HAMEED BEGAM Vs. POORAN CHAND JAIN

JUDGEMENT

(1.) A preliminary objection has been raised by learned counsel appearing on behalf of the respondent No. 2 that after rejection of the review application against the judgment and decree passed by the Lower Appellate Court the revision under section 115 of Civil Procedure Code is not maintainable, therefore, it may be dismissed. Shri M. Hafizullah, learned counsel appearing on behalf of the applicant facing such objection prays for time on 3-9-2012, which was granted. Again on 24-9-2012 time was sought for, however, by way of last opportunity two weeks further time was allowed. Today the case has been heard on the question of maintainability, even on asking time by Mr. Hafizullah, because it is pending since last about eight years.

(2.) Learned counsel for the applicant referring the provisions of section 115 of Civil Procedure Code contends that the High Court may call for the record of any case, which has been decided by any Court subordinate to High Court and in which no appeal lies thereto, and if such subordinate Court exercised a jurisdiction not vested in it by law; or have failed to exercise the jurisdiction so vested; or have acted in the exercise of its jurisdiction illegally or with material irregularity, against the order rejecting the application for review no appeal lies, therefore, the revision is maintainable. In support of such contention reliance has been placed on a judgment of Hon'ble the Apex Court in the case of Smt. Vidya Vati vs. Shri Devi Das, 1977 AIR(SC) 397 referring paragraph-7 of the said judgment it is contended that the order passed by the High Court rejecting the revision petition as not maintainable was found illegal. Learned counsel further relying upon the Division Bench judgment of this Court in the case of Anandi Prasad Dwivedi and anr. vs. State of M.P., 2010 ILR(MP) 1904 has urged that as per Order 47, Rule 7 of Civil Procedure Code the order of rejection of the application is not appealable, therefore, in reference to the said judgment the revision may be maintained by this Court.

(3.) Per contra Shri Akhilesh Jain, counsel representing the respondent No. 2 contends that the judgment and decree passed by the Lower Appellate Court is appealable as per section 100 of Civil Procedure Code and on filing such appeal if the Court is satisfied that the question of law is involved in any case it shall formulate that question and decide the same on merit. After passing the judgment and decree by the Lower Appellate Court review application was filed, which was rejected. However, the rejection thereof would entail the party to file an appeal as provided under section 100 of Civil Procedure Code. It is further submitted that the judgment of Hon'ble the Apex Court so relied upon by the applicant is not applicable because in the said case the review petition was allowed and thereafter the appeal as provided under Order 43, Rule 1(w) of Civil Procedure Code. In the said context Hon'ble the Apex Court has held that the High Court was not justified in dismissing the revision as not maintainable. In the Division Bench Judgment of this Court also the question after rejection of the application for review against the judgment and decree was not in issue, therefore, the said judgments are also having no application in the facts and circumstances of the case. Moreso in the said case also application for review was allowed, therefore, the Court made certain observation in the light of the Order 47, Rules 1 and 7 of Civil Procedure Code. In that view of the matter it is submitted that in a case where the application seeking review of the judgment and decree has been rejected the recourse permissible to the applicant is to avail the remedy to file appeal and the revision is not maintainable. The order of rejection would not fall within the purview of the Phrase that 'no appeal lies' against order.