Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4113 OF 2022
Mohamed Ali …Appellant(s)
Versus
V. Jaya & Ors. …Respondent(s)
With
CIVIL APPEAL NO. 4114 OF 2022
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned
common judgment and order dated 19.11.2021 passed by
the High Court of Madras at Madurai Bench in Civil
Revision Petition (NPD) No. 1054/2021 and Civil Revision
Petition (PD) No. 1301/2021, by which, in exercise of
powers under Article 227 of the Constitution of India the
Signature Not Verified
Digitally signed by
SWETA BALODI
Date: 2022.07.11
17:21:47 IST
Reason:
High Court has set aside the exparte judgment and decree
passed by the learned Trial Court, the original plaintiff has
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preferred the present appeals.
2. The facts leading to the present appeals in a nutshell are
as under:
2.1 That the appellant herein – original plaintiff instituted a
suit being O.S. No. 15/2010 on the file of I Additional
District Judge (PCR), Trichy for specific performance of an
agreement to sell dated 17.07.2009. The said suit was filed
against four defendants. The defendants were placed ex
parte. The learned Trial Court passed an exparte
judgment and decree dated 31.10.2012. That original
defendant Nos. 2 to 4 filed an application to set aside the
exparte judgment and decree. There was a delay of 2345
days in filing the petition to set aside the exparte
judgment and decree. Therefore, original defendant Nos. 2
to 4 filed an application requesting to condone the delay of
2345 days. The original defendant No. 1 also filed an
application to set aside the exparte judgment and decree.
There was a delay of 1522 days in filing the petition to set
aside the exparte judgment and decree. Therefore, original
defendant No. 1 also filed an application to condone the
delay of 1522 days in filing the petition to set aside the ex
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parte judgment and decree. The learned Trial Court
dismissed both the applications, one filed by original
defendant No. 1 and another filed by original defendant
Nos. 2 to 4.
2.2 Feeling aggrieved and dissatisfied with the order passed by
the learned Trial Court refusing to condone the delay of
2345 days in filing the petition to set aside the exparte
judgment and decree, original defendant Nos. 2 to 4
preferred Civil Revision Petition No. 1054/2021 before the
High Court. Though, original defendant No. 1 did not
challenge the order passed by the learned Trial Court
dismissing his application to condone the delay of 1522
days in filing the petition to set aside the exparte
judgment and decree, filed revision petition before the High
Court under Article 227 of the Constitution of India being
Civil Revision Petition No. 1301/2021 to set aside the ex
parte judgment and decree. By the impugned common
judgment and order, the High Court has allowed the
aforesaid two revision petitions and has set aside the
judgment and decree passed by the learned Trial Court by
observing that the judgment and decree passed by the
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learned Trial Court is on a total nonapplication of mind as
before passing the decree for specific performance, the
learned Trial Court has not considered the aspect of
readiness and willingness on the part of the plaintiff. Thus,
by the impugned common judgment and order in exercise
of powers under Article 227 of the Constitution of India,
the High Court has set aside the exparte judgment and
decree passed by the learned Trial Court, without
expressing anything on merits, whether the learned Trial
Court was justified in refusing to condone the delay of
2345 days in filing the petition to set aside the exparte
judgment and decree. Thus, the High Court has allowed
Civil Revision Petition (CRP) No. 1045/2021 filed by
original defendant Nos. 2 to 4. Being aggrieved by the
impugned judgment(s) and order(s) passed by the High
Court in CRP No. 1301/2021 (filed by original defendant
No. 1 to set aside the exparte judgment and decree) and
CRP No. 1045/2021 (filed by original defendant Nos. 2 to
4) challenging the order passed by the learned Trial Court
refusing to condone the delay of 2345 days in filing the
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petition to set aside the exparte judgment and decree, the
original plaintiff has preferred the present appeals.
3. Shri R. Balasubramanian, learned Senior Advocate,
appearing on behalf of the appellant has vehemently
submitted that in the facts and circumstances of the case
the High Court has committed a grave error in setting
aside the exparte judgment and decree in revision petition
in exercise of powers under Article 227 of the Constitution
of India.
3.1 It is vehemently submitted by learned Senior Advocate
appearing on behalf of the appellant that the exparte
judgment and decree passed by the learned Trial Court
was an appealable order and therefore, defendant No. 1
ought to have preferred an appeal rather than filing the
revision petition under Article 227 of the Constitution of
India. It is submitted that therefore, when a statutory
appeal was provided against the judgment and decree
passed by learned Trial Court, the High Court ought not
to have entertained the revision petition under Article 227
of the Constitution of India and ought not to have set aside
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the judgment and decree in exercise of powers under
Article 227 of the Constitution of India.
3.2 It is further contended that even otherwise the impugned
judgment and order passed by the High Court setting aside
the exparte judgment and decree is unsustainable. It is
submitted that the High Court has recorded the findings
on legality and validity of the judgment and decree passed
by the learned Trial Court as if the High Court was
considering the appeal against the judgment and decree
passed by the learned Trial Court. It is further submitted
that the High Court has not at all considered and/or given
any findings on whether the learned Trial Court was
justified in passing the exparte judgment and decree or
not. It is submitted that only in a case where the exparte
judgment and decree is set aside after giving the specific
findings that the learned Trial Court was not justified
and/or right in passing the exparte judgment and decree
that the merits of the judgment and decree was required to
be considered.
3.3 It is further submitted by learned Senior Advocate
appearing on behalf of the appellant – original plaintiff that
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even otherwise the High Court has not properly considered
the fact that there was a delay of 1522 days in filing the
petition by original defendant No. 1 seeking to set aside
the exparte judgment and decree. It is submitted that the
learned Trial Court dismissed the application and refused
to condone the delay of 1522 days. That the order passed
by the learned Trial Court refusing to condone the delay of
1522 days in filing the petition seeking to set aside the
judgment and decree, had attained finality as the same
was not challenged by original defendant No. 1. It is
contended that therefore in the absence of any challenge to
the order passed by the learned Trial Court refusing to
condone the delay of 1522 days, the revision
petition/application filed by defendant No. 1 challenging
the exparte judgment and decree was not required to be
entertained.
3.4 It is further submitted that even otherwise while setting
aside the exparte judgment and decree in exercise of
powers under Article 227 of the Constitution of India, the
High Court has not exercised its discretion judiciously and
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has acted beyond the scope and ambit of exercise of
powers under Article 227 of the Constitution of India.
3.5 It is further urged by learned Senior Advocate appearing
on behalf of the appellant – original plaintiff that even
otherwise there are no findings recorded by the High Court
on whether the learned Trial Court was justified in not
condoning the delay of 2345 and 1522 days in filing the
petition for setting aside the exparte judgment and decree.
That when there was a huge delay of 2345 and 1522 days
in filing the petition for setting aside the exparte judgment
and decree filed by original defendants No. 2 to 4 and
defendant No. 1, respectively and when the learned Trial
Court by a detailed order refused to condone the delay, the
same ought not to have been set aside by the High Court,
that too, without considering the legality and validity of the
order refusing to condone the delay.
3.6 It is further submitted by learned Senior Advocate
appearing on behalf of the original plaintiff that the High
Court has set aside the exparte judgment and decree in
exercise of powers under Article 227 of the Constitution of
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India as if the High Court was exercising the appellate
jurisdiction.
3.7 Making the above submissions, it is prayed to allow the
present appeals.
4. Present appeals are vehemently opposed by Shri M.
Karpagavinayagam, learned Senior Advocate, appearing on
behalf of the respondents – original defendants.
4.1 It is vehemently submitted by learned Senior Advocate
appearing on behalf of original defendants that the High
Court has rightly set aside the exparte judgment and
decree on the ground that the exparte judgment and
decree for specific performance of the agreement to sell
was not in consonance with the procedure enunciated
under Order XII of the Code of Civil Procedure (CPC). It is
submitted that the High Court has set aside the exparte
judgment and decree by observing that while passing the
decree for specific performance, the requirement of proving
readiness and willingness was not considered by the
learned Trial Court. It is submitted that even the
respondents – original defendants filed written submission
before the learned Trial Court. However, the learned Trial
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Court did not consider the said aspect while passing the
exparte judgment and decree.
4.2 Now so far as the submissions made by the learned Senior
Advocate appearing on behalf of the appellant on the
maintainability of the revision petition under Article 227 of
the Constitution of India, the learned Senior Advocate
appearing on behalf of the respondents – original
defendants, has heavily relied upon the decisions of this
Court in the case of
Radhey Shyam and Anr. Vs. Chhabi
Nath and Ors.; (2015) 5 SCC 423 as well as in the case of
K.P. Natarajan and Anr. Vs. Muthalammal and Ors;
Relying upon the said
(2021) SCC Online SC 467.
decisions, it is submitted that as held by this Court in the
aforesaid decisions, challenge to the judicial orders could
lie by way of statutory appeal or revision or under Article
227 but not by way of writ under Article 226 or 32. It is
submitted that in the present case, the defendants invoked
the jurisdiction of the High Court under Section 115 of
CPC as well as Article 227 of the Constitution of India by
way of two different revision petitions and on different
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grounds. That therefore, having found the exparte
judgment and decree of specific performance of agreement
to sell passed by the learned Trial Court was not in
consonance with the procedure to be followed under the
CPC and the relevant aspects, which were required to be
considered under the provisions of the Specific Relief Act,
were not considered, the High Court has not committed
any error in setting aside the exparte judgment and
decree.
4.3 Making the above submissions and relying upon the above
decisions of this Court, it is prayed to dismiss the present
appeals.
5. We have heard learned Senior Advocates appearing on
behalf of the respective parties at length. We have also
gone through the impugned common judgment and order
passed by the High Court.
6. At the outset, it is required to be noted that the learned
Trial Court passed the exparte judgment and decree in
the year 2012. That after a period of 1522 and 2345 days,
original defendant No. 1 and defendants No. 2 to 4,
respectively, filed the applications to set aside the exparte
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judgment and decree. The learned Trial Court by a detailed
order refused to condone the delay of 1522 and 2345 days
by specifically observing that no sufficient cause has been
shown in explaining the huge delay in filing the
applications to set aside the exparte judgment and decree.
The defendant Nos. 2 to 4 alone filed the revision
application before the High Court challenging the order
passed by the learned Trial Court refusing to condone the
delay of 2345 days. Defendant No. 1 did not file any
revision application before the High Court challenging the
order passed by the learned Trial Court refusing to
condone the delay in filing the application to set aside the
exparte judgment and decree. Instead, defendant No. 1
directly filed the revision application before the High Court
under Article 227 of the Constitution of India challenging
the exparte judgment and decree and without considering
the legality and validity of the order/orders passed by the
learned Trial Court refusing to condone the huge delay of
1522/2345 days, by the impugned common judgment and
order, the High Court has set aside the exparte judgment
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and decree in exercise of powers under Article 227 of the
Constitution of India.
6.1 Having gone through the impugned common judgment and
order passed by the High Court, it can be seen that as
such the High Court has not at all considered whether the
learned Trial Court was justified in refusing to condone
such a huge delay of 2345 days. The High Court has also
not appreciated and considered the fact that as such the
order passed by the learned Trial Court refusing to
condone the delay of 1522 days in so far as original
defendant No. 1, had attained the finality. Original
defendant No. 1 straightway challenged the exparte
judgment and decree passed by the learned Trial Court by
way of revision application under Article 227 of the
Constitution of India. Whether the revision application
before the High Court under Article 227 of the Constitution
of India can be said to be maintainable or not has not at
all been considered. Even otherwise, the remedy against
an exparte judgment and decree available to the
defendants was, either to file an application under Order
IX Rule 13 of CPC or to prefer an appeal before the First
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Appellate Court. The defendants availed the first remedy
by way of filing the applications under Order IX Rule 13 of
CPC. However, there was a huge delay of 1522 and 2345
days, which was not condoned by the learned Trial Court.
Without expressing anything on whether the learned Trial
Court was justified in refusing to condone the delay, the
High Court has simply set aside the order passed by the
learned Trial Court refusing to condone the delay in so far
as original defendant Nos. 2 to 4 are concerned. The High
Court ought to have dealt with and considered the
question, whether, the learned Trial Court was justified in
refusing to condone the delay or not. There is no
discussion at all on the order passed by the learned Trial
Court refusing to condone the delay.
6.2 Even otherwise and as observed hereinabove, against the
exparte judgment and decree, the remedy by way of an
appeal before the First Appellate Court was available.
Therefore, the High Court ought not to have entertained
the revision application under Section 115 of CPC and
under Article 227 of the Constitution of India. The High
Court ought not to have entertained such a revision
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application challenging the exparte judgment and decree.
Once there was a statutory alternative remedy by way of
an appeal available to the defendants, the High Court
ought not to have entertained a writ petition or revision
application under Article 227 of the Constitution of India.
7. At this stage, the decision of this Court in the case of
Virudhunagar Hindu Nadargal Dharma Paribalana Sabai
and Ors. Vs. Tuticorin Educational Society and Ors.;
, is required to be referred to. In the said
(2019) 9 SCC 538
decision, it is observed and held by this Court that
wherever the proceedings are under the Code of Civil
Procedure and the forum is the civil court, the availability
of a remedy under CPC, will deter the High Court and
therefore, the High Court shall not entertain the revision
under Article 227 of the Constitution of India especially in
a case where a specific remedy of appeal is provided under
the CPC itself. While holding so, it is observed and held in
paragraphs 11 to 13 as under:
“11. Secondly, the High Court ought to have seen that when
a remedy of appeal under Section 104(1)( i ) read with Order
43, Rule 1( r ) of the Code of Civil Procedure, 1908, was
directly available, Respondents 1 and 2 ought to have taken
recourse to the same. It is true that the availability of a
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remedy of appeal may not always be a bar for the exercise of
supervisory jurisdiction of the High Court. In A.
Venkatasubbiah Naidu v. S. Chellappan [ A. Venkatasubbiah
Naidu v. S. Chellappan , (2000) 7 SCC 695] , this Court held
that “though no hurdle can be put against the exercise of the
constitutional powers of the High Court, it is a well
recognised principle which gained judicial recognition that
the High Court should direct the party to avail himself of
such remedies before he resorts to a constitutional remedy”.
12. But courts should always bear in mind a distinction
between ( i ) cases where such alternative remedy is available
before civil courts in terms of the provisions of Code of Civil
Procedure, and ( ii ) cases where such alternative remedy is
available under special enactments and/or statutory rules
and the fora provided therein happen to be quasijudicial
authorities and tribunals. In respect of cases falling under
the first category, which may involve suits and other
proceedings before civil courts, the availability of an
appellate remedy in terms of the provisions of CPC, may
have to be construed as a near total bar. Otherwise, there is
a danger that someone may challenge in a revision under
Article 227, even a decree passed in a suit, on the same
grounds on which Respondents 1 and 2 invoked the
jurisdiction of the High Court. This is why, a 3member
Bench of this Court, while overruling the decision in Surya
Dev Rai v. Ram Chander Rai [ Surya Dev Rai v. Ram Chander
, (2003) 6 SCC 675] , pointed out in
Rai Radhey
Shyam v. Chhabi Nath [ Radhey Shyam v. Chhabi Nath ,
(2015) 5 SCC 423 : (2015) 3 SCC (Civ) 67] that “orders of
civil court stand on different footing from the orders of
authorities or tribunals or courts other than judicial/civil
courts”.
Therefore wherever the proceedings are under the Code
13.
of Civil Procedure and the forum is the civil court, the
availability of a remedy under the CPC, will deter the High
Court, not merely as a measure of selfimposed restriction,
but as a matter of discipline and prudence, from exercising
its power of superintendence under the Constitution. Hence,
the High Court ought not to have entertained the revision
under Article 227 especially in a case where a specific
remedy of appeal is provided under the Code of Civil
Procedure itself.”
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7.1 Applying the law laid down by this Court in the aforesaid
decision to the facts of the case on hand, the High Court
ought not to have entertained the revision petition under
Article 227 of the Constitution of India against the exparte
judgment and decree passed by the learned Trial Court in
view of a specific remedy of appeal as provided under the
Code of Civil Procedure itself. Therefore, the High Court
has committed a grave error in entertaining the revision
petition under Article 227 challenging the exparte
judgment and decree passed by the learned Trial Court
and in quashing and setting aside the same in exercise of
powers under Article 227 of the Constitution of India.
7.2 Even otherwise considering the impugned common
judgment and order passed by the High Court, it appears
that while setting aside the exparte judgment and decree,
the High Court has commented upon the legality and
validity of the judgment and decree passed by the learned
Trial Court as if the High Court was exercising the
appellate jurisdiction against the judgment and decree
passed by the learned Trial Court. Before considering the
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judgment and decree on merits and/or expressing
anything on merits on the legality and validity of the
judgment and decree (exparte), the High Court was
required to consider whether the learned Trial Court was
justified in passing the exparte judgment and decree or
not. The High Court was also required to consider whether
the learned Trial Court was justified in refusing to condone
the delay of 1522 and 2345 days in filing the petition
challenging the exparte judgment and decree. Therefore,
in the facts and circumstances of the case, the impugned
common judgment and order passed by the High Court is
unsustainable, both, on law as well as on facts. The High
Court has exceeded in its jurisdiction while setting aside
the exparte judgment and decree in exercise of powers
under Article 227 of the Constriction of India. The
impugned common judgment and order passed by the
High Court is on irrelevant considerations and the relevant
aspects as observed hereinabove have not been considered
and dealt with by the High Court. Under the
circumstances, the impugned common judgment and
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order passed by the High Court deserve to be quashed and
set aside.
8. In view of the above and for the reasons stated above, the
present Appeals Succeed. The impugned common
judgment and order dated 19.11.2021 passed by the High
Court in Civil Revision Petition (NPD) No. 1054/2021 and
Civil Revision Petition (PD) No. 1301/2021, is hereby
quashed and set aside. The exparte judgment and decree
passed by the learned Trial Court as well as the order(s)
passed by the learned Trial Court refusing to condone the
delay of 2345 days in preferring the revision petition(s)
challenging the exparte judgment and decree filed by
original defendant Nos. 2 to 4 is/are hereby restored.
Present appeals are allowed accordingly. In the facts of the
case, there shall be no order as to costs.
………………………………….J.
[M.R. SHAH]
NEW DELHI; ………………………………….J.
th
July, 11 2022 [B.V. NAGARATHNA]
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