Madhya Pradesh High Court
Krishi Upaj Mandi Samiti Bhopal vs Hukum Chand Jain (Dead) Thr. Lrs. Smt. ... on 24 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 24 th OF MAY, 2024
CIVIL REVISION No. 31 of 2019
BETWEEN:-
KRISHI UPAJ MANDI SAMITI BHOPAL THR.
SECRETARY OFFICE PANDIT LAXMINARAYN SHARMA
KRISHI UPAJ MNADI SAMITI KAROND BHOPAL DISTT.
BHOPAL (MADHYA PRADESH)
.....PETITIONER
(BY SHRI PRAVESH JAIN - PROXY COUNSEL ON BEHALF OF SHRI
RAMESHWAR SINGH THAKUR - ADVOCATE)
AND
1. HUKUM CHAND JAIN, S/O LATE R.C. JAIN (DEAD)
THR. LRS.
(a) SMT. PRATIBHA JAIN W/O LATE HUKUM CHAND
JAIN, AGED ABOUT 60 YEARS, R/O JAIN SADAN
THAKURGANJ KRASING HARDOI ROAD
LUCKNOW (UTTAR PRADESH)
(b) SHRI VINOD JAIN S/O LATE HUKUM CHAND JAIN,
AGED ABOUT 37 YEARS, R/O JAIN SADAN,
THAKURGANJ KRASING HARDOI ROAD,
LUCKNOW (UTTAR PRADESH)
(c) SHRI AMIT JAIN S/O LATE HUKUM CHAND JAIN,
AGED ABOUT 35 YEARS, R/O JAIN SADAN,
THAKURGANJ KRASING HARDOI ROAD,
LUCKNOW (UTTAR PRADESH)
2. STATE OF MADHYA PRADESH THR. COLLECTOR
(LAND ACQUISITION) BHOPAL OLD
SECRETARIAT (MADHYA PRADESH)
.....RESPONDENTS
(SHRI MALLIKARJUN KHARE - ADVOCATE FOR THE RESPONDENT NO.1
AND SHRI MANOJ KUMAR JHA - PANEL LAWYER FOR THE
RESPONDENT NO.2/STATE)
Signature Not Verified
Signed by: MONIKA
CHOURASIA
Signing time: 5/24/2024
5:14:11 PM
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This revision coming on for admission this day, th e court passed the
following:
ORDER
Shri Pravesh Jain is authorised to argue the matter even in absence of
Shri Rameshwar Singh Thakur, Advocate who is adjusted today.
2. Heard on IA no.8128/2024 filed on behalf of the applicant seeking relief
for conversion of this civil revision into miscellaneous appeal filed under Order
XLIII Rule 1(d) of CPC which is supported by an affidavit of Radhika Prasad
Gupta.
3. Learned counsel for the applicant relying upon the order dated
13/10/2022 passed by Hon'ble the Apex Court in SLP (C) No.14102/2022 in
the case of Raj Shri Agarwal @ Ram Shri Agarwal and Anr. vs. Sudheer
Mohan and Ors. submits that this Civil Revision may be converted into
miscellaneous appeal.
4 . Learned counsel for the respondents opposed the prayer. Their
submission is that the applicant be directed to withdraw this Civil Revision first
and then liberty be granted to file miscellaneous appeal under appropriate
provisions. They have relied upon the judgment passed by the Hon'ble Apex
Court in the case of Koushik Mutually Aided Cooperative Housing Society
vs. Ameena Begum and another; 2023 SCC OnLine SC 1662.
5. Heard learned counsel for the parties and perused the record in the light
of judgments relied upon.
6. In the judgment of Raj Shri Agarwal @ Ram Shri Agarwal and
Anr. (Supra) relied upon by the counsel for the applicant, a writ petition filed
under Article 227 of the Constitution of India was under consideration. In the
given facts the Apex Court in para 4 has held that High Court ought to have
converted the writ petition into civil revision under Section 115 of CPC to avoid
further multiplicity.
7 . But in the instant case, writ petition is not under consideration. The
court below has dismissed an application under Order IX Rule 13 of CPC and
for assailing that order, the provision under Order XLIII Rule 1(d) has been
provided for preferring miscellaneous appeal. The same question was before
Hon'ble Apex Court in Koushik Mutually Aided Cooperative Housing
Society (Supra). In the relevant paras 17 and 20, the Apex Court has held that
when an application or petition filed under Order IX Rule 13 CPC is dismissed,
the defendant can avail a remedy by preferring an appeal in terms of Order
XLIII Rule 1 CPC. Thus, Civil Revision Petition under Section 115 of the CPC
would not arise. When an alternative and effective appellate remedy is available
to the party, it would not be appropriate for the party to resort to filing of
revision under Section 115 of the CPC.
8. In such circumstances, it was held that realising this aspect regarding
maintainability of a revision petition before the High Court, liberty may be
reserved to the party concerned to file an appeal and if such an appeal is filed
within a time framed to be granted by this Court, the issue of limitation in filing
the appeal under Order XLIII Rule 1(d) CPC may not be raised by the High
Court. In the light of the above observations, Civil Revision is not maintainable
and is hereby dismissed. It is clarified that if the applicant prefer miscellaneous
appeal assailing the impugned order under appropriate provisions of CPC
within 30 working days of this order, the question of limitation will not come in
way.
9. Accordingly, this Civil Revision is disposed of.
(BINOD KUMAR DWIVEDI)
JUDGE
m/-
