DHUMUN Vs. RAM DAYAL

JUDGEMENT

(1.) This is a defendant's application in revision against the order of the learned Subordinate Judge of Chamba dated 4-4-1950 under Order 9, Rule 13, C. P. Code, rejecting his application to set aside the ex parte decree that had been passed against him on 8-7-1948 in favour of the plaintiff-respondent in a preemption suit.

(2.) The learned counsel for the plaintiff-respondent took two preliminary Dhumun vs. Ram Dayal (11.12.1951 - HPHC) Page 1 of 3 objections. The first was that the present revision, which was filed on 15-1- 1951, was time barred under the ninety-day rule of limitation laid down by this Court in 'BEG RAM v. CHARAN DAS', AIR 1951 Him. P. 16. That ruling was however published in the January 1951 issue of the A. I. Rule and therefore published too late for the defendant-petitioner being penalised for not having followed it. Nor would it be justifiable to reject the application on the ground of latches because after the rejection of his application under Order 9, Rule 13, the petitioner filed within limitation an application for review of that order which was dismissed for default on 28-11-1950, and, on 15-1-1951, the present application was filed in this Court. In view of the fact that there existed no rule of limitation for the filing of revision petitions in Himachal Pradesh prior to the said decision of this Court published in the January 1951 issue of the A. I. R., I would hold that the delay in the filing of the present revision petition has been sufficiently explained by the fact that the petitioner's application for review was pending from 3-7-1950 to 28-11-1950. That pendency of other remedy had recourse to by the petitioner may be taken as sufficient explanation of delay finds support from a ruling of the late Oudh Chief Court reported as 'JAGANNATH v. BIKARMAJIT SINGH', AIR 1929 Oudh 383. The first preliminary objection has therefore no force.

(3.) The other objection taken by the learned counsel for the plaintiff-respondent was that as the order dated 4-4-1950 against which the present revision has been filed was open to appeal but no appeal had been filed against it, the revision is incompetent under paragraph 35 of the Himachal Pradesh (Courts) Order, 1948, which, so far as this objection is concerned, is 'mutatis mutandis' the same as Section 115, C. P. Code. In support of this objection the learned counsel cited two rulings: 'THAVASIKANNU THEVAR v. SANKARALINGAM PILLAI', AIR 1938 Mad 217, and 'A.H. GHAZNAVI v. GURCHARAN SINGH', AIR 1937 All 691. It is however clear from the Allahabad ruling cited by the learned counsel for the plaintiff-respondent himself that revision would be barred only where a first or a second appeal lay to the High Court. In other words, the word 'thereto' in Section 115 refers to the High Court. 'NILIMAPROVA v KADAMBINI DASI', AIR 1944 Cal 309. In the present case, while an appeal against the order in question did no doubt He to the District Judge under Order 43, Rule 1 (d), C. P. Code, a second appeal to this Court would have been barred under Section 104 (2) of the Civil Procedure Code. The second objection with regard to the incompetency of the present revision has also therefore no force.