Ravindra Shravan Aambatkar vs Devendra Manikrao Kapse And 2 ...
2017 Latest Caselaw 7330 Bom

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                 NAGPUR BENCH : NAGPUR

Civil Revision Application No. 12260 of 2015 

Applicant        :        Ravindra Shravan Aambatkar, aged about 
                         48 years, Occ: Private,  resident of Motghare 
                         Mohalla, Hansapuri, Nagpur

                         Versus
Respondents:             1)  Devendra Manikrao Kapse, aged about 42
                         Years, Occ: Business,  resident of 16, Mahavir
                         Nagar, Azamshah Layout, Nagpur.

                         2)  Jagdish Krishnarao Harde, aged about 60
                         Years, Occ: service, resident of 6/2, 
                         Bhagirath  Apartment, Bharat Nagar, 
                         Amravati Road,  Nagpur-10

                          3) Rahul Rakesh Agrawal, aged about 25 
                          years, Occ:  Business, resident of Dwarka 
                          Sadan, Opp. Daga Hospital,  Gandhibagh, 
                          Nagpur
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Shri R. S. Naktode, Advocate for applicant Shri Mayank Sharma, Advocate for respondent no. 1 Shri A. S. Killewar, Advocate for respondent no. 2 Respondent no. 3 served

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Coram : S. B. Shukre, J

Dated : 20th September 2017

Oral Judgment

1. CAC No. 36 of 2015 : Heard. Application is not seriously

opposed by learned counsel for respondents no. 1 and 2. Even otherwise,

on going through the reasons disclosed in the application, I am satisfied

that delay deserves to be condoned. Delay is, therefore, condoned.

Disposed of.

2. CRA (St) No. 12260/2015 : Heard. Admit. In view of

order dated 20th July 2017 cautioning the parties to be ready for final

hearing in case delay is condoned, this revision application is taken up for

final hearing forthwith. Heard learned counsel for the applicant; learned

counsel for respondent no. 1 and respondent no. 2. None appears for

respondent no. 3 though duly served.

3. This revision application has been preferred against two

orders dated 18.10.2014 passed on applications (exhibits 35 and 37) by

the 5th Joint Civil Judge, Senior Division, Nagpur. Application at exhibit

35 was filed by respondent no. 1 while respondent no. 2 filed application

at exhibit 37 under Section 8 (1) of the Arbitration and Conciliation Act,

1996. By these applications, respondents no. 1 and 2 sought reference of

dispute between the parties for arbitration. Both the applications were

allowed by the trial Court. Against such orders, the present revision

application has been preferred under Section 115 of the Code of Civil

Procedure.

4. There is a preliminary objection taken by respondents no. 1

and 2 regarding the maintainability of revision application. According to

them, this revision is not maintainable while learned counsel for the

applicant submits that it is maintainable.

5. Provisions of Section 115 of CPC are quite clear. The proviso

to this Section lays down that the High Court shall have no jurisdiction to

revise an order of the lower court 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 the proceedings. It seems that only the order which

is revisable at the instance of the revision applicant is the one which, if it

has been passed in favour of the revision applicant, would have

terminated the entire proceedings involved in the revision application. In

the instant case, the revision applicant was interested in getting an order

of rejection of applications at exhibits 35 and 37, but his wish was not

fulfilled and the order passed on these applications went against him. If

the desire of the applicant had been fulfilled and both these applications

were rejected by the trial Court, the result would have been not the final

disposal of the suit, but continuation of the suit. It is obvious that there is

great substance in the preliminary objection taken by respondents no. 1

and 2 and, therefore, it has to be said that the revision application filed

under Section 115 of the Code of Civil Procedure is not maintainable. It

is liable to be rejected accordingly.

6. Learned counsel for the applicant at this stage has made a

request for allowing him to convert this revision application into a writ

petition under Article 227 of the Constitution of India. Learned counsel

for respondent no. 1, opposing the prayer, submits that this could be

permissible in only extraordinary and rare circumstances, which is not the

case here. He places his reliance upon the view taken by the two Benches

of this Court in the cases of Bharatkumar Shrimannarayan Agrawal and

ors v. M/s Anita Trust and anr reported in 2002 (4) Mh. L. J. 597 and N.

R. Shinde v. Shobhadevi Shinde & ors reported in 204 (3) Bom. C. R. 502.

7. The view taken by learned single Judges of this Court in

aforestated two cases now has assumed a form of settled law, they being

followed in many cases by other Benches of this Court. Therefore, going

by the principles laid down in these cases, the position is that permission

for conversion of a civil revision application filed under Section 115 of

the Code of Civil Procedure into writ petition under Article 227 of the

Constitution of India should not be granted routinely and be granted only

when it is justified by existence of extraordinary circumstances in the

case. I do not think, such a permission can be granted in this case, there

being no rare circumstances shown by learned counsel for the applicant

for adopting such a course. The claim made in the suit, it is seen, is based

upon an agreement of which arbitration clause is an intrinsic part. The

claim also arises from breach of obligation under the agreement. It is also

not the case of the applicant that application under Section 8 (1) of the

Arbitration Act was filed at a stage not permissible under the law i.e. at a

stage when the respondents no. 1 and 2 had already submitted their first

statement on the substance of defence. Therefore, I do not think that this

would be a case warranting grant of permission to convert the revision

application into the writ petition under Article 227 of the Constitution of

India.

8. In the result, this revision application fails and is rejected.

Parties to be bear their own costs.

S. B. SHUKRE, J

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