Krishi Upaj Mandi Samiti vs Bilas Buchke
2024 Latest Caselaw 15509 MP

Madhya Pradesh High Court

Krishi Upaj Mandi Samiti vs Bilas Buchke 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. 27 of 2019

                          BETWEEN:-
                          KRISHI UPAJ MANDI SAMITI THR. SECRETARY OFFICE
                          PANDIT LAXMINARAYAN SHARMA, KRISHI UPAJ
                          MANDI SAMITI KAROND BHOPAL (MADHYA PRADESH)

                                                                                         .....PETITIONER
                          (BY SHRI PRAVESH JAIN - PROXY COUNSEL ON BEHALF OF SHRI
                          RAMESHWAR SINGH THAKUR - ADVOCATE)

                          AND
                          1.    BILAS BUCHKE S/O SHRI M. K. BUCHKE, AGED
                                ABOUT 50 YEARS, R/O H. N. 47/5, SOUTH T. T.
                                NAGAR BHOPAL (MADHYA PRADESH)

                          2.    STATE  OF    MADHYA    PRADESH THROUGH
                                COLLECTOR (LAND ACQUISITION), BHOPAL OLD
                                SECRETARIAT, BHOPAL (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)

                                This revision coming on for admission this day, the 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.8114/2024 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/-