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2014 DIGILAW 2835 (ALL)

Sheetla Prasad v. Civil Judge

2014-09-11

RAJAN ROY

body2014
JUDGMENT Rajan Roy, J. Heard Sri Govind Saran, learned counsel for the petitioner and Sri Dinesh Sengar, learned counsel for the respondent no. 4. 2. This writ petition has been filed by the plaintiff challenging the judgement and order dated 30th July, 1985 passed by the appellate court in Misc. Appeal No. 96 of 82, whereby the order of the trial court dated 14.05.82, allowing the amendment application of the plaintiff under Order VI Rule 17 CPC, has been set aside. 3. Sri Govind Saran, learned counsel for the petitioner has confined his arguments to the limited issue of maintainability of the misc. appeal before the appellate court under the provisions of Order XLIII Rule 1 CPC, against the order of the trial court under Order VI Rule 17 CPC. He has referred to the said provisions to show that no misc. appeal could have been preferred against an order passed under Order VI Rule 17 CPC allowing an amendment application. Appropriate remedy against such an order, according to him, is by way of revision under Section 115 CPC. 4. In reply Sri Dinesh Sengar, learned counsel for the respondent no. 4 invited the attention of the Court to the contents of paragraph 29 of the counter affidavit of the respondent no. 4, wherein it has been stated that he had preferred revision against the aforesaid order dated 14.05.82 before the Court of the District Judge, Basti, which was registered as such on 19.05.82 as Revision No. 136 of 82, but vide office report dated 19.05.82, a defect was reported that an appeal shall lie under Order XLII Rule 1 (L) CPC against an order under Rule 10 of Order XXII CPC, whereupon the said revision was converted into appeal by the order of the Court of the District Judge, Basti & was registered as Misc. Appeal No. 96 of 82. 5. I have perused the provisions of Order XXII Rule 10 CPC as also Order VI Rule 17 and Order XLIII Rule 1 CPC. The order of the trial court dated on 14.05.82, was one allowing amendment application of the plaintiff under Order VI Rule 17 CPC and the said order has no relation to the provisions of Order XXII Rule 10 CPC. Therefore, clearly, against the said order, no appeal was maintainable under Order XLIII Rule 1 (L) CPC. The order of the trial court dated on 14.05.82, was one allowing amendment application of the plaintiff under Order VI Rule 17 CPC and the said order has no relation to the provisions of Order XXII Rule 10 CPC. Therefore, clearly, against the said order, no appeal was maintainable under Order XLIII Rule 1 (L) CPC. The only available remedy was to file revision under Section 151 CPC. 6. In view of the above, the impugned judgement and order dated 30th July, 1985 passed in Misc. Appeal No. 76 of 82, is clearly without jurisdiction and the same is accordingly quashed. 7. Considering the peculiar facts of this case as indicated herein above, it is provided that the Misc. Appeal No. 96 of 82, which was earlier registered as Revision No. 136 of 82, shall be treated as a revision under Section 115 CPC as aforesaid and the revisional court i.e. the District Judge, Basti, shall consider the same in accordance with law and shall decide it expeditiously say within a period of 6 months from the date of production of the certified copy of this order before him. 8. However, as, during pendency of this writ petition, the proceedings in Suit No. 176 of 71, remained stayed pursuant to the order dated 29.08.85 passed in this writ petition, the same shall continue to remain stayed till disposal of the revision by the revisional court. 9. The writ petition is accordingly disposed off.