VEERAPPA SHIVAPPA HORADI Vs. KRISHNA TRIYAMBAK DESHPANDE

JUDGEMENT

(1.) This criminal revision is directed against the order of the Sessions Judge, Dharwar, dismissing an appeal filed against the order of the Civil Judge, Haveri who had dismissed a petition Under Section 476 read with Section 195(b) of the then Code of Criminal Procedure.

(2.) Veerappa Shivappa Horadi the petitioner and another filed a civil suit L.C. Suit No. 220 of 1967 against the respondent Krishna Triyambak Deshpande and five others in the Court of the Munsiff and JMFC, Haveri. That suit was for permanent injunction, mandatory injunction and for the recovery of Rs. 500/- for damages. The suit was decreed ex parte and the respondent filed an application under O. IX Rule 13 of the Code of Civil Procedure in Miscellaneous Case No. 21 of 1968 for the restoration of that suit. The learned Munsiff dismissed that application and the respondent came in appeal before the learned Civil Judge, Hubli. Along with the memorandum of appeal, the respondent filed an affidavit in which he stated, inter alia, that his Plearder Sri Kallapur gave him some wrong understanding and that was how he could not be present on the date fixed and the suit was decreed ex parte. The learned Civil Judge allowed the petition and after restoring the suit, sent it to the learned Munsiff for trial. At that stage the petitioner filed an application Under Section 476 of the then Code of Criminal Procedure alleging that the affidavit was false to the knowledge of the respondent inasmuch as Sri Kallapur was not his counsel but one Sri Neeralgi was the counsel and therefore the respondent committed the offences Under Sections 193, 196,199 and 200 of the I. P. Code. The reply of the respondent was that under some bona fide mistake the name of Sri Kallapur in place of Sri Neeralgi who in fact was the counsel in Miscellaneous Appeal No. 44 of 1968 was mentioned. Sri Kallapur was his counsel in Miscellaneous Case No. 21 of 1968. That is how the mistake occurred and the counsel who drafted the memorandum of appeal noted down the name of Sri Kallapur instead of Sri Neeralgi, In short the reply was that neither the offences imputed against him were committed nor in the circumstances a case was made out for expediency in the interest of public justice to institute a complaint against the respondent. The plea prevailed before the learned Civil Judge, Haveri and the petition Under Section 476 was dismissed. Against that order of dismissal, the petitioner filed an appeal before the Sessions Judge, Dharwar who too considered that neither the offences imputed against the respondent were proved nor was it expedient in the interest of public justice to institute a complaint for such offences. He dismissed the appeal and now the petitioner-plaintiff has come up In the present revision to this Court against that order.

(3.) The learned Civil Judge, Haveri, dismissed the application Under Section 476 on 29-11-1975, On that date the new Code of Criminal Procedure, 1973 had come into force. In view of Section 484(2)(a) since the application before him was pending, the provisions of the old Code applied and the application was disposed of under that Code and judgment was pronounced on 29-11-1975. Thereafter, an appeal was filed before the learned Sessions Judge and decidedly, that appeal was instituted Under Section 341 of the new Code. The said appeal was decided on 15-7-1976. In view of Section 341(2) the decision of the learned Sessions Judge in appeal was final and is clearly not subject to revision. The petitioner cannot take assistance of Section 484(2)(a) because no appeal filed under the old Code was pending before the learned Sessions Judge. In fact the decision of the learned Civil Judge itself was given on 29-11- 1975 when the new Code had come into operation. Thus, there was no question of any appeal pending before the learned Sessions Judge and hence the appeal was decided Under Section 341 of the new Code. After the decision of the learned Sessions Judge, Sub-section (2) of that Section clearly barred a revision. On this short ground the present revision will have to be dismissed.