OM PRAKASH Vs. DWARKA PRASAD

JUDGEMENT

(1.) In this revision, an application I.A.3963/03 is filed by the petitioners for converting this revision into miscellaneous appeal under Order XLIII, Rule 1(u) of the Code of Civil Procedure. The application was opposed by the respondents inter alia contending that the scope of appeal is different from the scope of revision, and therefore, application and revision be dismissed. Counsel for the respondents placed reliance on the single Bench decision of this Court in the case of Food Corporation of India v. Munnilal (2003 (2) MPLJ 290) : (AIR 2003 Madh Pra 66), whereas counsel for the petitioners has referred to the decision of the single Bench of this Court in the case of Shivkumar v. Ramkatori (1977 JLJ 33). Since two conflicting views were brought to the notice of the single Bench, single Bench has referred the dispute for decision in accordance with law by the Division Bench.

(2.) Question involved in the case is whether revision can be converted into appeal and vice versa.

(3.) Counsel for the petitioners submitted that this question has been settled long back and this Court time and again is permitting conversion of appeal into revision and revision into appeal. While delivering the later judgment in the case of Food Corporation of India (supra) single Bench has not considered the previous judgments on this subject and ignored the principle of stare decisis. Long settled view has been upset in the case of Food Corporation of India (supra). He submitted that against the order of remand by the Additional District Judge, counsel was of the opinion that order was in exercise of inherent powers by the first appellate Court, therefore, revision was filed, however, on the objection of the respondents, counsel for the petitioners minutely examined the position and found that the order is appealable under Order XLIII, Rule l(u) of the Code of Civil Procedure (hereinafter, referred to as the "Code"). Counsel for the petitioners, therefore, submitted that the judgment in the case of Food Corporation of India (supra) has not laid down the correct law and single Bench has not considered the previous judgments on the point. In support of his contention, counsel for the petitioners has referred to the judgment in the case of Reliable Water Supply Service of India v. Union of India (1971 SC 2183). This case relates to dispute under the Arbitration Act. Though the dispute was within the ambit of Section 33 of the Arbitration Act, but the trial Court treated the dispute under Section 5 of the Arbitration Act. Thereafter, against the order passed by the trial Court, Union of India filed an appeal in the High Court. Appeal was contested on various grounds and one of the grounds was that appeal was not maintainable. High Court accepted the contention and converted the appeal into revision under Section 115 of the Code and decided the case exercising the revisional jurisdiction. Thereafter, objection was raised that appeal could not be converted into revision. It is held in this case that the High Court was right in converting the appeal into revision.