Orissa High Court: Biswajit Mohanty, J. dismissed the revision petition being not maintainable.
The facts of the case are such that the petitioners 1 to 8 filed a civil suit valued at Rs 49,000/- in the Court of Civil Judge Dharamgarh for declaration of their right title and interest and confirmation of possession over the suit schedule tank along with the declaration of their right to fish, water for irrigation and improvements over the suit tank. The prayer for permanent injunction was also made against present opposite parties from interfering with the possession and ownership of the plaintiffs. The said suit was decreed. Challenging the judgment and decree, an appeal was filed making the present petitioners as respondents along with a petition under Section 5 of the Limitation Act, 1963 for condonation of delay. The delay condonation petition having been allowed subject to payment of cost of Rs 10,000/- vide order dated 22-12-2021, the said order has been challenged here in this civil revision under Section 115 Civil Procedure Code i.e. CPC on ground of its maintainability.
Counsel for respondents challenged the maintainability of the civil revision on the ground that the impugned order does not arise out of a out of a original suit or other original proceeding
Counsel for the petitioner submitted that the impugned order passed in a petition for condonation of delay is clearly covered by the phrase ‘other proceedings’ as used in Section 115 of the Code of Civil Procedure, 1908 for short, “the Code” as is presently in force in the State of Odisha pursuant to the Code of Civil Procedure (Orissa Amendment) Act, 2010. He further contended that the impugned order cannot be construed as an order passed in an appeal as no appeal exists in the eyes of law unless the petition under Section 5 of the Limitation Act, 1963 is allowed condoning the delay. Thus, the present civil revision is maintainable.
The Court relied on judgments Smt. Banarasi Devi Saha v. Basudev Lal Dhanuka, Vol. 34 (1992) O.J.D. 462 (Civil) and observed that the phrase ‘other proceedings’ occurring in Section 115 of “the Code” can only mean proceedings of an original nature and the same will not cover decisions pronounced in appeals and revisions.
The Court relied on judgment Vishnu Awatar V. Shiv Autar, (1980) 4 SCC 81 and observed that the phrase ‘other proceedings’ can only mean proceedings of an original nature which are not of the nature of suits, like arbitration proceeding. This phrase cannot include decisions pronounced in appeals and revisions. The words “or other proceedings” have to be read ejusdem generis with the words “original suits”. In other words the phrase ‘other proceedings’ will not cover cases arising out of decisions made in the appeals or revisions.
The Court further observed that while referring to the language of Section 115 of the Code of Civil Procedure (Uttar Pradesh Amendment) Act, 1978, which is almost in pari materia with the provision of Section 115 of “the Code” as in force in State of Odisha so far as the use of phrase “other proceeding” is concerned, the Supreme Court pronounced clearly that the decisions of the District Courts rendered in appeal or revision are beyond revisional jurisdiction of High Court. But where original decision has been made by the District Court, the High Court’s revisional power will come into play.
The Court held “in the present case the impugned order pertains to an order passed in connection with appeal styled as R.F.A. No. 6 of 2017, this Court is of the opinion that Civil Revision is not maintainable.”
[Kailash Chandra v. State of Orissa, C.R.P. No. 6 of 2022, decided on 30-03-2022]
