RAJINDER PARKASH Vs. KRISHAN LAL
LAWS(J&K)-1999-5-18
HIGH COURT OF JAMMU AND KASHMIR
Decided on May 25,1999

RAJINDER PARKASH Appellant
VERSUS
KRISHAN LAL Respondents

JUDGEMENT

- (1.) THIS petition of revision is directed against the order passed by the Sub Judge, Surankote on 08 -08 -1994 dismissing the suit instituted by the plaintiffs -petitioner herein Facts giving rise to this petition are these Plaintiff Bhagat Ram (now dead) had earlier filed a civil suit for possession of suit property. This suit was withdrawn by him with the permission to file afresh one. Subsequently, he filed suit for declaration with consequential relief of possession of the same property. Respondents raised preliminary objections to the maintainability of the suit and the trial court framed the following preliminary issues: - 1. Whether the valuation for the purpose of court fee and jurisdiction has not been properly assessed and fixed ? If so, what is its effect ? OPD
(2.) WHETHER the suit is not maintainable ? If so. how ? OPD.  2. The learned Sub Judge held that the suit has been filed against the terms of the permission granted by the court and is, therefore, barred under O, 2R -2 and O, 23 R -1 the CPC. He accordingly dismissed the suit.
(3.) WHEN the hearing of the petition commenced, a contention of a preliminary nature was advanced on behalf of the respondents and it was that since the judgment of the learned Judge impugned in the revision was appealable u/s 96 of the Code of Civil Procedure as the suit has been dismissed, therefore, the revision was not competent u/s 115 of the Code. Mr. Sharma appearing for the revision petitioners however, argued that since no appeal lies from the order/judgment impugned to the High Court, therefore, the revision is not maintainable. This is disputed by Mr. Bakshi. The question involved is whether a revision under section 115 CPC is maintainable when remedy of appeal though available has not been availed. The contention of Mr. Bakshi is that revision is not maintainable because the suit having been dismissed, the plaintiff had a right of appeal to challenge the decree in the court of District Judge Poonch. For this he relies on the judgment of High Court of Orissa in Wajid Ali Vs. Mst. Jiga Bibi, AIR 1968 Ori 163 in which the High Court was called upon to decide whether an order passed by a subordinate court rejecting the plaint if found contrary to law, can be set -aside in exercise of power under section 115 CPC when the remedy of appeal had not been availed by filing appeal against the order of rejecting of plaint. High Court examined the question with reference to its earlier judgment and the decisions of High Courts of Calcutta and Madras. This question was answered by the Orissa High Court as is evident from the following: - 6. The matter was fully considered in AIR 1952 Mad 86 (FB), Satyanarvana Charvulu Vs. Ramalingam. Their Lordships held that where an order directing payment of additional court fee is not complied with and it is followed by an order rejecting the plaint, a revision petition is not maintainable. The proper remedy is only by way of an appeal against the order rejecting the plaint which is a decree. The petitioner should have obtained a stay order from the High Court and should not have allowed the plaint to be rejected. I am in respectful agreement with the aforesaid view and with respect dissent from AIR 1950 Pat 470. Thus though the order of the learned Munsiff in refusing amendment was contrary to law, the order cannot be set -aside in revision. ;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.