A.Pandurangan vs P.Ravikumar
2024 Latest Caselaw 17731 Mad

Citation : 2024 Latest Caselaw 17731 Mad
Judgement Date : 6 September, 2024

Madras High Court

A.Pandurangan vs P.Ravikumar on 6 September, 2024

Author: A.D.Jagadish Chandira

Bench: A.D.Jagadish Chandira

                                                                                     C.R.P.No.2769 of 2024

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 06.09.2024

                                                       CORAM :

                        THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA

                                               C.R.P.No.2769 of 2024
                                             and C.M.P.No.14696 of 2024
                A.Pandurangan                                                      ... Petitioner
                                                            Vs
                P.Ravikumar                                                        ... Respondent

                PRAYER : Civil Revision Petition filed under Section 115 of CPC, pleased to set
                aside the order and decreetal order made in I.A.No.3 of 2024 in O.S.No.6354 of
                2023 on the file of learned XXI Additional City Civil Judge, Chennai dated
                23.02.2024.

                                      For Petitioner    :   Mr.V.Chanakya
                                      For Respondent :      Mr.S.Senthilnathan

                                                       ORDER

This Civil Revision Petition has been filed against the order passed by the

learned XXI Additional City Civil Judge, Chennai, on 23.02.2024 in I.A.No.3 of

2024 in O.S.No.6354 of 2023.

2. A similar revision petition filed under Article 227 was dismissed by this

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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.

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14.A decree passed subsequent to the refusal of leave to defend could either be under Order 37 Rule 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.

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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