Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(SC) 591

SUPREME COURT OF INDIA
M.R. SHAH, B.V. NAGARATHNA, JJ.
Mohamed Ali – Appellant
Versus
V. Jaya and Others – Respondents
Civil Appeal Nos. 4113, 4114 of 2022
Decided On : 11-07-2022

Advocates Appeared:
For the Appellant : Mr. R. Balasubramanian, Sr. Adv. Mr. Bhupendra Pratap Singh, Adv. Mr. K. Palanikumar, Adv. Mr. D. Kesavan, Adv. Mr. T. Gopal, Adv. Mr. Sachin Sharma, Adv. Mr. Vimal Pani S.C.V., Adv. Mr. G. Sivabalamurugan, AOR Mr. Upender Singh, Adv.
For the Respondent: Mr. S. Gowthaman, AOR

The High Court should not entertain a revision petition under Article 227 against an ex-parte judgment and decree when a specific remedy of appeal is available under the Code of Civil Procedure itself.

Headnote:
Article 227 - Setting Aside Ex-Parte Judgment and Decree - Code of Civil Procedure (CPC) - Specific Relief Act - [Article 227] - [Setting Aside Ex-Parte Judgment and Decree] - [Code of Civil Procedure (CPC)]
Fact of the Case:

The original plaintiff filed a suit for specific performance of an agreement to sell. The defendants were placed ex-parte, and the Trial Court passed an ex-parte judgment and decree. The defendants filed applications to set aside the ex-parte judgment and decree with significant delays. The High Court set aside the ex-parte judgment and decree without considering the delay or the legality and validity of the judgment and decree.
Finding of the Court:

The High Court's decision to set aside the ex-parte judgment and decree in exercise of powers under Article 227 of the Constitution of India was found to be unsustainable, as it did not consider the delay in filing the applications or the legality and validity of the judgment and decree. The High Court exceeded its jurisdiction and acted on irrelevant considerations.
Issues: The main issue was the High Court's jurisdiction to set aside the ex-parte judgment and decree under Article 227 without considering the delay or the legality and validity of the judgment and decree.
Ratio Decidendi: The High Court should not entertain a revision petition under Article 227 against an ex-parte judgment and decree when a specific remedy of appeal is available under the Code of Civil Procedure itself. The High Court must consider whether the Trial Court was justified in passing the ex-parte judgment and decree and in refusing to condone the delay before setting it aside.
Final Decision: The Appeals Succeed, and the impugned judgment and order passed by the High Court are quashed and set aside. The ex-parte judgment and decree passed by the Trial Court, as well as the orders refusing to condone the delay, are restored. Present appeals are allowed with no order as to costs.

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 High Court has set aside the ex-parte judgment and decree passed by the learned Trial Court, the original plaintiff has preferred the present appeals.

2. The facts leading to the present appeals in a nutshell are as under:

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 ex-parte 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 ex-parte 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 learned Trial Court is on a total non-application 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 ex-parte 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 ex-parte 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 judgments and orders passed by the High Court in CRP No. 1301/2021 (filed by original defendant No. 1 to set aside the ex-parte 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 petition to set aside the ex-parte judgment and decree, the original plaintiff has preferred the present appeals.

3. Shri R. Balasubramanian, learn