Durga Prasad vs Naveen Chandra & Ors

The respondent has filed a suit for specific performance and after the evidence of the appellant was closed on 12.3.1991, the defendant's evidence was directed to be recorded on 20.3.1991. It would appear that the matter was adjourned from tine to time till 11.1.1994. On that date, the respondent seemed to have declined to contest the suit and sought adjournment. The application for adjournment was rejected and after hearing arguments, judgment was reserved and was pronounced on 14.1.1994. Respondent No.2 made an application on 27.1.94 to set aside the decree under Order 9 Rule 13 CPC. Similar application was filed by other respondents. While that application was pending, the appellant moved an application objecting to the maintainability of the application and to hear it as a preliminary point. That petition came to be dismissed by the trial Court on 7.10.95. Against the said order, the appellant filed writ petition under Art. 226 of the Constitution and that was dismissed by the impugned order dated 21.12.95 by the High Court. Thus this appeal by special leave.

On the last occasion when the matter had come up for admission, we had asked the learned counsel as to how the writ petition is maintainable in the circumstances. The learned counsel sought for and the matter was adjourned. Thus it has come up today. The appellant's counsel contended that three remedies are open to the appellant under the CPC, namely, right of appeal under section 96 or appeal under Order 43 read with section 104 or a revision under section 115 CPC. In view of the fact that the matter does not come within the four corners of any of the three remedies, the appellant is left with no other remedy except approaching the High Court under Art.226. It is true that the impugned order is not appealable one either under section 96 or under Order 43 Rule 1 read with section 104 CPC. But still a revision would be maintainable and whether the order could be revised or not is a matter to be considered by the High Court on merits. But instead of availing of that remedy, the appellant has invoked jurisdiction under Art.226 which is not warranted and the procedure prescribed under the CPC cannot be bye--passed by availing of the remedy not maintainable under Article 226. Under these circumstances, we decline to interfere with the order, it is open to the appellant to avail of such remedy as is open under law.

The appeal is accordingly dismissed . No costs.