BANAMALI MISHRA Vs. ACHUTANANDA MISHRA

JUDGEMENT

(1.) HEARD .

(2.) THIS application has been filed in Court today. Copy is served.

(3.) MR . Sahu, learned counsel for the opposite party relying on the case of Bharatkumar Agrawal and Ors. v. Anita Trust and another, AIR 2003 Bombay 197, argues that conversion of the proceeding from one under Section 115, CPC to a writ petition under Article 227 of the Constitution of India is not permissible. Indeed in the cited case, learned Judge from Nagpur Bench of Bombay High Court has expressed such a view on the ground that when Civil Revision under Section 115, CPC is not maintainable that remedy is also not available to the petitioner under Article 227 of the Constitution. With due respect to the view expressed in that case, this Court finds the said ratio is not to be applied because in the cited case, Honourable Judge has gone oh maintainability of the application under Article 227 before registration of the case as a writ petition. Prayer which the petitioner makes is to change the nomenclature of the case by changing it from Civil Revision Petition to Writ Application. Therefore, the effect of allowing the application is to permit registration of the case under Articles 226 and 227 of the Constitution of India instead of under Section 115, CPC. While allowing change of nomenclature, this Court does not consider maintainability of such a proceeding. That aspect shall be considered only at the stage of admission. As on date, be it under Article 226 or 227 or both the provisions, it is the Division Bench of this Court which is competent to consider maintainability of the writ application.