K.A. Puj, J.@mdashThe petitioners herein have originally filed Special Civil Application No. 2410 of 2002 before this Court challenging the order passed by the ld. Civil Judge (JD) Una below a pursis-cum-application ex. 206 in Reg. Civil Suit No. 89/96 on 31.1.2002. The petitioners have also prayed for an appropriate writ, order or direction quashing and setting aside the sale-deed made by respondents no. 1 and 2 in favour of respondent no. 3 on 31.1.2002 registered with respondent no. 4 with regard to the immovable property situated in Una Town, near Bukhari Saiyed Mohalla bearing City Survey Nos. 206 and 207, Block-D, admeasuring 1257-16-78 sq.mts., holding the same to be illegal, unauthorised, fraudulent and null and void.
2. The petitioners have challenged in the said petition a decree obtained by respondents no. 1 and 2 from Civil Court (JD) Una by practising fraud upon the petitioners and the ld. trial judge and the suit filed by respondent no. 1 against respondent no. 2 and the petitioners and others for administration and partition of the property inherited by the parties to the said proceedings of deceased Haji Hasan Haji Mohmed, who happened to be the father of respondent no. 1 and the husband of respondent no. 2 and the brother of the petitioners'' ancestor deceased Haji Mohmed and deceased Sarbai Nathubhai. The petitioners have further submitted that though the aforesaid suit of the respondent no. 1 was being contested by the petitioners as well as respondent no. 2 and other defendants, the respondents no. 1 and 2 went to the ld. trial court on 31.1.2002 and submitted a compromise pursis at Exh. 206 between respondents no. 1 and 2 and praying for deletion of other defendants of the suit and accordingly obtained the decree on the same day practicing fraud upon the petitioners and the ld. Civil Judge (JD) Court, Una. Respondents no. 1 and 2 on the same day, i.e. 31.1.2002 posed themselves to be the heirs and the representatives of deceased Haji Hasan Haji Mohmed in connivance and collusion with respondent no. 3 and making false statements before respondent no. 4 executed a sale-deed in favour of the respondent no. 3 of the immovable property of deceased Haji Hasan Haji Mohmed, which was the subject matter of the aforesaid suit. The decree thus obtained by practicing fraud upon the petitioners and the ld. trial court and simultaneously executed the sale deed by respondents no. 1 and 2 in favour of the respondent no. 3 are the products of fraud and are, therefore, nullity, nonest and not binding to the petitioners and the same cannot be acted upon by the respondents in any manner whatsoever. The petitioners, therefore, submitted that the decree obtained by respondents no. 1 and 2 as aforesaid and then the sale deed executed by them in favour of respondent no. 3 are contrary to the provisions of Mohammedan Law and CPC and, therefore, also the decree and the consequent thereof the execution of the sale deed rendered illegal, unauthorised, improper and creating no binding effect to the petitioners and the respondents authorities.
3. The said petition was opposed by the respondents, inter alia, on the ground that the petition is not maintainable as the impugned order can be challenged by way of appropriate proceedings under the provisions of CPC and the provisions of Constitution of India cannot be made operative in such case, inasmuch as there is alternative efficacious statutory remedy available to the petitioners and the execution of the sale-deed between respondents no. 1, 2 and 3 is purely of a civil nature and is a private civil transaction. The petition was also opposed on the ground that no substantial relief was prayed for against the State Government and hence, there was misjoinder of parties. It was also opposed on the ground that the copy of the pursis-cum-application at ex. 206 was given to the advocate of the petitioners and the order was passed after hearing the advocate appearing for the respective parties.
4. During the course of pendency and hearing of the aforesaid petition before the writ court, ld. advocate Mr. PJ Kanabar appearing for the petitioners has sought permission to convert the said Special Civil Application into Civil Revision Application under sec. 115 of CPC as he has challenged the proceedings of trial court in a civil suit. This Court vide its order dated 9.5.2002 (Coram: PB Majmudar, J.) has granted permission to the petitioners to convert the said Special Civil Application into Civil Revision Application with a direction to give the amended set of Civil Revision Application and the office was directed to place the said Civil Revision Application before the appropriate court.
5. Pursuant to the order passed by this Court on 9.5.2002, the said Special Civil Application No. 2410 of 2002 was converted into Civil Revision Application No. 581 of 2002. In the memo of civil revision application, a prayer was made to the effect that the Record and Proceedings of Reg. Civil Suit No. 89 of 1996 disposed of on 31.1.2002 by ld. Civil Judge (JD) Una be called for and the order passed below an application exh. 206 and the decree drawn pursuant to it on even date be quashed and set aside and the ld. Civil Judge (JD) Una be directed to decide the aforesaid suit on merits and the respondents be directed not to act upon the sale-deed executed by respondents no. 1 and 2 in favour of respondent no. 3.
6. At the time of hearing of this revision application, a preliminary objection is raised by Mr. AH Desai ld. advocate appearing for respondent 3 that the civil revision application is not maintainable in view of the amendment made in sec. 115 of CPC. Mr. PJ Kanabar ld. advocate appearing for the petitioners has submitted that in case, this Court takes a view that the civil revision application is not maintainable, than the petitioners may be permitted to re-convert the present civil revision application into special civil application. In support of his contention, he has relied on the decision of the Supreme court in the case of Municipal Corporation of Delhi vs. R.P. Khaitan & Anr., reported in 79 (1999) DLT 555, wherein it is held that the High Court certainly is entitled to convert any proceeding instituted before it in one manner to be that of another provided a proper cause has been made out and in the interest of justice. Mr. Kanabar has further relied on the decision of the Division Bench of Andhra Pradesh High Court in the case of Jaleel Khan vs. M. Kamalamma, reported in 2002 A I H C 880, wherein it is held that in appropriate cases where the fact situation warrants a petition filed u/s 115 of the Code can be converted into a petition under Article 227 of the Constitution of India on the principle of ex debito justitiae.
7. Mr. Desai ld. advocate appearing for the respondent no. 3, on the other hand, has objected to granting any permission to the petitioners to re-convert the present civil revision application into special civil application. He has submitted that since the special civil application was not maintainable, the petitioners have sought permission to convert the said special civil application into civil revision application and, now in view of the amendment made in Civil Procedure Code, if the civil revision application is not maintainable, it is not open for the petitioner to claim that the civil revision application may be re-converted into special civil application. Even otherwise, this Court has no power to grant such permission for re-conversation of civil revision application into special civil application. For this purpose, he has relied on the decision of the Supreme court in the case of
8. I have heard the ld. advocates appearing for the respective parties and I have also gone through the necessary pleading. The authorities relied on by both the sides are also considered. It is to be noted here that originally the special civil application was filed and when objection was raised against the maintainability of the special civil application, a permission was sought for the conversation of special civil application into civil revision application and this Court has granted such permission to the petitioners. Once the permission is granted for conversation of special civil application into civil revision application and before the matter decided, the amendment intervened and because of that the civil revision application is held to be not maintainable. Even otherwise, the fact situation of the case raises certain doubts and suspicion and before any proceeding can be adjudicated on its merits, if certain orders are obtained keeping the parties to the proceedings in dark, the court cannot decide the matter merely on technicality. If the challenge made to the impugned order is neither entertained in special civil application nor in civil revision application, the party would certainly be adversely affected and it would defeat the natural justice. The present case squarely falls within the ratio of the Supreme Court''s judgment in the case of Municipal Corporation of Delhi vs. R.P. Khaitan & Anr. (supra), wherein it is held that the High Court certainly is entitled to convert any proceeding instituted before it in one manner to be that of another provided a proper cause has been made out and in the interest of justice. This Court is of the view that here in the present case, the petitioners have made out the proper cause and it is also in the interest of justice that the permission for re-conversation of civil revision application into special civil application is required to be granted. Even in the case of Municipal Corporation of Delhi (supra), the Supreme Court has considered its earlier judgment in the case of Vishesh Kumar vs. Shanti Prasad (supra). It may be possible that later decision in the case of Aundal Ammal vs. Sadasivan Pillai (supra) may not be cited before the Supreme Court in the case of Municipal Corporation of Delhi (supra), however, the fact remains that this decision is a later decision in point of time and it is rendered by the Three Hon''ble Judges of the Supreme Court and hence, this Court is of the view that looking to the facts and circumstances of the case and looking to the ratio laid down by the Supreme Court in the case of Municipal Corporation of Delhi (supra), the petitioners are allowed to convert the present civil revision application into special civil application.
9. The petitioners are, therefore, directed to file draft amendment for effecting necessary changes in the memo of civil revision application before the Registry within a period of two weeks from today. It is clarified here that though ad interim relief was earlier granted by this Court in favour of the petitioners and, thereafter the statement was made by Mr. Desai to maintain status quo, the same was however, not recorded in the order. It is expected that the parties to the proceedings may stick to their respective statement for a period of two weeks from today. The office is directed to place this matter before the appropriate court taking up Special Civil Application.
