Deepa Newar v. Deepak Borthakur

1. Heard Mr. P. Upadhyay, the learned counsel for the applicant and Mr. A.J Sarma, the learned counsel for the opposite party.

2. This application has been filed by the applicant under section 151 of the Code of Civil Procedure for conversion of the civil revision petition into a second appeal under section 100 of the Code of Civil Procedure in the event this revision petition is found not maintainable.

3. The applicant herein, namely, Shri Deepa Newar, is the petitioner in CRP No. 170/2016 and the opposite party Nos. 1 and 2 herein, namely, (1) Shri Deepak Borthakur, and (2) Smt. Bina Borthakur are the respondents in the said revision. The applicant is the tenant of the opposite parties herein. The opposite parties filed Title Suit No. 15(K)/2012 before the learned Court of Munsiff, Kaliabor, Nagaon for ejection of the applicant from the suit premises, which is situated in Jakhalabandha Town in the District of Nagaon, Assam. By judgment and decree dated 18.7.2014, the said suit was decreed by the learned Munsiff, Kaliabor. An appeal, being Title Appeal No. 34/2014 was preferred by the applicant herein before the Court of Civil Judge, Nagaon, which was also dismissed by the first appellate judgment and decree dated 12.6.2015

4. Thereafter, in order to challenge both the said judgments and decree referred above, the applicant had filed RSA No. 11/2016 before this court. However, by order dated 29.11.2016, on the submissions made by the learned counsel for the applicant that the said orders were not appealable, as such, this court permitted the applicant to withdraw the second appeal with liberty to file a civil revision petition.

5. Thereafter, armed with the said liberty as granted by order dated 29.11.2016, the applicant had filed the present revision under section 115 of the Civil Procedure Code to challenge the first appellate judgment and decree dated 12.6.2015, passed by the learned Civil Judge, Nagaon, in Title Appeal No. 34/2014, as well as judgment and decree dated

18. 7.2014, passed by the learned Munsiff, Kaliabor, Nagaon, in Title Suit No. 15(K)/2012.

6. The opposite parties filed their affidavit-in-opposition on 19.9.2016, and submitted that the suit was under Transfer of Property Act, and there was concurrent finding to that effect. It was further stated that Jakhalabandha Town is under Jakhalabandha Gaon Panchayat and, as such, it was not an area notified under the provisions of the Assam Urban Areas Rent Control Act, 1972. It was further stated that earlier, the applicant had rightly filed a second appeal, but the same was withdrawn. It was further stated that the applicant had objected to the admission of the revision and if the revision is allowed to be converted into second appeal, the same would be barred by res-judicata because the applicant had withdrawn the previously filed second appeal on his own. The applicant by filing an additional affidavit on 8.12.2016, submitted rent deposited receipts under Assam Urban Areas Rent Control Act, in respect of houses situated in Jakhalabandha Town and also annexed a copy of the judgment dated 26.4.2000 passed by the learned Civil Judge, Nagaon, in T.A No. 16/94, upon which the applicant came to a conclusion that provisions of Assam Urban Areas Rent Control Act, 1972 were applicable in respect of the applicant. Be it stated that the applicant has stated in paragraph 4 of the present application that the same was being filed as a measure of abundant caution. The learned counsel for the applicant places reliance on the following cases:

(a) Smt. Santoshini Bose, Trustee v. Shib Shankar Das, AIR 1983 Cal 123

(b) Om Prakash v. Dwarka Prasad, AIR 2005 MP 40

(c) K. Narender v. K. Mallesh, Dodd # Ind Law Lib/934805:, (2005) 6 ALD 185 : (2005) 3 APLJ 335

7. In the case of Smt. Santoshini Bose, Trustee v. Shib Shankar Das, AIR 1983 Cal. 123, the learned Single Judge of the Hon'ble Calcutta High Court permitted the conversion of a revision to second appeal, on condition that the requisite court fee be paid within a period of one month from the date of passing of the order. In the case of Om Prakash v. Dwarka Prasad, AIR 2005 MP 40, the learned Division Bench of the Hon'ble Madhya Pradesh High Court (Gwalior Bench), inter alia, held that revision can be converted into second appeal, but before passing the order of conversion, it is to be considered whether substantial question of law arises in the said case, if no substantial question of law arises in the case, revision cannot be converted into second appeal and that revision can be converted into appeal if the same was filed within limitation. Similar view was also taken by the learned Single Judge of the Hon'ble Andhra Pradesh High court in the case of K. Narender v. K. Mallesh, Docid # Ind Law Lib/934805:, (2005) 6 ALD 185 : (2005) 3 APLJ 335, and conversion of revision under article 227 of the Constitution of India was permitted to be converted into Misc. Civil Appeals under order XLIII, rule 1(w) of Code of Civil Procedure.

8. The learned counsel for the opposite parties vehemently objects to the prayers made in the present application and submits that his affidavit-in-opposition filed on 19.9.2016 be accepted as his objection in the present application. It is submitted that the suit having proceeded as a trial of a case for recovery of possession as envisaged under Transfer of Property Act, 1882. Hence, it cannot be accepted that the applicant was mislead by money deposited in court under section 5 of Assam Urban Areas Rent Control Act, 1972. The learned counsel for the opposite party relies on the case of Birendra Kumar Nath v. North Eastern Regional Agriculture Marketing Cooperation Ltd., (2011) 3 GLR 449, wherein this court had declined to convert the revision into appeal.

9. Having considered the arguments advanced as well as case law cited by the learned counsels for the parties and on perusal of the records, this court is of the view that in the case of Birendra Kumar Nath (supra), this court did not lay down any ratio that there cannot be any conversion into appeal. This court had observed in paragraph 11 as follows : “The judicial enunciations as noticed hereinabove, therefore, proclaim in clear terms that the power of conversion, inherent though, has to be exercised on some well founded principles to prevent the abuse of the process of the court and in the interest of justice”. Thus, as observed from all the above referred case law citations that a civil revision petition can be converted into appeal by exercising inherent powers under section 151 of the Civil Procedure Code.

10. In the present case in hand, the applicant had first filed RSA No. 11/2016 to challenge both the judgments and decrees impugned in the revision connected to the present application. The same was withdrawn to file the connected revision. As per the statements made and documents annexed to the additional affidavit dated 8.12.2016, the applicant has explained the reason why they were mislead to believe that a revision and not the appeal would be maintainable. However, having now taken a view that a second appeal was maintainable, the present application has been filed to convert the revision into appeal. In this regard, this court is of the view that the decision whether an appeal is to be filed or a revision ought to be filed, are based on legal advice received by the applicant by his advocates, and no litigant is expected to know the legal principles and procedure connected to filing of appeals and revision. The earlier appeal was allowed to be withdrawn by this court to enable the applicant to file a revision. Therefore, the withdrawal of the appeal cannot attract the principles of res-judicata so as to bar the entertaining of a second appeal, if this court permits the conversion of the revision into an appeal, as prayed for.

11. In the present case in hand, the applicant is challenging both the judgment and decree passed by the learned courts below and the manner in which it is to be challenged is nothing but a procedural law. This court is of the view that the procedural law is supposed to be a handmaid of justice. However, it is made clear that in the present case in hand, this court has not adjudicated whether the judgments which are impugned in the connected civil revision petition are appealable or a revision would lie as these are issues, which are required to be decided at the stage of admission and, if the said matter is decided at this stage, it may cause prejudice either of the parties to this lis and, as such, this order is being passed on the basis of the prayer made by the applicant, without adjudicating on merit of maintainability of appeal or revision, as the case may be.

12. This court is of the considered view that for ends of justice, the applicant be and is hereby permitted to convert the connected CRP No. 170/16 into a Memorandum of Appeal. The applicant is required to pay the applicable court fees. If the same is done within a period of one month from today, the second appeal may be registered and placed before the appropriate Bench for admission on substantial questions of law. If no such court fees is paid, the CRP No. 170/16 will stand dismissed with costs, hearing fees for advocate for the opposite party is assessed at Rs. 5,000. On such dismissal as indicated above becoming effective, the LCR be returned.