- (1.) The defendant-petitioner has preferred this revision petition under Section 115 of the Code of Civil Procedure against the impugned order dated 27.1.2009 passed by the Additional District Judge No. 4, Jaipur City, Jaipur in Civil Suit No. 47/2008 whereby the learned Court below has dismissed the application under Order 7 Rule 10 CPC filed by the defendant-petitioner. Brief relevant facts for the disposal of this revision petition are that plaintiff-non-petitioner filed a suit for permanent injunction against the petitioner in which an averment was made that the cause of action has arisen within the jurisdiction of the Court below and, therefore, the Court below has jurisdiction to entertain and decide the suit filed by the non-petitioner. The, petitioner filed an application under Order 7 Rule 10 CPC stating therein that for the reasons stated in the application the Court below has no jurisdiction to entertain and decide the suit filed by the non- petitioner. Reply to the application was filed by the non-petitioner and the learned Court below after hearing both the parties dismissed the application vide impugned order dated 27.1.2009. Feeling aggrieved, the defendant-petitioner is before this Court by way of this civil revision petition.
(2.) As during the course of hearing preliminary objection regarding maintainability of the revision petition under Section 115 CPC was taken on behalf of the non-petitioner, it is appropriate to consider and decide the same at the very outset.
(3.) Inviting the attention of the Court towards amended Section 115 of the Code it was submitted by the learned counsel for the non-petitioner that revision petition is maintainable only when the order if it had been made in favour of the party applying for revision would finally disposed of the suit or other proceedings. According to learned counsel in the present case the defendant-petitioner filed an application under Order 7 Rule 10 CPC praying therein that the Court below has no territorial jurisdiction to entertain and decide the suit filed by the non-petitioner and the same is liable to be returned to the non-petitioner for presenting it in a proper Court and, therefore, if the application so filed would have been allowed and an order had been made in favour of the petitioner by the Court below, as a consequence of that at the most the plaint filed by the non-petitioner would have been returned to him for presenting it before a proper Court but mere return of plaint for presenting it to a proper Court does not tantamount to final disposal of the suit within the meaning of proviso to Section 115 CPC. It was further submitted that the words "finally disposed of" carry the meaning that there should be some decision on merit whereas in a case where a plant is returned by a Court finding that it has no jurisdiction to entertain it, merit of the case is not considered. In support of his submissions, learned counsel for the non-petitioner relied upon the case of Shiv Shakti Coop- Housing Society, Nagpur Vs. Swaraj Developers and others, 2003 6 SCC 659.;