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2019 DIGILAW 514 (MP)

Asharfi Bai v. Keshar Bai

2019-07-12

G.S.AHLUWALIA

body2019
ORDER 1. This civil revision under section 115 of CPC has been filed against the order dated 13.2.2015 passed by District Judge, Shivpuri in MJC No. 32/2014, by which the application filed by the applicant was dismissed as barred by limitation and as a consequence thereof, the appeal was also dismissed as barred by limitation. 2. Initially the appellant had filed the second appeal under section 100 of CPC but thereafter for the reasons best known to the appellant, a prayer was made by the counsel for the appellant to convert the second appeal into civil revision possibly in the light of the judgment dated 11.12.2000 passed by the Supreme Court in the case of Ratan Singh v. Vijay Singh, in Civil Appeal No. 7194/2000. The order-sheets of this Court reveal that on 9.5.2019 the counsel for the appellant had sought time to file an application for converting this appeal into the revision because according to him only the revision was maintainable. Accordingly, I.A. No. 2411/2019 was filed seeking direction to convert the second appeal into civil revision. This Court, by considering the innocuous prayer made by the appellant, allowed I.A. No. 2411/2019 and permitted the second appeal to be converted into civil revision. Accordingly, this case is listed for admission. 3. The question that whether the dismissal of the application for condonation of delay and consequent dismissal of the appeal is a decree or not has already been put to rest by the Supreme Court in the case of Shyam Sunder Sarma v. Pannalal Jaiswal and others, reported in AIR 2005 SC 226 . Thus, it is clear that the civil revision against the order of dismissal of the application for condonation of delay and the consequent dismissal of appeal is not maintainable. 4. Accordingly, it is held that the civil revision filed by the applicant against the order dated 13.2.2015 passed by the District Judge, Shivpuri in MJC No. 33/2014 is not maintainable. 5. At this stage, it is submitted by the counsel for the applicant that he may be granted one more opportunity to file an application for conversion of civil revision into second appeal. 6. Considered the submissions made by counsel for the petitioner. 7. 5. At this stage, it is submitted by the counsel for the applicant that he may be granted one more opportunity to file an application for conversion of civil revision into second appeal. 6. Considered the submissions made by counsel for the petitioner. 7. This Court is of the view that if the applicant had converted the second appeal into civil revision on a wrong notion of law without there being any compulsion, then he has to face the consequences. However, the applicant is not responsible for the mistake which has been committed by his counsel, as it is not the case of counsel for the applicant that in spite of the advise given by him, the application for conversion of the second appeal into civil revision was filed under compulsion and on the instruction of the applicant. Under these circumstances, instead of granting permission to file fresh application for converting civil revision into second appeal, the civil revision is dismissed as not maintainable with liberty to the applicant that if so desire, then she may file a fresh second appeal. 8. With aforesaid observation, the civil revision is dismissed as not maintainable.