Anuj Goel vs S.S.Bakshi & Ors.
2010 Latest Caselaw 1988 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       C.R.P. 113/2008 & CMs No.10194 & 10196/2008

                                          Date of decision : 16.04.2010
IN THE MATTER OF :

ANUJ GOEL                                            ..... Petitioner
                                    Through : Mr. M.Padhi
                                    and Mr.S.S.Mishra, Advocates

                  versus


S.S.BAKSHI & ORS.                                    ..... Respondents
                                    Through : Ms. Manju Oberoi,
                                    Advocate for R-1 & 3.

                                    Ms.Manika Tripathy Pandey,
                                    Advocate for R-2.

  CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI

    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

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.

(HIMA KOHLI) JUDGE APRIL 16, 2010 mk