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Madhya Pradesh High Court · body

2011 DIGILAW 1045 (MP)

Shivram v. Pradeep Kumar

2011-09-05

A.M.NAIK

body2011
ORDER 1. This civil revision has been preferred by the defendant on the ground that valuation of the suit was Rs. 24,000/-. 2. It is pertinent to note that the suit was filed by the plaintiff for recovery of Rs. 24,000/- and in alternative for compliance of clause No. 4 of the agreement marked as Ex. P/1. On perusal of paragraph 14 (a) of the judgment and decree of the trial Judge, it is revealed that trial Court granted a declaration that plaintiff is entitled to allotment of the suit shop from the trust in his name, after making payment of additional sum of Rs. 26,000/-. Civil Appeal No. 1-B/2010 was submitted by the plaintiff, which has been decided by the impugned judgment and decree dated 18.4.2011. It is revealed in paragraph 3 of the impugned judgment that plaintiff has pleaded that the defendant on 17.3.2003 executed an agreement in favour of plaintiff that if former fails to make payment up to 15.12.2008, former on receipt of additional sum of Rs. 26,000/- would deliver the possession of the shop situated at Bade Jain Mandir to the plaintiff, which was with him on lease. Accordingly, the suit was instituted for recovery of money and in alternative for obtaining possession of the aforesaid shop, by making payment of additional sum as described in the agreement dated 17.3.2008. 3. Aforesaid facts have not been disputed by the learned counsel appearing for the revisionist. 4. Section 102 of the Code of Civil Procedure reads as under :- "Section 102. No second appeal in certain cases. -- No second appeal shall lie from any decree when the subject-matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees." Perusal of the aforesaid provision goes to show that the same is applicable when the subject matter of the original suit is for recovery of money. In the case in hand, subject matter of the original suit is for recovery of money as well as in the alternative for recovery of possession on payment of additional sum as agreed between the parties in the agreement dated 17.3.2008. 5. Thus, subject matter of the suit giving rise to the present civil revision cannot be said to have involved merely relief of recovery of money but also involves relief regarding possession in alternative. 5. Thus, subject matter of the suit giving rise to the present civil revision cannot be said to have involved merely relief of recovery of money but also involves relief regarding possession in alternative. Section 102 of Code of Civil Procedure has been inserted by way of amendment with effect from 1.7.2002 in order to provide second appeal only in case where the subject matter of the original suit is for recovery of money not exceeding Rs. 25,000/-. If subject matter of the original suit is also for possession even in the alternative, section 102 (supra) does not get attracted and no revision under section 115 would be maintainable in presence of section 100 of the CPC, which provides for second appeal from every decree passed in appeal by any Courts subordinate to the High Court, if High Court is satisfied that the case involves substantial question of law. Sub section (1) of section 100 begins with ‘save as otherwise expressly provided in the body of this Code or for any other law for the time being in force’. Section 102 (supra) is not attracted when the suit involves relief of possession though in the alternative in addition to the relief for recovery of money. Section 102 is applicable when (1) the subject matter of the original suit is for recovery of money and (2) when such money is not exceeding Rs. 25,000/-. In the case in hand, although the plaintiff has sought relief for recovery of sum of Rs. 24.000/-, but in the alternative, has sought a decree for possession of the shop on payment of additional sum of Rs. 26,000/-. Thus, section 102 in the facts and circumstances of the present case cannot be construed so as to provide a remedy of civil revision under section 115 CPC, which has been made applicable when no appeal lies to the High Court. In a suit like the present one, plaintiff/respondent could have insisted for any of the reliefs claimed in the plaint including the alternative relief. He could have even insisted for grant of alternative relief by not pressing the main relief. Thus, the suit giving rise to the present revision can by no stretch of imagination, be said to be involving subject matter of recovery of money only. 6. Earlier to the existing section 102, the provision was as under:- "Section 102. He could have even insisted for grant of alternative relief by not pressing the main relief. Thus, the suit giving rise to the present revision can by no stretch of imagination, be said to be involving subject matter of recovery of money only. 6. Earlier to the existing section 102, the provision was as under:- "Section 102. No second appeal in certain suits: - No second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees." Previously second appeal was barred in any suit of the nature cognizable by Courts of Small Causes, when the amount or valuation of the suit did not exceed Rs. 3,000/-. By the existing provision, the amount has been enhanced to Rs. 25,000/-. Since there is an upper ceiling for Provincial Small Cause Courts Act, 1887, amendment in section 102 CPC seems to have been inserted with effect from 1.7.2002 to meet out the situation and to bar second appeals in a suit for recovery of money only with valuation not exceeding Rs. 25,000/-. Thus, in the considered opinion of this Court a suit involving any other relief in the alternative or in any other form, in addition to the relief for recovery has been excluded from the operation of existing section 102 and no civil revision would lie in such a suit although it may have valuation not exceeding Rs. 25,000/- with regard to the relief for recovery of money. 7. Resultantly, civil revision is found not maintainable, in view of the reliefs claimed by the plaintiff in original suit which is not merely for recovery of money. Resultantly, the civil revision being not maintainable, the same is dismissed in limine. Certified copy of the impugned judgment and decree may be returned to the revisionist's learned advocate, on retaining their true attested copies on record. C.S. Ujjainia for revisionist.