Mohan Singh v. Dalip Singh

RAJIV SAHAI ENDLAW, J. AUGUST 09, 2017 "gsr".. (corrected & released on 29th September, 2017)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 9th August, 2017 + C.R.P. 9/2014, CM No.1355/2014 (for stay) & CM No.1357/2014 (for condonation of 4 years 2 months delay in filing the petition) MOHAN SINGH ..... Petitioner Through: Mr. L.K. Singh & Mr. Raj Kumar, Advs. Versus DALIP SINGH ..... Respondent Through: Mr. S.M. Chugh, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) impugns the order [dated 4th August, 2009 in RCA No.11/2002 of the Court of Additional District Judge (ADJ)-08 (Central), Tis Hazari Courts, Delhi] of dismissal of the appeal filed by the petitioner / defendant against the judgment and decree dated 8th February, 2002 in suit No.M-36/1995 of the Court of M/s Savita Rao, Civil Judge, Delhi. 2. The petition was entertained and notice thereof ordered to be issued and record of the appellate Court as well as the trial Court requisitioned. The counsel for the respondent / plaintiff has been appearing. 3. The counsels were partly heard on 26th July, 2017 and remaining arguments have been heard today. 4. The respondent /plaintiff instituted the suit from which this petition arises, for recovery of Rs.13,380/- from the petitioner / defendant towards rent at the rate of Rs.300/- per month of shops in property No.313/2, Inderlok, New Delhi. The said suit was contested by the petitioner / defendant. 5. Vide judgment dated 8th February, 2002, a decree, in favour of the respondent / plaintiff and against the petitioner / defendant, for recovery of Rs.13,380/- along with interest at the rate of 12% per annum till the date of realisation was passed against the petitioner / defendant. 6. The petitioner / defendant preferred an appeal under Section 96 of the CPC and which appeal as aforesaid has been dismissed by the learned ADJ on 4th August, 2009. 7. Section 102 of the CPC, introduced with effect from amendment of the CPC of the year 2002, having barred second appeals from any decree when the subject matter of original suit is for recovery of monies not exceeding Rs.25,000/-, instead, this Revision Petition has been filed. I may also notice that the petitioner first filed a Second Appeal, registered as RSA No.144/2009, against the judgment dated 4th August, 2009 supra and has filed this petition only after withdrawing the same on 29th October, 2013. Though the petition was accompanied with an application for condonation of delay of about four years and two months in filing thereof but the delay has not been condoned as yet. Now that this petition has been pending for three years, it is not deemed appropriate to go into the aspect of delay. 8. I have, at the outset, enquired from the counsel for the petitioner / defendant that the legislative intent being not to allow a second appeal from suits subject matter whereof is recovery of money not exceeding Rs.25,000/-, how would this Revision Petition be maintainable. I find the same doubt to have also been expressed by the High Court of Rajasthan in Municipal Council, Sawai Madhopur Vs. Civil Judge (S.D.), Sawai Madhopur 2003 SCC OnLine Raj 432. I also find High Court of Andhra Pradesh in Shaik Abdul Haq Vs. Aiswarya Nilaya Chit Fund Pvt. Ltd. MANU/AP/0194/2005 to have held that if petitions under Article 227 of the Constitution of India are entertained with respect to judgments and decrees for recovery of money not exceeding Rs.25,000/-, the legislative enactment of Section 102 of the CPC with the clear and obvious object of reducing the scope of the litigation and to give quietus to the same will be defeated. It was further held that entertaining a petition under Article 227 of the Constitution of India would amount to exercising appellate jurisdiction which is prohibited. 9. The counsel for the petitioner / defendant states that the petitioner / defendant cannot be left remediless and when there is a void created by a statute, the remedy of Revision or a Petition under A