1 S.B. Civil Revision Petition No.114/04 Nanu Ram Vs. Smt. Sunder Devi Date of Order : 11/07/2006 Hon'ble Mr. Justice Ajay Rastogi Mr. Man Singh Gupta, for petitioner Mr. Akhil Simlote, for respondent Instant revision petition has been filed by the plaintiff-petitioner against the order dated 20th April, 2004 whereby the application filed by the respondent-defendant under O.9 R.13 read with Section 151 CPC was allowed and ex-parte decree dated 9th December, 1998 passed in favour of plaintiff-petitioner was set aside and the parties were directed to proceed in the matter in accordance with law in the pending Suit No.76/96 before the Court of Additional District & Sessions Judge No.2, Jaipur City, Jaipur. Petitioner-plaintiff filed a suit claiming himself to be adopted son of late Shri Girdhari Lal and widow Smt. Dakhan and has also alleged that Will was executed by Girdharilal in his favour way back in Samvat 2014 and after death of Shri Girdharilal, he became absolute owner of the property left by him and accordingly, pleaded that he may be declared as absolute owner of the property left by him. He further alleged in the suit that Smt. Sunder Devi respondent-defendant got a gift-deed executed in favour of Smt. Dakhan somewhere in Samvat 1961 and now deceased Smt. Dakhan has no right, title or interest in respect of the property left by her 2 husband, the very execution of decree was void. Joint written statement was filed by Smt. Sunder Devi, present defendant and Smt. Dakhan in which adoption of present petitioner has been seriously disputed and Smt. Dakhan supported the claim of Smt. Sunder Devi in their joint written statement filed before the learned trial court. When the matter came up for cross-examination of the plaintiff's witnesses somehow the counsel and power attorney holder on behalf of present respondent could not appear before the Court and their opportunity of cross-examination of witnesses was closed and on application filed, permission was granted on payment of cost on two occasions, but she being an illiterate old lady despite instructed to her counsel has not taken proper care in the matter, and finally ex-parte decree was passed in favour of plaintiff on 9th December, 1998. Immediately, when this fact came to her notice, defendant filed application under O.9 R.13 for recalling of the ex- parte decree along with application u/s.5 of Limitation Act giving reasonable justification on account of which she or her counsel could not put their appearance on the date fixed under the order impugned passed by the learned trial Judge. Learned Judge after taking into consideration the material and so also explanation furnished by the respondent-defendant and so also objection made by the petitioner-plaintiff, allowed the application vide order impugned dated 20th April, 2004 and directed the parties to proceed in the matter in accordance with law in the pending Suit No. 76/96. Hence, this revision petition. 3 Counsel for petitioner, Shri Gupta, vehemently contends that ample opportunity was afforded on three earlier occasions, their opportunity to cross- examine plaintiff was closed and the petitioner also never opposed their application and on payment of cost, ex-parte decree was recalled and opportunity was afforded to the respondent, but still on next occasion when no one appeared despite notice, there was no option left with the learned trial Judge to proceed in the matter and pass decree on the basis of material available on record and in such circumstances, the learned trial Judge has committed serious error in granting further opportunity and recalling of the ex-parte decree passed on 9th December, 1998. Counsel further submits that whenever there is delay in filing application, there is a provision u/s.5 of the Limitation Act to give explanation for the delay caused, but it should not be misused causing prejudice to either of the parties to the proceedings which in the instant case has caused to the petitioner, particularly, when on earlier occasions the petitioner himself has not opposed their application which was allowed on cost and keeping that reasonable consideration, the learned trial court was wholly unjustified in entertaining the application at the fourth stage and granting permission to the defendant to now proceed in the matter while recalling of ex-parte decree which has caused a great prejudice to petitioner, requires interference by this court. Counsel for respondent Shri Akhil Simlote, has supported the finding recorded under the order impugned and further submits that after amendment u/s.115 CPC which came into force w.e.f. 1st July, 2002 on acceptance of application filed under O.9 4 R.13 and to proceed in the pending proceedings, the revision petition is not maintainable since the order impugned has not in any manner finally disposed of or decides the rights of the parties. Counsel further submits that the learned trial court after due appreciation of material on record exercised its discretion to grant one more opportunity to being an illiterate old lady and that has not caused any injustice to either party to the proceedings and there is no material irregularity or error of jurisdiction committed by the learned trial court in passing the order impugned. I have considered the submissions of both the parties and with their assistance perused the material on record. So far as the preliminary objection raised by the respondent is concerned, with regard to maintainability of revision petition, suffice it to say that after the amendment in the Code of Civil Procedure by Act No.46 of 1999, revisional jurisdiction of the High Court has been materially restricted and revision petition is maintainable unless it is shown and found that if the order impugned would have been made in favour of the party applying for revision, it would have finally disposed of the suit or other proceedings, otherwise not. This has been examined by the Apex Court in Shiv Shakti Co-Op. Housing Society, Nagpur Vs. M/s. Swaraj Developers & Ors. [2003(1) WLC [SC] Civil 688] and so also in Surya Dev Rai Vs. Ram Chander Rai [AIR 2003 SC 3044]. The Apex Court in Shiv Shakti Co-Op. Housing 5 Society [supr], has considered the scope of Section 115 CPC after amendment and the relevant para is reproduced: “A plain reading of section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceedings. If the answer is 'yes' then the revision is maintainable. But on the contrary, if the answer is 'no' then the revision is not maintainable. Therefore, if the impugned order is of interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under section 115. There is marked distinction in language of section 97(3) of the Old Amendment Act and section 32(2)(i) of the Amendment Act. While in the former, there was clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in section 32(2)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceedings in the manner prescribed. If by a statutory change the mode of procedure is altered the parties are directed to proceed according to the altered mode, without exception, unless there is a different stipulation.” In view of principle laid down by the apex court in the judgment [supra], the order impugned in the present revision petition will certainly dispose of the suit finally if decides in favour of revision petitioner. In my considered opinion, in view of settled principle laid down by the apex court, the objection raised by the respondent has no merit and deserves rejection. 6 So far as the merit of the matter is concerned, I find that the learned trial Judge has afforded opportunity to both the parties to the dispute and recorded a finding that looking to the age and other factors of defendant-non-petitioner and the material came on record there was a satisfactory explanation furnished in her application filed under O.9 R.13. I do not find any illegality or any material irregularity committed by the learned trial Judge in passing of order impugned and both the parties will get an opportunity to proceed in the matter and further to get their inter se dispute examined on merits which does not cause any prejudice to either parties to the dispute. Consequently, the revision petition fails and is hereby dismissed. Interim order, if any, stands vacated. Learned trial court is directed to proceed further in the matter in accordance with law. Record be returned back to the court concerned. [Ajay Rastogi],J. FRB