PADAM CHAND JAIN Vs. PIYUSH JAIN

JUDGEMENT

(1.) The order impugned before this Court is the order dated 31.08.2010. Contention before this Court is that vide order dated 31.08.2010, the court of Additional District Judge had heard an appeal under Order 43 of the Code of Civil Procedure (hereinafter referred to as the Code?) against the dismissal of a review petition dated 19.02.2010; an appeal filed against an order which has dismissed a review petition is not maintainable under Order XLIII of the Code. Attention has been drawn to Order 43 Rule 1 (w) of the Code which reads as under:-

(2.) Vehement contention is that only where an order granting a review has been passed, an appeal is maintainable under Order 43 of the Code; however, if the order has dismissed a review application, the appeal under Order 43 of the Code is not maintainable. Thus the order dated 19.08.2010 is non-est and being void ab initio; it is liable to be set aside. It is contended that the reliance by the concerned court while recording the impugned order on the judgment of the Apex Court reported in Shah Babulal Khimji Vs. Jayaben D. Kania and another, 1981 AIR(SC) 1786 was misplaced; in this case the Apex Court was concerned only with the right of the appellant under the Letter Patent jurisdiction. It is submitted that Additional District Judge in his order dated 31.08.2010 has assumed a jurisdiction upon himself which was not vested in him; the order suffers from an illegality and is liable to be set aside under the supervisory jurisdiction of this Court.

(3.) Arguments have been rebutted. It is submitted that the order dated 19.02.2010 was a review petition which had been partly allowed and partly dismissed ; the very fact that there was a partial allowance of the review petition makes it permissible for an appeal to be maintained under Order 43 Rule 1 (w) of the Code. The second submission is that since the impugned order dated 31.08.2010 has dismissed the suit of the plaintiff, the remedy is not a petition under Article 227 of the Constitution. On the applicability of the Judgment of Shah Babulal Khimji , learned counsel for the respondents has fairly conceded that the Additional District Judge in the impugned order dated 31.08.2010 has misapplied this judgment and the ratio of this judgment in fact related to the Letter Patent Appeal alone.