Reliance of Adv. Kaptan on Challamane Huchha
Gowda v. M.R. Tirumala,(2004) 1 SCC 453, at page 459 (para
10) shows that it is a settled position of law that a mere non mentioning
or wrong mentioning of a provision in an application
is not a ground to reject an application. Since there was no bar
found in treating the objection (filed in the matter before Hon.
Apex Court) as an application for setting aside the sale, the
setting aside of sale by the execution court was held to be
perfectly in tune with the CPC. In AIR 1994 Bom 141Jagdish
Balwantrao Abhyankar and others v. State of Maharashtra and
others relied upon by the landlords Full Bench of this Court has
in para 21 taken the view that “ “21. Sometimes it does happen
that an application is filed under a particular provision of a statute
and it is found to be not maintainable thereunder or the Court or
Tribunal has no power to grant the relief asked for thereunder but
the said application is maintainable under some other provision of
the statute before the same Court or Tribunal and it has power to
grant the relief asked for, it is in such cases that it has always been
held that the "label" or the "nomenclature" of the application or
petition should not matter and after seeing the substance or
contents of the application, if it is possible to grant the relief under
some other provision of the statute, such a relief should not be
denied to a party. It is, however, material to note that such a
recourse is taken only when it is found that the relief asked for
cannot be granted under the provisions under which the
jurisdiction of the Court or Tribunal is invoked, much less when the
result would be to deprive the party of a right of appeal provided
against the order passed under such a provision.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 6006 OF 2006
Dinesh Jagannath Khandelwal, Vs Kundanlal s/o Perumal
Chhabriya,
Citation: 2010(2)ALLMR588, 2010(1)BomCR728
CORAM : B.P. DHARMADHIKARI, J.
DATED : JAN. 04, 2010.
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