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Ghulam Mohammad Kenu Vs. Ghulam Rasool Chachoo and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Revn. No. 63 of 1979
Judge
Reported inAIR1981J& K1
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 and 151
AppellantGhulam Mohammad Kenu
RespondentGhulam Rasool Chachoo and anr.
Appellant Advocate J.N. Langer, Adv.
Respondent Advocate S.L. Kaul, Adv.
DispositionPetition dismissed
Excerpt:
- .....had been inadvertently misdescribed as a revision petition. the contention found favour with the learned district judge. he allowed the application and directed that the revision be treated as an appeal. the defendant has challenged the order in this revision.2. the argument of the learned counsel for the defendant petitioner is that the learned district judge had no power to revise the impugned order, and if that be so, he had no jurisdiction to deal with the revision, much less, to direct that it should be treated as an appeal. the only proper order that he could make was to return the revision.3. there can be no dispute with the principle that a court which has no revi-sional powers cannot allow the revision to be treated as an appeal, even if the order is appealable and the appeal.....
Judgment:
ORDER

Mufti Baha-ud-Din Farooqi, Ag. C.J.

1. Aggrieved by an order dated 28-2-1979. passed by the Sub-Judge. Municipal Magistrate, Srinagar, the plaintiff filed what was described as a 'revision' in the court of the District Judge, Srinagar. On 30-3-1979, he moved an application praying that the revision be treated as an appeal. His contention was that it was really an appeal which had been inadvertently misdescribed as a revision petition. The contention found favour with the learned District Judge. He allowed the application and directed that the revision be treated as an appeal. The defendant has challenged the order in this revision.

2. The argument of the learned counsel for the defendant petitioner is that the learned District Judge had no power to revise the impugned order, and if that be so, he had no jurisdiction to deal with the revision, much less, to direct that it should be treated as an appeal. The only proper order that he could make was to return the revision.

3. There can be no dispute with the principle that a court which has no revi-sional powers cannot allow the revision to be treated as an appeal, even if the order is appealable and the appeal lies to that court. But this principle is not applicable to the present case. The learned District Judge has held that in the memo presented before him there is an error of description. It has been mistakenly described as a revision although in reality it is an appeal. Further, he has held that the mistake in the description has crept in 'due to oversight and inadvertence.' This finding has not been controverted before me and would be binding on the parties. In the circumstances, the error relates to the form and not to the substance. If that be so, there can be hardly any dispute that it can be rectified under Section 151 C. P. C. of course, in appropriate cases only. It is a common ground that the correction was claimed while the period of limitation prescribed for filing the appeal had not run out. So viewed, the order cannot be said to be open to question and must be upheld. Accordingly this revision is dismissed but without any order as to costs. The parties are directed to appear before the court below on 7th of August, 1980.


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