PREM NARAYAN DWIVEDI Vs. SRI UDIT NARAYAN

JUDGEMENT

(1.) Heard learned counsel for the petitioner and perused the record.

(2.) The respondent had instituted O.S. No.40 of 2014 in the court of Civil Judge (Senior Division), Hamirpur. The plaint of the said suit was ordered to be returned to the plaintiff vide order dated 21.07.2015 on account of lack of territorial jurisdiction. Against the said order, on 03.08.2015, a revision was filed in the court of District Judge, Hamirpur. An objection was taken on 17.03.2016 by the petitioner, who was a respondent in the revisional proceeding, that revision would not lie because against an order returning the plaint an appeal would be maintainable under Order 43, Rule 1 (a) of the Code of Civil Procedure. It appears that in the meantime, as no interim order was passed in the revision proceedings, the revisionist, who is the opposite party herein, filed petition under Art. 227 No.5907 of 2016 in this Court. On the said petition, this Court passed an interim order directing the parties to maintain status quo till disposal of the interim injunction application or for a period of three months whichever is earlier. In the meantime, realizing that the revision was erroneously filed and, in fact, an appeal should have been filed, an application was moved by the revisionist to convert the revision into an appeal. The said application was allowed by order dated 20.01.2017, which is under challenge in this petition. Pursuant to the said order, on 30.01.2017, the appeal was also admitted after conversion.

(3.) The learned counsel for the petitioner has assailed the order dated 20.01.2017 on the ground that there is no provision under the Code of Civil Procedure to convert a revision into an appeal and, therefore, the order dated 20.01.2017 is illegal and without jurisdiction. It has been submitted that since the order of conversion has been passed after expiry of the period of limitation fixed for filing of an appeal, the conversion ought not to have been allowed without first dealing with the aspect as to whether the appeal was within the period of limitation. It has also been submitted that at the stage of admission of the appeal at least the petitioner should have been heard and since he has not been heard at the stage of admission of the appeal, the order dated 30.01.2017 is vitiated.