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2019 DIGILAW 1214 (ALL)

Prem Chand v. Satendra Kumar Tiwari

2019-05-07

VIVEK KUMAR BIRLA

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JUDGMENT : Vivek Kumar Birla, J. Heard Sri Rishikesh Tripathi, learned counsel for the petitioners. 2. Present petition has been filed seeking setting aside of the judgment and order dated 5.12.2018 passed by the learned Civil Judge (Senior Division)/Fast Track Court, Agra in Original Suit No. 605 of 2016, Satendra Kumar Tiwari and others Vs. State of U.P. and others filed as Annexure-7 to the petition and to allow the impleadment application filed by the petitioners seeking their impleadment as defendants in the pending suit mentioned above. 3. By the impugned order the application filed by the petitioners under Order 1 Rule 10 CPC for impleadment has been rejected by the trial court. 4. Maintainability of the present petition on the ground of availability of statutory remedy by way of filing revision under Section 115 CPC was pointedly raised by this Court. In response to the same, placing reliance on the judgments in the cases of (i) Shiv Shakti Cooperative Housing Society Vs. Swaraj Developers, (2003) 3 AllCJ 2133 , (ii) Mohammed Ishaq Vs. S. Kazam Pasha & another, (2009) AIRSCW 3705, (iii) Smt. Maya Devi Vs. Jagpal Singh and another, (2018) 139 RevDec 629 and (iv) Mohd. Murtaza alias Pahari Vs. Additional District & Sessions Judge, Court No. 1, Hardoi and others 2014 (4) ALJ 625, submission of learned counsel for the petitioners is that a revision would not be maintainable and in any view of the matter the alternative remedy is a rule of convenience and discretion rather than a rule of law and as such it will not come in the way of maintainability of the present petition. 5. There is no doubt that this Court has ample powers under Sections 226 and 227 of the Constitution of India. However, here is the question of availability of alternative statutory remedy by way of filing revision under Section 115 CPC as applicable in the State of U.P. amended by the U.P. Amendment. 6. In Shiv Shakti Cooperative Housing Society (Supra) it has been laid down that against an interim order a revision is not maintainable. 7. However, here is the question of availability of alternative statutory remedy by way of filing revision under Section 115 CPC as applicable in the State of U.P. amended by the U.P. Amendment. 6. In Shiv Shakti Cooperative Housing Society (Supra) it has been laid down that against an interim order a revision is not maintainable. 7. In Mohammed Ishaq (Supra) which is a judgment in the criminal appeal it lays down that exhaustion of alternative remedy is a rule of convenience and discretion rather than a rule of law and that it does not oust the jurisdiction of the Supreme Court under Article 32 of the Constitution of India. 8. In Smt. Maya Devi (Supra) it was laid down that against rejection of an application under Order 6 Rule 17 CPC a revision would not be maintainable and the application under Article 227 of the Constitution of India would be maintainable. 9. Much emphasis was given on a judgment of Hon'ble Single Judge of this Court in the case of Mohd. Murtaza alias Pahari (Supra) by highlighting that in that case the order was passed under Order 1 Rule 10 CPC and it was held that a revision would not be maintainable and the revision filed before the High Court was rejected. 10. I have considered the submissions and have perused the judgments as relied upon. There is no quarrel with the law that this Court has ample powers under Article 227 of the Constitution of India. Such powers are unfettered. It is also settled law that power in both jurisdiction i.e. Section 115 CPC and Article 227 of the Constitution of India are akin to each other. However, when statutory remedy is available, the same should not be invoked ordinarily. 11. In the present case the application under Order 1 Rule 10 CPC is an impleadment application and in case it is rejected the case stands decided in so far as the applicant is concerned and as such finality is attached to that order and therefore, in the opinion of the Court a revision would be maintainable against the order. 11. In the present case the application under Order 1 Rule 10 CPC is an impleadment application and in case it is rejected the case stands decided in so far as the applicant is concerned and as such finality is attached to that order and therefore, in the opinion of the Court a revision would be maintainable against the order. Specifically dealing with Mohammed Ishaq (Supra), suffice to note that in the revision filed before this Court, whereby the order for recall of the order rejecting impleadment application was under challenge and the case was against issuing of notice, noticing this fact in paragraphs 3 and 5 of the judgment in paragraph 20 it was clearly mentioned that the impugned order dated 27.3.2012 (impugned therein) thereby rejecting petitioners' application for recall, a revision would not be maintainable. In the present case the facts are different. Here it is the case of rejection of impleadment application under Order 1 Rule 10 CPC which, in fact, decides the case of the applicant. His fate and claim/right to contest the suit proceedings stands concluded. In other words it will be a case decided in so far as the applicants seeking impleadment is concerned. 12. In such view of the matter, the present petition under Article 227 of the Constitution of India would not be maintainable on the ground of availability of alternative statutory remedy even if the same is not substantial remedy and may be a procedural remedy. The petitioners are at liberty to avail the statutory remedy, if so advised. 13. Accordingly, this petition is dismissed. 14. Office is directed to return the certified copy of the impugned order to the learned counsel for the petitioners within three days after keeping a photo stat copy of the same on record. 15. No costs.