read in narrow compass. The term "proceedings" cannot be confined to a civil proceeding alone. It has the comprehensive meaning so as to include within it all matters coming up for judicial adjudication. A proceeding instituted under Section 144 of the Code has to be treated as an original proceeding as it relates to different realm altogether. The proceedings under the Land Acquisition Act, Hindu Succession Act, Guardians and Wards Act and order passed under Section 94 of the Code are also in the realm of original proceedings. The point for determination in Sawal Singh was whether against rejection of application under Order 6 Rule 17 and Order 39 Rule 1-2CPC revision is maintainable, the ratio of decision is confined to that revision is not maintainable. ( 23. ) Division Bench of this Court in Surtyomal vs. Smt. Chandabai AIR 2004 MP 225 in which one of us has considered the proviso of Section 115(1) CPC in the context of revision applicable under Section 23-E of MP Accommodation Control Act. Question posed for consideration was what is the interlocutory order. This Court considered the question thus :- 18. The Interlocutory Order has been defined in Halsburys Laws or England 3rd Edn. Vol 22 at page 743-44 thus :- "Interlocutory judgment or order - An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed interlocutory. An interlocutory order though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals................ An interlocutory order though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals................ In general a judgment or order which determines the principal matter in question is termed final. Interlocutory Order has been defined in Websters Third International Dictionary (Vol. II, p. 1179) thus :-"Not final or definitive: made or done during the progress of an action. INTERMEDIATE, PROVISIONAL." "Corpus Juris Secundum (Vol. 49, p. 35) has been relied upon by Shri Alok Aradhe wherein interlocutory order has been defined thus :- "a final judgment is one which disposes of the cause both as to the subject-matter and the parties as far as the court has power to dispose of it, while an interlocutory judgment is one which does not so dispose of the cause, but reserves or leaves some further question or direction for future determination.....The term interlocutory judgment is, however, a convenient one to indicate the determination of steps or proceedings in a cause preliminary to final judgment, and in such sense the term is in constant and general use even in code states." "The word interlocutory, as applied to rulings and orders by the trial court, has been variously defined. It refers to all orders, rulings, and decisions made by the trial court from the inception of an action to its final determination. It means, not that which decides the cause, but that which only settles some intervening matter relating to the cause. An interlocutory order is an order entered pending a cause, deciding some point or matter essential to the progress of the suit and collateral to the issues formed, by the pleadings and not a final decision or judgment on the matter in issue.......An intermediate order has been defined as one made between the commencement of an action and the entry of the judgment." Shri Alok Aradhe, has further referred to Whartons Law Lexicon (14th Edn. P. 529), wherein interlocutory order has been defined thus - "An interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of the parties." Shri Aradhe, has referred to Apex Court decision in V.C. Shukla Vs State through CBI - AIR 1980 SC962, wherein in Para -23 the Apex Court has observed thus :- 23. Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decide the rights of the parties is only an interlocutory order. In other words, in ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however, conclude the trial at all. 19. The interim order is one made in the meantime and until something is done, as defined in Blacks Law Dictionary. The Apex Court in Shiv Shankar and others Vs Board of Directors, UPSRTC and another - 1995 Supp (2) SCC726, has observed the interim order thus :- 5. We have heard learned counsel for parties. We do not propose to enter into merits of the matter as we are satisfied that the case shall have to be sent back to the High Court for deciding it in accordance with law. But we consider it necessary to observe that the piquant situation arose because of the order dated 4.5.1990 passed by the High Court. Although that order is not under challenge but the Division Bench which issued notice purported to grant by way of interim order a relief to the petitioners which could not have been granted to them without adjudication on merits. The direction by the High Court to absorb within a period of 3 months amounted to disposal of the writ petition and yet the High Court had issued notice only. Once the affidavits were exchanged it would have been appropriate for the High Court to decide the dispute. The issue of notice at this stage unless there were other necessary parties to be heard was not of any purpose. Be that as it may, once the High Court issued the directions to the respondents to absorb the petitioners they had no option but to comply with the order. And once they were absorbed then the counsel could not be claimed for making a statement that the petition may be dismissed. At the same time once the petition was dismissed without any adjudication on merits the effect of dismissal was that the interim order stood merged in the final order and the order of absorption stood nullified. And once they were absorbed then the counsel could not be claimed for making a statement that the petition may be dismissed. At the same time once the petition was dismissed without any adjudication on merits the effect of dismissal was that the interim order stood merged in the final order and the order of absorption stood nullified. This anomalous situation was brought into effect as a result of the interim order granted by the High Court. An interim order is granted by the Court to protect the right or interest of a party approaching the court till the claim is adjudicated finally. It is temporary in nature and is made in the meantime. But the order of the High Court directing the respondents to absorb the appellants could not be termed as interim order. Such order could be granted only by way of final adjudication as a result of decision on merits." It was held that there is wider powers within Section 23-E(2) of MP Accommodation Control Act than the powers given under Section 115 of CPC. However, the discussion throws light on the interlocutory orders which are final in nature and decides the rights of the parties and the interim order. ( 24. ) Application in a suit can be "proceeding" within the meaning of Section 115 CPC. The revision would be maintainable if it had effect of finally disposing of the proceeding has been opined in Municipal Council, Tiroda vs. K Pavindra and Co. and others 2003 (2) Mh.L.J. 987 . High Court of Bombay has opined that an application was moved by the defendant before the trial Court for dismissal of the suit was rejected. Revision application under Section 115 CPC challenging the said order of the trial Court was maintainable because if the contention of the revision petitioner was accepted, the suit would stand disposed of finally. ( 25. ) In 2002 AIR Kant HCR 1823 (1831), the petition filed under S.24 of the Civil PC. before the District Judge for transfer of suit is a proceeding independent of the suit. Order rejecting the petition is revisable. Proviso to S. 115 was not attracted in such cases. In 2005 (25) All Ind Cas 719 (720) it was held that revision against order allowing application under 0.9 R. 13 is maintainable. Proviso added to S. 115 does not bar the revision. ( 26. Order rejecting the petition is revisable. Proviso to S. 115 was not attracted in such cases. In 2005 (25) All Ind Cas 719 (720) it was held that revision against order allowing application under 0.9 R. 13 is maintainable. Proviso added to S. 115 does not bar the revision. ( 26. ) Provision of Order 7 Rule 11 CPC has also been referred to which provides various exigencies with respect to rejection of plaint from clause (a) to (f). Order 7 Rule 11 CPC is quoted below :- "Rejection of plaint - The plaint shall be rejected in the following cases - (a) where it does not disclose a cause of action; (b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule 9: Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff." There may be two stages of the order as provided in Order 7 Rule 11 (b) and (c). Having failed to comply with the the order. Court may have to pass order as envisaged under the aforesaid Order 7 Rule 11 (b) and (c). In case relief has been sought on other grounds also under Order 7 R. 11 CPC order may be final at once and would be revisable. Having failed to comply with the the order. Court may have to pass order as envisaged under the aforesaid Order 7 Rule 11 (b) and (c). In case relief has been sought on other grounds also under Order 7 R. 11 CPC order may be final at once and would be revisable. Once exigencies are provided in Order 7 Rule 11 (b) and (c) are completed, revision would be maintainable not the writ petition. Each case has to be decided whether suit or other proceeding would have been finally disposed of in favour of the party applying for the revision. ( 27. ) Coming to facts of instant cases, in WPNo.8714/07 (Johra Bi and others vs. Jageshwar and others) an application under Order 9 Rule 9 CPC has been dismissed, appeal stands dismissed, revision would be maintainable. It would mean proceeding in Section 115(1) CPC. Writ petition cannot be said to be maintainable. ( 28. ) In WP 13378/07 (Arujundas Priyani vs. Arjundas Lalwani and another) a grayer was made to dismiss the suit as not maintainable on the ground that separate suit was not maintainable beside the objection with respect to Court fees, etc. was also taken. Considering the nature of objection taken, in our opinion, the revision petition would be maintainable not the writ petition. ( 29. ) In WP 8447/09 (Amir Islam vs. Paris Grih Nirman Sahkari Sanstha Maryadit and others) dismissal of the suit was sought on the ground that there was non-joinder of the necessary party, beside suit was not properly valued, considering the nature of objection taken in rejection of plaint, the revision would be maintainable not the writ petition. ( 30. ) In WP No. 7664/07 (Shri Jagat Guru Shankrachariya Swami Swaroopanand Saraswati Badrika Dwarika Peethadhishwar Ashram vs. Kalam Scooter Service and others), WP No.4993/08 (Shri Jagat Guru Shankrachariya Swami Swaroopanand Saraswati Badrika-Dwarika Peethadhishwar Ashram vs. Kallu Scooter Service), WP No.4994/08 (Shri Jagat Guru Shankrachariya Swami Swaroopanand Saraswati Badrika- Dwarika Peethadhishwar Ashram vs. Siddhu Engineering Works and in WP 4995/08 (Shri Jagat Guru Shankrachariya Swami Swaroopanand Saraswati Badrika-Dwarika Peethadhishwar Ashram vs. Bhatia Tyres) an applications under Order 9 Rule 13 CPC were rejected by the trial Court against which misc. appeals were preferred, thus, revision would be maintainable against the appellate orders which have been passed not the writ petition. ( 31. ) Ms. appeals were preferred, thus, revision would be maintainable against the appellate orders which have been passed not the writ petition. ( 31. ) Ms. Neelam Goel, learned counsel has submitted that there is a direction to refer the cases to Division Bench in the writ appeals. We do not find any such peremptory order has been given. Only an observation has been made. Even otherwise,we are not hearing reference, whether reference has to be made or not at all this question has to be considered by the single Bench. We cannot adjudicate on merits of the cases in the instant writ petitions as civil revision has been held to be maintainable. Decision in Shakuntala Singh vs. Basant Kumar Thakur and others (supra) dealt with the sufficiency of grounds to condone the delay though filing of certified copy was not necessary, it was filed. It was held that it may be sufficient ground in the given set of facts to condone the delay. Each case has to be adjudged on its facts ,and sufficiency of the cause made out in each case, this question has to be gone into by the single Bench and single Bench has to determine whether there is any necessity to make reference which is to be made in the facts and circumstances of the cases. ( 32. ) With respect to conversion of writ petition into a revision, Shri Ashok Lalwani, learned counsel has relied upon decision of the Apex Court rendered in Nawab Shaqafath Ali Khan and others vs. Nawab Imdad Jah Bahadur and others (supra) in which the Apex Court has observed thus :- "48. If the High Court had the jurisdiction to entertain either an appeal or a revision application or a writ petition under Articles 226 and 227 of the Constitution of India, in a given case it, subject to fulfilment of other conditions, could even convert a revision application or a writ petition into an appeal or vice versa in exercise of its inherent power. Indisputably, however, for the said purpose, an appropriate case for exercise of such jurisdiction must be made out." In the peculiar facts and circumstances of the cases, as there is legal imbroglio created , in the light of aforesaid decision of Apex Court in Nawab Shaqafath Ali Khan and others vs. Nawab Imdad Jah Bahadur and others (supra), as revision lies to this Court, instead of dismissing the matters as not maintainable, we order conversion of writ petitions into revisions and direct listing of the matters before the appropriate Bench at the stage at which cases have been listed in week commending from 20th October, 2009. ( 33. ) Writ petitions are held to be not maintainable. They are ordered to be converted into revisions. So far as regards these writ petitions are concerned, the numbers be struck off from the pendency of writ petitions. Order accordingly.