Rajaram @ A.R. Ramasamy vs Peria Marakkal

M. Venugopal, J.—The revision petitioner/petitioner/plaintiff has preferred this Civil Revision Petition as against the order dated 18.04.2005

in I.A. No. 17/2005 in O.S. No. 221/2004 passed by the learned first Additional District Munsif, Bhavani in dismissing the application filed by him

under Order 9 Rule 9 u/s 151 CPC seeking restoration of the suit in O.S. 221/2004 which has been dismissed for default on 19.1.05.

The trial Court, while passing orders in I.A. 17/2005 dated 18.04.2005 as interalia opined that �the revision petitioner/plaintiff has been given

opportunities to conduct the case by adopting a liberal approach after contending his negligence and in spite of the same the revision petitioner

appears to have not been diligent and even when the I.A.17 of 2005 has been pending, on 13.04.2005 the revision petitioner or his Counsel has

not appeared and again when the matter has been posted on today the revision petitioner has not appears before the court and further there is no

revision on his behalf and therefore the revision petitioner has not shown material respect to the judicial proceedings, etc. and since the revision

petitioner has not taken any interest in regard to the conduct of the case and also wrongly understood the same appear before the court. There is

no use for the court to wait for the revision petitioner and resultantly dismissed the application without costs.

The learned Counsel for the revision petitioner/plaintiff urges before this court, that the trial Court has committed an error by not adopting a

liberal approach in regard to the application seeking restoration of suit and further the revision petitioner has not appeared before this court on

19.01.2005 due to the change of Counsel at Erode and these have not been taken note of by the trial Court in a proper perspective and moreover

the trial Court should have outweighed the relative hardship of parties to the suit and at any rate, it should have awarded reasonable costs for

meeting the ends of justice and as a matter of fact, the trial Court has exercised its jurisdiction when it has observed that ''Court will not wait for the

litigants to prosecute the case whenever they like etc''. and therefore prays for allowing the Civil Revision petition in the interest of the justice.

According to the learned Counsel for the Revision Petitioner/plaintiff, the present revision petition filed by the revision petitioner is maintainable

before this Court and further that this Court has wide powers under Article 227 of the Constitution of India and the same cannot be curtailed by

the express provision of a statute and hence this Court can issue suitable directions in the present revision petition.

The learned Counsel for the revision petitioner cites the decision of this Court Central Bureau of Investigation Vs. K.M. Sharan, Wherein it is

observed as follows:

When the court below proceed more on technicality and failed to consider the fact in the process and denied the appellant the opportunity to

participate in the process of justice dispensation. All the procedures are handmaid of justice.

The order of the Court below is revisable by exercise supervisory powers under Article 227 of the Constitution of India. Order dismissing

Application under Order 41 Rule 12 C.P.C. is set aside. Being a court of record, a High Court can exercise powers under Article 227 of the

Constitution of India.

Further, the learned Counsel for the revision petitioner relies on the decision Syndicate Bank Vs. Salem Slate Forms and Others, wherein it is

observed that ""Court can exercise power under supervisory jurisdiction in the interest of Justice to amend Decree even when provisions of Section

151, 152 and 153 cannot be made applicable to the facts of the case"".

Continuing further, the learned Counsel for the revision petitioner brings it to the notice of this Court the decision Silver Granites Vs. Murugan

and others, whereunder it is held that ""the power of superintendence in the interest of justice has been exercised suo motu to transfer the suit from

one Subordinate Court to another Subordinate Court where the similar matters are pending"".

Yet another decision Sundararajan Vs. Jhansi Rani and others, wherein it is laid down that ""Order granting injunction after hearing both parties

challenged by way of revision under Article 227 of the Constitution of India and that the defendant not filing appeal as provided under the Code of

the Civil Procedure and the parties are not directed to go on appeal and that the decision rendered in Revision even though appeal alone is

maintainable as decision on merits became necessary to decide maintainability of revision petition and that the order of injunction was confirmed on

merits"".

In response, the learned Counsel for the respondent/defendant contends that originally the main suit in O.S. No. 221 of 2004 on the file of trial

court has been dismissed for default on 19.07.04 and that in I.A. No. 331 of 2004 has been filed on 21.7.04 of restoration suit by the revision

petitioner/plaintiff to restore the suit and the same has been dismissed for default on 25.08.04 and later I.A.381 of 2004 has been filed to restore

I.A.33 of 2004 and on 05.10.04 both I.A. Nos. 381 of 2004 & 331 of 2004 have been allowed on payments of costs resulting in suit being

restore to file and again on 19.01.05, the suit has been dismissed for default and I.A.17 of 2005 to restore the suit has been filed on 01.02.05 and

by means of an order dated 18.04.05. The said I.A.17 of 2005 has been dismissed by the trial court and on 01.07.05 I.A.202 of 2005 in

CMA.CFR 1568 of 2005 has been filed by the revision petitioner/plaintiff praying to condone the delay of 43 days in filing an appeal as against the

order dated 18.04.05 passed in I.A.17 of 2005 and I.A.202/05 CMA-CFR 4568/05 has been dismissed by the trial court on 28.07.06 and that

the revision petitioner/plaintiff has filed, the present revision petition before this court on 05.11.06 praying to set aside order passed in I.A.17 of

2005 dated 18.04.05 and that the revision petitioner has not challenged the orders of the trial court dated 28.07.06 passed in I.A.202 of 20 05 in

CMA.CFR 4568 of 2005 and the same has become final and the revision petitioner instead of challenging the dismissal order in I.A.202 of 2005

in CMA.CFR 4568 of 2005 has challenged for the second time the order passed in I.A.17 of 2005 which is barred by the principles of Res

judicata and when the revision petitioner/plaintiff has an alternative remedy of filing an appeal then the present revision petition filed by the revision

petitioner is not maintainable per se in law and therefore prays for dismissal of the revision petition.

To lend support to his contention that when a comprehensive remedy is available to the revision petitioner by way of preferring an appeal to

the appellate court as per CPC then the revision petitioner cannot seek in aid of Article 227 of the Constitution of India, the learned Counsel for

the respondent side, the decision The Director of School Education, The Collector and The Chief Educational Officer Vs. G. Venkatesan, wherein

it is held that ""the availability of adequate and effective alternative remedy disentitles a party to approach under Article 227 of the Constitution of

India"".

He also relies on the decision of the Hon�ble Supreme Court Bhanu Kumar Jain Vs. Archana Kumar and Another, wherein it is held that

Res judicata applies not only in separate subsequent proceedings but also to subsequent stage of same proceedings and that Res judicata debars

Court from exercising its jurisdiction to determine lis if has attained finality between parties and it is the estoppel by accord and the aids of estoppel

is invoked against party and it means that party against whom issued is decided is estopped from raising the same in the latter proceeding and the

cause of action estoppel arises where in two different proceedings identical issues are raised and in such case latter proceedings between some

parties shall be dealt with similarly as was done in previous proceedings"".

It is significant to extract the order of the trial court dated 28.7.06 in I.A.202/05 in CFA No. 4568/05 which runs as follows:

It is the contention of the respondent that in a case wherein the petition to restore the petition under Order 9 Rule 9 was filed and the same is

dismissed on merits. The affected party cannot file C.M.A. The only remedy available to the affected party is Revision. Such contention of the

respondent is found true. The suit was dismissed for default. The petition under Order 9 Rule 9 was filed by the plaintiff. The same was allowed to

be dismissed for default by the plaintiff. Subsequently petition to restore the I.A. under Order 9 Rule 9 which was dismissed against which this

petition is filed. Therefore, in such circumstances, the contention of the respondent that only Revision will lie and not C.M.A., is found justified.

Under these circumstances, the petition to condone delay in filing C.M.A. cannot at all be allowed. Even allowed, C.M.A. will not be allowed and

it will not serve the purpose.

Admittedly, as against the order dated 28.07.06 has passed by the trial court in I.A.202 of 2005 in CFR No. 4568 of 2006 no further

proceedings by means of revision has been initiated by the revision petitioner/plaintiff and the said order has become final.

At this stage, this Court pertinently points out the decision Smt. V.C. Sarojamma and Ors. v. B.S. Shankar 1995 AIHC at page 125 wherein

it is observed that ""the principles of res judicata u/s 11 of the CPC do not strictly apply to interlocutory matters"".

In the decision of the Hon''ble Supreme Court Smt. Sukhrani (Dead) by L.R.S. and Others Vs. Hari Shanker and Others, it is held as under:

It is true that a decision given at an early stage of a suit will bind the at later stages of the same suit. But it is well settled that because a matter has

been at an early stage by an interlocutory order and no appeal has been taken therefrom or no appeal did lie, a High Court is not precluded from

considering the matter again at a later stage of the same litigation.

In U.P. Junior Doctors'' Action Committee Vs. Dr B. Sheetal Nandwani and Others, the Hon''ble Supreme Court has held that ""one of the test

is to ascertain if a finding operates as res judicata is if the party aggrieved could challenge it since the dismissal of appeal or the appellate decree

was not against the defendants 2 and 3 they could not challenge it by way of appeal. Even assuming that the defendant 1 could challenge the

findings that liability of rent was of defendant 2 and 3 as they were in possession he did not file any written statement in the trial court raising any

dispute between himself and defendants 2 and 3. There was thus no occasion for the appellate court to make observation when there was neither

pleading nor evidence. Therefore, from other point of view the finding could not operate against defendant 2 and 3 as res judicata, etc"".

Be that as it may it is useful for this Court to refer to Order 43 Rule 1(c) of CPC which enjoins that an appeal lies as against an order under

Rule 9 of Order IX rejecting the application in a case open to appeal for an order to set aside the dismissal of a suit. As a matter of fact, Order 43

Rule 1(c) encompasses the rejection of an application under Order 9 Rule 9 of C.P.C. irrespective of the fact where that rejection is on merits or

in default, as per decision Nathu Prasad Vs. Singhai Kapurchand,

It is relevant to make a mention that in a case, a suit has been dismissed for default of appearance by the plaintiff the application for restoration

under Order 9 Rule 9 of C.P.C. has been dismissed, as a sufficient cause for non-appearance has not been shown and it is held that the order is

appealable one under Order 43, Rule 1(c) of CPC and hence no revision will lie as per decision Meena Colony Grah Nirman Sahakari Samiti Ltd.

Vs. The Jaipur Development Authority and Another, .

It is true that Res judicata is often treated as branch of law of estoppel though the two doctrines differs in some essential features in the

considered opinion of this court.

Indeed, this Court recollects the observation made in the decision Kripalsingh v. The Additional Judge, Small Cause Court, Meerut and Ors.

1998 AIHC 1976 wherein it is held that Res judicata applies to orders on interlocutory applications unless circumstances have changed''. In the

decision of the Hon''ble Supreme Court Bhanu Kumar Jain Vs. Archana Kumar and Another, , it is held that ""the defendant suffering ex parte

decree can file an application to set aside the same in terms of Order 9 Rule 13 of CPC or file an appeal against the same u/s 96 of CPC and in

regular first appeal u/s 96 filed against ex parte decree, defendant can agitate that materials placed before Court would not entail decree and that

suit could not have been posted for ex parte hearing and that the defendant can, in application under Order 9 Rule 13, question correctness or

otherwise of posting the case for ex parte hearing and also contend that he had cogent and sufficient reasons for not attending hearing of suit on

relevant time and the defendant can have recourse to both proceedings simultaneously or in succession viz. regular appeal as well as application

under Order 9 Rule 13. But applications under Order 9 Rule 13 cannot be pursued if the first appeal is dismissed.

Added further that all interlocutory orders will not operate as Res judicata within the meaning of Section 11 of CPC since they do not decide

any matter in dispute arising in the suit.

On a careful consideration of respective contentions and notwithstanding the fact that a plea of res judicata has been raised on the side of

respondent/defendant and on an overall assessments of the facts and circumstances of the case, this court is of the considered view that the

revision petitioner/plaintiff has an alternative viable remedy of preferring an appeal as per Order 43 Rule 1(c) of CPC as against the order dated

18.4.05 passed in I.A.17 of 2005 in O.S.221 of 2004 on the file of trial Court and therefore the revision petitioner/plaintiff cannot seek in aid of

Article 227 of the Constitution of India before this court by means filing of the present Civil Revision Petition and moreover the Article 227 of the

Constitution of India cannot be used as a matter of routine and it should be used sparingly and viewed in this perspective, this court comes to the

inevitable conclusion that this is not a fit case where this court can exercise its supervisory powers under Article 227 of the Constitution of India

and resultantly holds that the Civil Revision petition is not maintainable and the same is dismissed, leaving the parties to bear their own costs in this

revision.

In fine, the civil revision petition is dismissed. It is open to the revision petitioner/plaintiff to pursue his legal remedy of preferring an appeal as

per relevant provision of CPC before the competent forum as against the order dated 18.4.05 passed in IA 17 of 2005 in O.S. 221 of 2005 in the

manner known to law and in accordance with law if so advised. Considering the facts and circumstances of the case, the parties are directed to

bear their own costs.