MOHD SHAHID Vs. MOHD SALEEM

JUDGEMENT

(1.) C.M.(M) 1260 of 2004 seeks to challenge the order of the Civil Judge dated 3.6.2004 in Suit No. 10/2002 whereby the learned Judge, while disposing of an application under Order 47 Rules 1 and 2 read with Section 151, CPC for review of judgment dated 1.2.2003 on Issue Nos. 1 and 2 and order dated 18.3.2004, has held that review does not lie and that the order under challenge before him is an appealable order.

(2.) Learned Counsel for the petitioner has drawn my attention to Order 47 Rule 1, CPC as also to Order 43, CPC. Counsel has also relied on the judgments of the Supreme Court in Surya Dev Rai v. Ram Chander Rai and Others, III (2003) CLT 133 (SC)=1V (2003) SLT 810=A1R 2003 SC 3044 and Shiv Shaktl Co-op. Housing Society, Nagpur v. M/s. Swaraj Developers and Others, II (2003) CLT 193 (SC)=III (2003) SLT 287= AIR 2003 SC 2434. A reading of Order 43, CPC shows that the petitioner herein had a dual remedy. He could have availed of either filing of an appeal or a review. Having chosen to file a review, the same had to be disposed of on merits.

(3.) From the order under challenge, 1 find that the Civil Judge has dismissed the application only on the ground that the same is not maintainable. This, to my mind, is not correct, Accordingly, 1 set aside order dated 3.6.2004 and remand the matter to the Civil Judge to dispose of the application for review on merits.