Shishupal Prasad @ Shishupal Kumar vs Mosomat Malti Devi and Others

M.Y. Eqbal, J.—This civil revision application is directed against the order dated 5.5.97 passed by learned Munsif, Nalanda at Biharsharif in Title Suit No. 7/97 by which he rejected the plaint filed by the Petitioner plantiff under Order 7 Rule 11 of the CPC holding that the suit is not maintainable in view of the provision of Section 153A of the Code of Civil Procedure.

It appears that the Plaintiff Petitioner filed aforementioned suit seeking relief that the judgment and decree passed by the learned Munsif in Title Suit No. 142/90 and affirmed by the learned Additional District Judge in Title Appeal No. 23/94 is illegal, void and without jurisdiction. The judgment and decree of the earlier suit was challenged on the ground that the Petitioner who was Defendant in that suit was minor and was not sufficiently represented. The Defendant opposite party appeared in the suit and filed an application raising the point that the suit is not maintainable in view of the provision of Section 153A of the Code of Civil Procedure. The learned Munsif after hearing the parties, allowed the application and rejected the plaint holding that the suit is not maintainable.

I have heard learned Counsel appearing for the parties and also perused the impugned order. On the face of the order it appears that the Court below have either not read the provision of Section 153A of the Code correctly or have not understood the meaning of the said provision. Section 153A is reproduced herein below:

Power to amend decree or order where appeal is summarily dismissed.-Where an appellate Court dismisses an appeal under Rule 11 of Order XLI, the power of the Court to amend, u/s 152, the decree or order appealed against may be exercised by the Court which had passed the decree or order in the first instance, notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order, as the case may be, passed by the Court of first instance.

From a bare reading of the said provision it is manifest that it confers power to the Court to entertain application and amend the decree u/s 152 of the Code. According to this provision if an appeal against the judgment and decree of the trial Court is dismissed at the stage of admission under Order 41 Rule 11 CPC then notwithstanding confirmation of the decree of the trial Court, the power to amend the decree shall be exercised by the original Court which passed the decree. This section does not put a bar in filing a fresh suit challenging the judgment and decree passed in the earlier suit. It is, therefore, clear that the Court below has committed grave error of law in passing the impugned order.

Learned Counsel appearing for the opposite party submitted that the order impugned is appellable and the Petitioner in fact besides filing civil revision application also filed appeal which is pending in the Court of District Judge. Nalanda. On the other hand learned Counsel appearing for the Petitioner referred to paragraph 12 of the petition and submitted that this fact has not been concealed by the Petitioner rather it has been stated that by way of abundant precaution the Petitioner also filed an appeal. The question, therefore, falls for consideration is whether in view of the pendency of the appeal against the impugned order this Court should exercise revisional jurisdiction u/s 115 of the Code. Normally when any judgment and decree is made appellable under the Code then this Court should not exercise its revisional power but at the same time where there is grave illegality committed by the Subordinate Courts, then this Court may exercise its revisional jurisdiction for the ends of justice and in order to avoid any unnecessary delay in the conclusion of the case. Recently the Apex Court considered a case where a question arose whether in a case a second appeal has specifically become barred under the provisions of the Special statute, the revisional jurisdiction could be exercised. The Apex Court answering the question in the case of Shyam Sunder Agarwal and Co. Vs. Union of India, held that even if the appellate order passed under a special statute is made final by providing bar to maintainability of second appeal, such provision of finality will not bar revisional powers of the High Court u/s 115 of the Code. As noticed above there is apparent illegality in the impugned order passed by the Court below. In such circumstances, this civil revision application which was admitted should not be dismissed on technical ground at the time of final hearing.

Having regard to the special facts and circumstances of the case, this civil revision application is allowed and the impugned order is set aside.