Supreme Court Cases
1994 SCC Supl. (1) 101
Supreme Court Cases
1994 SCC Supl. (1) 101
AHMADI, A.M. (J) AHMADI, A.M. (J) ANAND, A.S. (J)
CITATION: 1994 SCC Supl. (1) 101
ORDER 1. Special leave granted.
2. Heard counsel on both sides.
3. The question which the High Court was required to decide was whether application for revision under Section 115 of the Code of Civil Procedure filed along with an appeal could survive after the appeal was disposed of as not pressed and withdrawn. It appears from the order of the High Court that there prevailed a practice (in the event of a doubt) to file an appeal as well as a Revision Application and ordinarily both the appeal and the revision were placed for disposal before one and the same Court at the same time, so that the question of jurisdiction may recede in the background. In the present case, however, it is evident that before the revision application came up for hearing, the appeal was disposed of for want of prosecution as withdrawn. The attempt to revive the appeal failed. The present appellants had made an application for being impleaded as parties but no order was passed on their application since the appeal was not restored to file. The revision application was, however, dismissed on the High Court taking the view that on the dismissal of the appeal the decree had merged in the High Court order and, therefore, the revision could not be entertained. The exact observations of the High Court in this behalf are as under:
"In our view, when the party has preferred the appeal with an alternative application for revision and both formed part of a single record and that in the absence of any prayer being made to the Court while allowing the appeal to be dismissed reserving the right under the revision, it is difficult to hold that revision survives. If the party intended that he will proceed with the revision petition, in that event the party ought to have reserved his right with regard to the maintainability of the revision application.
When an appeal was sought to be dismissed unqualified, in that event the alternative revision application does not survive......
4. Mr Dave, the learned counsel for the appellants, submits that unless the Court came to the conclusion that an appeal and not a revision lay against the impugned order, the withdrawal of the appeal could not affect the maintainability of the revision application. His submission is that at the time when the appeal as well as the revision were filed, there may have existed a doubt as to whether an appeal or revision was competent. The party could have resolved that doubt and withdrawn the appeal. Unless the Court comes to the conclusion that the appeal was the proper remedy and not revision, the withdrawal of the appeal and its consequential dismissal would not merge the decree in the order of the appellate court and hence the revision would be competent and would survive. To put it differently, the submission of counsel is that if the appeal was incompetent and without jurisdiction, its dismissal can have no consequence on the maintainability of the revision application. The revision application could not be dismissed as not surviving unless the Court came to the conclusion that the proper remedy was not a revision but an appeal. The party which had preferred the revision had not withdrawn the revision and the same was pending. Therefore, it was incumbent on the part of the Court to record a finding that the proper remedy was not a revision but an appeal and if 103 the Court had come to that conclusion it would have been justified in holding that the revision does not survive.
But, if, on the other hand, the Court were to come to the conclusion that the proper remedy was revision and not appeal, any order passed in the appeal would be without jurisdiction and inconsequential and could not affect the pending revision application. In the instant case, the Court has not come to any definite conclusion that the proper remedy against the impugned order was an appeal and not a revision. In the absence of such a conclusion, we fail to see how the Court could hold that the revision application could not survive on the withdrawal of the appeal. If the appeal was not competent, the order passed in the appeal would not have any impact whatsoever on the pending revision application. We, therefore, set aside the order of the High Court on this limited ground and remit the matter back to the High Court to decide it in accordance with law. The High Court will also decide the request of the appellants herein for intervening in the revision application. The appeal is allowed accordingly.