Andhra Pradesh High Court - Amravati
Navayuga Engineering Company Ltd vs Structicon India Pvt Ltd Sipl on 26 September, 2024
1
* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
*THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
+ CIVIL REVISION PETITION NOs.1933 & 1934 of 2024
% 26.09.2024
# M/s. Navayuga Engineering Company Ltd.,
......Petitioner
And:
$1. M/s. Structicon India Pvt.Ltd., (SIPL)
and another
....Respondents.
!Counsel for the petitioners : Sri M. Rahul Chowdary,
rep. Sri Ginjupalli Subba Rao
^Counsel for the respondent : Sri Rosedar S.R.A.
<Gist:
>Head Note:
? Cases referred:
(2005) 12 SCC 734
(2009) 5 SCC 162
2001 (2) A.P.L.J. 132 (HC)
2018 SCC OnLine Hyd 683
(2020) 15 SCC 706
AIR 2003 SCC 3044
CRP.No.199 of 2022 APHC decided on 27.06.2023
CRP.No.900 of 2024 APHC decided on 11.09.2024
(1977) 4 SCC 551
(2018) 14 SCC 715
(2004) 5 SCC 729
(2001) 7 SCC 401
(1981) 4 SCC 8
1963 SCC OnLine SC 43
(2010) 8 SCC 329
(2022) 4 SCC 181
2022 SCC OnLine SC 1775
CRP.No.6475 of 2018, TGHC, decided on 10.04.2019
(2021) 15 SCC 817
1955 SCC OnLine SC 21
(2022) 5 SCC 484
AIR 2003 SCC 3044
2
HIGH COURT OF ANDHRA PRADESH
****
CIVIL REVISION PETITION NOs.1933 & 1934 of 2024
DATE OF JUDGMENT PRONOUNCED: 26.09.2024
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON'BLE SRI JUSTICE NYAPATHY VIJAY
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals
3. Whether Your Lordships wish to see the fair Yes/No
copy of the Judgment?
___________________
RAVI NATH TILHARI, J
________________
NYAPATHY VIJAY,J
3
HONOURABLE SRI JUSTICE RAVI NATH TILHARI
HONOURABLE SRI JUSTICE NYAPATHY VIJAY
CIVIL REVISION PETITION NOs.1933 & 1934 of 2024
COMMON ORDER:
(per Ravi Nath Tilhari, J)
Heard Sri M.Rahul Chowdary, learned counsel representing Sri
Ginjupalli Subba Rao, learned counsel for the petitioner and Sri
Rosedar S.R.A., learned counsel for the respondent No.1 in both the
Civil Revision Petitions (CRPs).
2. The petitioner is defendant No.1 in Company Suit (in short
'COS') No.5 of 2023 on the file of the Special Court for Trial and
Disposal of Commercial Disputes, Vijayawada (in short 'Special
Court'). The COS was filed by the plaintiff/respondent No.1 herein.
Respondent No.2 - Union Bank of India is defendant No.2 in COS.
3. Learned counsel for the respondent No.1 has placed before us a
copy of the docket orders in COS, serving copy thereof to the learned
counsel for the petitioner. There is no dispute on such dates as
mentioned therein.
4. With the consent of the learned counsels for the parties, the
CRPs are being decided finally at this stage.
Facts:
5. In COS, on 01.05.2023, defendant Nos.1 & 2 were absent.
There was no representation. Summons of D1 & D2 were not returned.
Plaintiff was also absent. The matter was fixed for 10.05.2023,
awaiting service of summons. As per order dated 10.05.2023,
summons were not served on D1 & D2. The order was passed for
issuing fresh summons fixing 22.06.2023.
6. The petitioner's case is that the summons were served on
06.05.2023 after the date fixed i.e., 01.05.2023. Consequently he could
not appear and the next date could not be known. He engaged the
counsel sometimes in July 2023 and then he came to know that on
22.06.2023 an order to proceed exparte was passed against the
petitioner/defendant No.1 after holding that there was proper service of
notice to him. The order to proceed Ex-parte against defendant No.2
was also passed on 25.09.2023. The evidence of PW.1 was taken on
record on 03.10.2023 and Ex.A1 to A38 were marked. The defendants
remained absent. So cross-examination was treated as 'nil'. The
plaintiff's counsel reported no further evidence. The evidence was
closed and the matter was fixed for arguments on 06.10.2023. On
06.10.2023, the plaintiff's counsel was heard. Counsel for D1 filed
vakalat but there was no representation for the defendant No.1 at the
time of arguments. The matter was posted for judgment, fixing
16.10.2023.
7. On 16.10.2023, the Presiding Officer was on official duty (O.D),
the matter was posted to 30.10.2023. The petitioner filed two IAs i.e.,
I.A.No.170 of 2023 to reopen COS.No.5 of 2023 under Section 151 of
Code of Civil Procedure (CPC) and I.A.No.171 of 2023 to set aside the
ex-parte order dated 22.06.2023, under Order 9 Rule 7 CPC.
8. During the pendency of the applications, I.A.Nos.170 & 171 of
2023, the Presiding Officer was transferred. New Presiding Officer
joined. The judgment was not pronounced by the previous Presiding
Officer. On 09.08.2024 both the applications were dismissed by
common order and the COS was posted for hearing of the plaintiffs,
fixing 16.08.2024. On that date, at request of the plaintiff side, the
matter was posted for 20.08.2024 for exparte evidence. On
20.08.2024, the plaintiff represented that he was ready for evidence.
However, the docket order dated 30.08.2024 showed that the plaintiff's
evidence had already been recorded as PW1 on 3.10.2023 and Ex.A1
to Ex.A38 were already marked. The plaintiff reported no further
evidence. The Court posted for arguments on plaintiff side fixing
09.09.2024.
9. The docket order dated 30.08.2024 is as under:
"Plaintiff present. Both sides represented before this Court. The record
shows that the evidence of plaintiff was already recorded as PW.1 on
03.10.2023 and Exs.A1 to A38 were marked. The plaintiff reported no further
evidence.
The learned counsel for the defendant filed a memo along with case
status of Hon'ble A.P High Court stating that they preferred revision against
the orders in IAs. 170 and 171 of 2023 and also mentioned that CRP
Nos.1933 and 1934 of 2024 were given and they are yet to be listed and
sought for adjournment.
The learned counsel for plaintiff has taken objection for granting
adjournment in view of the rival contentions of both sides.
Since the CRP number was already given on the file of Hon'ble A.P.High
Court, this Court has decided to give some reasonable time and in the
meantime, the plaintiff is directed to proceed with arguments.
Hence, posted for arguments on plaintiff side, call on 09.09.2024. "
10. It is thus evident from the dates mentioned above that, the COS
is pending at the stage of hearing for arguments of the plaintiff side.
11. Challenging the impugned common order dated 09.08.2024 in
I.A.No.170 of 2023, CRP.No.1933 of 2024 has been filed and against
the same order in I.A.No.171 of 2023, CRP.No.1934 of 2024 has been
filed by the petitioner/defendant No.1.
Submissions of the learned counsels:
12. Learned counsel for respondent No.1 raised objection that the
impugned order is interlocutory order. CRP under Section 115 is
barred by Section 8 of the Commercial Courts Act, 2015 (in short Act,
2015). The petitioner has the remedy to file appeal under Section 13 of
the Act, 2015, if the ultimate decree goes against him, while
challenging the ultimate decree in appeal.
13. Learned counsel for the petitioner submitted that the impugned
order is not interlocutory but it is a final order. The revision is not
barred under Section 8 of the Act, 2015. He further submitted that the
petitioner has filed memo seeking permission to convert the CRP from
under Section 115 CPC to under Article 227 of Constitution of India.
The requisite Court fee for CRP under Article 227 of Constitution of
India has already been paid. So, if CRP is held not maintainable, under
Section 115 CPC it may be converted under Article 227 of the
Constitution of India. He placed reliance in COL.Anil Kak (Retd.) v.
Municipal Corporation Indore1, Nawab Shaqafath Ali Khan v.
Nawab Imdad Jah Bahadur2, Jaleel Khan v. M.Kamalamma3 and
Blue Cube Germany Assets GmbH & Co. KG v. Vivimed Labs
Limited4.
14. Learned counsel for the respondent submitted that the CRP
under Section 115 CPC being barred by statute, the petition under
Article 227 of Constitution of India cannot be entertained and so, CRP
under Section 115 CPC can also not be converted into Article 227
petition. In his submission, the legislative intent under the Act, 2015 is
for expedition of COS and to provide appeal remedy and not the
Revision. He placed reliance in M/s.Deep Industries Limited v. Oil
and Natural Gas Corporation Limited5, Surya Dev Rai v. Ram
Chander Rai6, Black Diamond Trackparts Private Limited v. Black
Diamond Motors Private Limited and Tata Consultancy Services
Limited v. Mr. Vuppu Kanaka Raju7 in support of his contentions.
15. On merits, learned counsel for the petitioner confined his
submissions to this effect that, even after rejection of the applications
(2005) 12 SCC 734
(2009) 5 SCC 162
2001 (2) A.P.L.J. 132 (HC)
2018 SCC OnLine Hyd 683
(2020) 15 SCC 706
AIR 2003 SCC 3044
CRP.No.199 of 2022 APHC decided on 27.06.2023.
by the impugned order, the petitioner can participate in the COS from
the stage the COS is pending. He submitted that in view of the
rejection order, the petitioner cannot be permitted to 'set the clock
back', but he cannot be restrained from making the
submissions/arguments. He submitted that the petitioner may be
permitted to advance the arguments in COS and the petitioner does
not want to lead evidence or cross-examine the plaintiff's witnesses, so
as to 'set the clock back'.
16. In reply, learned counsel for the respondent submitted that
inspite of service of summons and so many opportunities granted, the
petitioner remained absent. There is no illegality in the order to
proceed exparte dated 16.10.2023 and the learned Special Court did
not commit any illegality in rejecting the application to set aside the
order to proceed exparte. He submitted that the COS having been
reserved for judgment on 16.10.2023, the application under Order 9
Rule 7 CPC was not maintainable.
Points for determination:
17. We have considered the submissions advanced by the learned
counsel for the parties and perused the material on record.
18. The points which arise for our consideration and determination
are as follows:
A) Whether the impugned order, under Order 9 Rule 7 CPC is
interlocutory order and Revision under Section 115 CPC is
barred by Section 8 of the Act, 2015?
B) If the answer to (A) is in affirmative, whether CRP under
Article 227 of Constitution of India is maintainable and
entertainable?
C) Whether CRP under Section 115 CPC can be converted into
CRP under Article 227 of the Constitution of India or, even
without so converting the powers under Article 227 of
Constitution of India can be exercised?
D) Whether inspite of the impugned order under Order 9 Rule 7
CPC, the petitioner can participate in COS No.5 of 2023 from
the stage it is pending?
19. We have not framed any point on the legality or otherwise of the
impugned order dated 09.08.2024, as the learned counsel for the
petitioner confined his submissions to the extent that the petitioner may
be permitted to participate in COS from the stage it is pending.
Analysis:
Point A:
20. The order under challenge is rejection of the application under
Order 9 Rule 7 CPC to set aside order to proceed exparte. The
question is, such an order is interlocutory or final. Recently, this Court
in P. Udaya Bhaskara Reddy v. M/s. Sreepada Real Estates &
Developers8, inter-alia on consideration of the Madhu Limaye v.
State of Maharashtra9, Kandla Export Corpn. V. OCI Corpn. 10,
State v. N.M.T.Joy Immaculate11, Bhaskar Industries Ltd. v.
Bhiwani Denim & Apparels Ltd.12 and Shah Babulal Khimji v.
Jayaben D. Kania 13on the point of interlocutory/final order, under
Section 8 of the Act, 2015 held in para Nos.50, 51 & 52 as under:-
"50. From the aforesaid judgments, as also reading of Section 13 and Section
8 of the Commercial Courts Act, we are of the view that the expression
'interlocutory order' in Section 8 has been used as a converse to orders
under Clauses (a) to (w) of Order 43 Rule 1 CPC. The order in Section 13
which makes appealable, the orders under Order 43 CPC are of such nature
which contains the quality of finality. An interlocutory order in Section 8 of
Commercial Courts Act is one made or given during the progress of an action
or proceeding which does not finally dispose of the rights of the parties. The
test to determination is not whether such order was passed during interim
stage. The feasible test is whether by upholding the objections raised by a
party, it would result in culminating the proceedings or not. If it so results, it
would not be merely interlocutory in nature. But if it does not result in
culminating the proceedings, finally, that is not a final order. At the same time,
it could not be necessarily an interlocutory order. If such an order vitally
affects a valuable right of the person aggrieved and it adversely affect directly
and immediately, then it will not be simply an interlocutory order, but having
the trappings of finality and amounting to a final order.
51. In view of the judgment of the Hon'ble Apex Court in Shah Babulal
Khimji (supra), most of the interlocutory orders, which contain the quality of
finality are clearly specified in Clauses (a) to (w) of Order 43 Rule 1 CPC.
Additionally, there may be interlocutory orders though not covered by Order
43 Rule 1, but may also possess the characteristics and trappings of finality
inasmuch as those orders may adversely affect the valuable right of a party
or decide an important aspect of the trial in an ancillary proceeding. So those
orders, which find mention as illustrations in para-120 of Shah Babulal
Khimji (supra) from Serial No.1 to 15, though interlocutory orders, may be
treated as final orders/judgments. Section 8 of Commercial Courts Act, in our
view cannot operate as a bar to revision remedy under Section 115 CPC to
CRP.No.900 of 2024 dated 11.09.2024
(1977) 4 SCC 551
(2018) 14 SCC 715
(2004) 5 SCC 729
(2001) 7 SCC 401
(1981) 4 SCC 8
such kinds of orders, but such revisional remedy would be subject to the
conditions imposed by Section 115 CPC itself.
52. In the present case, the impugned order does not find place in Order
43 Rule 1 CPC clauses (a) to (w). It can also not be covered under any of
the illustrations in para-120 of Shah Babulal Khimji (supra). Further, it
would not result in culminating the proceedings of the commercial suit if an
objection to such an order as raised by the petitioner's counsel is sustained,
following the same test as laid down in Bhaskar Industries Ltd. (supra)."
21. Para 120 of Shah Babulal Khimji (supra) referred in above
quoted paras of P. Udaya Bhaskara Reddy (supra) is as follows:
"120. Thus, these are some of the principles which might guide a
Division Bench in deciding whether an order passed by the trial Judge
amounts to a judgment within the meaning of the letters patent. We might,
however, at the risk of repetition give illustrations of interlocutory orders
which may be treated as judgments:
(1) An order granting leave to amend the plaint by introducing a new
cause of action which completely alters the nature of the suit and takes
away a vested right of limitation or any other valuable right accrued to the
defendant.
(2) An order rejecting the plaint.
(3) An order refusing leave to defend the suit in an action under Order
37, of the Code of Civil Procedure.
(4) An order rescinding leave of the trial Judge granted by him under
clause 12 of the letters patent.
(5) An order deciding a preliminary objection to the maintainability of the
suit on the ground of limitation, absence of notice under Section 80, bar
against competency of the suit against the defendant even though the suit
is kept alive.
(6) An order rejecting an application for a judgment on admission under
Order 12 Rule 6.
(7) An order refusing to add necessary parties in a suit under Section 92
of the Code of Civil Procedure.
(8) An order varying or amending a decree.
(9) An order refusing leave to sue in forma pauperis.
(10) An order granting review.
(11) An order allowing withdrawal of the suit with liberty to file a fresh
one.
(12) An order holding that the defendants are not agriculturists within
the meaning of the special law.
(13) An order staying or refusing to stay a suit under Section 10 of the
Code of Civil Procedure.
(14) An order granting or refusing to stay execution of the decree.
(15) An order deciding payment of court fees against the plaintiff."
22. In Arjun Singh v. Mohindra Kumar14, the Hon'ble Apex Court
specifically considered the nature of the order passed under Order 9
Rule 7 CPC. It was held that the order under Order 9 Rule 7 CPC is
directed to ensure the orderly conduct of the proceedings by penalising
improper dilatoriness calculated merely to prolong the litigation. It does
not put an end to the litigation nor does it involve the determination of
any issue in controversy in the suit. The proceedings are of a very
summary nature and no appeal is provided against the action of the
Court under Order 9 Rule 7, "refusing to set back the Clock". It was
further observed that the Code proceeds upon the view, not imparting
any finality to the determination of any issues of fact on which the
court's action under Order 9 Rule 7 provision is based.
23. Para 16 in Arjun Singh (supra) is as under:
"16. The scope of a proceeding under O. IX Rule 7 and its place in the
scheme of the provisions of the Code relating to the trial of suits was the
subject of consideration in Sangram Singh v. Election Tribunal. Dealing with
the meaning of the words "The Court may proceed exparte" in O. IX. Rule
6(1)(a) Bose, J. speaking for the Court said:
"When the defendant has been served and has been afforded an
opportunity of appearing, then, if he does not appear, the Court may
proceed in his absence. But, be it noted, the Court is not directed to
make an ex parte order. Of course the fact that it is proceeding
exparte will be recorded in the minutes of its proceedings but that is
merely a statement of the fact and is not an order made against the
defendant in the sense of an exparte decree or other exparte order
which the court is authorised to make. All that Rule 6(1)(a) does is to
remove a bar and no more. It merely authorises the Court to do that
which it could not have done without this authority, namely to
proceed in the absence of one of the parties."
1963 SCC OnLine SC 43
Dealing next with the scheme of the Code, the learned Judge pointed out
that the manner in which the Court could thereafter proceed i.e., after Rule
6(1)(a) was passed would depend upon the purpose for which the suit
stood adjourned, and proceeded:
"If it is for final hearing, an ex parte decree can be passed, and if it is
passed, then O. IX, Rule 13 comes into play and before the decree is
set aside the Court is required to make an order to set it aside.
Contrast this with Rule 7 which does not require the setting aside of
what is commonly, though erroneously, known as the exparte order,
No order is contemplated by the Code and therefore no order to set
aside, the order is contemplated either." (Italics ours).
and referring to the effect of the rejection of application made under
O.IX Rule 7, he added:
"If a party does appear on the day to which the hearing of the suit is
adjourned, he cannot be stopped from participating in the
proceedings simply because he did not appear on the first or some
other hearing. But though he has the right to appear at an adjourned
hearing, he has no right to set back the hands of the clock. Order 9
Rule 7 makes that clear. Therefore, unless he can show good cause,
he must accept all that has gone before and be content to proceed
from the stage at which he comes in."
That being the effect of the proceedings, the question next arises what is
the nature of the order if it can be called an order or the nature of the
adjudication which the Court makes under O. IX. Rule 7? In its essence it is
directed to ensure the orderly conduct of the proceedings by penalising
improper dilatoriness calculated merely to prolong the litigation. It does not
put an end to the litigation nor does it involve the determination of any
issue in controversy in the suit. Besides, it is obvious that the proceeding
is of a very summary nature and this is evident from the fact that as
contrasted with O. IX, Rule 9 or O. IX. Rule 13, no Appeal is provided
against action of the Court under O. IX. Rule 7. "refusing to setback the
Clock". It is, therefore, manifest that the Code proceeds upon the view
not imparting any finality to the determination of any issues of fact on
which the court's action under that provision is based.........."
24. As is evident, the order of the nature as in the present case, do
not fall under any of the clause 1 to 15 of para 120 of Shah Babulal
Khimji (supra). Further, it is not disputed and is also clear from perusal
of Order 43 Rule 1 CPC that the order is not covered by any of the
clauses (a) to (w) of Order 43 Rule 1 CPC. Certainly, order under
Order 9 Rule 7 CPC does not bring an end to the proceedings of COS
nor does it involve determination of any issue in controversy in the
COS. We hold that the order, therefore, is not a final order, but is an
interlocutory order under Section 8 of the Act, 2015 and the CRP under
Section 115 CPC is barred by Section 8 of the Act, 2015.
Point B:
25. On the point of Bar of Section 8 for revision under Section 115
CPC against interlocutory order, qua the maintainability and
entertainability of CRP under Article 227 of Constitution of India, in P.
Udaya Bhaskara Reddy (supra) this Court inter-alia referring to the
judgments of Hon'ble Apex Court in Shalini Shyam Shetty v.
Rajendra Shankar Patil15, Garment Craft v. Prakash Chand Goel16,
Raj Shri Agarwal @ Ram Shri Agarwal v. Sudheer Mohan17, and
M.V. Ramana Rao v. N. Subash18 held as under in para Nos.70, 71 &
72:
70. From the aforesaid judgment, it is evident that the bar under the statute
with respect to any specific remedy is to be confined to that remedy only. In
the present case, following the said principle, the bar under Section 8 of the
Commercial Courts Act against the remedy of revision is from an interlocutory
order. So, if the order is the interlocutory in nature, passed under the
Commercial Courts Act, revision cannot be filed before the forum provided for
revision, but when it comes to the remedy of this Court under Article 227 of
(2010) 8 SCC 329
(2022) 4 SCC 181
2022 SCC OnLine SC 1775
CRP.No.6475/2018, TGHC, decided on 10.04.2019
the Constitution of India, such a bar cannot be read, as a bar to the
maintainability or entertainability of the petition under Article 227 of the
Constitution of India. It is well settled in law that the remedy provided by the
Constitution and before the Constitutional Court cannot be barred by any
provision of any statute. The entertainability of the petition under Article 227
and the scope of interference or no interference at all by this Court in the
exercise of the judicial discretion is one thing, which is quite different from the
petition being maintainable under Article 227 of the Constitution of India.
71. In our view, the bar under Section 8 of the Commercial Courts
Act to maintainability of the civil revision petition against the
interlocutory order is confined to the civil revision petition under
Section 115 of CPC and such bar does not operate to bar the
maintainability and the jurisdiction under Article 227 of the Constitution
of India of this Court.
72. The question still remains if this Court should or should not entertain
the petition under Article 227 of the Constitution of India. We are not
oblivious that when a statutory remedy is available, this Court would ordinarily
refrain from invoking the jurisdiction under Article 227 of the Constitution of
India, but that is self imposed restriction and even statutory remedy would not
bar the maintainability or entertainability of the petition under Article 227 of
the Constitution of India. The remedy against the impugned order is
available, but not at this stage. The same may be in appeal, against the final
judgment/decree if it goes against the petitioner. Here, we may again refer to
the observations of the Hon'ble Apex Court in Surya Dev Rai (supra) in para-
39, as also reproduced in State of Gujarat (supra) that ".........The facts and
circumstances of a given case may make it more appropriate for the High
Court to exercise self-restraint and not to intervene because the error of
jurisdiction though committed is yet capable of being taken care of and
corrected at a later stage and the wrong done, if any, would be set right and
rights and equities adjusted in appeal or revision preferred at the conclusion
of the proceedings. But there may be cases where a stitch in time would
save nine'. At the end, we may sum up by saying that the power is there
but the exercise is discretionary which will be governed solely by the
dictates of judicial conscience enriched by judicial experience and
practical wisdom of the Judge".
26. In Blue Cube Germany Assets GmbH (supra), the High Court
of Hyderabad observed that though the nomenclature given to the
petition filed under Article 227 of the Constitution is Civil Revision
Petition, it is not equivalent to a revision petition under Section 115
CPC. The power of judicial superintendence under Article 227 of the
Constitution cannot be equated to ordinary revisional jurisdiction. The
argument as advanced in that case that mere nomenclature given to a
petition filed under Article 227 of the Constitution would bring it within
the bar envisaged by Section 8 of the Act of 2015 was not accepted
and it was observed that it is only the ordinary revisional jurisdiction
vested in the High Court that is barred by Section 8 of the Act, 2015
and not the power of superintendence. The contention as raised
therein that the CRP under Article 227 was not maintainable was also
rejected.
27. Relevant part in para Nos.11 & 12 in Blue Cube Germany
Assets GmbH (supra), are as under:
"11. Before parting with the case, we may refer to the contention of
Mr.V.Hariharan, learned counsel, as to the maintainability of the civil
revision petition, only to reject it. The learned counsel would contend
that Section 8 of the Commercial Courts, Commercial Division and
Commercial Appellate Division of High Courts Act, 2015 ('for brevity ''the
Act of 2015'), bars any revision application or petition being filed against an
interlocutory order of a Commercial Court and therefore, this Court would
have no power to entertain the present civil revision petition.
12. This argument loses sight of the fact that though the nomenclature
given by this Court to a petition filed under Article 227 of the Constitution is
'civil revision petition', it is not equivalent to a revision petition under Section
115 CPC. The power of judicial superintendence vesting in this Court
under Article 227 of the Constitution cannot be equated to ordinary
revisional jurisdiction. Be it noted that in several High Courts, petitions filed
under Article 227 of the Constitution are not referred as 'revisions' as is
being done in this Court, but as writ petitions (civil). The argument of the
learned counsel that the mere nomenclature given by this Court to a
petition filed under Article 227 of the Constitution would bring it within
the bar envisaged by Section 8 of the Act of 2015 therefore cannot be
accepted. It is only the ordinary revisional jurisdiction vesting in this
Court that is barred by Section 8 of the Act of 2015 and not the power
of superintendence vesting in this Court under the Constitution.
Needless to sate, a statute cannot control the Constitution."
28. Thus, we are of the considered view that CRP under Section
115 CPC is barred by Section 8 of the Act, 2015, against interlocutory
order, but CRP under Article 227 of Constitution of India cannot be
barred and is maintainable.
Entertainability of CRP Under Article 227:
29. In Shalini Shyam Shetty (supra) the Hon'ble Apex Court
formulated the principles on the exercise of High Courts' jurisdiction
under Article 227 of Constitution of India. It was held as under in Para
49:
"49. On an analysis of the aforesaid decisions of this Court, the following
principles on the exercise of High Court's jurisdiction under Article 227
of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a
petition under Article 227. The mode of exercise of power by the High
Court under these two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ
petition. The history of the conferment of writ jurisdiction on High Courts
is substantially different from the history of conferment of the power of
superintendence on the High Courts under Article 227 and have been
discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of
superintendence under Article 227 of the Constitution, interfere with the
orders of tribunals or courts inferior to it. Nor can it, in exercise of this
power, act as a court of appeal over the orders of the court or tribunal
subordinate to it. In cases where an alternative statutory mode of
redressal has been provided, that would also operate as a restrain on
the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of their
power of superintendence have been repeatedly laid down by this
Court. In this regard the High Court must be guided by the principles laid
down by the Constitution Bench of this Court in Waryam Singh [AIR
1954 SC 215] and the principles in Waryam Singh [AIR 1954 SC 215]
have been repeatedly followed by subsequent Constitution Benches and
various other decisions of this Court.
(e) According to the ratio in Waryam Singh [AIR 1954 SC 215], followed
in subsequent cases, the High Court in exercise of its jurisdiction of
superintendence can interfere in order only to keep the tribunals and
courts subordinate to it, "within the bounds of their authority".
(f) In order to ensure that law is followed by such tribunals and
courts by exercising jurisdiction which is vested in them and by
not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can
interfere in exercise of its power of superintendence when there
has been a patent perversity in the orders of the tribunals and
courts subordinate to it or where there has been a gross and
manifest failure of justice or the basic principles of natural justice
have been flouted.
(h) In exercise of its power of superintendence High Court cannot
interfere to correct mere errors of law or fact or just because another
view than the once taken by the tribunals or courts subordinate to it, is a
possible view. In other words the jurisdiction has to be very sparingly
exercised.
(i) The High Court's power of superintendence under Article 227 cannot
be curtailed by any statute. It has been declared a part of the basic
structure of the Constitution by the Constitution Bench of this Court in
L.Chandra Kumar v. Union of India and therefore abridgment by a
constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate
provision, like Section 115 of the Civil Procedure Code by the Civil
Procedure Code (Amendment) Act, 1999 does not and cannot cut down
the ambit of High Court's power under Article 227. At the same time, it
must be remembered that such statutory amendment does not
correspondingly expand the High Court's jurisdiction of superintendence
under Article 227.
(k) The power is discretionary and has to be exercised on equitable
principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the
High Court under Article 227, it transpires that the main object of this
article is to keep strict administrative and judicial control by the High
Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to
maintain efficiency, smooth and orderly functioning of the entire
machinery of justice in such a way as it does not bring it into any
disrepute. The power of interference under this article is to be kept to
the minimum to ensure that the wheel of justice does not come to a halt
and the fountain of justice remains pure and unpolluted in order to
maintain public confidence in the functioning of the tribunals and courts
subordinate to the High Court.
(n) This reserve and exceptional power of judicial intervention is not to
be exercised just for grant of relief in individual cases but should be
directed for promotion of public confidence in the administration of
justice in the larger public interest whereas Article 226 is meant for
protection of individual grievance. Therefore, the power under Article
227 may be unfettered but its exercise is subject to high degree of
judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be
counterproductive and will divest this extraordinary power of its strength
and vitality."
30. In Garment Craft v. Prakash Chand Goel 19 the Hon'ble Apex
Court observed and held as under:
"15. Having heard the counsel for the parties, we are clearly of the view that
the impugned order is contrary to law and cannot be sustained for several
reasons, but primarily for deviation from the limited jurisdiction exercised by
the High Court under Article 227 of the Constitution of India. The High Court
exercising supervisory jurisdiction does not act as a court of first appeal to
reappreciate, reweigh the evidence or facts upon which the determination
under challenge is based. Supervisory jurisdiction is not to correct every error
of fact or even a legal flaw when the final finding is justified or can be
supported. The High Court is not to substitute its own decision on facts and
conclusion, for that of the inferior court or tribunal. The jurisdiction
exercised is in the nature of correctional jurisdiction to set right grave
dereliction of duty or flagrant abuse, violation of fundamental principles
of law or justice. The power under Article 227 is exercised sparingly in
appropriate cases, like when there is no evidence at all to justify, or the
finding is so perverse that no reasonable person can possibly come to such a
conclusion that the court or tribunal has come to. It is axiomatic that such
discretionary relief must be exercised to ensure there is no miscarriage
of justice."
31. In K.P.Natarajan v. Muthalammal 20 the Hon'ble Apex Court
held as under:
"21. The contention that in a revision arising out of the dismissal of a petition
under Section 5 of the Limitation Act, 1963, the High Court cannot set aside
the exparte decree itself, by invoking the power under Article 227, does not
appeal to us. It is too well-settled that the powers of the High Court
under Article 227 are in addition to and wider than the powers under
Section 115 of the Code. In Surya Dev Rai v. Ram Chander Rai, this Court
went as far as to hold that even certiorari under Article 226 can be issued for
correcting gross errors of jurisdiction of a subordinate Court. But the
correctness of the said view in so far as it related to Article 226, was doubted
by another Bench, which resulted in a reference to a three member
Bench. In Radhey Shyam v.Chhabi Nath, the three member Bench, even
while overruling Surya Dev Rai (supra) on the question of jurisdiction
under Article 226, pointed out that the jurisdiction under Article 227 is
distinguishable. Therefore, we do not agree with the contention that the
High Court committed an error of jurisdiction in invoking Article
227 and setting aside the exparte decree."
32. Learned counsel for the respondents placed reliance in the case
of M/s.Deep Industries Limited (supra) to contend that in that case it
(2022) 4 SCC 181
(2021) 15 SCC 817
was held that The Arbitration and Conciliation Act, 1996 is self
contained code and consequently, once the remedy was available
under Section 37(2) of the said Act, the petition under Article 227
should not be maintainable. He emphasised that the Act, 2015 is also
a self contained code and once the revision remedy is not provided
against the interlocutory order, the petition under Article 227 should
also not be entertained, as the legislative intent is to minimize the
judicial intervention in the matters of commercial disputes before the
Commercial Courts.
33. Para 13 in M/s.Deep Industries Limited (supra) reads as
under:
"13. This being the case, there is no doubt whatsoever that if petitions were to
be filed under Articles 226/227 of the Constitution against orders passed in
appeals under Section 37, the entire arbitral process would be derailed and
would not come to fruition for many years. At the same time, we cannot forget
that Article 227 is a constitutional provision which remains untouched by the
non-obstante clause of Section 5 of the Act. In these circumstances, what is
important to note is that though petitions can be filed under Article
227 against judgments allowing or dismissing first appeals under Section
37 of the Act, yet the High Court would be extremely circumspect in
interfering with the same, taking into account the statutory policy as
adumbrated by us herein above so that interference is restricted to orders
that are passed which are patently lacking in inherent jurisdiction."
34. The Hon'ble Apex Court in M/s.Deep Industries Limited
(supra) held that if petitions were to be filed under Articles 226/227 of
the Constitution against orders passed in appeals under Section 37 of
the Arbitration Act, the entire arbitral process would be derailed and
would not come to fruition for many years but at the same time it was
also held that Article 227 of Constitution of India is a constitutional
provision which remains untouched by the non-obstante clause of
Section 5 of the Arbitration Act. The Hon'ble Apex Court observed that
though petitions can be filed under Article 227 against judgments
allowing or dismissing first appeals under Section 37 of the Act, yet the
High Court would be extremely circumspect in interfering with the
same, taking into account the statutory policy as adumbrated, that
interference is restricted to orders that are passed which are patently
lacking in inherent jurisdiction.
35. In Black Diamond (supra), upon which learned counsel for the
respondent placed reliance, the Delhi High Court held that the remedy
of revision under section 115 CPC being barred, the same relief cannot
be sought by means of filing a petition under Article 227 of the
Constitution of India as that would render the bar under the
Commercial Courts Act otiose. However, the Delhi High Court further
held that the "interference under Article 227 of the Constitution of India
can only be made in cases of jurisdictional error or where there is
manifest error in the face of the record".
36. In Tata Consultancy Services (supra), the Co-ordinate Bench
of this Court though opined that Article 227 of Constitution of India
cannot be used as a method to circumvent Section 8 of the Act, 2015,
but also observed that a proceeding filed under Article 227 of the
Constitution of India, should make out a case of patent perversity,
manifest failure of justice and/or exercise of jurisdiction which is not
conferred on the Tribunal, Court etc.
37. So, notwithstanding the bar of the remedy under the statute, the
jurisdiction under Article 227 can be exercised. The High Court can
interfere in exercise of its power of superintendence when there has
been a patent perversity; a gross and manifest failure of justice or the
basic principles of natural justice have been flouted and to ensure that
the law is followed by the Courts by exercising jurisdiction vested in
them and by not declining to exercise the jurisdiction vested.
38. We are not oblivious that the statutory provisions under the Act,
2015 provides for a speedy disposal of the matters covered by the Act,
2015. But, the 'speedy disposal consideration' would not come in the
way of the exercise of jurisdiction and power, with the orders which are
passed patently lacking in inherent jurisdiction, or are passed in
flagrant violation of the principles of law or justice.
Point C:
39. Now we consider if CRP under Section 115 CPC can be
converted into petition under Article 227 of Constitution of India.
40. The law is well settled. In COL.Anil Kak (supra), the High Court
treated the petition filed before it under Section 115 CPC, as
proceeding under Article 227 of the Constitution of India. The Hon'ble
Apex Court held that the High Court rightly decided to permit the
revision petitioners before it, to convert the same a proceeding under
Article 227 of Constitution of India. The Hon'ble Apex Court further
observed that the court could have done it on its own, even without a
motion in that behalf by the petitioner.
41. Para 2 of COL.Anil Kak (supra) is as under:
"2. All that the High Court has done is to treat the petition filed before it
under Section 115 of the Code as a proceeding initiated under Article 227 of
the Constitution. The respondents had filed the revision originally and during
the pendency of that revision the High Court appears to have taken a view
that an order in an appeal arising from a proceeding under Order 39 Rule 1
and 2 of the Code, could not be challenged under Section 115 of the Code
since the order was in the nature of an interlocutory order. In such a
situation in our view, the High Court rightly decided to permit the
revision petitioners before it, to convert the same as a proceeding
under Article 227 of the Constitution. After all, the court could have
done it on its own, even without a motion in that behalf by the
petitioner. We see absolutely no ground to interfere with the said order on
the grounds raised in this special leave petition. Hence, this special leave
petition is dismissed."
42. In Jaleel Khan (supra), the High Court of Judicature, Andhra
Pradesh at Hyderabad observed that the aggrieved party can
approach the High Court under Article 227 of Constitution of India
assailing the order passed in an interlocutory application when he has
no remedy under the statute. There is no legal bar. The conversion of
petition originally filed under Section 115 of the Code into a petition
under Article 227 of the Constitution of India is permissible.
43. Para Nos.31 & 32 in Jaleel Khan (supra), are as under:
"31. It is further made clear that we are only dealing with the matter regarding
conversion of a petition originally filed under Section 115 of the Code
into a petition under Article 227 of the Constitution of India and for
reasons given above we hold that it is permissible. But, whether in the
facts of this case a petition under Article 227 would be maintainable or not is
a question, which will have to be decided by the Court after conversion. Any
observations made should not be taken as an expression of opinion that
every order passed at the interim stage by the Rent Controller is
challengeable under Article 227.
32. For the foregoing reasons, we are of the considered view that in
appropriate cases where the fact situation warrants a petition filed
under Section 115 of the Code can be converted into a petition
under Article 227 of the Constitution of India on the principle of ex
debito justitiae. The reference is answered accordingly."
44. In Nawab Shaqafath Ali Khan (supra) the Hon'ble Apex Court
held that if the High Court had the jurisdiction to entertain either an
appeal or a revision application or a writ petition under Articles 226 and
227 of the Constitution of India, in a given case it, subject to fulfilment
of other conditions, could even convert a revision application or a writ
petition into an appeal or vice versa in exercise of its inherent power.
The Hon'ble Apex Court further observed that it is not correct to
contend that even if the revisional jurisdiction is not available, a
remedy in terms of Articles 226 and 227 of the Constitution of India
would also not be available in law.
45. Para Nos.45 & 48 in Nawab Shaqafath Ali Khan (supra) are as
under:
"45. It is not correct to contend that even if the revisional jurisdiction is
not available, a remedy in terms of Articles 226 and 227 of the
Constitution of India would also not be available in law. This aspect of
the matter has been considered by this Court in Surya Dev Rai v. Ram
Chander Rai [(2003) 6 SCC 675] opining that not only the High Court can
exercise its supervisory jurisdiction for the purpose of keeping the
subordinate courts within the bounds of its jurisdiction as envisaged
under Article 227 of the Constitution of India; even a writ of certiorari can
be issued wherefor the subordinate or inferior courts would be amenable to
the superior courts exercising power of judicial review in terms of Article
226 thereof.
48.If the High Court had the jurisdiction to entertain either an appeal or a
revision application or a writ petition under Articles 226 and 227 of the
Constitution of India, in a given case it, subject to fulfilment of other
conditions, could even convert a revision application or a writ petition
into an appeal or vice- versa in exercise of its inherent power.
Indisputably, however, for the said purpose, an appropriate case for exercise
of such jurisdiction must be made out."
46. So, CRP under Section 115 CPC can be converted in CRP
under Article 227 of Constitution of India. It is permissible, and it can
be done even without a motion in that behalf.
47. The petitioner has already filed a memo requesting to convert
this CRP to under Article 227 of Constitution of India. He has also paid
the requisite court fee payable on CRP under Article 227 of
Constitution of India.
48. We consequently, treat the present CRP under Section 115 CPC
as under Article 227 of the Constitution of India. We exercise our
powers under Article 227 of Constitution of India.
Point D:
49. Order 9 Rule 7 of CPC reads as under:
"7. Procedure where defendant appears on day of adjourned hearing
and assigns good cause for previous non-appearance. - Where the Court
has adjourned the hearing of the suit, ex parte, and the defendant, at or
before such hearing appears and assigns good cause for his previous non-
appearance, he may, upon such terms as the Court directs as to costs or
otherwise, be heard in answer to the suit as if he had appeared on the day
fixed for his appearance."
50. In Sangram Singh v. Election Tribunal21, the Hon'ble Apex
Court observed that the rule cannot be read that the defendant cannot
be allowed to appear at all if he does not show good cause. All that it
means is that he cannot be relegated to the position he would have
occupied if he had appeared. The defendant has to be allowed to
participate in the proceedings from the date of his appearance.
51. Para 27 of Sangram Singh (supra) is reproduced as under:
"27. Then comes Rule 7 which provides that if at an adjourned hearing the
defendant appears and shows good cause for his "previous non-
appearance", he can be heard in answer to the suit
"as if he had appeared on the day fixed for his appearance".
This cannot be read to mean, as it has been by some learned Judges, that he
cannot be allowed to appear at all if he does not show good cause. All it
means is that he cannot be relegated to the position he would have
occupied if he had appeared."
52. In Arjun Singh (supra) the Hon'ble Apex Court on the scope of
Order 9 Rule 7 CPC held as under in para 18:
"..........Adverting to the facts of the present appeal, this would primarily turn
upon the proper construction of the terms of O. IX. Rule 7. The opening
words of that rule are, as already seen, 'Where the Court has adjourned
the hearing of the suit exparte'. Now, what do these words mean?
Obviously they assume that there is to be a hearing on the date to
which the suit stands adjourned. If the entirety of the "hearing" of a suit
has been completed and the Court being competent to pronounce judgment
then and there, adjourns the suit merely for the purpose of pronouncing
judgment under Order XX. Rule 1, there is clearly no adjournment of "the
hearing" of the suit, for there is nothing more to be heard in the suit. It was
precisely this idea that was expressed by the learned Civil Judge when he
stated that having regard to the stage which the suit had reached the only
proceeding in which the appellant could participate was to hear the judgment
pronounced and that on the terms of Rules 6 & 7 he would permit him to do
that. If, therefore, the hearing was completed and the suit was not "adjourned
for hearing", O. IX, Rule 7 could have no application and the matter would
stand at the stage of O. IX, Rule 6 to be followed up by the passing of an ex
parte decree making Rule 13 the only provision in order IX
applicable............."
1955 SCC OnLine SC 21
53. In Arjun Singh (supra) in para 20, the Hon'ble Apex Court
further held as under:
"...........Having thus exhausted the cases where the defendant is not properly
served, r. 6(1)(a) enables the Court to proceed exparte where the defendant
is absent even after due service. Rule 6 contemplates two cases: (1) The day
on which the defendant fails to appear is one of which the defendant has no
intimation that the suit will be taken up for final hearing for example, where
the hearing is only the first hearing of the suit, and (2) where the stage of the
first hearing is passed and the hearing which is fixed is for the disposal of the
suit and the defendant is not present on such a day. The effect of proceeding
ex parte in the two sets of cases would obviously mean a great difference in
the result. So far as the first type of cases is concerned it has to be adjourned
for final disposal and, as already seen, it would be open to the defendant to
appear on that date and defend the suit. In the second type of cases,
however, one of two things might happen. The evidence of the plaintiff might
be taken then and there and judgment might be pronounced. In that case O.
IX, r. 13 would come in. The defendant can, besides filing an appeal or an
application for review, have recourse to an application under O. IX, r. 13 to
set aside the ex parte decree. The entirety of the evidence of the plaintiff
might not be concluded on the hearing day on which the defendant is absent
and something might remain so far as the trial of the suit is concerned for
which purpose there might be a hearing on an adjourned date. On the terms
of O. IX, r. 7 if the defendant appears on such adjourned date and satisfies
the Court by showing good cause for his non- appearance on the previous
day or days he might have the earlier proceedings recalled" set the clock
back" and have the suit heard in his presence. On the other hand, he might
fail in showing good cause. Even in such a case he is not penalised in
the sense of being forbidden to take part in the further proceedings of
the suit or whatever might still remain of the trial, only he cannot claim
to be relegated to the position that he occupied at the commencement
of the trial. Thus every contingency which is likely to happen in the trial vis-a-
vis the non-appearance of the defendant at the hearing 'of a suit has been
provided for and O. IX, r. 7 and O. IX, r. 13 between them exhaust the whole
gamut of situations that might arise during the course of the trial. If, thus,
provision has been made for every contingency, it stands to reason that there
is no scope for, the invocation of the inherent powers of the Court to make an
order necessary for the ends of justice. Mr. Pathak however, strenuously
contended that a case of the sort now on hand where a defendant appeared
after the conclusion of the hearing but before the pronouncing of the
judgment had not been provided for. We consider that the suggestion 'that
there is such a stage is, on the scheme of the Code, wholly unrealistic. ln the
present context when once the hearing starts, the Code contemplates only
two stages in the trial of the suit: (1) Where the hearing is adjourned or (2)
where the hearing is completed. Where the hearing is completed the parties
have no further rights or privileges in the matter and it is only for the
convenience of the Court that O. XX, r. 1 permits judgment to be delivered
after an interval after the hearing is completed. It would, therefore, follow that
after the stage contemplated by O. IX, r. 7 is passed the next stage is only
the passing of a decree which on the terms of O. IX, r. 6 the Court is
competent to pass. And then follows the remedy of the party to have that
decree set aside by application under O.IX. r. 13. There is thus no hiatus
between the two stages of reservation of judgment and pronouncing the
judgment so as to make it necessary for the Court to afford to the party the
remedy of getting orders passed on the lines of O. IX, r. 7.........."
54. In A.P.Southern Power Distribution Power Company Limited
(APSPDCL) v. Hinduja National Power Corporation Limited22, the
Hon'ble Apex Court observed as under in para 95:
"95. It can be seen that this Court in Arjun Singh (supra) has held
that CPC contemplates two stages of the trial in the suit: (1) where the
hearing is adjourned; and (2) where the hearing is completed. It has been
held that where the hearing is completed, the parties have no further rights or
privileges in the matter and it is only for the convenience of the Court that
Order 20 Rule 1 permits judgment to be delivered after an interval after the
hearing is completed. It has been held that there is no hiatus between the two
stages of reservation of judgment and pronouncing the judgment so as to
make it necessary for the Court to afford to the party the remedy of getting
orders passed on the lines of Order 9 Rule 7.
55. Therefore, the well settled position in law is that so long as the
hearing of the suit is not completed an application under Order 9 Rule
7 CPC can be filed. If the cause shown is found to be sufficient, the
Court shall set aside the order to proceed ex-parte. In such a case, 'set
back the clock' would be from the stage the defendant was set exparte.
But, if the order to proceed ex-parte passed under Order 9 Rule 7
stands, because either any application to set aside the order to
proceed ex parte has not been filed or if filed is rejected, as the cause
shown is not sufficient, still, the defendant is at liberty to proceed and
participate in the suit proceedings from the stage it is pending. If the
suit has been reserved for judgment, the application would not be
(2022) 5 SCC 484
maintainable. Then, the defendant would have to wait for the final
verdict and if it goes against him, he can file an application under
Order 9 Rule 13 CPC or he may choose to challenge the final decree
in appeal.
56. In the present case, on the date fixed for the judgment dated
16.10.2023, the applications were filed but the judgment was not
pronounced. In one sense it can be said that the applications were filed
on the date fixed for delivery of judgment, but in view of the fact that
the judgment was not pronounced and later on the presiding officer
was transferred and the new presiding officer fixed the COS for
hearing, it cannot be said that the application was not maintainable, as
has been submitted by the learned counsel for the respondent. In view
of the subsequent development, the application has rightly been
considered and not rejected on the ground of maintainability.
57. The COS is pending at the stage for arguments of the plaintiff.
Consequently, even if the impugned order stands, the petitioner has
right to participate from the stage it is pending i.e., for arguments. He
cannot be stopped or restrained from making arguments.
58. We are of the view that the present is a case in which the power
under Article 227 of Constitution of India deserves to be invoked. If the
COS is decided without affording opportunity to the petitioner to
advance the arguments, that would be flagrant violation of the
fundamental principles of law and justice. The Special Court patently
lacks jurisdiction to restrain the petitioner from participating in COS,
from the stage it is pending. Further, providing of opportunity of hearing
at the pending stage of arguments, in view of the settled law, would
serve the purpose and the legislative intent of expeditious disposal of
the suit of commercial nature and would avoid multiplicity at future
stage, on the ground of not providing opportunity and passing the final
decree, in violation of the fundamental principles of law and procedure
under Order 9 Rule 7 CPC. We entertain the petition following Surya
Dev Rai v. Ram Chander Rai23, where it was held "......but there may
be cases where a stitch in time would save nine. At the end, we may
sum up by saying that the power is there but the exercise is
discretionary which will be governed solely by the dictates of judicial
conscience enriched by judicial experience and practical wisdom of the
Judge............." and exercise our power under Article 227 of
Constitution of India.
Conclusion:
59. Thus considered our conclusions are:
i) the impugned order under Order 9 Rule 7 CPC is an
interlocutory order.
AIR 2003 SCC 3044
ii) the remedy of revision under Section 115 CPC is barred under
Section 8 of the Commercial Courts Act, 2015.
iii) the petition under Article 227 of the Constitution of India is
maintainable.
iv) the exercise of power under Article 227 of Constitution of
India is discretionary, governed by the dictates of judicial
conscience, judicial experience and practical wisdom of the
judge.
v) the power under Article 227 of Constitution of India, may be
exercised in cases, interalia, where there has been a patent
perversity, gross and manifest failure of justice, or where the
basic principles of natural justice or of procedure have been
flouted, in order to ensure that the law is followed and to keep
the subordinate Courts/ Tribunals, within the bounds of their
authority.
vi) Civil Revision Petition under Section 115 of CPC can be
converted into CRP under Article 227 of Constitution of India. It
can be done even suo motu. The power under Article 227 can
also be exercised in a CRP filed under Section 115 CPC, the
supervisory power being wider and in addition to powers under
Section 115 CPC as well.
vii) Even if the order to proceed exparte under Order 9 Rule 7
CPC stands, the defendant has a right to participate in the suit
from the stage the proceedings are pending, but he cannot set
the clock back unless the order under Order 9 Rule 7 CPC is set
aside.
viii) The COS No.5 of 2023 being pending at the stage of
arguments, the petitioner cannot be stopped from participating
from this stage. He cannot be restrained from advancing his
arguments.
Result:
60. In the result, both the CRPs are partly allowed in the following
terms:
a) The order impugned, though is maintained, the petitioner is at
liberty to participate in the proceedings of COS from the stage it is
pending before the Special Judge, i.e., the stage of the arguments.
b) If the petitioner so appears, on the date(s) now to be fixed, on
production of copy of this judgment, the petitioner in COS shall be
permitted to participate from the stage COS is pending, 'without
setting the clock back'.
c) If the petitioner does not appear or does not participate, still the
learned Special Court shall proceed in COS, in accordance with law
and decide the COS expeditiously.
No order as to costs.
As a sequel thereto, miscellaneous petitions, if any pending,
shall also stand dismissed.
_____________________
RAVI NATH TILHARI, J
__________________
NYAPATHY VIJAY, J
Date: 26.09.2024
Note: L.R. copy be marked
B/o.
AG
HONOURABLE SRI JUSTICE RAVI NATH TILHARI
HONOURABLE SRI JUSTICE NYAPATHY VIJAY
CIVIL REVISION PETITION NOs.1933 & 1934 of 2024
Date: 26 .09.2024
Note: L.R. copy be marked
B/o.
AG
