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1977 Supreme(Del) 65

P.S.SAFEER, PRAKASH NARAIN
KRISHAN BHARDWAJ – Appellant
Versus
MANOHAR LAL GUPTA – Respondent


Advocates Appeared:
ARUN SHARMA, B.N.NAYAR, I.D.Garg

Judgement Key Points

Based on the provided legal document, here are the key points:

  • Maintainability of Revision Petition: The High Court has the power to revise orders of inferior courts, including orders refusing leave to appear and defend a suit under Order 37 of the CPC, even if a decree has already been passed against the defendant (!) (!) (!) .
  • Distinction Between Appeal and Revision: Appeals and revisions are distinct; while an appeal is a right to a rehearing on facts and law, a revision is a discretionary remedy where the High Court supervises whether the subordinate court exercised its jurisdiction legally, without jurisdiction, or with material irregularity (!) (!) .
  • Interpretation of "Case" under Section 115: The expression "any case which has been decided" in Section 115 CPC is of comprehensive import and includes parts of a proceeding, not just the final disposal of a suit. An order refusing leave to defend effectively ends the controversy for the defendant as allegations are deemed admitted, thus falling within the ambit of "any case" (!) (!) (!) .
  • Effect of Proviso to Section 115(1): The proviso to Section 115(1) CPC, which bars revision if an appeal lies, does not apply here because the order refusing leave to defend falls under clause (b) of the proviso. This clause allows revision if the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury, which is the case when a decree follows automatically from the refusal of leave (!) (!) .
  • Consequential Orders: A decree passed after refusing leave to defend is a consequential order dependent on the earlier refusal. If the refusal order is set aside via revision, the consequential decree must also be modified or declared of no effect, as it would be an exercise in futility to revise the refusal while leaving the decree intact (!) (!) .
  • Conversion of Petition: A petition filed under Article 227 of the Constitution can be treated as a revision petition under Section 115 CPC if the impugned order is not appealable and a case is made out for revision, provided the limitation bar does not apply (!) (!) (!) .
  • No Right to File Revision as of Right: While there is a right to bring an error to the notice of the High Court, there is no independent statutory right to file a revision petition as of right; it is a discretionary remedy dependent on the circumstances of the case (!) .

PRAKASH NARAIN, J.

( 1 ) THIS matter comes before us on a reference made by me to a larger bench on account of a conflict of opinion between B. C. Misra, J. and D. K. Kapur, J. in their respective judgments deciding Civil Revision No. 20 of 1973, Lachhman Singh etc. v. C. D. Taneja etc. and Civil Revision No. 355 of 1973, Ramesh Chander Jain v. Sarvdeshik Arya Pratinidhi Sabha and others. In point of time the decision of Kapur, J. was earlier than the decision of B. C. Misra, J. but it seems that the decision of Kapur, J. was not brought to the notice of Misra, J.

( 2 ) THE two learned Judges have differed on the question of the maintainability of a revision petition against an order of a trial Court declining leave to the defendant to appear and defend a suit under Order 37 of the Code of Civil Procedure if a decree has also been passed against the said defendant. B. C. Misra. J. is of the opinion that the mere fact that the court below at the time of or after refusing to grant leave to the defendant to appear and defend has passed a decree does not have the effect of depriving the said defendant of his right to have the order refusing leave to appear and defend revised by the Hig
























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