MANIBEN Vs. RAMIBEN

JUDGEMENT

(1.) The present revision application has been filed against the order on the preliminary issue which was ordered to be decided as preliminary issue by the order below Exh. 58 and while deciding the issue the plaintiffs suit was dismissed by the learned Civil Judge (J.D.) at Gandevi by the or-der dated 17 December 1991. In this Revision Application Justice S.D. Shah has passed the following order on March 3 1993

(2.) The second Civil Application No. 2759 of 1993 was filed on behalf of the respondents for disposal of the revision application as infructuous and not maintainable and directing the respondents to withdraw the revision application as they have filed Regular Appeal No. 26 of 1993 before the District Court at Valsad.

(3.) Heard the learned advocate Mr. D.D. Vyas for the petitioner as well as Mr. J.M. Patel learned advocate for the applicants in Civil Application No. 2759 of 1993 and also Mr. Hamid Kureshi learned advocate for applicant in Civil Application No. 1073 of 1993. The main contention that is raised in the revision application is that after filing of the first appeal before the District Court at Valsad being Regular Appeal No. 26 of 1993 the present application becomes infructuous. It is an undisputed fact that appeal is a larger remedy. It is also an undisputed fact that if the appeal lies then revision would not lie. The only contention is whether the revision under section 115 of C.P. Code would not lie to High Court or to subordinate court thereto. Mr. Vyas submitted that if the appeal lies to the subordinate court but not to this court even as a second appeal then this revision application would be competent. He has supported his submission by citing judgment of this court reported in 13 G.L.R. at p. 555 as well as a judgment of the Supreme Court reported in A.I.R. 1977 S.C. at p. 397. In the case before the High Court reported in 13 GLR (supra) the order which was passed by the learned Judge and it was described as a curious order is as follows: