Doma vs Saya Bai and Another

Arun Mishra, J.

A final decision rendered by the Trial Court in a case u/s 6 of the Specific Relief Act, 1963, has been questioned in the instant writ petition.

The Trial Court has dismissed the suit filed u/s 6 of the Specific Relief Act by the impugned judgment and decree.

Shri Santosh Jain, learned Counsel for respondents, has raised preliminary objection with respect to the maintainability of the writ petition. He has submitted that as the decision is final as provided u/s 115 of the Code of Civil Procedure, revision would lie not writ petition.

Shri Subodh Kathar, learned Counsel for petitioner, has relied upon Sub-section (3) of Section 6 of the Specific Relief Act, 1963 in which it has been provided that no appeal shall lie from any order or decree passed in any suit instituted under this section nor shall any review of any such order or decree be allowed. Thus, petitioner''s Counsel has submitted that revision would not be maintainable as the decision (s final.

After hearing the learned Counsel for the parties, it is not in dispute that decision has been rendered by Civil Court. Sub-section (1) of Section 115 of the CPC provides that 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 to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. The proviso makes further clear that in case the suit or other proceeding stands finally disposed of, revision would be maintainable against the decision, the decision would include the final decision also within purview of Sub-section (1) of Section 115 of the CPC.

The bar created under Sub-section (3) of Section 6 of the Specific Relief Act is of an appeal and on review not for exercising the revisional jurisdiction, under Sub-section (1) of Section 115 of the CPC if otherwise permissible. A Full Bench of this Court in National Insurance Co. Ltd. and etc. Vs. Shrikanl Vinod Tiwari and Others, , has laid down that award passed by Tribunal where value of claim is less than Rs. 10,000/-, cannot be assailed in writ jurisdiction of High Court, it has been held that writ petition shall not be the appropriate remedy u/s 115 of the CPC, in the case where remedy of appeal is not available u/s 173(2) of the Motor Vehicles Act, 1988, aggrieved party has a remedy of revision u/s 115 of CPC. Following the reasons mentioned by Full Bench in the aforesaid decision and also considering the provision of Sub-section (3) of Section 6 of the Specific Relief Act and Section 115 of the CPC, in our opinion, revision would be maintainable not a writ petition. Petitioner''s Counsel has prayed for liberty to file revision, that liberty is hereby granted. Petitioner may file revision if so advised. Certified copy of the judgment and decree be returned to the petitioner on filing photo-copy of the same for filing civil revision.

Resultantly, writ petition is dismissed as not maintainable. No costs.