TMI Blog2022 (7) TMI 1331X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 learned Trial Court. Even otherwise, 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 of 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 application under Article 227 of the Constitution of India - the High Court has committed a grave error in entertaining the revision petition under Article 227 challenging the ex-parte judgment and decree passed by the learned Trial Court a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No. 1 also filed an application to condone the delay of 1522 days in filing the petition to set aside the ex2 parte judgment and decree. The learned Trial Court dismissed both the applications, one filed by original defendant No. 1 and another filed by original defendant Nos. 2 to 4. 2.2 Feeling aggrieved and dissatisfied with the order passed by the learned Trial Court refusing to condone the delay of 2345 days in filing the petition to set aside the ex-parte judgment and decree, original defendant Nos. 2 to 4 preferred Civil Revision Petition No. 1054/2021 before the High Court. Though, original defendant No. 1 did not challenge the order passed by the learned Trial Court dismissing his application to condone the delay of 1522 days in filing the petition to set aside the ex-parte judgment and decree, filed revision petition before the High Court under Article 227 of the Constitution of India being Civil Revision Petition No. 1301/2021 to set aside the ex-parte judgment and decree. By the impugned common judgment and order, the High Court has allowed the aforesaid two revision petitions and has set aside the judgment and decree passed by the learned Trial Court by observing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned judgment and order passed by the High Court setting aside the ex-parte judgment and decree is unsustainable. It is submitted that the High Court has recorded the findings on legality and validity of the judgment and decree passed by the learned Trial Court as if the High Court was considering the appeal against the judgment and decree passed by the learned Trial Court. It is further submitted that the High Court has not at all considered and/or given any findings on whether the learned Trial Court was justified in passing the ex-parte judgment and decree or not. It is submitted that only in a case where the ex-parte judgment and decree is set aside after giving the specific findings that the learned Trial Court was not justified and/or right in passing the ex-parte judgment and decree that the merits of the judgment and decree was required to be considered. 3.3 It is further submitted by learned Senior Advocate appearing on behalf of the appellant original plaintiff that even otherwise the High Court has not properly considered the fact that there was a delay of 1522 days in filing the petition by original defendant No. 1 seeking to set aside the ex-parte judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Senior Advocate appearing on behalf of original defendants that the High Court has rightly set aside the ex-parte judgment and decree on the ground that the ex-parte judgment and decree for specific performance of the agreement to sell was not in consonance with the procedure enunciated under Order XII of the Code of Civil Procedure (CPC). It is submitted that the High Court has set aside the ex-parte judgment and decree by observing that while passing the decree for specific performance, the requirement of proving readiness and willingness was not considered by the learned Trial Court. It is submitted that even the respondents original defendants filed written submission before the learned Trial Court. However, the learned Trial Court did not consider the said aspect while passing the ex-parte judgment and decree. 4.2 Now so far as the submissions made by the learned Senior Advocate appearing on behalf of the appellant on the maintainability of the revision petition under Article 227 of the Constitution of India, the learned Senior Advocate appearing on behalf of the respondents original defendants, has heavily relied upon the decisions of this Court in the case of Radhe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te judgment and decree. Instead, defendant No. 1 directly filed the revision application before the High Court under Article 227 of the Constitution of India challenging the ex-parte judgment and decree and without considering the legality and validity of the order/orders passed by the learned Trial Court refusing to condone the huge delay of 1522/2345 days, by the impugned common judgment and order, the High Court has set aside the ex-parte judgment and decree in exercise of powers under Article 227 of the Constitution of India. 6.1 Having gone through the impugned common judgment and order passed by the High Court, it can be seen that as such the High Court has not at all considered whether the learned 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 learned 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 learned Trial Court by way of revision application under Article 227 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specially in a case where a specific remedy of appeal is provided under the CPC itself. While holding so, it is observed and held in paragraphs 11 to 13 as under: 11. Secondly, the High Court ought to have seen that when a remedy of appeal under Section 104(1)(i) read with Order 43, Rule 1(r) of the Code of Civil Procedure, 1908, was directly available, Respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. In A. Venkatasubbiah Naidu v. S. Chellappan [A. Venkatasubbiah Naidu v. S. Chellappan, (2000) 7 SCC 695] , this Court held that though no hurdle can be put against the exercise of the constitutional powers of the High Court, it is a wellrecognised principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies before he resorts to a constitutional remedy . 12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before civil courts in terms of the provisions of Code of Civil Procedure, and (ii) cases where s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile setting aside the ex-parte judgment and decree, the High Court has commented upon the legality and validity of the judgment and decree passed by the learned Trial Court as if the High Court was exercising the appellate jurisdiction against the judgment and decree passed by the learned Trial Court. Before considering the judgment and decree on merits and/or expressing anything on merits on the legality and validity of the judgment and decree (ex-parte), the High Court was required to consider whether the learned Trial Court was justified in passing the ex-parte judgment and decree or not. The High Court was also required to consider whether the learned Trial Court was justified in refusing to condone the delay of 1522 and 2345 days in filing the petition challenging the ex-parte judgment and decree. Therefore, in the facts and circumstances of the case, the impugned common judgment and order passed by the High Court is unsustainable, both, on law as well as on facts. The High Court has exceeded in its jurisdiction while setting aside the ex-parte judgment and decree in exercise of powers under Article 227 of the Constriction of India. The impugned common judgment and order pass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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