Madras High Court
S.Somasundara Gurukkal ... ... vs Chithambaram Gurukkal on 4 August, 2023
C.R.P.(MD).No.1702 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(MD)No.1702 of 2019
S.Somasundara Gurukkal ... Revision Petitioner/Petitioner/
Plaintiff
-vs-
Chithambaram Gurukkal ... Respondent/Respondent/
Defendant
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the fair and decreetal order dated 06.03.2019 in
I.A.No.431 of 2015 in O.S.No.301 of 2015 on the file of the Principal Sub
Court, Pudukkottai.
For Petitioner : Mr.M.Gandhirajan
For Respondent : Mr.S.Parthasarathy
ORDER
The present Civil Revision Petition has been filed by the petitioner
under Article 227 of the Constitution of India, against the fair and decreetal
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C.R.P.(MD).No.1702 of 2019
order dated 06.03.2019 in I.A.No.431 of 2015 in O.S.No.301 of 2015 on the
file of the Principal Sub Court, Pudukkottai.
2. The petitioner is the plaintiff and the respondent is the defendant
before the Court below.
3. For the sake of convenience, the parties will be referred to as per the
litigative status before the trial Court.
4. According to the plaint, the petitioner has filed the suit for recovery
of a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with future interest.
While the suit was pending, the plaintiff has filed an application for the
attachment of the property before judgment.
5. The said application was resisted by the respondent, and after
hearing both sides, the Court below has dismissed the application and
rejected the prayer of the petitioner, vide order dated 06.03.2017. Aggrieved
with the order, the petitioner has come before this Court by way of revision
petition filed under Article 227 of the Constitution of India.
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C.R.P.(MD).No.1702 of 2019
6. The learned counsel for the petitioner would submit that the very
dismissal order in an application filed under Order XXXVIII Rule 5 of C.P.C,
and that, the reason stated by the Court below is perverse. Hence, he prayed
to allow this Civil Revision Petition.
7. However, the learned counsel for the respondent would submit that
as per Order 43 Rule 1(q) of C.P.C, against the order passed under Order
XXXVIII Rule 2 of C.P.C, the only remedy is to prefer a regular appeal as
provided under Order 43 of C.P.C and not filing Civil Revision Petition.
Hence, prayed to dismiss this petition.
8. For ready reference, Order XLIII Rule 1(q) of C.P.C is extracted
hereunder:
“ORDER XLIII – APPEALS FROM ORDERS
1. An appeal shall lie from the following orders under the provisions of
Section 104, namely:-
.....................
(q) an order under Rule 2, Rule 3 or Rule 6 of Order XXXVIII;”
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C.R.P.(MD).No.1702 of 2019
9. However, the learned counsel for the petitioner would submit that
they filed an application only under Order XXXVIII Rule 5 of C.P.C, and not
under Order XXXVIII Rule 2, 3 or 6 of C.P.C. Hence the same does not come
under the provisions of Order XLIII Rule 1(q) of C.P.C, and they further
relied upon the judgment of the Panjab-Hariyana High Court in Civil
Revision No.2147 of 2013 (Gurdeep Singh Vs..M/s.Krishna Agricultural
Steel) dated 21.01.2016, and submit that the very revision is maintainable.
10. No doubt, Order XLIII Rule 1(q) CPC do not speak about an order
passed under Order XXXVIII Rule 5 of C.P.C., which only deals to furnish
security. Whereas, in the petition, the petitioner sought for a prayer of
attachment. Therefore, though the petitioner mentioned wrong provision in
their petition as if Order XXXVIII Rule 5 of C.P.C, which will not militate
the spirt of Order XLIII of C.P.C. Further on harmonious reading of the
prayer sought for in the petition, it only comes under Order XXXVIII Rule 6
of C.P.C, as the petitioner ultimately sought for the relief of attachment.
11. Therefore, this Court is of the view that, as rightly submitted by the
learned counsel for the respondent, the instant revision is not maintainable
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C.R.P.(MD).No.1702 of 2019
before this Court in view of Order XLIII Rule 1 (q) of C.P.C. The only
available remedy to the petitioner is to prefer regular appeal. It is useful to
refer to the judgment reported in 2022 (10) SCC 477 (Mohamed Ali
Vs.V.Jaya and another) and paragraph Nos.17 to 19 are as follows:
“17. Even otherwise and as observed
hereinabove, against the exparte 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 exparte
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.
18. At this stage, the decision of this Court in
the case of Virudhunagar Hindu Nadargal Dharma
Paribalana Sabai and Ors. Vs. Tuticorin
Educational Society and Ors.; (2019) 9 SCC 538, is
required to be referred to. In the said decision, it is
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C.R.P.(MD).No.1702 of 2019
observed and held by this Court that wherever the
proceedings are under the Code of Civil Procedure
and the forum is the civil court, the availability of a
remedy under CPC, will deter the High Court and
therefore, the High Court shall not entertain the
revision under Article 227 of the Constitution of
India especially 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
well recognised 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”.
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C.R.P.(MD).No.1702 of 2019
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 such
alternative remedy is available under special
enactments and/or statutory rules and the fora
provided therein happen to be quasijudicial
authorities and tribunals. In respect of cases
falling under the first category, which may
involve suits and other proceedings before civil
courts, the availability of an appellate remedy
in terms of the provisions of CPC, may have to
be construed as a near total bar. Otherwise,
there is a danger that someone may challenge in
a revision under Article 227, even a decree
passed in a suit, on the same grounds on which
Respondents 1 and 2 invoked the jurisdiction of
the High Court. This is why, a 3member Bench
of this Court, while overruling the decision in
Surya Dev Rai v. Ram Chander Rai [Surya Dev
Rai v. Ram Chander Rai, (2003) 6 SCC 675] ,
pointed out in Radhey Shyam v. Chhabi Nath
[Radhey Shyam v. Chhabi Nath, (2015) 5 SCC
423 : (2015) 3 SCC (Civ) 67] that “orders of
civil court stand on different footing from the
orders of authorities or tribunals or courts
other than judicial/civil courts”.
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C.R.P.(MD).No.1702 of 2019
13. Therefore wherever the proceedings
are under the Code of Civil Procedure and the
forum is the civil court, the availability of a
remedy under the CPC, will deter the High
Court, not merely as a measure of selfimposed
restriction, but as a matter of discipline and
prudence, from exercising its power of
superintendence under the Constitution. Hence,
the High Court ought not to have entertained
the revision under Article 227 especially in a
case where a specific remedy of appeal is
provided under the Code of Civil Procedure
itself.”
19. Applying the law laid down by this Court
in the aforesaid decision to the facts of the case on
hand, the High Court ought not to have entertained
the revision petition under Article 227 of the
Constitution of India against the exparte judgment
and decree passed by the learned Trial Court in view
of a specific remedy of appeal as provided under the
Code of Civil Procedure itself. Therefore, the High
Court has committed a grave error in entertaining
the revision petition under Article 227 challenging
the exparte judgment and decree passed by the
learned Trial Court and in quashing and setting
aside the same in exercise of powers under Article
227 of the Constitution of India.”
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C.R.P.(MD).No.1702 of 2019
12. The above reported judgment is self explanatory, and that as per the
above judgment, when there is a provision providing a regular appeal, the
jurisdiction under Article 227 of the Constitution of India cannot be
entertained.
13. Therefore, this Court is of the view that this Civil Revision Petition
is not maintainable. However, the petitioner is given a liberty to prefer regular
appeal under Order XLIII of C.P.C, within a period of four weeks from the
date of receipt of this order, if he is advised to do so. In such an event while
calculating the limitation, the period in which this civil revision petition is
pending, is ordered to be excluded as per Section 14 of the Limitation Act.
14. In the result, this Civil Revision Petition is dismissed. There shall
be no order as to costs.
04.08.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
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C.R.P.(MD).No.1702 of 2019
To
1. The Principal Sub Court,
Pudukkottai.
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C.R.P.(MD).No.1702 of 2019
C.KUMARAPPAN,J.
ebsi
C.R.P(MD)No.1702 of 2019
04.08.2023
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