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IN THE HIGH COURT OF DELHI AT NEW DELHI
Tushar Rao Gedela, J.
Ms Ranjita Betarbet – Appellant
Versus
Subir Banerjee – Respondent
CM(M) 968 of 2022 & CM APPL. 40638 of 2022, CM APPL. 9089 of 2023, CM APPL. 9090 of 2023
Decided On : 23-03-2023
Order VII Rule 11 CPC - Challenge to Dismissal - Section 115 CPC, 1908 - Article 227 of the Constitution of India - [Section 115 CPC, 1908] - The court discussed the applicability of Section 115 of the Civil Procedure Code, 1908 and held that the dismissal of an application under Order VII Rule 11 CPC, 1908 could be challenged under Section 115 of the Civil Procedure Code, 1908 and not under Article 227 of the Constitution of India. The court emphasized that once a specific remedy is available under a particular statute, the alternate remedy under the writ jurisdiction under Article 227 of the Constitution of India exercising supervisory jurisdiction, ordinarily, ought not to be exercised. The court also highlighted that the challenge to an order of dismissal of an application under Order VII Rule 11 CPC, 1908 ordinarily entails challenge on merits raised in such application and not the procedural aspects of exercise of such jurisdiction of the civil Court.
Fact of the Case:
The petitioner challenged the dismissal of an application under Order VII Rule 11 CPC, 1908, citing the unavailability of the counsel due to a fractured foot. The court considered the settled law laid down by the Hon'ble Supreme Court in similar cases and granted liberty to the petitioner to file an appropriate petition under the appropriate provision of law within four weeks from the date of the judgment.
Finding of the Court:
The court found that the dismissal of an application under Order VII Rule 11 CPC, 1908 could be challenged under Section 115 of the Civil Procedure Code, 1908 and not under Article 227 of the Constitution of India. The court also extended the interim order for the petitioner to avail the alternate remedy within four weeks.
Issues: The main issue was the maintainability of challenging the dismissal of an application under Order VII Rule 11 CPC, 1908 under Section 115 of the Civil Procedure Code, 1908 or under Article 227 of the Constitution of India.
Ratio Decidendi: The court held that once a specific remedy is available under a particular statute, the alternate remedy under the writ jurisdiction under Article 227 of the Constitution of India exercising supervisory jurisdiction, ordinarily, ought not to be exercised. The court also emphasized that the challenge to an order of dismissal of an application under Order VII Rule 11 CPC, 1908 ordinarily entails challenge on merits raised in such application and not the procedural aspects of exercise of such jurisdiction of the civil Court.
Final Decision: The petition was disposed of with no order as to costs, and the court granted liberty to the petitioner to file an appropriate petition under the appropriate provision of law within four weeks from the date of the judgment.
JUDGMENT
Tushar Rao Gedela, J. (Oral)
[The proceeding has been conducted through Hybrid mode]
1. Ms. Anisha Banerjee, learned counsel appearing for the petitioner submits that she is unable to appear in person as she has fractured her foot, however, has appeared and argued the issue of maintainability through VC.
2. This Court has taken a consistent view in various matters to the effect that challenge to the dismissal of an application under Order VII Rule 11 CPC, 1908 would not fall within the purview of under Article 227 of the Constitution of India and has to be necessarily dealt with, under appropriate provision under the Code of Civil Procedure, 1908.
3. The aforesaid view is taken on the basis of the judgment of the Hon'ble Supreme Court rendered in Shiv Shkati Coop. Housing Society Vs. Swaraj Developers reported in (2003) 6 SCC 656 whereby it was held that amendments in the year 2002 to the Code of Civil Procedure, 1908 in respect of provision of Section 115 CPC would bar the Court under Article 227 of the Constitution of India to deal with dismissal of an application under Order VII Rule 11 CPC. The relevant para is reproduced as under:
"32. A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is "yes" then the revision is maintainable. But on the contrary, if the answer is "no" then the revision is not maintainable. Therefore, if the impugned order is interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject-matter of revision under Section 115.
There is marked distinction in the language of Section 97(3) of the Old Amendment Act and Section 32(2)(i) of the Amendment Act. While in the former, there was a clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in Section 32(2)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered, the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation."
4. The said view is further fortified by the judgment of Hon'ble Supreme Court in Sadhna Lodh Vs. National Insurance Co. Ltd. and Another reported in (2003) 3 SCC 524 wherein it was held as under:
"6. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149 (2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance Co. Ltd. v. Nicol/etta Rohtagi). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 CPC has been ex pressly barred by a State enactment, only in such case a petition under Arti
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