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IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
P. Krishna Bhat, J.
M/s Suvidha Realtors and Constructions Pvt. Ltd. – Petitioner
Versus
The Hubli Taluka Agricultural Produce Co-Operative Marketing Ltd And Ors. – Respondents
Civil Revision Petition No.100019 of 2020
Decided On : 06-03-2021
Civil Procedure Code,1908 – Section 115,96,104 r/w Order 43 Rule 1 -Seeking relief of declaration - Terminating contract - petitioner has failed to issue statutory notice under Section 125 of the Karnataka Co-operative Societies Act, 1959 to defendant No.l and therefore plaint was required to be returned- Respondent and letter addressed by respondent to the petitioner terminating the contract of petitioner as bad in law, void and not binding on petitioner and also for a declaration that order passed by respondent granting permission to respondent to call for fresh auction to sell suit properties based on resolution and letter dated are illegal, null and void, etc - Learned court below by its order has returned the plaint to petitioner - Being aggrieved by the said order, plaintiff - revision petitioner is before this Court - Office has raised objections regarding the maintainability of revision petition under Section 115 of CPC as against impugned order passed by the learned court - Respondents who are the defendants before the Court below have also taken up same contentions - Whether an appeal can be maintained under Order 43 of CPC.
Finding of the court:
Careful perusal of the proviso to sub-Section (1) of Section 115 of CPC makes it obvious that a revision petition can be maintained before High Court and in such a revision petition, High Court can vary or reverse order impugned before it only if order under revision, if it had been made in favor of revision petitioner would have finally disposed of suit or other proceedings - In other words, condition precedent for the maintainability of a revision petition under CPC is that if order which is called in question in the revision petition had been otherwise, that is if order were to be in favor of revision petitioner, it ought to have had the effect of disposing of entire suit - In this particular case, learned Court below has held that petitioner has failed to issue statutory notice under Section 125 of Karnataka Co-operative Societies Act, 1959 to defendant and therefore plaint was required to be returned - In order for the High Court to entertain a revision petition, situation should have been that if the Court had accepted the contention of the petitioner herein and held notice issued to defendant No.2 itself was sufficient, effect of such order should have been to finally dispose of the suit - Such a finding by the learned trial Court would not have had the effect of finally disposing of in this particular case - It is therefore quite clear that the impugned order is not revisable under Section 115 of CPC and as such, the present petition is not maintainable.
Result: – Petition rejected.
ORDER :
In this petition filed under Section 115 of the Code of Civil Procedure, 1908 (for short referred to as ‘CPC’), the petitioner is calling in question the legality and validity of the order dated 31.01.2020 passed in O.S.No.51/2009 by the learned Principal Senior Civil Judge, Hubballi, returning the plaint of the plaintiff.
2. The revision petitioner is the plaintiff in O.S.No.51/2009 filed for seeking the relief of declaration that resolution dated 24.11.2008 passed by defendant No.1 – respondent No.1 and letter addressed by respondent No.1 to the petitioner on 29.11.2008 terminating the contract of the petitioner as bad in law, void and not binding on the petitioner and also for a declaration that order passed by respondent No.2 dated 19.03.2009 granting permission to respondent No.1 to call for fresh auction to sell the suit properties based on the resolution dated 24.11.2008 and letter dated 20.11.2008 are illegal, null and void, etc. The learned court below by its order dated 31.01.2020 has returned the plaint to the petitioner. Being aggrieved by the said order, the plaintiff – revision petitioner is before this Court.
3. The office has raised objections regarding the maintainability of the revision petition under Section 115 of CPC as against the impugned order dated 31.01.2020 passed by the learned court below. Respondents who are the defendants before the Court below have also taken up the same contentions.
4. Learned counsel for the petitioner contended before me that the order of the learned court below is one of returning the plaint and therefore it is not a judgment or a decree and consequently an appeal under Section 96 of CPC is not maintainable. He further submitted that the impugned order is not appealable under Section 104 read with Order 43 Rule 1 of CPC as well. He therefore further contended that the impugned order can be questioned by the petitioner only under Section 115 of CPC and as such, the present revision petition is maintainable. In support of his elaborate contentions, he has placed reliance on the following decisions :
1. W.P.No.113059/2014 – Dalawai Nagappa since deceased by LRs. And ors. Vs. P. Abdul Bari and others.
2. (1977) 4 SCC 551 – Madhu Limaye vs. The State of Maharashtra.
3. (2003) 6 SCC 675 – Surya Dev Rai vs. Ram Chander Rai and others.
4. ILR 2018 Kar. 3785 – Nazir Ahamad and ors. Vs. Anwarpashya Sayyadmeera Mujwar and ors.
5. Learned counsel for the respondents, per contra, contended before me that the above revision petition is not maintainable under Section 115 of CPC. It was the contention of learned counsel for the respondents that the revision petition is directly hit by proviso to sub-Section (1) of Section 115 of CPC and he has also placed reliance on several decisions as follows :
1. ILR 2004 Kar. 1445 – The Arogyanagar Cooperative Housing Society Ltd. And others vs. Fakiragouda and others.
2. AIR 1977 SC 148 – State of Maharashtra and others vs. Chander Kant.
3. ILR 2018 Kar. 3785 – Nazir Ahamad and others vs. Anwarpashya Sayyadmeera Mujwar and others.
4. 2001 (1) Kar.L.J. 36 – State and others vs. Prabhakar.
5. AIR 1963 SC 424 – Amar Nath Dogra vs. Union of India.
6. AIR 1991 Delhi 298 – The New India Assurance Co. Ltd. And ors. Vs. The Delhi Development Authority and ors.
7. AIR 1984 SC 1043 – Bihari Chowdhary and ors. Vs. State of Bihar and ors.
8. AIR 1965 SC 11 – State of Andhra Pradesh vs. Gundugola Venkata Suryanarayana Garu.
9. AIR 1969 SC 1256 – Beohar Rajendra Sinha and ors. Vs. State of Madhya Pradesh and ors.
10. AIR 1969 SC 674 – Raghunath Das vs. Union of India and ors.
6. The petitioner – plaintiff has filed a suit for declaration against the defendants – respondents in O.S.No.51/2009 before the learned Principal Senior Civil Judge, Hubballi. By order dated 31.01.2020, learned Court below has returned the plaint. The operative portion of the impugned order reads as follows :
The suit of the plaintiff is not maintainable for want of compliance of tatutory/mandatory
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