Allahabad High Court
Ram Nath Yadav vs Hemant Kumar on 3 January, 2020
Author: Jayant Banerji
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 9 Case :- CIVIL REVISION No. - 104 of 2011 Revisionist :- Ram Nath Yadav Opposite Party :- Hemant Kumar Counsel for Revisionist :- K.K. Mishra @ Balram,P.K. Tiwari Counsel for Opposite Party :- Asim Kumar Singh Hon'ble Jayant Banerji,J.
Order on Civil Misc. Application No. 404095 of 2014 Heard Sri K.K. Mishra, learned counsel for the revisionist and Sri Asim Kumar Singh, learned counsel for the respondent.
This application has been filed for converting the aforesaid civil revision into a civil misc. writ petition.
The order impugned dated 30.11.2010 passed by the Additional District Judge, Agra in Civil Appeal No. 46 of 2009 Ram Nath Yadav Vs. Hemant Kumar, is an order rejecting the application filed by the revisionist under Order 41 Rule 27 C.P.C..
In view of the judgment of the Supreme Court in the case of Radhey Shyam & Another Vs. Chhabi Nath & Others reported in 2015 (5) SCC 423. A writ petition under Article 226 of the Constitution of India would not lie against an order passed by a civil court in such proceedings.
This application is, therefore, misconceived and is, accordingly, dismissed.
Order on Revision As far as the maintainability of the revision is concerned, it is to be seen that the order under challenge in this revision is an order passed by the Appellate Court in Civil Appeal No. 46 of 2009 as held by a Full Bench of this Court in Jupiter Chit Fund (PVT) Limited Vs. Dwarka Diesh Dayal reported in 1979 AWC 371, after considering the amendment brought on record about the C.P.C. by the Amending Act No. 104 of 1976 as well as the Code of Civil Procedure (Uttar Pradesh Amendment) Act, No. 31 of 1978, the Court held that the words "or other proceeding" cannot include decisions in appeals or revisions.
Learned counsel for the revisionist has referred to the judgment of the Supreme Court in the case of G. Shashikala (Died) Through Lrs. vs G. Kalawati Bai (Died) Through Lr & Others reported in AIR 2019 Supreme Court 2631 and specifically referred to paragraph nos. 15, 16 and 17 therein. In the case before the Supreme Court, the order impugned was a judgement of the High Court whereby the appeal filed against the judgment and decree of the trial Court was dismissed. The Supreme Court had considered the scope of order 41 Rule 27 C.P.C. in that judgment. The aforesaid case is distinguishable on facts.
The other judgment cited by the learned Counsel for the revisionist is Nawal Kishore Tulara Vs. Dinesh Chand Gupta and others reported in 2001 (2) ACJ 1497. However the case is distinguishable on facts as the Court was not considering maintainability of a revision against an order passed by the appellate Court in view of the Uttar Pradesh Amendment of Section 115 C.P.C.. Another judgment relied upon by the learned counsel for the revisionist is in the case of Marwari Kumhar and Others Vs. Bhagwanpuri Guri Ganeshpuri and another reported in 2001 A.C.J. 1. However, in that case also the Supreme Court has not considered the issue of maintainability of the revision against an order passed by the appellate Court.
Lastly, learned counsel for the revisionist has relied upon a Full Bench decision of this Court in the case of Shambhu Dayal and others Vs. Pt. Basdeo Sahai reported in 1970 ALJ 297. However, this Full Bench ante-dates the Full Bench decision in Jupiter Chit Fund (PVT) Limited (supra) and pertains to law in force prior to the amendment of the C.P.C. in 1976. This case is also of no assistance to the revisionist.
In view of the aforesaid, this Civil Revision is, dismissed.
However, it in case the revisionist is so advised, he may choose to question the impugned decision in the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.
Order Date :- 3.1.2020 Ishan