TIRTHA KUMBHAR Vs. KOILI KUMBHARIN

JUDGEMENT

(1.) DEFENDANT No. 2 in Title Suit No. 19 of 1983 has filed this Civil Revision. An ex parte order had been passed against him. He filed an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. The said application was allowed by the trial Court and the ex parte decree was set aside. Against the said order, Misc. Appeal No. 7 of 1994 was filed jointly by the plaintiff and defendant No. 1/a, the legal representative of the original defendant No. 1. The appellate Court without considering the question of maintainability of such appeal (to be fair to the appellate Court - and, in fact, such question had not been raised either in the office note or by the counsel for the respondent) allowed the appeal and set aside the order of the trial Court. The net result was that the ex parte decree against the present petitioner was resurrected. The legality of the order of the appellate Court is being impugned in this Civil Revision.

(2.) THOUGH several grounds have been taken in the Civil Revision, the basis question as to non -maintainability of such an appeal before the lower appellate Court has not been taken In the grounds of the Civil Revision. However, at the time of hearing, the learned counsel for the petitioner has urged that no appeal was maintainable against the order of the trial Court allowing an application under Order 9, Rule 13, Code of Civil Procedure, and, as such, the impugned order should be set aside.

(3.) THE learned counsel appearing for the opposite parties has, however, contended that even assuming that the appeal was not maintainable, the order of the appellate Court could be taken to have been passed in its revisional jurisdiction. In support of such contention, he submits that invoking a revisional jurisdiction is nothing but invoking the appellate power of the higher Court. He has placed reliance on the decisions of the Supreme Court reported in AIR 1970 Supreme Court, 1 (Shankar Ramchandra Abhayankar v. Krishnaji Dattatraya Bapat) and AIR 1981 Supreme Court, 960(Ahmedabad . v. The Workmen and Anr.). There is no doubt that invoking the revisional jurisdiction of a higher Court means invocation of the appellate power. However, there is a basic difference in the sense that though the appellate jurisdiction may be as wide as that of the trial Court, the revisional jurisdiction of a Court is normally hedged and circumscribed by v arious limitations. The revisional jurisdiction of a higher Court as contemplated in Section 115, Code of Civil Procedure, is definitely much narrower than the appellate jurisdiction as contemplated under the said Code. Therefore, it is not possible to accede to the contention of the learned counsel for the opposite parties that the impugned order may be taken to have been passed in the revisional jurisdiction of the Additional District Judge.