Uttarakhand High Court
WPMS/1830/2021 on 1 October, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 1ST DAY OF OCTOBER, 2021
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
Writ Petition (M/S) No. 1830 of 2021
BETWEEN:
Shamshad Ahmed. ..........Petitioner
(By Mr. Neeraj Garg & Mr. Pankaj Kumar, Advocates)
AND:
Uttar Pradesh State Industrial
Development Corporation Ltd. & others ...Respondents
(By Mr. Siddhartha Sah, Advocate for respondent no. 1; Mr. Yogesh Chandra
Tewari, Standing Counsel for the State/respondent no. 3 & Mr. Vipul Sharma,
Advocate for respondent no. 4)
JUDGMENT
This is plaintiff's petition against judgment
and order dated 19.02.2021 passed by learned
District Judge, Dehradun in Civil Revision No. 202 of
2016. By the said judgment, learned District Judge
has set-aside the order passed by trial Court/IIIrd
Addl. Civil Judge (Senior Division), Dehradun,
whereby application filed by SIIDCUL (respondent no.
4) under order 22 Rule 10 C.P.C. has been rejected.
2. It transpires that petitioner had filed a suit
for Permanent Prohibitory Injunction against
Pradeshiya Industrial and Investment Corporation
Ltd., through Managing Director, PICUP Bhawan,
Gomti Nagar, Lucknow and two others. The said suit
was decreed ex-parte on 07.04.2003. U.P. State
Industrial Development Corporation Ltd. filed an
application under Order 9 Rule 13 C.P.C. for setting-
aside the ex-parte decree, which is still pending. Due
to State Reorganisation, the assets of U.P. State
Industrial Development Corporation Ltd. devolved
upon SIIDCUL (respondent no. 4), therefore,
respondent no. 4 moved an application under Order
22 Rule 10 C.P.C., seeking leave of the Court to
continue the proceedings under Order 9 Rule 13
C.P.C., as an applicant. The said application was
rejected by trial Court, vide order dated 24.11.2016.
Respondent no. 4 filed a revision under Section 115
C.P.C. against rejection of the said application, which
has been allowed by learned District Judge by the
impugned judgment. Thus, feeling aggrieved,
petitioner has approached this Court.
3. Mr. Neeraj Garg, learned counsel appearing
for the petitioner submits that order rejecting
SIIDCUL's application filed under Order 22 Rule 10
C.P.C. is appealable under Order 43 Rule 1(l) C.P.C.,
therefore, in view of the express bar contained in sub-
Section (1) of Section 115 C.P.C., the revision filed by
the SIIDCUL was not maintainable.
4. This Court finds substance in the contention
made by learned counsel for the petitioner that in view
of the express bar contained in sub-Section (1) of
Section 115 C.P.C, no revision could have been filed
by SIIDCUL (respondent no. 4) against the order of
rejection of his application filed under Order 22 Rule
10 C.P.C..
5. Hon'ble Supreme Court in the case of
Rishabh Chand Jain and another Vs. Ginesh Chandra
Jain reported in (2016) 6 SCC 675 has held as under:-
"14. The impugned order dismissing the suit on
the ground of Res Judicata does not cease to
be a decree on account of a procedural
irregularity of non-framing an issue. The court
ought to treat the decree as if the same has
been passed after framing the issue and on
adjudication thereof, in such circumstances.
What is to be seen is the effect and not the
process. Even if there is a procedural
irregularity in the process of passing such
order, if the order passed is a decree under
law, no revision lies under Section 115 of the
Code in view of the specific bar under sub-
Section (2) thereof. It is only appealable under
Section 96 read with Order 41 of the Code."
6. In view of the legal position, as discussed
above, this Court has no hesitation in holding that the
revision filed by SIIDCUL (respondent no. 4) was not
maintainable.
7. On this short point alone, the Writ Petition is
allowed. Impugned judgment and order dated
19.02.2021 is quashed. However, respondent no. 4
shall be at liberty to file an appeal against the order
dated 24.11.2016. If such appeal is filed, the
Appellate Court shall take into account the provisions
contained in Section 14 of Limitation Act, while
considering the application filed for condonation of
delay.
(MANOJ KUMAR TIWARI, J.)
Navin
