K.NAGAMANI Vs. K.RAJESWARI

JUDGEMENT

(1.) The petitioner has filed this Civil Revision Petition challenging the judgment dated 10.04.2009 passed by the learned District Judge, Koraput at Jeypore in F.A.O. No. 58 of 2008 confirming the order dated 04.11.2008 passed by the learned Civil Judge (Senior Division), Jeypore in C.M.A. No. 62 of 2007 rejecting the petition under Section 144, CPC filed by the present petitioner for restoration of possession of the suit house. Facts giving rise to the present Civil Revision Petition are that opposite parties 1 to 6 as plaintiffs filed C.S. No. 77/2003 in the Court of Civil Judge (Senior Division), Jeypore by impleading petitioner and opposite party No. 7 as defendants to evict them from the suit house and for realization of arrear house rent and cost of litigation. The aforesaid suit was decreed ex parte on 26.03.2004 in favour of the plaintiffs. Thereafter, in E.P. No. 8/2004, the delivery of the suit house was given to the plaintiffs/ opposite parties 1 to 6. In the year 2006 the petitioner filed a petition under Order-IX, Rule 13, CPC in CMA No. 1 of 2006 before the Trial Court to set aside the ex parte decree which was allowed on 20.11.2007 by setting aside the ex parte decree. Opposite parties 1 to 6 challenged the order of the Trial Court dated 20.11.2007 before this Court in CRP No. 7 of 2008 in which the order of the Trial Court was confirmed. The revision petitioner also filed a petition under Section 144, CPC before the learned Trial Court in CMA No. 62 of 2007 praying for restoration/re-delivery of the suit house to the revision petitioner on the ground that the ex parte order, on the basis of which the plaintiffs/opposite parties 1 to 6 had got possession through the process of Court, was set aside. The plaintiff-opposite parties 1 to 6 filed their counter challenging the entitlement of the revision petitioner to get re-delivery of the suit house on the ground that she was not the lessee under plaintiff/opposite party No. 5, but the present opposite party No. 7 (defendant No. 1) who has allowed the revision petitioner/defendant No. 2 to stay in the suit house is entitled to possession of the suit house. On 01.11.2008, after closure of the arguments, opposite party No. 7 filed a memo through his Advocate that the plaintiff-opposite parties delivered possession of the suit house to opposite party No. 7. Thereafter learned Trial Court rejected the petition under Section 144 CPC filed by the revision petitioner. Being aggrieved by the order of the Trial Court, the revision petitioner preferred appeal before the learned District Judge by filing FAO No. 58 of 2008 and the learned. Appellate Court vide its order dated 10.04.2009 confirmed the order of the learned Trial Court. Hence, the present Civil Revision Petition.

(2.) Mr. Sidhartha Mishra, learned counsel appearing for the petitioner submitted that the impugned orders are illegal and contrary to admitted documents on record. On 16.09.1999, opposite party No. 5 through Sri M. Upendra Rao, Advocate had issued notice to the revision petitioner and opposite party No. 7 and others to quit/vacate the suit house. Opposite party No. 7/Defendant No. 1, through his Advocate, Sri L.K. Panda, presently Advocate for the plaintiff-opposite party Nos. 1 to 6 replied to the said notice that his client was in no way connected with the suit house in question and he never took the house on lease nor stayed therein at any time. Ch. Subhalakshmi clearly stated in her deposition in M.C. Case No. 118/96 that her daughter K. Nagamani by paying Rs. 20,000/- to G. Venketeswar Rao was in possession of the house for about last four years. Smt. Nagamani also claimed that she has paid Rs. 50,000/- to G. Rama Devi, daughter of G. Satyabati on 30.03.1992 and was in possession of the house under lease. Therefore, it clearly goes to show that opp. party No. 7 is in no way concerned with the house nor inducted sub-tenants. This reply of opp. party No. 7 has been lost sight of by the learned Trial Court. The delivery of warrant in E.P. No. 8 of 2004 which was returned back after execution contains the report of the Process Server to the effect that the revision petitioner was evicted from the suit house but not the opposite party No. 7. Therefore, the Trial Court ought to have restored the suit house to the revision petitioner. The ex parte decree was set aside on the prayer of the petitioner which was opposed by opposite party No. 7, who supported the plaintiff/opposite party Nos. 1 to 6, opposite party No. 7 in C.M.A. No. 1 of 2006, the proceeding under Order IX, Rule 13, CPC submitted before the Court to reject the petition. Further case of revision petitioner is that she was in physical possession of the suit house prior to and on the date of eviction. Therefore the revision petitioner should be put to possession as she and opposite party No. 7 are living separately on the basis of the order passed by the leaned SDJM, Jeypore in M.C. No. 118 of 1996. Concluding his argument, Mr. Mishra made prayer to allow the revision petition.

(3.) Mr. D.R. Bhokta, learned counsel appearing for opposite parties submitted that since the Civil Revision Petition arises out of the misc. case/interim application under Section 144, CPC, the same is not maintainable. According to the provision of Rule 431 of the G.R.C.O. (Civil), Volume-I, application under Section 144, CPC is to be registered as a misc. case. Placing reliance on the judgment of this Court in Alok Kumar Bohidar and another v. Rajkishore Mathur and another, 2003 96 CutLT 39, Mr. Bhokta submitted that the impugned order is an interlocutory one and registered as a Misc. Case. It is further submitted that all the proceedings registered as Misc. Case on the basis of miscellaneous application will come within the purview of interim proceeding as provided in the proviso to Sub-section (1) of Section 115 of the Code and those cannot be a matter of revision under Section 115, CPC. In support of his contention, he relied upon the decision of this Court in the case of Sitaram @ Mahendra Ghosh v. Sri Antaryami Mohapatra and 18 others and other connected cases, 2003 2 OrissaLR 409. Placing reliance of the judgment of the Hon'ble Supreme Court in the case of Shiv Shakti Cooperative Housing Society, Nagpur v. M/s. Swaraj Developers & Ors., 2003 1 OrissaLR 673 (SC), Mr. Bhokta submitted that the orders which are interim in nature cannot be a matter of revision under Section 115, CPC and therefore, the present Civil Revision Petition is hot maintainable.