Mohamed Ali vs V. Jaya

Mohamed Ali …Appellant(s) Versus V. Jaya & Ors. …Respondent(s) With CIVIL APPEAL NO. 4114 OF 2022

JUDGMENT

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 High Court has set aside the ex­parte judgment and decree Reason:

passed by the learned Trial Court, the original plaintiff has

1 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

2 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

3 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

4 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

5 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

6 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

7 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

8 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

9 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;

(2021) SCC Online SC 467. Relying upon the said

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

10 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

11 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

12 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

13 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

14 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.;

(2019) 9 SCC 538, is required to be referred to. In the said

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

15 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 Rai, (2003) 6 SCC 675] , pointed out in 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”.

13. Therefore wherever the proceedings are under the Code 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.”

16 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

17 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

18 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. July, 11th 2022 [B.V. NAGARATHNA]

19