Constitution of India: Art. 227 – Power of superintendence over all courts by the High Court – Power of revision – Extent and scope of – Revision petitions u/Art. 227 challenging an ex-parte judgment and decree of specific performance of the trial court, and the order refusing to condone of delay in filing of an application for setting aside of the ex-parte judgment and decree observing that no sufficient cause was shown – High Court allowed the revision petitions and set aside the judgment and decree, holding that there was total non-application of mind as the trial court did not consider the aspect of readiness and willingness on the part of the plaintiff; and that trial court without expressing anything on merits refused to condone the delay – On appeal, held: High Court did not at all consider whether the trial court was justified in refusing to condone such a huge delay of 2345 days – High Court also did not appreciate and consider the fact that the order passed by the trial court refusing to condone the delay of 1522 days in so far as original defendant No. 1, had attained the finality – High Court did not consider the maintainability of the petition u/Art. 227 – Remedy to challenge the ex-parte order was available by way of an appeal before the first appellate court – Thus, the High Court ought not to have entertained the revision application u/s. 115 CPC and u/Art. 227 – Also, the High Court simply set aside the order refusing to condone the delay without any express justification – While setting aside the ex-parte judgment and decree, the High Court commented upon the legality and validity of the judgment and decree as if it was exercising appellate jurisdiction – High Court passed the order on irrelevant consideration and relevant aspects were not considered – High Court exceeded in its jurisdiction while setting aside the ex-parte judgment – Therefore, the impugned judgment and order passed by the High Court is unsustainable, and quashed and set aside. Allowing the appeals, the Court
HELD: 1.1 The High Court has not at all considered whether the 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 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 ex-parte judgment and decree passed by the 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 ex-parte 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 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 trial court. Without expressing anything on whether the trial court was justified in refusing to condone the delay, the High Court has simply set aside the order passed by the 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 trial court was justified in refusing to condone the delay or not. There is no discussion at all on the order passed by the trial court refusing to condone the delay. [Para 6.1][283-B-F]
1.2 Against the ex-parte 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 CPC and under Article
227 of the Constitution of India. The High Court ought not to have entertained such a revision 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. [Para 6.2][283G-H]
1.3 The High Court ought not to have entertained the revision petition under Article 227 of the Constitution of India against the ex-parte judgment and decree passed by the 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 ex-parte judgment and decree passed by the trial court and in quashing and setting aside the same in exercise of powers under Article 227 of the Constitution of India. [Para 7.1][285-D-E]
1.4 Even otherwise considering the impugned common judgment and order passed by the High Court, it appears that while setting aside the ex-parte judgment and decree, the High Court commented upon the legality and validity of the judgment and decree passed by the trial court as if the High Court was exercising the appellate jurisdiction against the judgment and decree passed by the trial court. Before considering the judgment and decree on merits and/or expressing anything on merits on the legality and validity of the judgment and decree (ex-parte), the High Court was required to consider whether the trial court was justified in passing the ex-parte judgment and decree or not. The High Court was also required to consider whether the trial court was justified in refusing to condone the delay of 1522 and 2345 days in filing the petition challenging the ex-parte 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 ex-parte 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 have not been considered and dealt with by the High Court. Under the circumstances, the impugned common judgment and order passed by the High Court deserve to be quashed and set aside. [Para 7.2][285-F-H; 286-A-B]
1.5 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 quashed and set aside. The ex-parte judgment and decree passed by the trial court as well as the order(s) passed by the trial court refusing to condone the delay of 2345 days in preferring the revision petition(s) challenging the ex-parte judgment and decree filed by original defendant Nos. 2 to 4 is restored. [Para 8][286-C-D]
Radhey Shyam and Anr. v. Chhabi Nath and Ors. (2015)
5 SCC 423 : [2015] 3 SCR 197; K. P. Natarajan and Anr. v. Muthalammal and Ors. (2021) SCC Online SC
467 – referred to.
Virudhunagar Hindu Nadargal Dharma Paribalana
Sabai and Ors. v. Tuticorin Educational Society and Ors. (2019) 9 SCC 538 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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