Case Note & Summary
This appeal by special leave arose from a civil dispute concerning a suit for specific performance. The appellant, Durga Prasad, was the defendant in the suit filed by the respondents, Naveen Chandra and others. The trial court had proceeded with the suit after the respondents failed to contest on 11.1.1994, rejected their adjournment application, heard arguments, and pronounced judgment on 14.1.1994. Consequently, the respondents filed an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 on 27.1.1994 to set aside the decree. While that application was pending, the appellant filed an application objecting to its maintainability and requested that it be heard as a preliminary point. The trial court dismissed that application on 7.10.1995. The appellant then filed a writ petition under Article 226 of the Constitution of India before the High Court challenging that order, but the High Court dismissed the writ petition by its order dated 21.12.1995. Hence, the appellant approached the Supreme Court. The core legal issue was whether a writ petition under Article 226 could be maintained to challenge a non-appealable interlocutory order when a revision under Section 115 of the Code of Civil Procedure was available. The appellant contended that the order did not fall within the remedies of appeal under Section 96, appeal under Order 43 Rule 1 read with Section 104, or revision under Section 115, and therefore Article 226 was the only remedy. The Supreme Court observed that while the impugned order was indeed not appealable under Section 96 or Order 43 Rule 1 read with Section 104, a revision under Section 115 would still be maintainable, and the question whether the order could be revised was a matter for the High Court to decide on merits. The Court held that the appellant could not bypass the procedure prescribed under the Code of Civil Procedure by invoking a remedy not maintainable under Article 226. Accordingly, the Supreme Court declined to interfere with the High Court's order, dismissed the appeal without costs, and left it open to the appellant to avail such remedy as is open under law.
Headnote
A) Civil Procedure - Writ Jurisdiction and Remedies - Article 226 Constitution of India; Sections 96, 104, 115 and Order 43 Rule 1, Order 9 Rule 13 Code of Civil Procedure, 1908 - Maintainability of writ petition against non-appealable order rejecting preliminary objection - In a suit for specific performance, an application under Order 9 Rule 13 CPC to set aside an ex parte decree was pending; appellant objected to its maintainability and sought preliminary hearing; trial court dismissed that objection. Appellant filed writ under Article 226, which High Court dismissed. Supreme Court held that although the order was not appealable under Section 96 or Order 43 Rule 1 read with Section 104 CPC, a revision under Section 115 CPC would still be maintainable, and the appellant could not bypass the CPC procedure by invoking Article 226; appeal dismissed, but appellant left free to avail such remedy as is open under law (Paras 1-2).
Issue of Consideration
Whether the High Court rightly dismissed a writ petition under Article 226 of the Constitution challenging a trial court order rejecting an objection to maintainability of an application under Order 9 Rule 13 CPC, when a revision under Section 115 CPC was available.
Final Decision
The Supreme Court dismissed the appeal, holding that although the impugned order was not appealable under Section 96 or Order 43 Rule 1 read with Section 104 CPC, a revision under Section 115 CPC would be maintainable; the appellant could not bypass the CPC procedure by invoking Article 226. The Court declined to interfere and left it open to the appellant to avail such remedy as is open under law. No costs.
Law Points
- A writ petition under Article 226 of the Constitution cannot be used to bypass remedies available under the Code of Civil Procedure
- 1908
- Where an order is not appealable under Section 96 or Order 43 Rule 1 read with Section 104 CPC
- a revision under Section 115 CPC may still be maintainable
- The question whether an order can be revised is to be considered by the High Court on merits
- The procedure prescribed by the CPC cannot be circumvented by availing of a remedy not maintainable under Article 226
