MAHENDRAKUMAR RAMANLAL THAKKERPROP LAXMI ALUMINIUM IND Vs. VANECHAND MORARJI DESAI HEIROF DECD DHANKUVERBEN VANECHAND

JUDGEMENT

(1.) The petitioners herein are the original defendants of H.R.P.Civil Suit No.156/1989. The said suit is filed by the respondent herein. In the aforesaid suit, the original plaintiff-respondent herein, gave an application Exh.40 for amending the plaint by adding additional ground for eviction. The trial Court allowed the said application by the impugned order. The said order is challenged in this revision, by which amendment is granted.

(2.) This revision was admitted by this Court on 7th April 1998, which is placed for final hearing before this Court today. It is required to be noted that in view of the amendment in Section 115 of C.P.C., the order in question is not revisable as it would not terminate the proceedings finally. Realising this difficulty, Mr.Shah learned advocate for the petitioners submitted that he may be allowed to convert this Civil Revision Application into a petition under Article 227 of the Constitution of India. Initially, this Court was of the opinion that in view of the decision of a two-Judge Bench of the Apex Court in the case of Vishesh Kumar Vs. Shanti Prasad reported in AIR 1980 SC 892, a revision cannot be allowed to be converted into a writ petition. Today, Mr.Shah has placed on record copy of a decision of a three-Judge Bench of the Apex Court rendered in the case of Municipal Corporation of Delhi Vs. R.P.Khaitan and Another, reported in 79 (1999) Delhi Law Times 555 (SC), wherein while examining a case of converting a revision under Section 115 of C.P.C. into a petition under Article 227 of the Constitution of India, it has been observed by the Apex Court in para 4 as under :

(3.) Relying upon the said judgement, it is submitted by Mr.Shah, that the Apex Court has now said that AIR 1980 SC 892 cannot be treated as a precedent. He submitted that since both the proceedings i.e. a revision under Section 115 of C.P.C. and a writ petition under Article 227 of the Constitution of India are before the same High Court, in view of the said judgement now this revision can be permitted to be converted into a writ petition under Article 227 of the Constitution of India.