SC: If a statutory alternative remedy by way of an appeal available, petition u/A 227 of Constitution not to be entertained

  

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Supreme Court of India was dealing with the petition challenging the judgment and order dated 19.11.2021 passed by the High Court of Madras at Madurai Bench in Civil Revision Petition by which, in exercise of powers under Article 227 of the Constitution of India the High Court has set aside the ex-parte judgment and decree passed by the learned Trial Court.

Appellant’s Contention:

Learned counsel for the appellant submitted that the High Court has committed a grave error in setting aside the ex-parte judgment and decree in revision petition in exercise of powers under Article 227 of the Constitution of India. It was argued that 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 the judgment and decree in exercise of powers under Article 227 of the Constitution of India.

Respondent’s Contention:

Learned Counsel for the respondent submitted that High Court has rightly set aside the ex-parte judgment and decree on the ground that the ex-parte 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 was argued that 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.

 

SC’s Observations:

After hearing both the sides SC observed thatagainst the Ex-partejudgment and decree, the remedy by way of anappeal before the First Appellate Court was available.Therefore, the High Court ought not to have entertainedthe revision application under Section 115 of CPC andunder Article 227 of the Constitution of India.

SC further observed that the HighCourt ought not to have entertained such a revisionapplication challenging the ex-partejudgment and decree.Once there was a statutory alternative remedy by way ofan appeal available to the defendants, the High Courtought not to have entertained a writ petition or revisionapplication under Article 227 of the Constitution of India.

 

SC relied upon the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Ors. Vs. Tuticorin Educational Society and Ors where it was observed 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.

SC stated that 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 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 ex-parte 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.

SC Held:

 

After evaluating submissions made by both the parties the SC held that “The HighCourt has exceeded in its jurisdiction while setting asidethe ex-partejudgment and decree in exercise of powersunder Article 227 of the Constriction of India. Theimpugned common judgment and order passed by theHigh Court is on irrelevant considerations and the relevantaspects as observed hereinabove have not been consideredand dealt with by the High Court. Under thecircumstances, the impugned common judgment andorder passed by the High Court deserve to be quashed andset aside.”

Case Title: Mohamed Ali v. V. Jaya &Ors.

Bench: J. M.R. Shah and J. B.V. Nagarathna'

 

Citation: CIVIL APPEAL NO. 4113 OF 2022

Decided on: 11^th July, 2022

 

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