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2012 DIGILAW 805 (RAJ)

Roshan v. Narain Ram

2012-04-02

PRASHANT KUMAR AGARWAL

body2012
Hon'ble AGARWAL, J.— Heard learned counsel for the parties on Application No. 7979/10 filed by the non-petitioner. The non petitioner has prayed that the revision petition is not maintainable under Sec. 115 of the Code of Civil Procedure. 2. Brief relevant facts for the disposal of this revision petition are that the defendant-petitioner filed an application under Order 9 Rule 13 CPC in the trial Court to set aside the ex-parte decree passed against him on 31.8.1996 in Civil Suit No. 51/91 (New 18/93). That application was dismissed by the trial Court vide order dt. 25.9.2006. Against the order dt. 25.9.2006 the petitioner filed Civil Misc. Appeal No. 10/2007 (No 6/2008) in the Court of District Judge, Jhunjhunu and the same was dismissed by the Appellate Court vide order dt. 28.2.2007. The defendant-petitioner challenged both the orders by filing present revision petition under Sec. 115 CPC. 3. In these circumstances, the non-petitioner has moved the present application on the ground that the revision petition is not maintainable under Sec. 115 CPC and the same is liable to be dismissed. 4. It was submitted by learned counsel for the non-petitioner that according to amended Sec. 115 CPC, a revision petition is maintainable only when an order in favour of the party applying for revision would have given finality to the suit or other proceedings. According to learned counsel in the present case even if the revision petition is allowed, at the most as a consequence of it ex-parte decree passed by the trial Court on 31.8.1996 would be set aside and suit filed by the plaintiff-non-petitioner will be reheard and redecided and such order made in favour of the petitioner by allowing this revision petition, it would not give finality to the suit filed by the plaintiff-non-petitioner as that suit would be reheard and re-decided. In support of his submissions, learned counsel for the non-petitioner relied upon the case of Shiv Shakti Coop. Housing Society, Nagaur vs. Swaraj Developers & Ors. reported in 2003(6) SCC 659 . 5. On the other hand, learned counsel for the defendant-petitioner submitted that even according to the principles laid down by the Hon'ble Supreme Court in the above case it cannot be said that the revision petition is not maintainable. Housing Society, Nagaur vs. Swaraj Developers & Ors. reported in 2003(6) SCC 659 . 5. On the other hand, learned counsel for the defendant-petitioner submitted that even according to the principles laid down by the Hon'ble Supreme Court in the above case it cannot be said that the revision petition is not maintainable. It was submitted that if the revision petition is allowed, that would mean that the application filed by the petitioner under Order 9 Rule 13 CPC stands allowed and ex-parte decree passed against him on 31.8.1996 will be set aside and the application filed under Order 9 Rule 13 CPC would be finally disposed of. According to learned counsel for the petitioner revision petition under Sec. 115 CPC is maintainable if an order passed in favour of the party applying revision gives finality not only to a suit but some other proceeding also. According to learned counsel an application under Order 9 Rule 13 CPC comes within the purview of other proceeding and, therefore, if the revision petition is allowed that proceeding would get finality. 6. I have considered the submissions made on behalf of the respective parties and also perused the relevant legal provisions and the case law relied upon by the non-petitioner. 7. Hon'ble Supreme Court in the above case has held that: "A plain reading of Sec. 113 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 us, the revision will not be maintainable. The legislature intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under Sec. 115." A reading of the principle laid down by Hon'ble Supreme Court makes it very clear whether a revision petition under Sec. 115 CPC is maintainable or not will depend on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceedings. According to Hon'ble Court if the answer is "yet" then the revision is maintainable but on the contrary, if the answer is "no" then the revision is not maintainable. It has also been made clear that if, the impugned order is interim in nature or does not finally decide the lis, the revision will not be maintainable. I am of the view that in the present case to decide the question raised by the non petitioner it is to be seen is if the revision is allowed the proceedings initiated by the defendant-petitioner under Order 9 Rule 13 CPC would get finality or not. The answer is clearly "yes". If the present revision is allowed by this Court, the result would be that application under Order 9 Rule 13 CPC would stand allowed and as a consequence of that ex-parte decree dt. 31.8.1996 would also stand set aside. It cannot be disputed that proceeding initiated. under Order 9 Rule 13 CPC for setting aside an ex-parte decree is an independent proceeding although, it is initiated for setting aside an ex-parte decree passed in a suit. According to Hon'ble Supreme Court provisions of Sec. 115 CPC are applicable not only to a suit but also to other proceedings. It cannot be said that if application under Order 9 Rule 1 CPC allowed, at the most it would mean that an interim order has been passed in the suit. As the suit has already been finally decided by passing an ex-parte decree, an order passed on an application filed under Order 9 Rule 13 CPC for setting aside exparte decree cannot be said to be an order passed in a pending suit. The learned counsel for the non-petitioner on a misreading of the principle propounded by the Hon'ble Supreme Court in the above case has contended that the revision petition is not maintainable. 8. Consequently, the application being merit less is, hereby dismissed.