H JAYALAXMI Vs. UDUPI TOWN MUNICIPAL COUNCIL UDUPI

JUDGEMENT

(1.) THIS is a revision filed under Section 115 of Code of Civil Procedure against the Order dated 25th september, 1995 whereby the learned judicial magistrate, I class, udupi, (who is also an additional munsiff) dismissed the applicant's application under Order 16, Rule 1 read with Section 151 of Code of Civil Procedure which application had been moved in an appeal under Section 150 of the Karnataka Municipalities Act, 1964. Section 150 provides for appeals against the assessment of tax at the time when notice of demand is served. It provides that appeal will lie to the judicial magistrate having the jurisdiction over the area concerned. Sub-section (2) of Section 150 of the Karnataka Municipalities Act provides that the decision of the magistrate upon any appeal, shall, at the instance of either party, be subject to revision by the court to which appeals from his decisions ordinarily lie. When the Order has been passed by the magistrate or judicial officer namely the judicial magistrate referred to in the Criminal Procedure Code, the appeal from the Order of the judicial magistrate if at all, lies to the sessions judge. The learned counsel submitted that the appeal from the Order of the judicial magistrate ordinarily lies to the sessions judge. When that is the position in that case, the revision under sub-section (2) of Section 150 of Karnataka Municipalities Act may lie before the sessions judge and not before THIS court. The present revision has been filed under Section 115 of the Code of Civil Procedure and not under Section 150, sub-section (2) of the Karnataka Municipalities Act. No provision from Karnataka Municipalities Act has been pointed out to me by the learned counsel making the C.P.C. applicable to such matters and as such, I am of the opinion that revision under Section 115 of the C.P.C. from the Order of judicial magistrate as referred to above filed before THIS court is misconceived. I do not want to express any opinion on the merits of the case one way or otherwise. As regards the merits of the case and application which has been moved, the appellate court which is competent to deal with the matter, will consider it, as the revision filed in THIS court is misconceived. For the reasons mentioned above, the present revision is misconceived and is not maintainable under Section 115 as well as not maintainable in THIS court under Section 115,c.p.c. and accordingly, it is hereby dismissed as not maintainable. But as the Order passed in appeal can be agitated before the appropriate court before whom the appeals ordinarily lie from the Order of the judicial magistrate. It is being kept open to the applicant if he is so advised to file revision under Section 150(2) of Karnataka Municipalities Act from the Order impugned herein. It will be open to the learned sessions judge to consider the contentions whatever are raised before him in that revision under Section 150(2) of the ACT if it is filed. If there is any limitation prescribed and if there is any delay, that question may be considered in the light of circumstance that THIS revision in THIS court had been filed on a mistaken advice of counsel and party should not suffer for mistaken advice of counsel subject to above observations, the present revision is hereby dismissed as not maintainable in THIS court.