1. This petition under Section 115. Civil P. C. is by the plaintiffs in O. S. 123/1970 on the file of the Additional Civil Judge. Mysore. They are aggrieved by an order made therein directing the return of the plaint for presentation to the proper Court.
2. It is unnecessary to set out the facts leading up to the filing of the suit as in my view, a preliminary objection raised on behalf of the respondents as to the maintainability of a petition of this nature clearly deserves to be upheld. The contention urged on behalf of the respondents is that any order directing the return of the plaint for presentation to the proper Court had been clearly made appealable under Clause (1) of Rule 1 of Order 43, Civil P. C. and therefore. one of the essential ingredients for the exercise of jurisdiction under Section 115, Civil P. C. relative to the absence of a right of appeal remains unfulfilled.
3. On behalf of the petitioners. Sri K. C. Mehta. the learned counsel, while conceding that the provisions relied on behalf of the respondent would apparently impose a bar on the entertainment of the present petition, submits that since the matter related to one of proper exercise of jurisdiction, is one clearly in the interests of justice, this Court should exercise the jurisdiction vested in it under Section 115. Civil P. C. In support of this submission, he relied on three decisions. They are : Manash Ranjan Chakravarty v. Tropical Accumulators Ltd.. : AIR1957Cal135 ; Puranam Venkata Lakshmamma v. T. J. Ratnam, : AIR1968AP33 and Major S.S. Khanna v. Brig. F. J. Dillon. : 4SCR409 .
4. In my view, none of these decisions are directly on the point canvassed by Sri Mehta. In Manash Ranian's case, the Division Bench which proceeded to examine the matter before it under Section 115, Civil P. C. has clearly observed that it had not been shown that any appeal lay under Rule 1 of Order 43, Civil P. C. or under any other provision of the Code. In the instant case, it is clear that there is a specific provision conferring the right of appeal against orders of the kind impugned herein.
5. In Puranam Venkata Lakshmamma's case, it is no doubt true that the learned single Judge who decided the matter has observed thus:
'Assuming an appeal is competent, the right of the High Court to exercise its revisional jurisdiction is not taken away to correct error that comes to its notice under Section 115. Civil P. C. though it would hesitate to do so normally'.
It is seen from the facts of that case that the learned Judge was concerned with a provision in the Arbitration Act which conferred a right of appeal in regard to certain specific matters or decisions. It was in the context of such provision for appeals provided under a special Act that the learned Judge concluded that the operation of Section 115, Civil P. C. was not excluded. Under Section 115, Civil P. C., the expression 'in which no appeal lies thereto', in my view, is clearly relatable to the several rights of appeal conferred under the C. P. Code itself. In other words, if a right of appeal in respect of any order or decision or decree is conferred under any of the provisions of the C. P. Code, the jurisdiction under Section 115. Civil P. C- would be clearly barred. Hence this decision also cannot be of much assistance to the petitioners.
6. The last decision relied on is that of the Supreme Court in Khanna's case. Sri Mehta placed considerable reliance on an observation to this effect made in Paragraph 15 of the aforesaid report:
'But once it is granted that the expression 'case' includes a Part of a case, there is no escape from the conclusion that revisional jurisdiction of the High Court may be exercised irrespective of the question whether an appeal lies from the ultimate decree or order passed in the suit. Any other view would impute to the legislature an intention to restrict the exercise of this salutary jurisdiction to those comparatively unimportant suits and proceedings in which the appellate jurisdiction of the High Court is excluded for reasons of public policy. Nor is the expression 'in which no appeal lies thereto' susceptible of the interpretation that it excludes the exercise of revisional jurisdiction when an appeal may be competent from the_ final order.'
Shri Mehta relied on the second of the underlined enunciations and submitted that even if an appeal was competent from the final order, which in the instant case he identifies the impugned order as one such, a revision would be competent. I am afraid that the said enunciation cannot be read in isolation and must be read along with what has preceded it. If so read, it would be clear that what his Lordship meant was that even though any order that may be ultimately passed, which in fact had not been passed while the preliminary issue was decided, was itself appealable under the Code, it would not bar the jurisdiction of the Court under Section 115, Civil P. C. to deal with the order made on such preliminary issue affecting jurisdiction. Hence I am not in agreement with Sri Mehta on this contention also.
7. But Sri Mehta submits that some observation might be made which would help his client to secure an order of condonation of delay in preferring an appeal as provided under Rule 1 of Order 43. Civil P. C., if and when it is done I do not wish to say anything which may affect the discretion of the first appellate Court in the matter of condonation of delay. It is unnecessary to observe that if and when an appeal were to be filed along with an appropriate application for condonation of delay, the Court which has seisin of the matter would examine the same on its merits keeping all the circumstances in view. It is seen from the record that there is a stay order operating in favour of the petitioners in regard to the taking of the return of the plaint as ordered by the Court below. The time prescribed by the Court below has now-expired. In these circumstances. I consider it just and necessary to grant the petitioners a further time of 15 days from today to take the return of the plaint as ordered by the Court below.
8. In the result, this petition hasto fail and is accordingly dismissed. Nocosts.
9. Petition dismissed.