Gauhati High Court
Page No.# 1/5 vs Rajendra Das @ Rajen Das And 4 Ors on 13 March, 2025
Page No.# 1/5
GAHC010224602021
2025:GAU-AS:2659
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/2418/2021
SITARAM THAKURBARI,
A RELIGIOUS ORGANIZATION OF VAISHNAV SAMPRADAYA OF SANATAN
DHARMA, REPRESENTED BY SRI JAI PRAKASH GOENKA, S/O LATE
SHYAM SUNDAR GOENKA, VICE PRESIDENT OF ITS MANAGING
COMMITTEE
2: SRI RAM JIVAN PANDEY
S/O LATE PARMESWAR PANDEY
VICE PRESIDENT OF SHRI SITARAM THAKURBARI
3: SRI ASHOK GARODIA
S/O LATE SHYAM SUNDAR GARODIA
TREASURER OF SHRI SITARAM THAKURBARI
SRCB ROAD
FANCY BAZAR
PO GUWAHATI 781001
ASSA
VERSUS
RAJENDRA DAS @ RAJEN DAS AND 4 ORS.
S/O LATE PITAMBAR DAS, EX MAHANT OF SHRI SITARAM THAKURBARI,
S.R.C.B. ROAD, FANCY BAZAR, P.O. GUWAHATI 781001, ASSAM.
2:SRI TOKEN DUTTA
S/O LATE AKAMAN DUTTA
RESIDENT OF HOUSE NO. 19
JATIYA SHAHID PATH
BELTOLA
PO GUWAHATI 781028
3:SRI VINOD KUMAR DUTTA
S/O LATE MAHENDRA NATH DUTTA
Page No.# 2/5
RESIDENT OF HOUSE NO
66/C
KKB ROAD
CHENIKUTHI
PO GUWAHATI 781003
4:SRI JITUMANI SARMA
S/O SRI UMESH CH. SARMA
RESIDENT OF VILLAGE AND PO KATHALBARI
78136
PS AND DIST NALBARI
ASSAM
5:SRI RABINDRA NATH SARMA
S/O LATE PITAMBAR SARMA
RESIDENT OF DWARIKA ENCLAVE
MALIGAON
PO GUWAHATI 78101
Advocate for the Petitioner : MR J C GAUR, MS. M GAUR
Advocate for the Respondent : MR D J DAS, MR. N BHARALI
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 13.03.2025
Heard Mr. J.C.Gaur, learned counsel for the applicants and Mr.
K.N.Choudhury, learned Senior Counsel assisted by Mr. N.Bharali, learned
counsel for the opposite parties.
The applicants have submitted that they have filed the connected Civil
Revision Petition No.3/2021 challenging the order dated 07.01.2021 in Title Suit
No. 411/2020 passed by the learned Civil Judge No.3, Kamrup (M), Guwahati
Page No.# 3/5
returning the plaint filed by the applicants for presentation of the plaint before
the learned Principal Civil Court of original jurisdiction.
It is submitted that during the course of admission hearing of the CRP
No.3/2021, the learned Senior Counsel has pointed out that as per provision
under Order 43 Rule 1 (a) of the CPC, an order under Rule 10 of Order 7,
returning the plaint is appealable and as such, revision under Section 115 of the
CPC is not maintainable.
It is submitted that inadvertently, the CRP was filed. For the interest of
justice, the applicant has prayed to convert the CRP into an appeal for
determining the real question in controversy.
The applicant has also relied on the decision of the Hon'ble Supreme Court
in the case of Anil Kak (Retd.)-vs- Municipal Corporation, Indore & Ors.
reported in (2005) 12 SCC 734 wherein in paragraph 2, it has been held as
follows:
"All that the High Court has done is to treat the petition filed
before it under Section 115 of the Code as a proceeding initiated
under Article 227 of the Constitution of India. The respondents had
filed the revision originally and during the pendency of that revision
the High Court appears to have taken a view that an order in an
appeal arising from a proceeding under Order 39 Rules 1 and 2 of
the Code, could not be challenged under Section 115 of the Code
since the order was in the nature of an interlocutory order. In such a
situation, in our view, the High Court rightly decided to permit the
revision petitioners before it, to convert the same as a proceeding
under Article 227 of the Constitution of India. After all, the court
Page No.# 4/5
could have done it on its own, even without a motion in that behalf
by the petitioner. We see absolutely no ground to interfere with the
said order on the grounds raised in this special leave petition.
Hence, this special leave petition is dismissed."
The learned Senior Counsel for the opposite parties has raised objection
stating that when there are no merits in this case, the conversion of revision
petition into an appeal will bear no fruits. It is further submitted that the proper
way is to withdraw this petition and file an appeal against the impugned order.
The decision of composite High Court of judicature at Andhra Pradesh in the
case of Sabella Venkata Rama Reddy vs- Patnala Durga Sai
Subrahmanyam is relevant and it has been observed that :
"15. The above judgment of the Division Bench was followed by the learned
single Judge of the composite High Court of Andhra Pradesh in K.Narender's
case (supra-2) and held thus:
"10. There is no specific provision in the Code of Civil Procedure for conversion
of a revision into an appeal or vice versa. Therefore, the source of power for
the Court is only under Section 151 of CPC. The inherent powers of the Court
thus permit for conversion of the proceedings under Article 227 of the
Constitution to that of an appeal under the Code of Civil Procedure, since no
express provision is available in procedural law for such conversion. This is done
necessarily to meet the ends of justice. The power is undoubtedly discretionary
and is to be exercised in proper cases. If the interest of justice requires passing
of such an order or to prevent the abuse of process of the Court, the Court
would be fully justified in passing an order under this provision i.e., Section
151 of CPC. In the peculiar facts and circumstances of this case, the conversion
of a civil revision petition under Article 227 of the Constitution into that of an
appeal under Order XLIII Rule 1(w) of CPC would not take away the so called
valuable right of the respondents to object as to the limitation etc., since the
revision itself was filed within 30 days from the date of the impugned order. In
fact, it is fairly a well settled proposition in law that the right of an appeal is a
substantive right, but there is no such substantive right in making an
application under Article 227 of the Constitution. Article 227 of the Constitution
is essentially the source of power for the High Court to supervise the
Page No.# 5/5
subordinate Courts. It does not in any way confer a right on a litigant,
aggrieved by the order of the subordinate Court, to approach the High Court for
relief. The scope for making a revision under Article 227 of the Constitution is
not linked with a substantive right. Therefore, to meet the ends of justice, the
conversion of present civil revision petitions into that of appeals under Order
XLIII Rule 1(w) of CPC is not a bar. The decisions relied upon by the learned
Counsel for the 1st respondent are of no help in the peculiar facts and
circumstances of these cases and also in view of the judgment in Jaleel Khan's
case (3 supra). Therefore, the objection raised by the learned Counsel for the
1st respondent that after invoking the supervisory jurisdiction of this Court
under Article 227 of the Constitution, the civil revision petition cannot be
converted into a regular appeal is not tenable."
* * * * * * * *
"17. In view of expressions in the above judgments and the explanation offered
by the revision petitioner, this Court is of the considered opinion that there is no
embargo to convert the revision under Section 115 of CPC into appeal
under Section 96 of CPC. In fact, revision was filed on 13.10.2022 against the
order dated 20.09.2022. The civil revision petition was filed well within the
time. Since the order is passed by the IV Additional District Judge, East
Godavari at Kakinada, appeal would lie to the High Court. Limitation prescribed
to file the appeal is 90 days."
I find force in the argument of the learned counsel for the applicant.
Thereby this petition is allowed. The CRP/3/2021 is converted into an appeal.
Registry is to register the appeal.
JUDGE
Comparing Assistant
