Civil Revision No. 5704 of 2011 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Revision No. 5704 of 2011 Date of decision. 16.11.2011 M/s Microll India .... Petitioner Versus M/s Jai Durga Trading Company ...... Respondents CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr.Ram Bilas Gupta,Advocate for the petitioner. Mr. Manoj Kumar Sood, Advocate for the respondent. **** Vijender Singh Malik, J. This is a petition brought under the provisions of Articles 226/227 of the Constitution of India by the defendant challenging the judgment and decree dated 04.08.2010 passed by the Court of Additional District Juge, Faridabad whereby the appeal against the judgment and decree dated 27.01.2010 passed by learned Civil Judge (Junior Division), Faridabad, in a suit brought by the respondent for recovery of Rs.23,110/-, dismissing the same, has been accepted and the suit is decreed with costs. Civil Revision No. 5704 of 2011 --2-- M/s Jai Durga Trading Company, respondent had filed the suit for recovery of Rs.23,110/- claiming the same to be the balance amount due from the defendant M/s Microll India for the price of steel sheets purchased from it by M/s Microll India. The said suit was dismissed by learned trial court on the ground of limitation. The appeal preferred by the plaintiff succeeded with learned Additional District Judge, Faridabad because the last payment of Rs.36,000/- made by the defendant to the plaintiff vide cheque No.57996 dated 23.07.2003 was taken as acknowledgment of the debt giving fresh period of limitation to the plaintiff in the suit. Since the suit was brought on 31.5.2004, the First Appellate Court found the suit to be within limitation and decreed the same with costs and interest at the rate of 18 per cent per annum from the date of filing the same till realization of the decretal amount. Since the second appeal from a decree, when subject matter of the original suit is for recovery of Rs.23,110/- has been barred by the provisions of section 102 of the Code of Civil Procedure, the defendant has preferred this revision petition. I have heard Shri Ram Bilas Gupta, learned counsel for the petitioner and Shri Manoj Kumar Sood, learned counsel for the respondent and have gone through the record. Learned counsel for the petitioner has submitted that when filing of appeal in this matter has been barred by provisions of section 102 CPC, the remedy would be available by way of revision under Civil Revision No. 5704 of 2011 --3-- Article 227 of the Constitution of India. He has cited before me a decision of Hon'ble Supreme Court of India in Surya Dev Rai v. Ram Chander Rai and others (2003)6 Supreme Court Cases 675 to support his submission in this regard. Other decisions cited by learned counsel for the petitioner in this regard are Radhey Shyam and another v. Chhabi Nath and others 2009(2) RCR (Civil) 442, Johan Ram v. Steel Authority of India Ltd. 2005 AIR (Chhatisgarh) 17 and Mariamma Roy v. Indian Bank and others 2008(4) RCR (Civil) 910. Learned counsel for the petitioner has further submitted that though the cheque in a sum of Rs.36,000/- was issued by the petitioner in favour of the respondent on 23.07.2003 yet the said cheque was taken back and in its place, a sum of Rs.14,000/- in cash was given. According to him, the said cheque dated 23.07.2003, therefore, does not provide fresh period of limitation for the suit. Learned counsel for the petitioner has further submitted that the plaintiff in order to succeed in bringing his suit within limitation was required to prove the payment of the amount of that cheque. According to him, he has not led any evidence in this regard. He has drawn my attention to Annexure P-1, a copy of legal notice sent on behalf of the plaintiff to the defendant, where it is not mentioned that a sum of Rs.36,000/- was paid by way of a cheque dated 23.7.2003. He has further submitted that the plaintiff did not issue form 'ST-14' in favour of the defendant and for that reason, the defendant had to bear the burden Civil Revision No. 5704 of 2011 --4-- of penalty from Sales Tax Department. He has submitted that by payment of Rs.14,000/-, the account had been squared up and no liability was left on the part of the defendant to the plaintiff for payment of any amount. Learned counsel for the respondent has submitted, on the other hand, that after the provisions of section 102 CPC, barred the appeal in this matter, the judgment and decree passed by First Appellate Court could not be challenged by way of revision petition under section 115 CPC. In this regard, he has cited before me a decision of this court in Jaswinder Singh v. Parshotam Lal Sanghi and another 2005(3) RCR (Civil) 650 where in similar situation, revision under section 115 CPC was held not maintainable. He has also cited before me a decision of Hon'ble Rajasthan High Court in Municipal Council, Sawai Madhopur and others v. Civil Judge (SD) Sawai Modhopur and others 2004(1) LJR 301 where the suit for recovery of Rs.15,360/- was dismissed by the trial court but the appeal was allowed by the appellate court. Since the second appeal was barred, it was held that the provisions of Article 227 of the Constitution of India cannot be used to bypass the provisions of Code of Civil Procedure. Learned counsel for the respondent has further submitted that the issuance of cheque and giving of the same to the plaintiff against the debt liability is admitted by the defendant. According to him, the plaintiff was not required to prove the realization of the amount of the Civil Revision No. 5704 of 2011 --5-- cheque to prove acknowledgment of debt. He has further submitted that in the legal notice(Annexure P-1), the plaintiff was not required to give detail of the cheque, vide which the payment had been made. According to him, in the said notice, details of the price of the goods purchased has been given in para no.2 and in para no.3 it is mentioned that an amount of Rs.23,110/- is still outstanding after adjusting the payments. He has, thus, submitted that absence of reference to cheque dated 23.07.2003 in a sum of Rs.36,000/- in the legal notice(Annexure P-1) is not of any significance in deciding the matter. He has submitted that learned First Appellate Court has properly appreciated the evidence on record and has rightly decreed the suit of the plaintiff. In Surya Dev Rai's case (supra) , the suit has been for permanent injunction. The plaintiff filed an application therein for ad- interim injunction under Order 39 Rules 1 and 2 CPC. His prayer was rejected by the trial court as also by the First Appellate Court. The plaintiff, who could not avail the remedy under section 115 CPC after its amendment filed a petition under Article 226 of the Constitution of India. The High Court dismissed the petition for the reason that the same was not maintainable as the plaintiff was seeking interim injunction against the private respondents. The decision of the High Court was reversed holding that the power of the High Court under Articles 226 and 227 of the Constitution of India is always in addition to the revisional jurisdiction conferred on it. The curtailment of revisional Civil Revision No. 5704 of 2011 --6-- jurisdiction of the High Court under section 115 CPC by Amendment Act 46 of 1999 has been held not to take away and could not have taken away the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court. The facts of the case in hand are entirely different. The second appeal in this case is barred by the provisions of section 102 CPC. That bar created by section 102 CPC is sought to be bypassed by bringing a revision petition, which is not permissible. There was no such provision of second appeal in case of application under Order 39 Rules 1 and 2 CPC, which was taken away by any provision of CPC or by curtailment of revisional jurisdiction by the High Court under section 115 CPC. So the facts of the case before me are not similar to the facts of the case in Surya Dev Rai's case (supra) and, therefore, the decision in that case is not applicable to the present case. Similarly the other cases are also on different facts and none of them deal with the point involved in this case. Therefore, they are not applicable to the facts of this case. The point in controversy is directly dealt with by this court in Jaswinder Singh 's case (supra) and Hon'ble Rajasthan High Court in Municipal Council, Sawai Madhopur and others' case (supra) and in view of the same, I hold that the petition does not lie . Assuming for a moment that the petition in hand is maintainable, still the decision of learned Additional District Judge, Faridabad is not questionable. Issuance of cheque in a sum of Civil Revision No. 5704 of 2011 --7-- Rs.36,000/- on 23.07.2003 is admitted by the defendant. It is highly unbelievable that taking the cheque back, a sum of Rs.14,000/- in cash was paid. It cannot be believed that creditor would return the cheque of Rs.36,000/- on receipt of Rs.14,000/- in cash. The absence of a reference to this cheque in Annexure P-1 is of little consequence. The details vide which goods have been supplied alone are listed in this notice and referring to the payments made by the petitioners, a sum of Rs.23,110/- is claimed to be still outstanding against them. Therefore, absence of a reference to this cheque in Annexure P-1 would not prove that no such cheque was issued. The said cheque was issued in part payment of the debt and from the date of the last payment, the suit filed by the plaintiff is within limitation. Learned First Appellate Court has, thus, rightly reversed the finding of learned trial court on this point and has rightly held the suit to be within limitation. Accordingly, the revision petition is dismissed. (VIJENDER SINGH MALIK) JUDGE 16.11.2011 dinesh