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2017 DIGILAW 1934 (ALL)

RADHEY SHYAM VARSHNEY v. FAROGHUDDIN JAFRI

2017-08-22

SURYA PRAKASH KESARWANI

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JUDGMENT : Hon'ble Surya Prakash Kesarwani,J. Heard Sri Dharampal Singh, learned Senior Advocate assisted by Sri S. Niranjan, learned counsel for the petitioners and Sri A.S. Azmi, learned counsel for plaintiff-respondent no.1. 2. This petition under Article 227 of the Constitution of India, has been filed praying to set aside the impugned order dated 17.7.2017 passed by District Judge, Hamirpur in J.S.C.C. Revision No. nil of 2017 (Farog Uddin Jafri v. Sumitra Devi (deceased ) and others ), whereby the appeal filed by the respondent-plaintiff under Order 43 Rule 1 (k) C.P.C. within limitation has been permitted to be converted in revision subject to payment of cost of Rs.150/-. 3. Learned counsel for the petitioners submits that the order impugned is wholly illegal and, therefore, it deserves to be set aside. The appeal could not be converted into a revision. 4. Learned counsel for the plaintiff-respondent supports the impugned order. 5. I have carefully considered the submissions of the learned counsels for the parties. 6. I do not find any substance in the submissions of the learned counsel for the defendant-petitioners, inasmuch as the power to convert an appeal into revision may be exercised under Section 151 C.P.C. in appropriate cases. 7. In the case of Bahori v. Vidya Ram AIR 1978 All 299 , this Court considered the question as to "whether an order of conversion of a revision into an appeal could be passed after the date of filing the appeal had expired ?" and this Court held as under : "6. There is no specific provision in the Civil P.C. for the conversion of an appeal into a revision or vice versa. Consequently, the exercise of power has to be only under the provisions of Section 151 of the Code. The inherent powers of the Court permit the Court to make such orders as may be necessary for the ends of justice. The power is undoubtedly discretionary and is to be exercised in a proper case. If the interest of justice requires the passing of such an order or to prevent the abuse of the process of the Court, the Court would be fully justified in passing an order under this provision. 7. The power is undoubtedly discretionary and is to be exercised in a proper case. If the interest of justice requires the passing of such an order or to prevent the abuse of the process of the Court, the Court would be fully justified in passing an order under this provision. 7. Since there is no specific provision in the Code for the conversion of an appeal into revision or vice versa there can be no restriction on the conversion except that imposed under Section 151 of the Code. There is nothing like a period of limitation for making an application for conversion of an appeal into revision or vice versa. All that is required to be seen is if the appeal or the revision had been filed within the time prescribed for the filing of the appeal, or the revision, as the case may be, apart from the consideration mentioned in the previous para. Even otherwise, there would be very few cases, where the conversion would be sought before the expiry of the period of filing the appeal. In most cases the point would emanate after an objection had been filed or made by the other side. It would undoubtedly be open to the Court considering the question of conversion to satisfy itself that the prayer was bona fide and that there was no unusual delay. This is where the question of the exercise of discretion arises. I am not inclined to place any undue restriction on the exercise of power under Section 151 of the Code. 9. For the reasons given above, the revision is allowed, the order of the District Judge dated 9-5-1974 is set aside and the case is sent back to the District Judge with a direction that the revision be converted into an appeal and hear the appeal on the merits. In the circumstances of the case I make no order as to costs". 8. In the circumstances of the case I make no order as to costs". 8. The above referred decision was followed in the case of Umardeen v. Additional District Judge, Court No.6, Muzaffar Nagar and others, 2008(1) AWC 27 (Paragraph-6) wherein it was held that the Court has discretion to permit conversion of a revision into an appeal in exercise of inherent power under Section 151, C.P.C. Similar view has been taken in the case of Kuldeep Chand v. Shiv Ram, AIR 2000 HP 119 and Prem Narayan Dwivedi and Udit Narayan, 2017 (123) ALR 143. 9. In the present set of facts, I find that against the order dated 3.3.2017, abating JSCC No.3 of 2004 ( Farog Uddin Jafri v. Sumitra Devi (deceased ) and others ), the plaintiff-respondent filed Misc. Appeal No.11 of 2017 on 27.3.2017, under Order 43 Rule 1(k) C.P.C. An objection was filed by the petitioners-defendant herein on 6.5.2017 alleging that the appeal is not maintainable. Consequently, on 3.7.2017 the respondents-plaintiffs filed an application for amendment in the memo of the aforesaid Misc. Appeal by converting it as J.S.C.C. revision. By the impugned order dated 17.7.2017, the Application 19-C1 filed for conversion of the appeal into revision was allowed on payment of cost of Rs.150/-. Mistake in filing the appeal instead of revision was bonafide. It is settled law that if upon legal advise, a party chose a wrong legal remedy but the right forum and, thereafter, upon realizing that the proper remedy would be under a different provision, an application is filed for converting the application preferred, the ends of justice demands that such conversion be allowed. 10. In view of the aforesaid, it does not seem appropriate to interfere with the impugned order dated 17.7.2017 in exercise of power under Article 227 of the Constitution of India. Even otherwise, in view of the law laid down by this Court in the case of Bahori (supra), Umardeen (supra) and Prem Narayan Dwivedi (supra), I do not find any error of law in the impugned order. Therefore, the petition deserves to be dismissed. 11. Consequently, the petition is dismissed.