1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE BETWEEN: DATED THIS THE 11 TH DAY OF OCTOBER 2012 BEFORE: THE HON BLE MR. JUSTICE N.ANANDA CIVIL REVISION PETITION No.402 OF 2012 1. M/S ICDS LTD MANIPAL REPRESENTED BY SMT NIRMALA PRABHAKAR GPA HOLDER AND SENIOR MANAGER M/S ICDS LTD. SYNDICATE HOUSE MANIPAL... PETITIONER (BY SRI.UDAY HOLLA, SENIOR ADVOCATE FOR M/S.HOLLA & HOLLA, ADVOCATES) AND: 1. M/S TRUCTZSHLER INDIA PRIVATE LIMITED A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT 43 DR V B GANDHI MARG MUMBAI 400 023. 2. M/S NATIONAL INSURANCE CO LTD CORPORATION OF INDIA LTD. A UNIT OF GENERAL INSURANCE CORPORATION OF INDIA HAVING ONE OF ITS BRANCH OFFICE AT II FLOOR DHANALAKSHMI MARKET KEVDI BAZAR. AHMADABAD 380002
2 3. M/S REPL LTD. A COMPANY REGISTERED UNDER THE PROVISIONS OF THE INDIAN COMPANIES ACT, HAVING ITS REGISTERED OFFICE AT COOKWEL BUILDING, PLOT NO. D.6 STREET NO. 20 NIGC, MAROL, ANDHERI EAST MUMBAI-400092 REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR SRI HOMI PATEL, AT THEIR CORPORATE OFFICE NAVASARI CHAMBERS 39, A K NAIK MARG, FORT MUMBAI... RESPONDENTS (BY SHRI S.S.NAGANAND, SENIOR ADVOCATE) THIS CRP IS FILED UNDER SEC.115 CPC, TO SET ASIDE THE ORDER DATED 23.04.2010 & 31.08.2012 PASSED IN M.A.NO.09/2010, ON THE FILE OF THE DISTRICT JUDGE AT UDUPI, DISMISSING THE APPEAL U/O-7, RULE-10A(1) OF CPC. THIS CIVIL REVISION PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:- ORDER Heard Shri S.S.Naganand, learned Senior Counsel for respondents (here-in-after referred to as defendants) and Shri Udaya Holla, learned Senior Counsel for petitioner (here-in-after referred to as plaintiff) on the question of maintainability of this revision petition.
3 2. The trial Court has held that it has no territorial jurisdiction and ordered return of plaint in O.S.No.44/1999 by invoking provisions of Order VII Rule 10 of Code of Civil Procedure. The plaintiff was before the First Appellate Court in M.A.NO.9/2010. The First Appellate Court has confirmed the order of the trial Court. Therefore, plaintiff has filed this revision petition under Section 115 CPC. 3. Shri S.S.Nagarand, learned Senior Counsel for defendants would submit that if the First Appellate Court had recorded a finding in favour of plaintiffs, it would not have terminated the proceedings. Therefore, in view of proviso to Section 115 CPC as amended with effect from 01.07.2002, this revision petition is not maintainable. 4. Shri Udaya Holla, learned Senior Counsel appearing for plaintiff referring to Section 104 CPC would submit that plaintiff has exhausted remedy under Order XLIII Rule 1 CPC. The learned Senior Counsel for plaintiff would submit that plaintiff cannot file an appeal against an order passed by the first appellant court under Order 43 Rule 1 CPC. The learned senior counsel would submit that if the first
4 appellate court had recorded a finding in favour of plaintiff that would have terminated proceedings in M.A.No.9/2010. The learned senior counsel for plaintiff referring to words the suit or other proceeding occurring in proviso to section 115 CPC would submit that proceedings in M.A.No.9/2010 would fall within the definition of other proceedings which in fact would have terminated if a finding had been recorded in favour of plaintiff. In the circumstances, plaintiff is justified in invoking Section 115 CPC. 5. Having heard learned senior counsel for parties and having gone through provisions of Section 115 CPC and judgment of the Supreme Court reported in (2003) 6 SCC 659 (in the case of Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers And Others), I am of the considered opinion, revision petition is not maintainable. If the contention of plaintiff in M.A.No.9/2010 had been accepted, that would not have resulted in termination of suit. At this juncture, it is necessary to state that proceedings in M.A.No.9/2010 were continuation of proceedings in original suit. The question for determination in M.A.No.9/2010 was whether the trial court had territorial
5 jurisdiction to try suit or not. In M.A.No.9/2010, if a finding had been recorded in favour of plaintiff that would not have finally disposed of O.S.No.44/1999. 6. The submission of learned senior counsel for plaintiff that proceedings in M.A.No.9/2010 would fall within definition of other proceedings in proviso to section 115 CPC cannot be accepted. The words suit or other proceedings shall be read conjunctively and the words suit or other proceedings cannot be understood as suit or other proceedings in relation to suit. 7. In the decision reported in (2003) 6 SCC 659 (in the case of Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and Others), the Supreme Court has held;- 32. A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is 'yes' then the revision is maintainable. But on the contrary, if the answer is 'no' then the revision is not maintainable. Therefore, if the impugned order
6 is interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under Section 115. Therefore, this revision petition is not maintainable. 8 In a decision reported in (2009) 5 SCC 162 (in the case of Nawab Shaqafath Ali Khan And Others Vs. Awab Imdad Jah Bahadur And Others), the Supreme Court has held as under: 45. It is not correct to contend that even if the revisional jurisdiction is not available, a remedy in terms of Articles 226 and 227 of the Constitution of India would also not be available in law. This aspect of the matter has been considered by this Court in Surya Dev Rai v. Ram Chander Rai 9 opining that not only the High Court can exercise its supervisory jurisdiction for the purpose of keeping the subordinate courts within the bounds of its jurisdiction as envisaged under Article 227 of the Constitution of India; even a writ of certiorari can be issued wherefor the subordinate or inferior courts would be amenable to the superior courts exercising
7 power of judicial review in terms of Article 226 thereof. 48. If the High Court had the jurisdiction to entertain either an appeal or a revision application or a writ petition under Articles 226 and 227 of the Constitution of India, in a given case it, subject to fulfillment of other conditions, could even convert a revision application or a Writ Petition into an appeal or vice versa in exercise of its inherent power. Indisputably, however, for the said purpose, an appropriate case for exercise of such jurisdiction must be made out. In the case on hand, the impugned order is not appealable as also not revisable. 9. Therefore, I am of the opinion that the petitioner can avail the remedy available under Articles 226 and 227 of the Constitution of India. In the circumstances, petitioner is permitted to convert this Civil Revision Petition into a Writ Petition. This Civil Revision Petition is disposed of for statistical purposes. sh SD/- JUDGE