Suraj Mull Gouti vs Sumati Gouti and Others

Bhaskar Bhattacharya, J.—This first miscellaneous appeal is at the instance of a Plaintiff and is directed against order dated 6th August, 2004 passed by the Additional District Judge, 13th Court, Alipore, 24 Parganas (South) in Civil Revision Case No. 304 of 2001 thereby setting aside Order No. 17 dated 11th May, 2001 passed by the learned Civil Judge, 2nd Court, Junior Division, Sealdah in Title Suit No. 619 of 2000.

In the suit, the Respondents took a preliminary objection that the suit was not maintainable and the learned trial Judge accordingly fixed a date for hearing of the suit on the question of maintainability of the same and ultimately, by Order No. 17 dated 11th May, 2001 held that the suit was maintainable.

Being dissatisfied, the Respondents preferred a revisional application u/s 115(A) of the Code a of Civil Procedure before the learned Revisional Court below and by the order impugned herein the said Revisional Court has come to the conclusion that the suit is not maintainable and accordingly dismissed the suit.

Being dissatisfied, the present first miscellaneous appeal has been preferred.

Mr. Roy Chowdhury, the learned senior advocate appearing on behalf of the Respondents has taken a preliminary objection before this Bench, as regards classification of the appeal. According to Mr. Roy Chowdhury, the learned Revisional Court below having dismissed the suit as not maintainable, the order impugned does not come within the purview of Section 104 or Order 43 of the CPC and as such, no first miscellaneous appeal is maintainable before this Court nor is there any scope of treating this appeal as a regular first appeal as a Revisional Court while dealing with a revisional application against the order of the Trial Court has passed such order. Mr. Roy Chowdhury contends that this appeal should be classified as second as second appeal and as this Court has no determination to take up second appeal for final hearing the matter should be released from this Bench.

After hearing the Learned Counsel for the parties and after going through the aforesaid materials on record we find that the Revisional Court although in exercise of power conferred u/s 115(A) of the CPC held that the suit was not maintainable and accordingly dismissed the suit, such order was passed in reality by a first appellate Court inasmuch as, the said Court was hearing a revisional application as a superior Court against the finding of the learned Trial Judge that the suit was maintainable.

It is now settled law that power of revision u/s 115 of the CPC is in reality exercised by a superior Court as part of general, appellate jurisdiction. See Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat, . Therefore, the same principle will apply to a proceeding u/s 115(A) of the Code.

It is true that an affirmative finding on a question of maintainability of a suit does not amount to decree within the meaning of Section 2(2) of the Code and as such, the Defendant preferred a revisional application before the learned District Judge but the said Revisional Court having reversed such finding and come to the conclusion that the suit is not maintainable, such order amounts to decree. The order impugned herein, therefore, should be held to be a decree passed by the first appellate Court below, notwithstanding the fact that such finding was arrived at not in an appeal but in exercise of power of revision.

We, therefore, find substance in the contention of Mr. Roy Chowdhury that this appeal should be classified as a regular second appeal. Since, we have determination to hear second appeal only at the stage of hearing Order 41 Rule 11 of the Code and in this case, this appeal had already been admitted by a different Division Bench under Order 41 Rule 11 of the Code after keeping the 1 question of classification of appeal open and as such we have no determination to take up second appeal for final hearing, we, accordingly, release this matter by directing the Office to treat the appeal as a second appeal.

Rajendra Nath Sinha, J.

I agree.