Jammu & Kashmir High Court: The Court recently addressed a civil revision/petition filed under Section 104 of the Constitution of State of Jammu and Kashmir wherein the petitioners sought to quash two previous judgments dated 9/9/2013 and 24/7/2012.
The learned counsel for the respondent argued that a civil revision that was initially filed by the petitioner opposing the judgments passed in exercise of power under Order 43 Rule 1 of Code of Civil Procedure, was not maintainable. The counsel referred to Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329 and Akbar Ali v. Mohd Ashraf Sheikh, 2015 (3) JKJ 718 to support the contention that in such a case, a fresh petition would need to be filed by the petitioner.
The counsel for the petitioners argued that such a revision petition is maintainable and if not so, the Court can suo motu convert it into a petition under Article 227 of the Constitution of India. The counsel relied on the judgment in Col. Anil Kak v. Municipal Corporation, Indore, (2005) 12 SCC 734 to prove the contention laid down by them.
The Court observed that in the present case, an order of injunction was passed by the trial court, which was assailed before the lower appellate court and the order passed by the appellate court was being challenged by this revision petition. It further referred to Section 115(1) of the Code of Civil Procedure to point out that the setting aside of the impugned orders in the revision petition wouldn’t lead to a disposal of the suit by default. Hence, the revision petition would not be maintainable. The Court referred to law laid down by the Supreme Court in Col. Anil Kak v. Municipal Corporation, Indore to convert the civil revision into a petition under Section 104 of the Constitution of State of Jammu and Kashmir. [J.K. Housing Board v. Ashok Kumar, 2017 SCC OnLine J&K 672, decided on 9.11.2017]
