The High Court has the power to revise orders of courts inferior to it, including orders refusing leave to appear and defend a suit under Order 37 CPC, even if a decree has been passed, and the proviso to Section 115(1) CPC does not bar such revision petitions where the order, if allowed to stand, would occasion a failure of justice.

Headnote:
REVISION PETITION - ORDER 37 CPC - DECREE PASSED - MAINTAINABILITY - JURISDICTION - SECTION 115 CPC - INTERPRETATION - SCOPE - FINAL DECISION - CONSEQUENTIAL ORDER - EFFECT OF DECREE - PROVISO TO SECTION 115(1) CPC - INTERPRETATION - FAILURE OF JUSTICE - COMPETENCY OF REVISION PETITION.
Fact of the Case:

A revision petition was filed 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 (CPC), where a decree had also been passed against the defendant. The issue was whether the revision petition was maintainable or whether the defendant had to file an appeal against the decree and challenge the order refusing leave to appear and defend the suit.
Finding of the Court:

The court held that the revision petition was maintainable. It interpreted Section 115 CPC to mean that the High Court has the power to revise orders of courts inferior to it, including orders refusing leave to appear and defend a suit under Order 37 CPC, even if a decree has been passed. The court also held that the proviso to Section 115(1) CPC does not bar the revision petition in this case, as it falls under clause (b) of the proviso, which allows revision where the order, if allowed to stand, would occasion a failure of justice.
Issues: 1. Whether a revision petition is maintainable against an order of a trial court declining leave to the defendant to appear and defend a suit under Order 37 CPC, where a decree has also been passed against the defendant? 2. Whether the High Court has the power to revise orders of courts inferior to it, including orders refusing leave to appear and defend a suit under Order 37 CPC, even if a decree has been passed? 3. Whether the proviso to Section 115(1) CPC bars the revision petition in this case?
Ratio Decidendi: 1. The High Court has the power to revise orders of courts inferior to it, including orders refusing leave to appear and defend a suit under Order 37 CPC, even if a decree has been passed. 2. The proviso to Section 115(1) CPC does not bar the revision petition in this case, as it falls under clause (b) of the proviso, which allows revision where the order, if allowed to stand, would occasion a failure of justice.
Final Decision: The court held that the revision petition was maintainable and directed that it be laid before a Single Judge for disposal.

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 High Court in exercise of its revisional jurisdiction merely because a decree has been passed from which an appeal lies. Kapur, J. on the other hand. takes the view that a decree having been passed the order refusing leave to appear and defend cannot be revised under Section 115 of the Code of Civil Procedure and an appeal must be filed against the decree and in that appeal the tenability of the order refusing leave to appear and defend can be questioned. We are, therefore, only called upon to decide whether in a suit brought under Order 37 Civil Procedure Code. if leave to appear and defend the suit is not granted to a defendant and a decree is passed, would the order of the trial Court refusing leave to appear and defend the suit be revisable or whether the defendant in such a case must file an appeal against the decree and in that appeal challenge the order refusing him leave to appear and defend the suit by either invoking the provisions of Section 105 of the Code of Civil Procedure or otherwise.

( 3 ) I would like to make it clear that the reference made to the larger bench is restricted only to answering the above question and not deciding the petition on merits.

( 4 ) BEFORE I proceed to deal with the question REFERRED TO to us, it will be necessary to deal with another point. The present petition was filed under Article 227 of the Constitution of India, as it existed prior to the 42nd Amendment to the Constitution of India. In view of Article 227 of the Constitution having been amended, the petitioner has moved C. M. 399 of 1977 praying that this petition may be treated as a revision petition under Section 115 Civil Procedure Code. The question is whether it can be done.

( 5 ) THE impugned order was passed on March 14, 1974. The petition under Article 227 of the Constitution, as then in force, was filed on May 13, 1974. So, the bar of limitation cannot be pleaded if the petition is to be treated as a revision petition under Section 115 Civil Procedure Code.

( 6 ) SECTION 115 Civil Procedure Code. as amended now reads as under :- 115 (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears- - (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.

( 7 ) PROVIDED that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where- (a) the order, if it had been made in favour of th

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1977 Supreme(Del) 65

High Court Of DelhiKRISHAN BHARDWAJ - AppellantVersusMANOHAR LAL GUPTA - RespondentCivil Miscellaneous (Main) 134 of 1974Decided On : 05/18/1977

Cases Referred (4)

High Court Of Delhi
KRISHAN BHARDWAJ - Appellant
Versus
MANOHAR LAL GUPTA - Respondent
Civil Miscellaneous (Main) 134 of 1974
Decided On : 05/18/1977