YAD RAM Vs. CAPT. RAM AVTARTL

JUDGEMENT

(1.) C .M. No. 2378/CII/97 and C.M. 8881/CII/97 were listed for hearing before this Court. The earlier CM is for grant of interim stay in relation to the proceedings pending before the learned trial Court, while the latter C.M. relates to the extension of stay order already granted vide order dated 28.2.1997. On the consent of the learned counsel for the parties, revision petition itself was also heard on merits and order reserved.

(2.) AT the very outset learned counsel appearing for the respondent raised preliminary objections that the revision petition itself is not maintainable, as proper remedy for the petitioners is to prefer an appeal before the Court of competent jurisdiction. He further contended that in consonance with the principles enunciated in the case of Purohit Swarupnarain v. Gopinath and another, A.I.R. 1953 Rajasthan 137 and Manga Singh v. Saramal and others, A.I.R. 1957 Rajasthan 68, the petitioners herein can impugn and raise controversy in relation to the impugned order at the time of filing of the appeal, as such revision under Section 115 of the Code of Civil Procedure was also not maintainable. Reacting to the above contention, the learned counsel for the petitioners contended that no proper service had been effected upon the applicant and in fact the summons and munadi were effected on a wrong address in a different village. He further contended that no notice by registered post was sent in terms of the order of the Court and as such the applicant could not have been proceeded against ex parte (Order 9 Rule 4 C.P.C.) vide order dated 9.1.1994 and resultantly the impugned order dated 9.10.1996 is liable to be set aside, as learned Court has failed to exercise its jurisdiction lawfully vested in it.

(3.) BEFORE discussing the merits of this application, it will be appropriate for this Court to deliberate on two legal issues raised on behalf of the respondent in this petition. The first contention raised on behalf of the respondent in any case is devoid of any merit and is contrary to the specific provisions of Code of Civil Procedure and Order 43 Rule 1 of the Code of Civil Procedure which deals with the orders which are appealable and an order directing the ex parte proceedings against the defendant in a suit or dismissal of an application for setting aside the ex parte order within the purview and scope of Order 9 Rule 7 of the Code of Civil Procedure. Any order passed under Order 9 Rule 7 CPC is certainly not appealable under the provision of Order 43 Rule 1 CPC. As such I am unable to agree to the view that the proper remedy for the petitioners was to file a regular appeal before the Court of competent jurisdiction and not this revision petition. The next objection in relation to non-maintainabililty of the revision under the provisions of Section 106 of the Code of Civil Procedure as a result of the spirit behind the provision of Section 105 of the Code of Civil Procedure in my humble opinion is again not sustainable. At the very outset it needs to be noticed that the Hon'ble High Court of Rajasthan had taken the view expressed above before the Code of Civil Procedure was substantially amended by Amended Act of 1976. Substantial amendments have been made in pertinent provision of the Code of Civil Procedure. These amendments have the effect of altering the entire scheme underlying the provisions of the Code. Section 115 of the Code itself was subjected to considerable change and the scope of amended Section 115 of the Code is capable of being given distinct and different interpretation than the interpretation which the said provision was capable prior to the date of amendment. The provisions of Section 115 of the Code now reads as under :- "115. Revision. - (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears - (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity the High Court may make such order in the case as it thinks fit: (Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where -