[Cites 11, Cited by 0]
Madras High Court
R.Saroja vs Thirupurasundari on 30 April, 2026
SA No.881 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30-04-2026
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
SA No. 881 of 2010
R.Saroja
W/o Seetharama Pillai,
No.10, School Street,
Chinthambur Post, Cheyyur Taluk,
Kancheepuram District.
...Appellant/
Respondent/Defendant
Vs
Thirupurasundari,
W/o Chidambaranathan,
Vembanoor Village,
Kadapakkam, Firka, Cheyyur Taluk.
...Respondent/
Appellant/Plaintiff
For Appellant : Mrs.M.Muzhath Khanam
for M/S.I.Kowser Nissar
For Respondent: No Appearance
ORDER
The appellant is the defendant in a Suit filed for the recovery of
Rs.8500/- with interest at the rate of 12% p.a., from the date of the plaint.
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2. The Suit was dismissed by the Trial Court by the Judgment dated
03.12.2004 in O.S.No.180 of 2003. The respondent/plaintiff challenged
the said Judgment in A.S.No.24 of 2005 dated 30.09.2005, on the file of
the Sub Court, Madhuranthagam. The Sub Court, Madhuranthagam,
allowed the appeal and thereby decreed the Suit, directing the appellant to
pay a sum of Rs.12,711/-.
3. The learned counsel for the appellant fairly concedes that a
Second Appeal cannot be maintained in view of Section 102 of the Code
of Civil Procedure, which states that no Second Appeal shall lie when the
subject matter of the Original Suit is for recovery of money not exceeding
Rs.25,000/-.
4. The learned counsel for the appellant, however, urged this Court
to convert the Second Appeal into a Revision so that the claims of the
parties are adjudicated on merits and relied upon a Judgment of this Court
in Manickam Moopan Vs. Lakshmi reported in 2012(2) LW 683.
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5. There was no representation for the respondent when the matter
was called on 12.03.2026. Even today, there is no representation.
6. As rightly conceded by the learned counsel for the appellant, this
Second Appeal would not be maintainable. However, considering the fact
that the appellant has raised substantial grounds, this Court is inclined to
convert the Second Appeal into a petition under Article 227 of the
Constitution of India. In this regard, it is useful to refer to the following
observations in Manickam Moopan’s case (cited supra).
“10. So, Section 102, C.P.C. prescribes a monetary limit of
Rs.25,000/- to file Second Appeal. Thus to file a Second Appeal, the
subject matter of the Suit should be above Rs. 25,000/-. Admittedly, the
subject matter of the Suit in these Appeals are below Rs. 25,000/-. So,
Section 102, C.P.C. is a bar to maintain these second appeals.
11. A Revision is provided under Section 115 C.P.C.
12. Ban Sidhar v. Dwarakalal, [AIR 1974 Karnataka 117] deals with
a plea for conversion of a revision as an appeal and also deals with
return of that petition for presentation before proper court. That is not
the situation before us. It is not applicable to the facts of our case.
13.Jiwan Dass v. Narain Dass, [AIR 1981 Delhi 291] is near us.
The Delhi High Court held as under:
“It is now a settled law that the label placed on a cause is not
conclusive and does not ordinarily affect the jurisdiction of the
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Court to allow the label to be corrected by treating an appeal on
a revision or a revision as an appeal. Provided of course the
cause of justice so demands. In cases where no appeal lies but
an appeal has been wrongly preferred, the Court has the wide
discretion to treat it as a revision where the conditions laid
down under Section 115, C.P.C. are satisfied.”
(emphasis supplied by me.)
14. In R.S.Pillai v. Peratchi @ Selvi & Others, [2000 (IV) CTC
543] in view of the peculiar facts and circumstances of the case, a
Division Bench of this Court in the interest of justice converted an appeal
as a revision.
15. In K.Chockalingam v. K.R. Ramasamy Iyer and another [2004 (4)
L.W.586] exactly similar question as before us arose. A memo was filed
seeking the leave of the court to convert the second appeal as a revision.
There a controversy arose whether under such circumstances, the revision
could be filed under Section 115 C.P.C. or under Article 227 of the
Constitution of India.
16. It is profitable here to note the following portions of the judgment
in K.Chockalingam v. K.R. Ramasamy Iyer and another [2004 (4) L.W.
586]:
“13. This Revision is filed only under Section 115 C.P.C.
The suit is one for the recovery of less than a sum of
Rs.25,000/-. After the suit was decreed, an appeal has been
preferred, which was allowed nullifying the lower courts decree
and judgment. Section 102 of Code of Civil Procedure Code
says, no second appeal shall lie from any decree. When the
subject matter of the original suit is for recovery of money, not
exceeding Rs.25,000/-. In view of this provision, a second
appeal is barred and that is why, a revision is filed under
Section 115 C.P.C., which is not maintainable, according to the
learned counsel for the respondents. When there is a specific
bar for filing the second appeal, when the suit is for recovery of
money, not exceeding Rs. 25,000/-, it should be held, a revision
is also not maintainable under Section 115 C.P.C. Section 115
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C.P.C. empowers the High Court, to call for the record of any
case which has been decided by any court Subordinate to such
High Court in which no appeal lies thereto. From the wordings
deployed in the above Section, it is clear, the High Court is
empowered to entertain a revision, when no appeal is provided
or where no appeal lies. In other words, if the code provides, an
appeal provision, from the decree and judgment of the
subordinate court, then ordinarily invoking Section 115, C.P.C.
is not possible. In this case, against the decree and judgment
passed by the District Munsif Court, in O.S. No. 147/97 an
appeal provision is provided, and an appeal has been preferred
also. Then, considering the pecuniary jurisdiction of the suit, the
second appeal is prohibited or barred. In this view, it cannot be
said, no appeal is provided against the decree and judgment,
thereby to invoke Section 115, C.P.C. under the guise of
revisional power. If the cases of this nature are allowed to be
entertained under Section 115, C.P.C., it would amount to
eclipsing Section 102, C.P.C., which aims the curtailment of
Second Appeal, in the sense, prolonged litigation. Where the
subject matter is less than Rs.25,000/-, the High Court invoking
Section 115, C.P.C., if maintains the revision, it would amount
to second appeal under the label of Civil Revision Petition,
thereby allowing the parties, to file second appeal, indirectly,
ignoring Section 102, thereby defeating the intention of the
legislature, which should not be allowed. In this view of the
matter, I am of the considered opinion, the revision petition
under Section 115, is not maintainable.
14. The learned Counsel for the petitioner realising this
difficulty alone, as aforementioned, has filed a Memo for the
conversion of Cr.P.C. under Section 227, Cr.P.C.,1973, which is
permissible. In Sadhana Lodhv. National Insurance Co. Ltd.,
(2003 (3) SCC 524 : 2003-1-L.W. 815), the Hon'ble Supreme
Court has held, when alternative remedy is available,
interference under Article 226/227 of the Constitution of India,
is not permissible. It is observed:
“Where a statutory right to file an appeal has been provided for, it
is not open to High Court to entertain a petition under Article 227
of the Constitution. Even if where a remedy by way of an appeal
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has not been provided for against the order and judgment of a
District Judge, the remedy available to the aggrieved person is to
file a revision before the High Court under Section 115, C.P.C.
Where remedy for filing a revision before the High Court under
Section 115, CPC has been expressly barred by a State enactment,
only in such case a Petition under Article 227 of the Constitution
would lie and not under Article 226 of the Constitution.”
15. In this view, it is held, where a remedy for filing a revision
petition under Section 115 is barred in such cases, petition under
Article 227 of the Constitution of India, is maintainable.
In this view, this Petition could be treated, as one filed under
Article 227 of the Constitution of India, and not under Section 115,
C.P.C.
17. In the circumstances, in view of the above position of law explained
and described in K. Chockalingam v. K.R. Ramasamy Iyer and another
[2004 (4) L.W.586], I am preferred to follow Chockalingam (supra).”
7. In the result, the above Second Appeal shall be treated as
Civil Revision Petition under Article 227 of the Constitution of India. The
Registry shall assign a number and list it before the roster Judge
concerned.
30-04-2026
dk
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SUNDER MOHAN, J.
dk
30-04-2026
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