T. Subramanian vs S. Janakiammal

Honourable Mr. Justice G. Rajasuria

This Civil Revision Petition has been filed to get set aside the order dated 15.03.2012 passed in C.M.A. No. 10 of 2007 on the file of the III

Additional Subordinate Judge, Madurai. The epitome and the long and short of the relevant facts absolutely necessary and germane for the

disposal of this Civil Revision Petition would run thus:

The petitioner herein happened to be the defendant in the suit based on mortgage filed by the respondent/plaintiff in O.S. No. 787 of 1996. A

preliminary decree was passed and thereafter, the final decree was passed. It so happened that the petitioner herein being the defendant filed I.A.

No. 1098 of 2004 for getting the exparte preliminary decree set aside on the ground that he was suffering from ill-health and he was a dwarf and

he went to take treatment in Kerala and in the meanwhile, the preliminary decree was passed as against him. The lower Court after hearing both

sides, dismissed the said application on the ground that there were no bona fides. The lower Court also observed that no application was filed to

get the delay condoned. Thereafter, C.M.A. No. 10 of 2007 was filed against the order of dismissal and the appellate Court also confirmed the

order of the lower Court by giving a finding that not even an application u/s 5 of the Limitation Act, was filed.

Being aggrieved by and dissatisfied with the orders of both the Courts below, this Civil Revision Petition has been focussed u/s 115 of the Code

of Civil Procedure.

The learned Counsel for the revision petitioner placing reliance on the grounds of revision, would submit that since the application in I.A. No.

1098 of 2004 was filed within 30 days from the date of knowledge of the exparte decree, the question of filing the petition u/s 5 of the Limitation

Act, would not arise. He would also pray that opportunity might be given to the petitioner to contest the matter as he discharged a part of the

mortgage dues also.

The points for consideration would run thus:

(i) Whether the Civil Revision Petition u/s 115 of the Code of Civil Procedure, is tenable?

(ii) Whether the application in I.A. No. 1098 of 2004 filed under Order 9 Rule 13 of the Code of Civil Procedure, without an application having

been filed Section 5 of the Limitation Act, was tenable?

(iii) Whether there is any perversity or illegality in the order passed by both the Courts below?

All the three points are taken up together for consideration as they are inter-linked and interwoven with one another.

Point Nos. (i) to (iii)

At the outset itself, I would like to refer to the decision of this Court in Durairaj and others v. Venugopal and another reported in 2012-3-L.W.

Certain excerpts from it, would run thus:

I would like to refer to sub section (2) of Section 115 of CPC, which would unambiguously and unequivocally highlight and spotlight the fact

that if appeal lies in respect of a matter, then no revision could be entertained u/s 115 of CPC.

The warp and woof of the contention of the learned counsel for the respondent/plaintiff is to the effect that as against the order passed in the

CMA, inasmuch as no further appeal is contemplated, the only remedy could be the one u/s 115 of CPC. I cannot countenance such a view for

the reason, that had the legislators thought that that should be the legal position as canvassed by the learned counsel for the respondent/plaintiff, the

legislators would have spelt out thus: ""the revision under this Section [S. 115 of CPC] shall not lie without exhausting the appeal remedy, if any,

but that is not the legislative language and that was not the intention of the legislators as well. In Surya Devi''s case (supra), the Hon''ble Apex

Court glaringly and pellucidly shed light on the point that no revision u/s 115 of CPC would lie as against the order in Appeal. The legislators in

their wisdom thought that in respect of certain matters appeal remedy if provided under law, then the parties concerned should get themselves

satisfied with that remedy and once again, they cannot carve out their own dubious way of approaching the High Court u/s 115 of CPC. The

mischief sought to be suppressed by the amendment of Section 115 of the CPC is axiomatic and obvious and if the view of the counsel for the

respondent/plaintiff is accepted, it would amount to opening the flood gate throwing to winds the spirit and essence of Section 115 of the Code of

Civil Procedure.

The learned counsel for the respondent/plaintiff also inviting the attention of this Court to the proviso appended to sub Section (1) of Section

115 of CPC, would try to buttress and fortify his view, but an analysis of the said proviso would reveal and demonstrate that it is against his case.

To maintain a revision under the said proviso, hypothetically the impugned interim order should be visualized thus: Gramatically ""unreal past

situation in the said proviso is contemplated. If such order had been passed in his favour, whether it would have the effect of finally disposing of the

suit or the proceedings before the lower court. Here, it is crystal clear that if the said order had been passed under Order IX Rule 13 of the CPC

by allowing the interlocutory application, the main suit itself would have got revived and the proceedings in the main suit would be in progress. The

same position would be if the CMA had been allowed. Hence the said proviso cannot be pressed into service by the respondent/plaintiff in support

of his proposition that only a revision u/s 115 of the CPC would lie.

Needless to point out, that before 1976 amendment of CPC the position was different and the objects and reasons relating to amendment of

Section 115 of the CPC is worthy of being reproduced here under:

[Report of the Joint Committee-Gazette of India, Ext., dt. 1-4-1976, Pt.II, S.2, p.804/10-11]

Amendments: Objects and Reasons.- Clause 43 (Original clause 45).- By clause 45 of the Bill, section 115 of the Code was proposed to be

omitted. The question whether it is at all necessary to retain section 115 was carefully considered by the Committee. The Law Commission has

expressed the view that, in view of article 227 of the Constitution, section 115 of the Code is no longer necessary. The Committee, however, feel

that the remedy provided by article 227 of the Constitution is likely to cause more delay and involve more expenditure. The remedy provided in

section 115 is on the other hand, cheap and easy. The Committee, therefore, feel that section 115, which serves a useful purpose, need not be

altogether omitted particularly on the ground that an alternative remedy is available under article 227 of the Constitution.

The Committee feel that the expression ""case decided"" should be defined so that the doubt as to whether section 115 applies to an interlocutory

order may be set at rest. Accordingly, the Committee have added a proviso and an Explanation to section 115.

[Statement of Objects and Reasons (Bill 1999).]

Amendments: Objects and Reasons.-Clause 12.- Section 115 of the Code provides for revision by the High Court or an order or decision of any

Court subordinate to such High Court. The Malimath Committee noticed that often the records of the lower Courts are sent to the High Court in

the revisional proceedings. It is imperative that records of proceedings pending in the subordinate Court should not be sent unless High Court so

desires and revision should not operate as stay of proceedings before the trial Court. The Committee while agreeing in principle that scope of

interference against interlocutory orders should be restricted, felt that the object can be achieved more effectively without demanding the High

Court of the power of revision. Clause 12 seeks to achieve the above object by suitable amendments to section 115.

Wherefore, if the view of the learned counsel for the respondent/plaintiff is accepted, it would amount to rendering the very restrictive scope

found embedded in Section 115 of CPC nugatory and otiose. As such, I am of the considered view that once appeal remedy is contemplated in

respect of an order and the appeal remedy itself has been exhausted, then the question of invoking Section 115 of CPC would be a well-neigh

impossibility.

* * * * *

It is quite obvious and axiomatic that when appeal remedy is contemplated, revision u/s 115 of CPC would not lie. Then the core question

arises as to what would happen to a litigant who is really having some grievance if there is any gross perversity in the impugned order. At this

juncture, I recollect certain excerpts from the decision of the Hon''ble Apex Court reported in Salem Advocate Bar Association, Tamil Nadu Vs.

Union of India (UOI), certain excerpts from it would run thus:

Section 115 of the Code vests power of revision in the High Court over courts subordinate to it. Proviso to Section 115(1) of the Code before

the amendment by Act 46 of 1999 read as under:

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 the party applying for revision, would have finally disposed of the suit or other proceeding, or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

(emphasis supplied)

Now, the aforesaid proviso has been substituted by the following proviso:

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 the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or

other proceedings.

The aforesaid clause (b) stands omitted. The question is about the constitutional powers of the High Courts under Article 227 on account of

omission made in Section 115 of the Code. The question stands settled by a decision of this Court in Surya Dev Rai v. Ram Chander Rai holding

that the power of the High Court under Articles 226 and 227 of the Constitution is always in addition to the revisional jurisdiction conferred on it.

Curtailment of revisional jurisdiction of the High Court u/s 115 of the Code does not take away and could not have taken away the constitutional

jurisdiction of the High Court. The power exists, untrammelled by the amendment in Section 115 and is available to be exercised subject to rules of

self-discipline and practice which are as well settled.

As such in certain circumstances, if at all the party concerned could make out a case under Article 227 of the Constitution of India, then he could

petition the High Court invoking the said provision of law.

A mere reading of the aforesaid decision as well as Section 115 of the Code of Civil Procedure, would demonstrate and display that as against

the order passed in C.M.A. No. 10 of 2007, the question of filing the Civil Revision Petition u/s 115 of the Code of Civil Procedure, is a well-

neigh impossibility as there is a clear embargo contemplated u/s 115 of the CPC itself. I am at a loss to understand as to how the Registry could

number it. The Registry is directed not to number hereafter any such Civil Revision Petition filed u/s 115 of the CPC as against the order passed by

the appellate Court in Civil Miscellaneous Appeal. Accordingly, on that ground itself, the Civil Revision Petition has to be dismissed.

There is no iota or shred, shard or miniscule extent of averment in the affidavit accompanying the petition in I.A. No. 1098 of 2004 under Order

9 Rule 13 of the CPC that no suit summons was served on the petitioner. As such, the Court cannot assume and presume as though no suit

summons was served on the petitioner/defendant.

The learned Counsel for the petitioner would place reliance on the decision of the Honourable Supreme Court in Bhagmal and Others Vs.

Kunwar Lal and Others,

A mere running of the eye over the aforesaid decision, would highlight that if the factual matrix is to the effect that no suit summons or notice

was served on the party concerned, then in that case, the question of filing a petition u/s 5 of the Limitation Act, to get the delay condoned, would

not arise and if any application is filed within the stipulated time from the date of knowledge and that itself would be sufficient. In this case, there is

no smidgeon or miniscule extent of averment that no such suit summons was served on the petitioner. In such a case, there is no knowing of the

fact as to how from the date of knowledge of the exparte decree, without any application u/s 5 of the Limitation Act, an application to get the

exparte decree set aside, could be filed. As such, I could see no perversity or illegality in the order passed by the lower Court. Over and above

that, the reasons found set out in the affidavit, are vague as vagueness could be and the bald statements for getting the delay condoned even by

phantas magorical thoughts, cannot be taken as sufficient to condone the delay.

I would like to refer to the decision of the Honourable Supreme Court in Balwant Singh (Dead) Vs. Jagdish Singh and Others, . Certain

excerpts from it, would run thus:

The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should

be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of

one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to

take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that

party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in

implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of

his acting vigilantly.

*****

In Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Ltd.,

In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of

limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In

other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the

decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light heartedly disturbed.

The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone

delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf

should be exercised to advance substantial justice. As has been observed by the Madras High Court in 4 I.D (N.S.) 899

***

It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in

question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the

court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that

ground alone. If sufficient cause is shown then the court has to enquire whether in its discretion it should condone the delay. This aspect of the

matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for

consideration;

*****

The expression ""sufficient cause"" implies the presence of legal and adequate reasons. The word ""sufficient"" means adequate enough, as much

as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to

accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious

men. The sufficient cause should be such as it would persuade the court, in exercise of its judicial discretion, to treat the delay as an excusable one.

These provisions give the courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting

such a law does not stand frustrated.

We find it unnecessary to discuss the instances which would fall under either of these classes of cases. The party should show that besides

acting bona fide, it had taken all possible steps within its power and control and had approached the court without any unnecessary delay. The test

is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. (Advanced

Law Lexicon, P. Ramanatha Aiyar, 3rd Edn., 2005)

As such, keeping in mind the aforesaid precedent, if the matter is viewed, it is clear that there were latches on the part of this revision

petitioner/defendant in participating in the suit and as such, he cannot get any more opportunity. Point Nos.(i) to (iii) are answered accordingly. In

the result, this Civil Revision Petition is dismissed. Consequently, the connected Miscellaneous Petition is dismissed. No costs.