Mr. M.Padhi and Mr.S.S.Mishra, Advocates v. S.S.BAKSHI & ORS. .....

1. Whether Reporters of Local papers may be allowed to see the Judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes HIMA KOHLI, J. (ORAL) The present petition is directed against an order dated 8.8.2007 passed by the Civil Judge, Delhi dismissing an application preferred by the petitioner/intervenor under Order I Rule 10 of the Code of Civil Procedure, seeking his impleadment in a suit filed by the respondent(plaintiff in the court below) for mandatory injunction against the respondents No.2 & 3 (defendants), calling upon them to execute and register a conveyance deed, in respect of premises bearing No.E-18, Greater Kailash Enclave, Part-I, Delhi in his favour 2010:DHC:2088 and converting the suit property from leasehold to freehold.

2. By way of the aforesaid application, the petitioner sought his impleadment in the suit proceedings on various grounds, including the ground that he is the owner of the suit property. The said application came to be dismissed on 8.8.2007 on various grounds, including the ground that the suit in question was instituted by the respondent No.1 in the year 1996 and though the petitioner claimed to have purchased the suit property in the same year and despite previous litigations between the parties, he did not chose to be arrayed as a party in the suit for such a long period of time.

3. The present petition is also accompanied by an application(CM No.10196/2008) seeking condonation of delay of 232 days in re-filing the petition. Counsels for the respondents state that the present petition was listed in the Court by the Registry with an objection with regard to its maintainability and in fact, the present Revision Petition is not maintainable. Counsel for the petitioner disputes the said position and argues that the present petition is maintainable as no appeal lies against an order of the aforesaid nature, under Order XLIII of the CPC.

4. Pursuant to the amendment carried out to Section 115 of the Code of Civil Procedure w.e.f.1.7.2002, the scope of the aforesaid provision has been considerably whittled down. Under the amended provision, the High Court cannot vary or reverse any order made or an order deciding an issue, in the course of a suit or other proceeding, except where 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. It has been observed by the Supreme Court in Shiv Shakti Coop. Housing Soceity, Nagpur vs. Swaraj Developers & Ors. (2003) 6 SCC 659 that “a plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is 'yes' then the revision is maintainable. But on the contrary, if the answer is 'no' then the revision is not maintainable. Therefore, if the impugned order is interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under Section 115.”

5. The grievance of a revisionist that the Subordinate Court has failed to exercise jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested in it or that it has acted in exercise of its jurisdiction illegally or with material irregularity, can alone not be sufficient grounds for maintaining a petition under Section 115 of the Code of Civil Procedure, in the absence of complying with the terms and conditions as stipulated in the proviso to the aforesaid Section. In the present case, by no stretch of imagination can it be said that the impugned order is of such a nature that if it was made in favour of the petitioner/revisionist, it would have given a finality to the suit. Instead, such an application, if allowed in favour of the petitioner, would have naturally resulted in continuation of the suit proceedings before the court below, while permitting impleadment of the petitioner as a co-defendant.

6. In these circumstances, the present petition is dismissed, as not maintainable under Section 115 of the Code of Civil Procedure. While dismissing the petition along with the pending applications, it is made clear that this court has not expressed any opinion on the merits of the case, which are left at large to be decided before the appropriate forum, in case the petitioner chooses to file such a proceeding. It is also made clear that this Court has not expressed its opinion with regard to the availability of such a forum to the petitioner.

JUDGE APRIL 16, 2010 mk