The revision petitioner/Defendant has filed this Civil Revision Petition praying for a direction of this Court to be issued to the learned District Sessions Judge at Nagercoil, Kanyakumari District to number the unnumbered C.M.A. /08 in SR.NO.7385 of 2008.
2. The main grievance of the revision petitioner is that as against the order dated 05.11.2008 in I.A.No.292 of 2006 in O.S.No.140 of 2002, passed by the learned Sub Judge, Padmanabhapuram, an appeal has been preferred by the revision petitioner as an appellant and the same has not been taken on file and returned on 27.11.2008 with an endorsement "as to how the CMA lies under Order 43 Rule 1 of CPC."
3. The learned District Judge has granted one month's time to the revision petitioner for compliance of the said return. It appears that the revision petitioner has not answered the query of maintainability of Civil Miscellaneous Appeal, but simply made an endorsement that "the same has been complied with and represented". Again, the office of the District Court has once again returned the Civil Miscellaneous Appeal papers stating that already the Civil Miscellaneous Appeal is returned and to state how the Civil Miscellaneous Appeal lies before this Court under Order 43 Rule 1 Civil Procedure Code granting fifteen days time. The revision petitioner instead of answering the query raised by the office of the District Court, has approached this Court straight away under
Article 227 of the Constitution of India.
4. It is to be borne in mind that I.A.No.292 of 2006 in O.S.No.140 of 2002 on the file of the learned sub Judge, Padmanabhapuram has been filed by the revision petitioner/defendant under O.9, Rule 13 and Sec. 151 of Civil Procedure Code. The Trial Court has passed an order of dismissal of IA No.292 of 2006 on 05.11.2008.
5. One cannot loose sight of an important fact that O.43, Rule 1 (d) of the Civil Procedure Code enjoins that, as against an order passed under O.9, Rule 13, Civil Procedure Code an appeal is provided to an aggrieved party.
6. The learned counsel for the revision petitioner cites the decision of the Honourable Supreme Court of India in BHANU KUMAR JAIN VS. ARCHANA KUMAR AND ANOTHER, reported in (2005) 1 Supreme Court Cases 787 whereby and whereunder it is observed, "Moreover the application under O.9,Rule 13 is dismissed, the defendant can only avail a remedy available thereagainst viz. to prefer an appeal in terms of Order 43 Rule 1(d) CPC"
7. In view of the clear-cut provision of O.43, Rule 1(d) of the Code of Civil Procedure and in view of the principle laid down by the Honourable Supreme Court in the aforesaid decision mentioned supra, this Court in the interest of justice, directs the learned Sessions Judge at Nagercoil, Kanyakumari District, to number the unnumbered CMA /08 on his file which has been preferred by the revision petitioner as an appellant and to take the same on his file and to dispose of the said appeal on merits within a period of four weeks from the date of receipt of the copy of this order.
8. With the above observation and direction, the Civil Revision Petition is disposed of without costs. Consequently, the connected Miscellaneous petition is closed.
arr To
1. The District Sessions Court at Nagercoil, Kanyakumari District
2. The Sub Judge, Padmanabhapuram