1. These two revisions under Article 227 of the Constitution of India are directed against an order dated 22-2-2005 made in I.A. No. 42 of 2005 in O.S. No. 59 of 2000 on the file of the learned I Additional Chief Judge, City Civil Court, Secunderabad, wherein the petition filed under Section 114(a) read with Order XLVII Rule 1 of the Code of Civil Procedure for reviewing the Order dated 3-11-2004 was allowed and thereby ordered that Exs.A84 and A85 can be marked as secondary evidence and objection raised by defendants 2 and 3 is not sustainable.
2. Respondents 1 and 3 in the above I.A. are the petitioners in Civil Revision Petition No. 1207 of 2005, while respondent No. 2 is the petitioner in Civil Revision Petition No. 1441 of 2005. There is no necessity of going into all the details as of now.
3. Respondent No. 1 (petitioner in the above LA.) filed a counter-affidavit stating inter alia that the civil revision petitions under Article 227 of the Constitution of India are not maintainable, in view of the fact that against the impugned order, appeal under Order XLIII Rule 1(w) of the Code of Civil Procedure, 1908 is available. At that stage, learned Counsel for the petitioners sought permission of the Court to convert the civil revision petitions to that of appeals under Order XLIII Rule 1(w) of CPC. Whereas, learned Counsel for the 1st respondent strenuously contended that a revision filed under Article 227 of the Constitution cannot be permitted to be converted to that of a regular appeal under Order XLIII Rule 1(w) of CPC. In support of his contention, he relied upon the decision in Vishesh Kumar v. Shanti Prasad ., , and drawn attention to Paragraph-22, which reads as under :
"22. It has been urged by the appellant in Vishesh Kumar v. Shanti Prasad . (Civil Appeal No. 2844 of 1979) that in case this Court is of the opinion that a revision petition under Section 115. Code of Civil Procedure, is not maintainable the case should be remitted to the High Court for consideration as a petition under Article 227 of the Constitution. We are unable to accept that prayer. A revision petition under Section 115 is a separate and distinct proceeding from a petition under Article 227 of the Constitution. We are unable to accept that prayer. A revision petition under Section 115 is a separate and district proceeding from a petition under Article 227 of the Constitution, and one cannot be identified with the other."
The learned Counsel for the 1st respondent also relied upon the decision of the Supreme Court in and Aundal Ammal v. Sadasivan Filial, , and drawn attention to Paragraph-24, which reads, as under :
"24. It was urged that in case we are of the opinion that a revision under Section 115 of the Code of Civil Procedure does not lie, the case should be remitted to the High Court for consideration as a petition under Article 227 of the Constitution. We are unable to accede. A petition under Article 227 of the Constitution is different from revision under Section 115 of the Code of Civil Procedure. The two procedures are not interchangeable though there are some common features. It must, however, be emphasised that we are not dealing in this appeal with the constitutional powers of the High Court under Article 227 of the Constitution nor are we concerned with the powers of the High Court regulating appeals under the Kerala High Court Act, 1958. We are concerned in this case whether the High Court, in view of the scheme of the Act, had jurisdiction to interfere under Section 115 of the Code of Civil Procedure. We reiterate that to vest the High Court with any such jurisdiction would be contrary to the scheme of the Act, would be contrary to the public policy, and would be contrary to the legislative intent as manifest from the different sections of the Act."
and submitted that in view of the above judgments, it is not open for this Court to permit the petitioners to convert the civil revision petitions filed under Article 227 of the Constitution to that of a regular appeal under Order XLIII Rule 1(w) of CPC. If such course is permitted, the 1st respondent would be losing his valuable right to oppose the appeal, if any filed, on the ground of limitation; therefore, such a valuable right cannot be taken away by converting the civil revision petition filed under Article 227 of the Constitution to that of a regular appeal. The petitioners have taken risk of filing civil revision petitions under Article 227 of the Constitution, which is a supervisory remedy in spite of there being a regular provision of appeal available. When a person invokes the supervisory jurisdiction of this Court, he cannot be allowed to convert the same into a regular appeal only when it was pointed out by the other side that it is not maintainable.
4. Sri P.R. Prasad, learned Counsel for the petitioners, contended that the Judgment in Vishesh Kumar's case (supra) was considered by a Division Bench of this Court in the reported judgment in Jaleel Khan v. M. Kamalamma, (DB), and drawn attention to Paragraphs 14, 22 and 30, which read as under :
"14. Whether a petition filed under Section 115 of the Code can be converted into a petition under Article 227 of the Constitution of India in ordinary course is the next question for determination ?
22. Two questions arose for consideration before the Apex Court (in Vishesh Kumar's case) in the context - (1) Whether the High Court vests revisional jurisdiction under Section 115 of the Code in respect of an order of the District Court under Section 115 of the Code in disposing of a revision petition ? and (2) whether the High Court possesses the revisional jurisdiction under Section 115 of the Code against an order of the District Court under Section 25 of the Provincial Small Causes Courts Act, 1920, disposing of a revision petition?
25. The above decision, therefore, cannot be understood to mean that a revision petition under Section 115 of the Code cannot be permitted to be converted into a petition under Article 227 of the Constitution of India. The observations made by the Apex Court while parting with the matter cannot be read in isolation and it is expedient to understand the rationale behind it by taking a holistic view of the entire case.
26. There can be no second revision over an order passed exercising revisional jurisdiction, notwithstanding the fact that the former order passed by the Court exercising revisional jurisdiction is a Court inferior to the High Court. A fortiori when that inferior Court had concurrent revisional jurisdiction along with the High Court. It was not a simple case where the High Court lacks revisional jurisdiction under Section 115 of the Code. But it was a case where a second revision would be maintained or not in view of the concurrent jurisdiction to the High Court and the District Court. Furthermore there has been no ratio involved in that case and in deed has not been decided by the Apex Court. Therefore, it cannot be a precedent as held by the Apex Court in Amit Das v. State of Bihar, , thus :
'A decision not expressed, not accompanied by reasons and not proceeded on a conscious consideration of an issue cannot be deemed to be a law declared to have binding effect as is contemplated by Article 141. That which escaped in the judgment is not the ratio decidendi. This is the rule of sub silentio, in the technical sense when a particular point was not consciously determined'.
27. In our considered view, therefore, there is no legal bar and the contention of the learned Counsel appearing for the landlord that the conversion of the revision petition filed under Section 115 of the Code into a petition under Article 227 of the Constitution of India is not permissible, merits no consideration."
He has also relied upon the judgment of Allahabad High Court in Bahori v. Vidya Ram, AIR 1978 All. 299, wherein it was held as under :
"6. There is no specific provision in the Civil Procedure Code 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 Section 151 of the Code. The inherent powers of the Court permit 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.
7. Since there is no specific provision in the Code for the conversion of an appeal into revision or 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 vice versa. All that is required to be seen is if the appeal or 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 para. 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."
and submitted that there was no ratio decidendi in Vishesh Kumar's case and this Court has categorically held that a revision filed under Section 115 of CPC can be converted into a revision under Article 227 of the Constitution. He further submitted that the conversion of present revisions under Article 227 of the Constitution to that of a CMA under Order XLIII Rule 1(w) of CPC does not alter the situation and does not cause any prejudice to the 1st respondent. The Court fee payable in an appeal under Order XLIII Rule 1(w) of CPC is a fixed fee of Rs. 10/-, whereas the petitioners herein paid Rs. 100/- in each case. Further, the time allowed for preferring the appeal against the impugned Order is 60 days, whereas the present revisions under Article 227 of the Constitution have been filed within one month from the date of the impugned order. Therefore, even the contention of the learned Counsel for the 1st respondent that the valuable right of the 1st respondent is taken away is without any substance. He also relied upon the judgment of the Apex Court in Reliable Water Supply Service v. Union of India, , wherein it was observed as under :
"6... In view of the erroneous conclusion of the trial Court that the AIR Force is a legal entity different from the Union Government, it proceeded to take the view that the dispute in question is not covered by Clause 48(c) and hence did not come within the scope of Clause (70). The trial Court was under the erroneous impression that the controversy before it fell within the scope of Section 5 of, the Arbitration Act. We do not know what its conclusion would have been if it had taken the correct view of the law. The facts disclosed in the application did not confer jurisdiction upon it under Section 5. It did not consider the application under Section 33. Hence in our opinion it illegally exercised its jurisdiction under Section 5. Under those circumstances the High Court was right in converting the appeal into a revision."
and submitted that there is no embargo for conversion of one proceeding to the other, such as, proceedings under Article 227 of the Constitution to that of a regular appeal under Order XLIII Rule 1(w) CPC, particularly in the absence of any provision dealing with the aspect of conversion, invoking the powers under Section 151 of CPC.
5. I have given my earnest consideration to the respective submissions made by the learned Counsel on either side and perused the entire material made available on record.
6. At the outset, I am of the opinion that the contention of the learned Counsel for the petitioners that a civil revision petition under Article 227 of the Constitution, which is filed under a mistaken notion can be converted into an appeal under Order XLIII Rule l(w) of CPC, since both are amenable to the jurisdiction of this Court can be accepted. Further, under Section 151 of CPC, which is also applicable to the proceedings under Article 227 of the Constitution, this Court is invested with inherent powers to invoke the same to meet the ends of justice.
7. There is no specific provision in the Code of Civil Procedure for conversion of a revision into an appeal or vice versa. Therefore, the source of power for the Court is only under Section 151 of CPC. The inherent powers of the Court thus permit for conversion of the proceedings under Article 227 of the Constitution to that of an appeal under the Code of Civil Procedure, since no express provision is available in procedural law for such conversion. This is done necessarily to meet the ends of justice. The power is undoubtedly discretionary and is to be exercised in proper cases. If the interest of justice requires passing of such an order or to prevent the abuse of process of the Court, the Court would be fully justified in passing an order under this provision i.e., Section 151 of CPC. In the peculiar facts and circumstances of this case, the conversion of a civil revision petition under Article 227 of the Constitution into that of an appeal under Order XLIII Rule 1(w) of CPC would not take away the so called valuable right of the respondents to object as to the limitation etc., since the revision itself was filed within 30 days from the date of the impugned order. In fact, it is fairly a well settled proposition in law that the right of an appeal is a substantive right, but there is no such substantive right in making an application under Article 227 of the Constitution. Article 227 of the Constitution is essentially the source of power for the High Court to supervise the subordinate Courts. It does not in any way confer a right on a litigant, aggrieved by the order of the subordinate Court, to approach the High Court for relief. The scope for making a revision under Article 227 of the Constitution is not linked with a substantive right. Therefore, to meet the ends of justice, the conversion of present civil revision petitions into that of appeals under Order XLIII Rule 1(w) of CPC is not a bar. The decisions relied upon by the learned Counsel for the 1st respondent are of no help in the peculiar facts and circumstances of these cases and also in view of the judgment in Jaleel Khan's case (supra). Therefore, the objection raised by the learned Counsel for the 1st respondent that after invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution, the civil revision petition cannot be converted into a regular appeal is not tenable.
8. For all the above reasons, the objections raised by the 1st respondent are overruled. Registry is directed to convert the civil revision petitions filed under Article 227 of the Constitution into that of civil miscellaneous appeals under Order XLIII Rule 1(w) of CPC, if they are otherwise in order.
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