Bahori v. Vidya Ram

Amitav Banerji, J.:— The District Judge, Budaun dismissed a revision as not maintainable on the ground that an appeal lay. The District Judge further held that the prayer for the conversion of the revision into an appeal could not be granted as the prayer was made after the period of filing the appeal had expired.

2. It was urged on behalf of the revisionist that the view taken by the learned District Judge was manifestly erroneous as the court had power to order the conversion of a revision into an appeal where the revision filed within the time provided for the filing of an appeal.

3. It was further urged that since the District Judge was also competent to hear the appeal against the order of the learned Munsif, he should have treated the revision as an appeal and heard it on merits. The failure on his part to do so has resulted in an erroneous exercise of jurisdiction.

4. The trial court while setting aside an ex parte decree, under Order IX Rule 13 CPC imposed certain conditions. One of the conditions was the deposit of the entire decretal amount in court and the other was the payment of Rs. 40/- as costs within 30 days failing which the application was to stand rejected. In the revision filed before the District Judge it was stated that the condition for the deposit of the entire decretal amount was penal and harsh and it beset aside as the ends of justice would be served by ordering the payment of costs only. The learned District Judge in his order held that since the ex parte order was passed on the very first date of hearing and there was no dilatory tactics by the defendant, the condition imposed in the particular case was harsh and he was inclined to allow the revision but as an appeal lay against the order he held that the revision was not maintainable. The conditional order passed by the learned Munsif was a complete order. If it was not complied with, the original decree passed in the suit would stand. Against such an order only an appeal lay—See Balarama v. Subbarama, AIR 1953 Mad, 310. It is well settled that where an appeal lies no revision would lie.

5. On the question of the conversion of the revision into an appeal, the learned District Judge found that the revision had been filed within the time prescribed for filing of an appeal but he declined to interfere on the ground that the oral prayer for the conversion was made beyond the period of filing of appeal. He thus declined to convert the revision into an appeal and dismissed the revision. There is no manner of doubt that the court is empowered to convert an appeal into a revision or a revision into an appeal in exercise of its inherent powers under Sec. 151 CPC. This is a discretionary power and is to be exercised provided the circumstances of the case warrant the same. It is also well settled that such an order could be passed provided the appeal or the revision had been filed within the time prescribed for filing of the appeal or the revision, as the case may be. The learned District Judge had found that the terms imposed by the conditional order by the trial court were onerous and penal and there was no dilatory tactics on the part of the defendant in the suit. Circumstances in the present case, therefore, fully justified the conversion of the revision into an appeal.

6. The question, therefore, to be considered is whether an order of conversion could be passed after the date of filing of the appeal had expired. I see no impediment in the Court's power to do so. After-all, both appeal and revision come under the appellate jurisdiction of the Court. The scope and ambit of exercise of power under an appeal is wider and that under a revision is not so wide. But then if either an appeal or a revision is allowed the order sought to be appealed or revised is set aside. The result then in either case is the same i.e the order is set aside.

7. There is no specific provision in the Code of Civil Procedure for the conversion of an appeal into a revision or vice versa. Consequently, the exercise of power has to be only under the provisions of Sec. 151 of the Code. The inherent powers of the Court permits the Court to make such orders as may be necessary for the ends of justice. The power is undoubtedly discretionary and is to be exercised in a proper case. If the interest of justice requires the passing of such an order or to prevent the abuse of the process of the Court, the Court would be fully justified in passing an order under this provision.

8. Since there is no specific provision in the Code for the conversion of an appeal into revision or the vice versa there can be no restriction on the conversion except that imposed under Section 151 of the Code. There is nothing like a period of limitation for making an application for conversion of an appeal into revision or the vice versa. All that is required to be seen is if the appeal or the revision had been filed within the time prescribed for the filing of the appeal, or the revision, as the case may be, apart from the consideration mentioned in the previous paragraph. Even otherwise, there would be very few cases, where the conversion would be sought before the expiry of the period of filing the appeal. In most cases the point would emanate after an objection had been filed or made by the other side. It would undoubtedly be open to the Court considering the question of conversion to satisfy itself that the prayer was bona-fide and that there was no unusual delay. This is where the question of the exercise of discretion arises. I am not inclined to place any undue restriction on the exercise of power under Section 151 of the Code.

9. In the present case, the order of the District Judge where that it was a case in which he wanted to do justice but was precluded from doing so on the basis that he could not convert a revision into an appeal after the period prescribed for the filing of the appeal had expired. That proposition is erroneous and unwarranted.

10. For the reasons given above, the revision is allowed, the order of the District Judge dated 9-5-1974 is set aside and the case is sent back to the District Judge with a direction that the revision be converted into an appeal and hear the appeal on the merits. In the circumstances of the case I make no order as to costs.

K.J.C

11. Revision allowed.