- (1.) R. H. Zaidi, J. This petition has been filed by the petitioner challenging the validity of the order passed by respondent No. 1 dated 4-9-95 dismissing the revision filed by him under Section 115, C. P. C. against the order allowing the ap plication for amendment of the plaint.
(2.) HEARD learned Counsel for the petitioner. It appears that original Suit No. 642 of 1993 was filed by respondent No. 2 for declaration that the sale deed dated 4-9-92 executed by Smt. Yasoda Devi in favour of the petitioner is null and void. Relief for permanent injunction restrain ing the defendant from interferring in his peaceful possession over the land in dis pute has also been sought. Plaintiff-respondent No. 2 thereafter applied for amend ment of the plaint. Inspite of the objection filed by the petitioner, the amendment application was allowed by the trial court. Petitioner, thereafter, challenging the validity of the order passed by trial court allowing the amendment application, filed a revision before the learned Distt. Judge under Section 115 of the Code of Civil Procedure. In the said revision 4-9-95 was fixed for hearing. On the said date, neither the petitioner nor his Counsel appeared before the Court, therefore, learned Distt. Judge was pleased to dismiss the said revision in default. It has been urged by the learned counsel for petitioner that once the revision filed by the petitioner was admitted, the same could not be dismissed in default, and was liable to be decided on merit. He submits that the order passed by the learned Distt. Judge dismissing the revision in default was wholly illegal and was liable to quashed. In support of his submission learned counsel for petitioner has placed reliance upon the decision in Hukurnchand Anolikachand Longde and others v. Madhhave Balciji Pojdar and another, AIR 1983 S. C. 540. The order passed by the Supreme Court is quoted below : "petition for special leave to appeal against the decision of the High Court was granted. Ex parte and Interim Stay of execution was granted subject to notice of motion being taken. The matter is listed today for confirmation of ex parte and interim stay. Mr. S. B. Bhasme, learned Counsel for the respondents, fairly conceded that the High Court was in error in not examining the revision petition of the appellants on merits on the short ground that the appellants had failed to deposit the rent. This was an untenable ground and it was so conceded by Mr. Bhasme. Revision once admitted has to be disposed of on merits. The High Court was in error in dismissing the revision petition on account of failure of the appellants to deposit some rent which had become due. Therefore, the order of the High Court dismissing revision petition is liable to be set aside. It is no use of keeping the matter pending here, Therefore, we set aside the order of High Court dismissing the revision petition of the appellants and remit, the matter to the High Court to hear the revision petition on merits as early as possible. On account of the very fair attitude adopted by Mr. Bhasme, learned Counsel for the respondents, we make no order as to costs. " In the aforesaid case, it is apparent that the question as to whether the revision filed under Section 115, C. P. C. could be dismissed for default or not was neither involved nor was considered. The revision was dismissed by the High Court on the ground of failure of the appellant to deposit the rent. Learned Counsel appearing for respondents before Supreme Court conceded that the High Court was in error in not examining the revision petition of the appellant on merit on the short ground that the appellant has failed to deposit the rent. This was untenable ground and it was so conceded by the learned Counsel for respondents. Under the said facts and circumstances, it was observed by the Supreme Court that the revision petition once admitted had to be disposed of on merit.
(3.) SECTION 115 of the Code of Civil Procedure as applicable in the State of Uttar Pradesh, provides as under: "115. Revision.- 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 ir regularity, 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 - (a) the order if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or (b) the order if allowed to stand would occasion a failure of justice or cause ir reparable injury to the party against whom it was made. (2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto. Explanation.- In this section, the expression "any case which has been decided in cludes any order made, or any order deciding an issue, in the course of a suit or other proceeding. ". From the reading of the aforesaid section, it is evident that there is no provision in the said section to the effect that if the revision is admitted, the same could not be dismissed for default. On the other hand, it has been provided that the High Court or District Court, as the case may be, may make such order in the case, as it may thinks fit. SECTION 14 of the Civil Procedure Code provides as under: "141. Miscellaneous proceedings.- The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable in all proceedings in any court of civil jurisdiction. Explanation.- In this section, the expression, "proceedings" includes proceedings under Order IX but does no include any proceeding under Article 226 of the Constitu tion. ". ; In view of the provisions of SECTION 141, the provisions contained in Order IX of Code of Civil Procedure are fully applicable and the revisional court is legally entitled to dismiss the revision filed under SECTION 115 for default, if the applicant personally or through his Counsel does not appear before the court on the date fixed for hearing. In Jawala Prasad v. Ajodhya Prasad, AIR 1983 S. C. 304 the revision filed by the petitioner Jawala Pd. under SECTION 115, C. P. C. was dismissed for default by the Addl. Distt. Judge. The application for restoration filed by Jawala Pd. was also dismissed by the Addl. Distt. Judge without giving opportunity of hear ing. The revision filed against the order of Addl. Distt. Judge, was also dismissed by the High Court, Allahabad. On an appeal filed by Jawala Pd. Supreme Court ruled that under the facts and circumstances of the case, Jawala Pd. was denied an oppor tunity of being heard. The aforesaid orders passed by the Addl. Distt. Judge and the High Court were, therefore, set aside and the matter was sent back to the Addl. Distt. Judge for decision afresh. In the said case, it was nowhere held that the Addl. Distt. Judge had no jurisdiction to dismiss the revision for default. From the facts of the said case, it can easily be inferred that the Distt. Judge in exercise of power under Section 115, C. P. C. has got the jurisdiction to dismiss the revision for default and that in case the revision is dismissed for default, the same can be restored to its original number on sufficient cause being shown by the applicant for his absence on the date fixed for hearing.;