PUROHIT SWARUPNARAIN Vs. GOPINATH

JUDGEMENT

(1.) THE following point has been referred to this Bench for decision; " Whether where it is open to a party to raise a ground of appeal under Section 105, Civil P. C. from the final decree or order with respect to any order which has been passed during the pendency of the case, it should be held that an appeal from that order lies to the High Court in the meaning of the term "in which no appeal lies thereto" appearing in Section 115, Civil P. C. "

(2.) THE facts, which have led to this reference, may be very briefly set out. THEre was ft suit in the Court of the Additional Civil Judge, Jaipur City, in which the defendant, who is the applicant in revision, raised the plea that the custom of pre-emption being contrary to the provisions of Article 19 (1) (f) of the Constitution of India, should not be given effect to by the Courts. THE Additional Civil Judge heard arguments and decided the issue against the defendant and ordered the suit to proceed. THEreupon, the defendant came in revision to this Court. This revision came up for hearing on 7-10-1952 before a Bench at Jaipur, In the meantime, another Bench of this Court, to which I was a party, decided in -- 'pyarchand v. Dungarsingh', AIR 1952 Raj 90 (A) that before a revision is competent in this Court, it has to be shown "that no appeal lies from that order to the High Court whether directly or indirectly. If there is a direct appeal to the High Court, namely a first appeal, the revision will not foe competent. Even if there is an indirect appeal, namely a second appeal or the order in question can be taken in either first or second appeal to the High, Court by taking a ground of appeal under Section 105, the High Court will not be competent to entertain a revision. "

(3.) BEFORE I deal with the cases cited by Mr. Bhandari and Mr. Chiranjilal, I should like to refer to some older decisions of various High Courts in India as to the meaning to be attached to this phrase. Learned Judges of those times were nearer the date when this particular section came into existence, and their opinion as to its meaning would be of great value.