Allowed

Tarang Agarwal Adult v. Chhotey Lal Chaurasia Adult and Others

Allahabad HC21 Feb 2019WRIC/23642/2010

Case brief

AI extract

What is this about?

This intermediate order quashed an order dismissing a civil revision petition prematurely. The High Court held that a revision under Section 115 CPC lies against an order allowing an amendment application, citing prior precedents. The matter was remitted to the lower court to decide on merits.

What did the court decide?

Impugned order set aside; civil revision restored to original number and remitted to lower court for disposal on merits.

Tarang Agarwal Adult Vs Chhotey Lal… — Civil Procedure and Limitation | Allahabad HC (2019)

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Court No. - 59

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Case :- WRIT - C No. - 23642 of 2010

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Petitioner :- Tarang Agarwal Adult Respondent :- Chhotey Lal Chaurasia Adult And Others Counsel for Petitioner :- Yatindra Shukla,S. Srivastava,Saurabh Srivastava,Vishwa Ratan Dwivedi

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Counsel for Respondent :- S.C.,Manish Tandon

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Hon'ble Surya Prakash Kesarwani,J.

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Heard Sri Saurabh Srivastava, learned counsel for the petitioner and Sri Arvind Srivastava, Advocate holding brief of Sri Manish Tandon, learned counsel for the respondent no.1.

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No one appears on behalf of the rests of the respondents even in the revised call.

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By the impugned order dated 3.3.2010, Civil Revision No.Nil of 2010 (Tarang Agarwal Vs. Chhotey Lal Chaurasia and others) was dismissed on the ground that a civil revision against the order allowing an amendment application, is not maintainable.

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Section 115 of Code of Civil Procedure as amended by U.P. Act No.14 of 2003 provides that a superior Court may revise an order passed in a case decided in an original suit or other proceeding by a subordinate court where no appeal lies against the order and where the subordinate court has; (a) exercised a jurisdiction not vested in it by law; or (b) failed to exercise a jurisdiction so vested; or (c) acted in exercise of its jurisdiction illegally or with material irregularity.

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In Mapex India (P.) Ltd. Vs. Himalayan Gold Beverages (P.) Ltd. and another, 2003 (1) AWC 840 , Uttarakhand High Court held as under:-

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"Pointing out to the amended proviso of Section 115, C.P.C. as has been made effective from 1.7.2002 and the earlier analogous proviso to said section as applicable to the State of Uttaranchal and also the abovementioned repeal and savings clause of the Amended Act, 2002, the contention of the learned counsel for the respondent No. 1 was that the provision of Section 115, C.P.C. as applicable to the State of Uttaranchal being inconsistent with the Amended provision of Section 115, C.P.C., the same stands repealed and since it cannot now be urged that the impugned order, if allowed to stand would occasion a failure of justice or cause irreparable injury to the revisionist, the revision is not maintainable. The submission does not carry conviction because Clause (ii) of the relevant proviso to Section 115, C.P.C. as applicable herein to the State of Uttaranchal is not inconsistent but only an additional provision. It is also obvious that in view of the Explanation to Section 115, C.P.C. any case

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which has been decided includes any order made in the course of a suit or other proceeding and since the impugned order rejecting the application for amendment is an order made in the course of a suit, it falls within the expression "any case which has been decided" calling for its examination by the Court under revisional jurisdiction as contemplated under Section 115, C.P.C. In short, the second clause of the proviso to Section 115, C.P.C. as applicable in the State of Uttaranchal is not an inconsistent provision but an additional provision, which does not stand repealed, and therefore, the present revision is legally maintainable. Admit. Summon the record."

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In Sanjay Kumar Vs. District Judge, Gorakhpur and others, (1998) 3 AWC 1984 (Para-13) , held that an order deciding the amendment application amounts to case decided within the meaning of Section 115 of the Code of Civil Procedure and, therefore, revision will lie.

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Thus, a revision under Section 115 of the Code of Civil Procedure shall lie against an order allowing the amendment application. Therefore, the revisional court has failed to exercise a jurisdiction so vested in it by rejecting the revision on the ground that no revision lie.

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Under the circumstances, the impugned order dated 3.3.2010 cannot be sustained and, is hereby, set aside. The civil revision is restored to its original number. Matter is remitted back to the concerned court below to decide the revision on merit, in accordance with law, expeditiously, preferably within four months from the date of presentation of a certified copy of this order.

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Order Date :- 21.2.2019 Vivek Kr.

Tarang Agarwal Adult v. Chhotey Lal Chaurasia Adult and Others

Case brief

What is this about?

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Tarang Agarwal Adult v. Chhotey Lal Chaurasia Adult and Others

Case brief

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