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2009 DIGILAW 173 (MP)

Doma v. Saya Sai

2009-02-05

A.K.MISHRA, SUSHMA SHRIVASTAVA

body2009
ORDER Mishra. J, -- 1. A final decision rendered by the trial Court in a case under section 6 of the Specific Relief Act, 1963, has been questioned in the instant writ petition. 2. The trial Court has dismissed the suit filed under section 6 of the Specific Relief Act by the impugned judgment and decree. 3. Shri Santosh Jain, learned counsel for respondents, has raised preliminary objection with respect to the maintainability of the writ petition. He has submitted that as the decision is final as provided under section 115 of the Code of Civil Procedure, revision would lie not writ petition. 4. Shri Subodh Kathar, learned counsel for petitioner, has relied upon sub-section (3) of section 6 of the Specific Relief Act, 1963 in which it has been provided that no appeal shall lie from any order or decree passed in any suit instituted under this section nor shall any review of any such order or decree be allowed. Thus, petitioner's counsel has submitted that revision would not be maintainable as the decision is final. 5. After hearing the learned counsel for the parties, it is not in dispute that decision has been rendered by Civil Court. Sub-section (1) of section 115 of the Civil Procedure Code provides that the High Court may call for, the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or 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. The proviso makes further clear that in case the suit or other proceeding stands finally disposed of, revision would be maintainable against the decision, the decision would include the final decision also within purview of sub-section (1) of section 115 of the Civil Procedure Code. 6. The bar created under sub-section (3) of section 6 of the Specific Relief Act is of an appeal and on review not for exercising the revisional jurisdiction, under sub-section (1) of section 115 of the Civil Procedure Code if otherwise permissible. A Full Bench of this Court in National Insurance Co. 6. The bar created under sub-section (3) of section 6 of the Specific Relief Act is of an appeal and on review not for exercising the revisional jurisdiction, under sub-section (1) of section 115 of the Civil Procedure Code if otherwise permissible. A Full Bench of this Court in National Insurance Co. Ltd., Gwalior and others v. Shrikant Vinod Tiwari and others 2007 (2) JLJ 138 = 2007 (3) MPLJ 130 , has laid down that award passed by Tribunal where value of claim is less than Rs. 10,000/-. cannot be assailed in writ jurisdiction of High Court, it has been held that writ petition shall not be the appropriate remedy under section 115 of the Civil Procedure Code, in the case where remedy of appeal is not available under section 173 (2) of the Motor Vehicles Act, 1988 aggrieved party has a remedy of revision under section 115 of Civil Procedure Code. Following the reasons mentioned by Full Bench in the aforesaid decision and also considering the provision 0 sub-section (3) of section 6 of the Specific Relief Act and section 115 of the Civil Procedure Code, in our opinion, revision would be maintainable not writ petition. Petitioner's counsel has prayed for liberty to file revision, the liberty is hereby granted. Petitioner may file revision; if so advised. Certified copy of the judgment and decree be returned to the petitioner on filing photocopy of the same for filing civil revision. 7. Resultantly, writ petition is dismissed as not maintainable. No costs.