Judgment:
Prayer
Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree of the learned 1st Additional Subordinate Judge, Tiruchirappalli, dated 17.01.2006 in A.S.No.200 of 2004 and the Cross Appeal confirming the judgment and decree of the learned Principal District Munsif, Tiruchirappalli dated 22.06.2004 in O.S.No.37 of 2003.
JUDGMENT
1. Since Second Appeals Nos.912 and 913 of 2006 arise out of a common judgment rendered by the first appellate Court and the parties are same and the evidence and question of law involved are same, they are heard together and are being disposed of by this common judgment.
2. Admittedly, the defendant is a cultivating tenant under the plaintiffs with respect to certain lands situate in Melapandamangalam in Tiruchira-ppalli District. Plaintiff filed the suit in O.S.No.37 of 2003 in the Court of the District Munsif, Tiruchirappalli for recovery of Rs.19,125/- towards arrears of rent. It was hotly contested by the defendant. Ultimately, the trial Court decreed the suit for Rs.11,061/- only together with 6% future interest. Aggrieved, the defendant filed A.S.No.200 of 2004, while the plaintiff filed Cross Appeal as against the disallowed portion of the suit claim. The first appellate Court modified the trial court's decree by decreeing the suit for Rs.17,025/- with 6% future interest, thus, it allowed the plaintiff's cross- appeal. Now, as against modifying the trial court's decree, the defendant filed Second Appeal (MD) No.912 of 2006 and as against allowing the Cross appeal, he filed Second Appeal (MD) No.913 of 2006.
3. Mr.S.Muthukrishnan, learned counsel for the respondent referring to Section 102 C.P.C. submitted that the appeals are not maintainable in this Court.
4. In the circumstances, Janab Mohamad Ihram Saibu, learned counsel for the respondent submitted that when an appeal was not maintainable in view of the pecuniary limit mentioned in Section 102 C.P.C., on that account an appeal cannot be dismissed, however, the court can grant leave to convert it as a revision.
5. On this aspect, the learned counsel for the appellant cited the following decisions:
(i) N.BANSIDHAR Vs. DWARAKALAL
[AIR 1974 KARNATAK 117].
(ii) JIWAN DASS Vs. NARAIN DASS
[AIR 1981 DELHI 291].
(iii) R.S.PILLAI Vs. M.L.PERATCHI @ SELVI & OTHERS [2000 (IV) CTC 543 (DB)]
6. The learned counsel for the appellant also filed a memo that the appeals may be converted as revision petitions.
7. Since Mr.Muthukrishnan is the root cause for filing this memo, he cannot now say otherwise.
8. Now, the question arises whether in the circumstances, these Second Appeals could be converted as revisions or not?
9. As per Section 102 C.P.C. no second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty five thousand rupees.
10. So, Section 102 C.P.C. prescribes a monetary limit of Rs.25,000/- to file Second Appeal. Thus to file a second appeal, the subject matter of the suit should be above Rs.25,000/-. Admittedly, the subject matter of the suit in these appeals are below Rs.25,000/-. So, Section 102 C.P.C. is a bar to maintain these second appeals.
11. A revision is provided under Section 115 C.P.C.
12. BAN SIDHAR Vs. DWARAKALAL [AIR 1974 KARNATAKA 117] deals with a plea for conversion of a revision as an appeal and also deals with return of that petition for presentation before proper court. That is not the situation before us. It is not applicable to the facts of our case.
13. JIWAN DASS Vs. NARAIN DASS [AIR 1981 DELHI 291] is near us. The Delhi High Court held as under:
It is now a settled law that the label placed on a cause is not conclusive and does not ordinarily affect the jurisdiction of the court to allow the label to be corrected by treating an appeal on a revision or a revision as an appeal. Provided of course the cause of justice so demands. In cases where no appeal lies but an appeal has been wrongly preferred, the Court has the wide discretion to treat it as a revision where the conditions laid down under Section 115 C.P.C. are satisfied.
(emphasis supplied by me.)
14. In R.S.PILLAI Vs. PERATCHI @ SELVI & OTHERS [2000 (IV) CTC 543] in view of the peculiar facts and circumstances of the case, a Division Bench of this Court in the interest of justice converted an appeal as a revision.
15. In K.CHOCKALINGAM vs. K.R.RAMASAMY IYER AND ANOTHER [2004 (4) L.W.586] exactly similar question as before us arose. A memo was filed seeking the leave of the court to convert the second appeal as a revision. There a controversy arose whether under such circumstances, the revision could be filed under Section 115 C.P.C. or under Article 227 of the Constitution of India.
16. It is profitable here to note the following portions of the judgment in K.CHOCKALINGAM vs. K.R.RAMASAMY IYER AND ANOTHER [2004 (4) L.W.586]:
13. This revision is filed only under Section 115 C.P.C. The suit is one for the recovery of less than a sum of Rs.25,000/-. After the suit was decreed, an appeal has been preferred, which was allowed nullifying the lower courts decree and judgment. Section 102 of Code of Civil Procedure Code says, no second appeal shall lie from any decree. When the subject matter of the original suit is for recovery of money, not exceeding Rs.25,000/-. In view of this provision, a second appeal is barred and that is why, a revision is filed under Section 115 C.P.C., which is not maintainable, according to the learned counsel for the respondents. When there is a specific bar for filing the second appeal, when the suit is for recovery of money, not exceeding Rs.25,000/-, it should be held, a revision is also not maintainable under Section 115 C.P.C. Section 115 C.P.C. empowers the High Court, to call for the record of any case which has been decided by any Court Subordinate to such High Court in which no appeal lies thereto. From the wordings deployed in the above Section, it is clear, the High Court is empowered to entertain a revision, when no appeal is provided or where no appeal lies. In other words, if the code provides, an appeal provision, from the decree and judgment of the subordinate court, then ordinarily invoking Section 115 C.P.C. is not possible. In this case, against the decree and judgment passed by the District Munsif Court, in O.S.No.147/97 an appeal provision is provided, and an appeal has been preferred also. Then, considering the pecuniary jurisdiction of the suit, the second appeal is prohibited or barred. In this view, it cannot be said, no appeal is provided against the decree and judgment, thereby to invoke Section 115 C.P.C. under the guise of revisional power. If the cases of this nature are allowed to be entertained under Section 115 C.P.C., it would amount to eclipsing Section 102 C.P.C., which aims the curtailment of Second appeal, in the sense, prolonged litigation. Where the subject matter is less than Rs.25,000/-, the High Court invoking Section 115 C.P.C., if maintains the revision, it would amount to second appeal under the label of Civil Revision Petition, thereby allowing the parties, to file second appeal, indirectly, ignoring Section 102, thereby defeating the intention of the legislature, which should not be allowed. In this view of the matter, I am of the considered opinion, the revision petition under Section 115 is not maintainable.
14.The learned counsel for the petitioner realising this difficulty alone, as aforementioned, has filed a memo for the conversion of Cr.P.C. under Section 227 Cr.P.C. which is permissible. In Sadhana Lodh v. National Insurance Co. Ltd., (2003 (3) SCC 524=2003-1-L.W.815), the Hon'ble Supreme Court has held, when alternative remedy is available, interference under Article 226/227 of the Constitution of India, is not permissible. It is observed:
Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 C.P.C. Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution.
15.In this view, it is held, where a remedy for filing a revision petition under Section 115 is barred in such cases, petition under article 227 of the Constitution of India, is maintainable. In this view, this petition could be treated, as one filed under Article 227 of the Constitution of India, and not under Section 115 C.P.C.,
17. In the circumstances, in view of the above position of law explained and described in K.CHOCKALINGAM vs. K.R.RAMASAMY IYER AND ANOTHER [2004 (4) L.W.586], I am preferred to follow CHOCKALINGAM (supra).
18. Thus, the leave now sought for could be granted to convert the second appeal as a Civil Revision Petition under Article 227 of the Constitution of India.
19. In the result,
(1) The second appeals shall be converted as Civil Revision petitions under Article 227 of the Constitution of India.
(2) The Registrar (Judicial) of this Bench shall convert the second appeals as Civil Revision petitions under Article 227 of the Constitution of India and take further necessary administrative actions.