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2014 Supreme(Mad) 4450
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. Rajeswaran, J.
Surendra M. Mehta and Others
Versus
Sreekanth S. Mehta and Others
C.R.P. (NPD) Nos. 1763 and 4414 of 2012 and M.P. No. 1 of 2012
Decided on : 30 October 2014
Rajah, for M/s. Rajah and Venkatesan, J. Sivanandaraaj, for Petitioners
B. Ravi Raja, M. Devaraj, T.V. Sekar (Caveator), for Respondents
The main legal point established in the judgment is that the court can invoke its superintendent powers under Article 227 of the Constitution of India to direct the trial court to exercise its jurisdiction in a manner known to law when there is a clear alternative remedy and patent illegality has been committed causing gross injustice.
Headnote:
Revision Petitions - Restoration of Suit - Order IX Rule 9 CPC, Section 5 of the Limitation Act - The court allowed the revision petition filed under Article 227 of the Constitution of India, setting aside the order dated 16.03.2012 in I.A.No.2043/2011 in O.S.No.2652/1997 and directed the trial court to take up I.A.NO.1366/2011 and decide the same on merits and in accordance with law within a period of eight weeks from the date of receipt of a copy of this order.
Fact of the Case:
The suit filed in O.S.No.2652/1997 was dismissed for default on 12.07.2010. A restoration application has been filed under Order IX Rule 9 CPC, in I.A.No.1366/2011. As there was a delay in filing the restoration application, an application has been filed under Section 5 of the Limitation Act, to condone the delay of 134 days. The delay was condoned and later on I.A.No.1366/2011 was also dismissed for default on 28.10.2011. The reason given by the trial court for dismissing I.A.No.1366/2011 is that the petitioners were called absent, vakalat not filed, no representation for petitioners and the petition is dismissed for default. Thereafter I.A.No.2043/2011 has been filed under Section 151 CPC to restore I.A.No.1366/2011. This was hotly contested by the defendants and by order dated 16.03.2012, the learned Additional District Munsif, Alandur dismissed I.A.No.2043/2011 and aggrieved by the same, both the revision petitions have been filed by the plaintiffs in the suit.
Finding of the Court:
The court found that the trial court has miserably failed to read the facts and the issues involved in the proper perspective and has failed to exercise its jurisdiction resulting in grave injustice caused to the plaintiffs. The court invoked its superintendent powers under Article 227 of the Constitution of India to direct the trial court to exercise its jurisdiction in a manner known to law.
Issues: The issues involved in the case were the dismissal of the restoration application under Order IX Rule 9 CPC and the subsequent application filed under Section 151 CPC to restore the original restoration application.
Ratio Decidendi: The court held that when there is a clear alternative remedy, it will not normally invoke Article 227 of the Constitution of India, but, at the same time, alternative remedy is not a bar in a given case, where the court finds that patent illegality has been committed and gross injustice is caused to one side. The court also emphasized that quoting a wrong provision of law should not be held against the petitioners and that the trial court has not properly understood the law laid down by the Jharkand High Court.
Final Decision: The court allowed the revision petition filed under Article 227 of the Constitution of India, setting aside the order dated 16.03.2012 in I.A.No.2043/2011 in O.S.No.2652/1997 and directed the trial court to take up I.A.NO.1366/2011 and decide the same on merits and in accordance with law within a period of eight weeks from the date of receipt of a copy of this order.
1. In both the revision petitions, the petitioners challenge the fair and decreetal order dated 16.03.2012 passed in I.A.No.2043/2011 in I.A.No.1366/2011 in O.S.No.2652/21997, on the file of the learned Additional District Munsif, Alandur and therefore, a common order is being passed to dispose of both the Civil Revision Petitions.
2. C.R.P.No.1763/2012: This has been filed by the plaintiffs in O.S.No.2652 of 1997. O.S.No.2652/1997 has been filed by the plaintiffs for a judgment and decree, declaring that the suit schedule properties belong to the firm Bapalal & Co. and for a permanent injunction restraining the defendants from alienating, encumbering or otherwise dealing with the suit properties in any manner to the detriment of the interest of the plaintiffs who continue to be the partners of Bapalal & CO.
3. Written statement has been filed by the second defendant and the suit was contested. The second defendant also filed an additional written statement, for which, a reply statement has been filed by the third plaintiff.
4. In O.S.No.2652 of 1997, an application was filed by the defendants to reject the plaint, but, the same was dismissed by the trial court on 22.03.2010. Thereafter, the suit was adjourned for several reasons and it was ultimately posted to 12.07.2010. As there was no representation on behalf of the plaintiffs on 12.07.2010, the suit was dismissed for default on that day.
5. To restore the suit which was dismissed for default on 12.07.2010, an application in I.A.No.1366/2011 has been filed by the plaintiffs under Order IX Rule 9 CPC and as there was a delay in filing the restoration application, another application has been filed to condone the delay of 134 days in filing the restoration petition under Section 5 of the Limitation Act.
6. The application filed to condone the delay of 134 days was allowed on condition that the plaintiffs should pay a sum of Rs.1,000/- and the same was complied with. Thereafter, the restoration application filed in I.A.No.1366/2011 was taken up for hearing and it was again dismissed for default on 28.10.2011. Thereafter, another application has been filed in I.A.No.2043/2011 by the plaintiffs to restore I.A.No.1366/20111, which was dismissed for default on 28.10.2011. The trial court on 16.03.2012 dismissed I.A.No.2043/2011 and aggrieved by the same, some of the plaintiffs filed C.R.P.No.1763/2012 under Section 115 of CPC.
7. Challenging the very same order dated 16.03.2012 passed in I.A.No.1366/2011 in O.S.No.2652/1997, two other plaintiffs filed C.R.P.(NPD)No.4414/2012 under Article 227 of the Constitution of India.
8. Heard the learned counsel appearing for the petitioners in C.R.P.(NPD)No.1763/2012, the learned counsel appearing for the respondents 1 and 2 and the learned counsel appearing for the respondents 3 and 4 in C.R.P.(NPD)No.1763/2012. I have also heard the learned counsel appearing for the petitioners in C.R.P.(NPD)No.4414/2012 and the learned counsel appearing for the second respondent in C.R.P.(NPD)No.4414/2012. I have also gone through the entire documents made available on record.
9. This matter was already argued and thereafter posted on 28.10.2014 before me for certain clarifications. All the learned counsel appearing for the parties made their submissions fully once again in detail with regard to the entire matter.
10. The learned counsel appearing for the respondents in C.R.P.No.1763/2012 contended that as the application filed in I.A.No.2043/2011 has been dismissed, the proper remedy for the petitioners is to file an appeal and not to file a revision under Section 115 of CPC. According to them, as per Section 141 of the Code of Civil Procedure, the procedure provided in the Code in regard to suits shall be followed in all proceedings in any Court of Civil jurisdiction. They also pointed out the explanation given under Section 141 CPC, according to which, the expression ‘proceedings under Order IX’, but, it does not include any proceeding under Article 226 o
