Praveen Juneja v. Hari Niwas & Ors

1. The present Petition has been filed on behalf of the Petitioner under Section 115 read with Section 151 of the Code of Civil Procedure, 1908 [hereinafter referred to as the “CPC”] seeking to challenge judgments dated 02.09.2013 passed by Ld. SCJ/RC (West), Tis Hazari Courts, Delhi and 28.05.2016 passed by Ld. ADJ-06, West, Tis Hazari Court, Delhi and order dated 18.07.2016 passed by Ld. ADJ-06, West, Tis Hazari Court, Delhi.

2. This Court had after hearing the parties briefly on 07.07.2025 made an observation that the challenge in the present Revision Petition is not maintainable before this Court.

3. Learned Counsel for the Petitioner has now filed the present Application seeking a prayer that the Court may convert the present Revision Petition into a petition under Article 227 of the Constitution of India in view of the settled law and the peculiar facts of this case.

4. Learned Counsel for the Petitioner submits that originally a civil suit was filed by the Respondent/Plaintiff before the learned Trial Court. This civil suit led to an ex parte decree dated 02.09.2013 being passed against the Petitioner/Defendant. The Petitioner/Defendant then moved an Application under Order IX Rule 13 read with Section 151 of the CPC, dated 04.01.2014, seeking to set aside the ex parte decree dated 02.09.2013, and an Application under Section 5 of the Limitation Act, 1963 for condonation of delay. These Applications were dismissed on the ground of delay, by an order dated 11.04.2014 passed by the learned Trial Court.

5. The Petitioner/Defendant preferred an Appeal against the Order dated 11.04.2014 which was dismissed by a judgment dated 28.05.2016, wherein the Appellate Court gave a finding that the challenge is not maintainable by the Appellant [Petitioner herein] before the Appellate Court and that a Revision Petition would be maintainable. It is apposite to set out Paragraph 16 of the judgement dated 28.05.2016 below:

5.[1] A review filed against the judgment dated 28.05.2016 was also dismissed, by the learned Trial Court [Appellate Court] by an order dated 18.07.2016 reiterating that only a revision petition under Section 115 CPC is maintainable. 5.[2] This led to the filing of the present Petition before this Court which is pending since the year 2016.

6. Learned Counsel for the Petitioner seeks to rely upon a judgment of the Supreme Court in Koushik Mutually Aided Cooperative Housing Society v. Ameena Begum & Another[1] to submit that it is settled law that where a petition under Order IX Rule 13 of CPC is rejected, only an Appeal is maintainable under Order XLIII Rule 1(d) of the CPC. It has further been clarified in the judgment that an appeal is maintainable and not a revision petition. The relevant extract of the Ameena Begum case, in this behalf, is set out below:

2023 SCC OnLine SC 1662 CPC. Thus, an appeal against an ex-parte decree even after the dismissal of an application under Order IX Rule 13 CPC is maintainable.

16. Against the order passed under Order IX Rule 13 CPC rejecting an application for seeking setting aside the decree passed exparte, an appeal is provided. When an application is filed seeking condonation of delay for seeking setting aside an ex-parte decree and the same is dismissed and consequently, the petition is also dismissed, the appeal under Order XLIII Rule 1(d) CPC is maintainable. Thus, an appeal only against the refusal to set aside the ex-parte decree is maintainable whereas if an order allowing such an application is passed, the same is not appealable.” [Emphasis Supplied]

7. Learned Counsel for the Petitioner further submits that in the present case the Petitioner did exercise his correct remedy of filing of an appeal, however, since the judgment dated 28.05.2016 dismissed the appeal saying a revision is maintainable, the Petitioner was constrained to file the present Revision Petition.

8. Issue Notice. 8.[1] Learned Counsel for the Respondent accepts Notice.

9. The record of the Court reflects that the matter has been pending adjudication for the last 9 years and the Petitioner is no closer to getting a judgment on his grievances than he was 10 years ago.

10. Learned Counsel for the parties are in agreement that the Revision Petition is not maintainable before this Court. However, learned Counsel for the Respondent submits that the challenge should be maintained under a regular second appeal. 10.[1] This contention is controverted by the learned Counsel for the Petitioner. Learned Counsel for the Petitioner submits that since a final decree was not challenged by the Petitioner before the learned Trial Court, a regular second appeal cannot be filed.