SHIVRAM Vs. PRADEEP KUMAR

JUDGEMENT

(1.) This civil revision has been preferred by the defendant on the ground that valuation of the suit was Rs.24,000/-.

(2.) It is pertinent to note that the suit was filed by the plaintiff for recovery of Rs.24,000/- and in alternative for compliance of clause No. 4 of the agreement marked as Ex. P/1. On perusal of paragraph 14 (a) of the judgment and decree of the trial Judge, it is revealed that trial Court granted a declaration that plaintiff is entitled to allotment of the suit shop from the trust in his name, after making payment of additional sum of Rs.26,000/-. Civil Appeal No. 1-B/2010 was submitted by the plaintiff, which has been decided by the impugned judgment and decree dated 18.4.2011. IT is revealed in paragraph 3 of the impugned judgment that plaintiff has pleaded that the defendant on 17.3.2003 executed an agreement in favour of plaintiff that if former fails to make payment up to 15.12.2008, former on receipt of additional sum of Rs.26,000/- would deliver the possession of the shop situated at Bade Jain Mandir to the plaintiff, which was with him on lease. Accordingly, the suit was instituted for recovery of money and in alternative for obtaining possession of the aforesaid shop, by making payment of additional sum as described in the agreement dated 17.3.2008.

(3.) Thus, subject matter of the suit giving rise to the present civil revision cannot be said to have involved merely relief of recovery of money but also involves relief regarding possession in alternative. Section 102 of Code of Civil Procedure has been inserted by way of amendment with effect from 1 7 2002 in order to provide second appeal only in case where the subject matter of the original suit is for recovery of money not exceeding Rs.25 000/-. If subject matter of the original suit is also for possession even in the alternative, section 102 does not get attracted and no revision under section 115 would be maintainable in presence of section 100 of the CPC, which provides for second appeal from every decree passed in appeal by any Courts subordinate to the High Court, if High Court is satisfied that the case involves substantial question of law. Sub section (1) of section 100 begins with 'save as otherwise expressly provided in the body of this Code or for any other law for the time being in force'. Section 102 is not attracted when the suit involves relief of possession though in the alternative in addition to the relief for recovery of money. Section 102 is applicable when (1) the subject matter of the original suit is for recovery of money and (2) when such money is not exceeding Rs.25,000/-. In the case in hand, although the plaintiff has sought relief for recovery of sum of Rs.24,000/-, but in the alternative, has sought a decree for possession of the shop on payment of additional sum of Rs.26,000/-. THUS, section 102 in the facts and circumstances of the present case cannot be construed so as to provide a remedy of civil revision under section 115 CPC. which has been made applicable when no appeal lies to the High Court. In a suit like the present one, plaintiff/respondent could have insisted for any of the reliefs claimed in the plaint including the alternative relief. He could have even insisted for grant of alternative relief by not pressing the main relief. THUS, the suit giving rise to the present revision can by no stretch of imagination, be said to be involving subject matter of recovery of money only.