Law: Civil Procedure Code (V of 1908)

Section: S. 115

Civil Procedure Code (V of 1908)----   ----- S. 115-Application for revision can be treated as memorandum of appeal and vice versa.   In the interest of justice the High Court has the power to treat an application for revision as a memorandum of appeal and vice versa an appeal as an application for revision in suitable cases. JUDGMENT   This application under section 115 of the Code of Civil Procedure is directed against an order of the learned District Judge, Khulna, rejecting a petition under Order XLI rule 19 of the Code of Civil Procedure for the restoration of an appeal which had been dismissed for non-filing of requisites after the admission of the appeal.   The case arose out of a proceeding under section 26-F of the Bengal Tenancy Actfiled by the opposite party herein. In the said case it appears that after both parties had taken diligent steps for procuring their witnesses on the date fixed for peremptory hearing the present petitioner, on the date of the peremptory hearing, filed an application for adjournment on the ground that her husband was ill. This application was duly supported by a medical certificate. But the learned Munsif did not accept that as a sufficient ground and ordered the parties to get ready immediately. The opposite party was unable to contest the said matter and the learned Munsif examined witnesses on behalf of the applicant for pre-emption and admitted one docu ment which was marked Exh. 1. But, curiously enough, without discussing the case or delivering a judgment merely passed the following order that " the Miscellaneous case be allowed ex parte ". No further reasons for this final order were given.   As against this order, the present petitioner preferred an appeal in which variousgrounds were taken including grounds contending that the learned Munsif had erred in overlooking the fact that the application for pre-emption was itself, on the face of it, barred by limitation. The grounds of appeal in the Court below also challenged the propriety of the action of the learned Munsif in disposing of the matter merely by an order in the form that he did.   This appeal was admitted on the 10th…