MOHAMED ALI versus V. JAYA & ORS.

Citation: [2022] 13 S.C.R. 274 · Decided: 11-07-2022 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 13 S.C.R.
MOHAMED ALI
v.
V. JAYA & ORS.
(Civil Appeal No. 4113 of 2022)
JULY 11, 2022
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Constitution of India: Art. 227 – Power of superintendence
over all courts by the High Court – Power of revision – Extent and
scope of – Revision petitions u/Art. 227 challenging an ex-parte
judgment and decree of specific performance of the trial court,
and the order refusing to condone of delay in filing of an application
for setting aside of the ex-parte judgment and decree observing
that no sufficient cause was shown – High Court allowed the revision
petitions and set aside the judgment and decree, holding that there
was total non-application of mind as the trial court did not consider
the aspect of readiness and willingness on the part of the plaintiff;
and that trial court without expressing anything on merits refused
to condone the delay – On appeal, held: High Court did not at all
consider whether the trial court was justified in refusing to condone
such a huge delay of 2345 days – High Court also did not appreciate
and consider the fact that the order passed by the trial court refusing
to condone the delay of 1522 days in so far as original defendant
No. 1, had attained the finality – High Court did not consider the
maintainability of the petition u/Art. 227 – Remedy to challenge the
ex-parte order was available by way of an appeal before the first
appellate court – Thus, the High Court ought not to have entertained
the revision application u/s. 115 CPC and u/Art. 227 – Also, the
High Court simply set aside the order refusing to condone the delay
without any express justification – While setting aside the ex-parte
judgment and decree, the High Court commented upon the legality
and validity of the judgment and decree as if it was exercising
appellate jurisdiction – High Court passed the order on irrelevant
consideration and relevant aspects were not considered – High Court
exceeded in its jurisdiction while setting aside the ex-parte judgment
– Therefore, the impugned judgment and order passed by the High
Court is unsustainable, and quashed and set aside.
[2022] 13 S.C.R. 274
274
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Allowing the appeals, the Court
HELD: 1.1 The High Court has not at all considered
whether the trial court was justified in refusing to condone such
a huge delay of 2345 days. The High Court has also not
appreciated and considered the fact that as such the order passed
by the trial court refusing to condone the delay of 1522 days in so
far as original defendant No. 1, had attained the finality. Original
defendant No. 1 straightway challenged the ex-parte judgment
and decree passed by the trial court by way of revision application
under Article 227 of the Constitution of India. Whether the
revision application before the High Court under Article 227 of
the Constitution of India can be said to be maintainable or not
has not at all been considered. Even otherwise, the remedy
against an ex-parte judgment and decree available to the
defendants was, either to file an application under Order IX Rule
13 of CPC or to prefer an appeal before the first appellate court.
The defendants availed the first remedy by way of filing the
applications under Order IX Rule 13 of CPC. However, there
was a huge delay of 1522 and 2345 days, which was not condoned
by the trial court. Without expressing anything on whether the
trial court was justified in refusing to condone the delay, the High
Court has simply set aside the order passed by the trial court
refusing to condone the delay in so far as original defendant Nos.
2 to 4 are concerned. The High Court ought to have dealt with
and considered the question, whether, the trial court was justified
in refusing to condone the delay or not. There is no discussion at
all on the order passed by the trial court refusing to condone the
delay. [Para 6.1][283-B-F]
1.2 Against the ex-parte judgment and decree, the remedy
by way of an appeal before the first appellate court was available.
Therefore, the High Court ought not to have entertained the
revision application under Section 115 CPC and under Article
227 of the Constitution of India. The High Court ought not to
have entertained such a revision application challenging the ex-
parte judgment and decree. Once there was a statutory alternative
remedy by way of an appeal available to the defendants, the High
Court ought not to have entertained a writ petition or revision
applic

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