Madras High Court
K.K.Mohammed Ibrahim vs M/S.Robust Business Venture Llp on 2 September, 2024
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
CRP..No.1125 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.09.2024
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
C.R.P.No.1125 of 2024 and C.M.P.No.5849 of 2024
K.K.Mohammed Ibrahim .. Petitioner
Vs.
M/s.Robust Business Venture LLP
A Reg Limited Liability Partnership Firm
Represented by its Partner Mr.Hitesh M.Jain
Level-1, No.43, Medavakkam Tank Road
Kilpauk, Chennai – 600 010 .. Respondent
Prayer:- Civil Revision Petition filed under Section 115 of CPC to set aside
the fair and final order passed in I.A.No.3 of 2022 in O.S.No.4338 of 2022
on the file of III Additional City Civil Judge, Chennai dated 20.04.2024.
For Petitioner : Mr.R.Balachanderan
For Respondent : Mr.T.Srikanth
ORDER
(1) This Civil Revision Petition is directed against the fair and final
order passed in I.A.No.3 of 2022 in O.S.No.4338 of 2022 on the
file of III Additional City Civil Judge, Chennai dated 20.04.2024.
(2) A similar revision petition filed under Article 227 was dismissed by
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this Court following the judgment of the Hon'ble Supreme Court of
India in the case of Ajay Bansal V. Anup Mehta and Others
reported in 2007 [2] SCC 275.
(3) In the above said judgment, the Hon'ble Supreme Court of India has
held that a Revision under Article 227 of the Constitution of India
is not maintainable where an Appeal lies. It is further held that as
against the order dismissing the petition seeking a leave to defend,
revision petition under Article 227 of the Constitution of India is
not maintainable. It is also held that it is not necessary to apply the
theory of ''dependent order'' as the decree that is passed may not go
automatically.
(4) It has been observed by the Apex Court in the above cited judgment
as follows:-
''13.Ordinarily, an application under Article 227 of
the Constitution of India would not be maintainable
where an appeal lies. An appeal lay from the decree
under Section 96 of the Code. When an appeal could
be filed, ordinarily, an application under Article 227
of the Constitution of India would not be entertained.
14.A decree passed subsequent to the refusal of
leave to defend could either be under Order 37 Rule
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3(6) of the Code or it could be based on the affidavit
evidence on the side of the plaintiff and the documents
produced or even based on oral evidence formally
proving, say, the execution of a promissory note by the
defendant. It may not be proper or necessary to apply
the theory of “dependent order” in such
circumstances. For one, the theory may not apply.
Even if this Court were to set aside the order of the
court below and give the defendant leave to defend the
suit, the decree that is passed may not go
automatically. It may have to be set aside. Secondly,
the defendant can always go to the court which passed
the decree and move under Rule 4 of Order 37 of the
Code to reopen the decree.
15.The theory of “dependant order” may not
apply in a case of this nature because even if this
Court were to set aside the order refusing leave to
defend, the decree subsequently passed may not fall by
itself. It has still to be set aside either by resort to
Order 37 Rule 4 or by way of an appeal, or by some
other mode known to law. In a given case like the
present one as it may not be proper to interfere with
the decree merely because in an appeal against an
order refusing leave to defend, this Court is inclined to
take a different view. (See V.S. Saini v. D.C.M. Ltd.
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[AIR 2004 Del 219] .)''
(5) This Court has also held that the Civil Revision Petition under
Article 227 of the Constitution of India is not maintainable against
the order dismissing an application under Order 37 Rule 3(5) of
CPC to grant leave to defend the Suit.
(6) The present revision petition is also against the order dismissing the
application filed by the revision petitioner to defend the Suit filed
by him under Order 37 Rule 3 of CPC to grant leave to defend the
Suit. However, it is open to the revision petitioner to file an appeal
and it is also open to him to raise all grounds that are raised in the
Civil Revision Petition, so that the petitioner can challenge the
order which is now impugned in the revision petition before the
Appellate Court. It is open to the revision petitioner to seek
exclusion of time taken by him to prosecute the present revision
when he files an appeal under Section 96 of CPC that he files
against the judgment and decree in the Suit.
(7) In the result, the Civil Revision Petition stands dismissed as not
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maintainable. No costs. Consequently, connected miscellaneous
petition is closed.
02.09.2024
dhk
Internet : Yes/No
Index : Yes/No
To,
III Additional City Civil Judge, Chennai
A.D.JAGADISH CHANDIRA, J.,
dhk
https://www.mhc.tn.gov.in/judis
02.09.2024
https://www.mhc.tn.gov.in/judis
