Delhi High Court

Mahanagar Telephone Nigam ... vs Mohd. Sher Bahadur on 24 August, 2015

*                     HIGH COURT OF DELHI AT NEW DELHI

+      C.R.P. 119/2011 & CM APPL.16185/2011 (Stay), CM APPL.
       16186/2011 & CM APPL.8183/2011 (O.VI Rule 17 CPC)


                                             Decided on: 24th August, 2015

        MAHANAGAR TELEPHONE NIGAM LIMITED..... Petitioner
                   Through: Ms. Rachana Joshi Issar, Advocate

                            versus

        MOHD. SHER BAHADUR                             ..... Respondent
                     Through:            Ex-parte.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. The present revision petition has been filed by Mahanagar

Telephone Nigam Limited (MTNL) against the impugned orders

dated 28.01.2010 and 05.05.2011 passed by the learned Insolvency

Judge in I.No. 15/05 dismissing the applications under Order IX

Rule 7 CPC and Order VII Rule 11 CPC respectively filed by

MTNL.

2. For the sake of convenience the parties herein are being referred to

by their names and as per their status in the present petition.

3. Mohd. Sher Bahadur has been served by way of substituted

service, however, there is no appearance on his behalf and

therefore, he is proceeded ex-parte

4. I have heard the learned counsel for MTNL/petitioner in respect of

the civil revision petition. I have also gone through the record.

5. Before dealing with the submission made by the learned counsel

for MTNL/petitioner it may be pertinent here to mention the brief

facts of the case. The present petitioner has obtained a decree for a

sum of Rs.12,37,430/- against Mohd. Sher Bahadur along with

interest @ 12% per annum on 05.04.2005. The aforesaid decree

was passed ex-parte against Mohd. Sher Bahadur/respondent on

account of certain outstanding telephone bills having not been

cleared by him.

6. Mohd. Sher Bahadur/respondent in order to avoid the execution of

the decree has alleged to have filed Insolvency Petition No.15 of

2005 before the Court of Insolvency Judge. MTNL/petitioner who

was the respondent in the Insolvency Petition were served and on

28.01.2010 when Mohd. Sher Bahadur was present and since there

was no appearance on behalf of MTNL, an application under Order

IX Rule 7 CPC filed by MTNL for setting aside the ex-parte

proceedings dated on 21.08.2008 passed against them, was

dismissed. The reason for dismissal of the setting aside of the ex-

parte proceedings against MTNL/petitioner in the insolvency

proceedings was that earlier also ex-parte proceedings were

initiated against MTNL/the present petitioner on 08.12.2005 for

which MTNL/petitioner had filed an application under Order IX

Rule 7 along with another application under Section 5 of the

Limitation Act, which was allowed subject to payment of cost of

Rs.800/- vide order dated 14.02.2008 and MTNL, who was the

respondent in the insolvency petition was granted 30 days time to

file the written statement. The matter was adjourned on

14.02.2008 to 10.07.2008. On 10.07.2008 neither was the written

statement filed nor did any counsel appear before the Insolvency

Judge and therefore, MTNL was again proceeded ex-parte. It was

against this order of ex-parte that another fresh application under

Order IX Rule 7 read with Section 151 CPC was filed by MTNL

on 21.08.2008, which was rejected by the learned Insolvency Judge

vide impugned order dated 28.01.2010.

7. MTNL in its application had given an explanation that though the

next date of hearing, i.e. 10.07.2008 was mentioned on the file

cover but there was no corresponding entry made in the diary and

the counsel who had represented MTNL had resigned from the

office of the counsel engaged by the MTNL, therefore, this mistake

of non-appearance had happened. It was on this ground that the ex-

parte proceedings were sought to the set aside against MTNL.

This explanation having been furnished by MTNL was not

accepted to be a genuine and convincing one by the learned

Insolvency Judge and accordingly, the application was rejected.

The reasoning which was given by the learned Judge was that the

date was mentioned on the file cover and therefore they ought to

have been vigilant in prosecuting the matter. Moreover, the

counsel who had allegedly resigned from the office of the counsel

of the MTNL had not been named and, therefore, this was only

taken as make-believe story set up by MTNL and on this ground

the application was accordingly disallowed.

8. Still not feeling satisfied a fresh application under Order XLVII

Rule 1 read with Section 114 CPC was filed seeking review of the

order dated 28.01.2010 and another application under Order VII

Rule 11 CPC was also filed on the ground that the Insolvency

Petition does not disclose any cause of action and, therefore,

deserves to be dismissed.

9. So far as the review application is concerned that was dismissed on

the ground that there was no error apparent on the face of record

and as regards the application for rejection of the plaint is

concerned, the Court observed that the ground of rejection of a

plaint is the lack of cause of action or the averments regarding the

same were not made by MTNL. This order was passed on

05.05.2011 and the case was adjourned for 04.08.2011. It is against

these two orders that the present revision petition has been filed.

10. I have heard Ms. Rachna Joshi Issar, the learned counsel for

MTNL who has vehemently contended that the case is still at the

threshold and therefore, they must be given an opportunity to file

their written statement to contest the insolvency petition as it

would otherwise defeat the very interest of getting the money

recovered from Mohd. Sher Bahadur. It has also been contended

that the present petitioner can be put to terms.

11. I have considered the submission made by the learned counsel for

MTNL. However, I find that the present petition is not at all

maintainable as a civil revision petition, firstly on the ground that

two separate orders are assailed in one revision petition. The main

body of the revision petition shows that the order dated 28.01.2010

is challenged while as in the prayer clause there is no mention

about this order of 28.01.2010 and only the order dated 05.05.2011

is challenged. Even if, it is assumed that both the orders are

assailable, two independent civil revision petitions and not a

common petition would lie against two separate orders passed on

two different dates.

12. In addition to this after 1999, the provision of Civil Revision has

been amended and a proviso has been added to Section 115 which

has limited powers of revision of the Courts. The proviso

specifically lays down that a revision will not be allowed except in

case where the order if made in favour of the party applying for

revision would have resulted in final disposal of the case in its

favour. The exact language of Section 115 is as under:-

"115. Revision.

(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: [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.]

[(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.] [(3) A revision shall not operate as a stay of suit or other proceeding before the, Court except where such suit or other proceeding is stayed by the High Court.]

[Explanation.-In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue in the course of a suit or other proceeding.]"

13. A perusal of the aforesaid Section would clearly show that as per

the present proviso, the final termination of the Insolvency Petition

is not envisaged by order dated 28.01.2010 or by order dated

05.05.2011, if they were decided in favour of MTNL. The case

would have still continued and therefore, the orders which are

impugned in the present revision petition as a matter of fact cannot

be subjected to modification, reversal or judicial scrutiny under the

powers of revision. Therefore, to that extent the revision petition

filed by MTNL is totally misconceived.

14. So far as the other application under Order VII Rule 11 CPC is

concerned, a perusal of the application would clearly show that it is

bereft of any material particular as to how no cause of action has