MUNESHWAR SINGH Vs. DISTRICT JUDGE SHAHJAHANPUR

JUDGEMENT

(1.) R. H. Zaidi, J. This petition has been filed by the petitioner challenging the validity of the order passed by respondent No. 1 dated 4-9-95 dismissing the revision filed by him under Section 115, C. P. C. against the order allowing the ap plication for amendment of the plaint.

(2.) HEARD learned Counsel for the petitioner.

(3.) SECTION 115 of the Code of Civil Procedure as applicable in the State of Uttar Pradesh, provides as under: "115. Revision.- The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto and if such subordinate court appears - (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material ir regularity, the High Court may make such order in the case as it thinks fit: Provided that the High Court shall not, under this section, vary or reverse any order made or any order deciding an issue in the course of a suit or other proceeding except where - (a) the order if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or (b) the order if allowed to stand would occasion a failure of justice or cause ir reparable injury to the party against whom it was made. (2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto. Explanation.- In this section, the expression "any case which has been decided in cludes any order made, or any order deciding an issue, in the course of a suit or other proceeding. ". From the reading of the aforesaid section, it is evident that there is no provision in the said section to the effect that if the revision is admitted, the same could not be dismissed for default. On the other hand, it has been provided that the High Court or District Court, as the case may be, may make such order in the case, as it may thinks fit. SECTION 14 of the Civil Procedure Code provides as under: "141. Miscellaneous proceedings.- The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable in all proceedings in any court of civil jurisdiction. Explanation.- In this section, the expression, "proceedings" includes proceedings under Order IX but does no include any proceeding under Article 226 of the Constitu tion. ". ; In view of the provisions of SECTION 141, the provisions contained in Order IX of Code of Civil Procedure are fully applicable and the revisional court is legally entitled to dismiss the revision filed under SECTION 115 for default, if the applicant personally or through his Counsel does not appear before the court on the date fixed for hearing. In Jawala Prasad v. Ajodhya Prasad, AIR 1983 S. C. 304 the revision filed by the petitioner Jawala Pd. under SECTION 115, C. P. C. was dismissed for default by the Addl. Distt. Judge. The application for restoration filed by Jawala Pd. was also dismissed by the Addl. Distt. Judge without giving opportunity of hear ing. The revision filed against the order of Addl. Distt. Judge, was also dismissed by the High Court, Allahabad. On an appeal filed by Jawala Pd. Supreme Court ruled that under the facts and circumstances of the case, Jawala Pd. was denied an oppor tunity of being heard. The aforesaid orders passed by the Addl. Distt. Judge and the High Court were, therefore, set aside and the matter was sent back to the Addl. Distt. Judge for decision afresh. In the said case, it was nowhere held that the Addl. Distt. Judge had no jurisdiction to dismiss the revision for default.