Case Note & Summary
The petitioner, Jayantrao Dhanwatey, filed a writ petition under Article 227 of the Constitution of India challenging an order dated 21/12/2013 passed by the learned Principal District Judge, Nagpur, rejecting his application for condonation of delay in filing an appeal under Section 37(2)(b) of the Arbitration and Conciliation Act, 1996. The respondents, including Smt. Sumatidevi and others, opposed the petition. At the outset, the respondent No.5 raised a preliminary objection that the writ petition was not maintainable because an alternate remedy under Section 115 of the Code of Civil Procedure, 1908 (CPC) was available to the petitioner. The respondent argued that the application for condonation of delay was a separate proceeding and the order rejecting it was a 'case decided' within the meaning of Section 115 CPC, relying on the Supreme Court decision in ITI Ltd. v. Siemens Public Communications Network Ltd. (2002) 5 SCC 510. The petitioner's senior counsel contended that the condonation application was not a separate proceeding and that if the delay had been condoned, the appeal would have been heard on merits, so the order did not dispose of the entire proceedings. The court examined the nature of the order and held that an order rejecting an application for condonation of delay is a 'case decided' and a revision under Section 115 CPC is maintainable. Since the petitioner had an effective alternate remedy, the writ petition under Article 227 was not maintainable. The court dismissed the petition on this preliminary ground without entering into the merits of the case.
Headnote
A) Civil Procedure - Alternate Remedy - Maintainability of Writ Petition - Availability of Revision under Section 115 CPC - The petitioner challenged an order rejecting condonation of delay in filing an appeal under Section 37(2)(b) of the Arbitration and Conciliation Act, 1996. The respondent raised a preliminary objection that an alternate remedy under Section 115 of the Code of Civil Procedure, 1908 was available. The court held that the order rejecting condonation of delay is a 'case decided' and a revision lies under Section 115 CPC. Since the petitioner did not avail that remedy, the writ petition under Article 227 was not maintainable. The petition was dismissed on this ground alone. (Paras 3-8)
Issue of Consideration
Whether a writ petition under Article 227 of the Constitution of India is maintainable against an order rejecting an application for condonation of delay in filing an appeal under Section 37(2)(b) of the Arbitration and Conciliation Act, 1996, when an alternate remedy under Section 115 of the Code of Civil Procedure, 1908 is available.
Final Decision
The writ petition is dismissed on the ground that the petitioner has an alternate remedy under Section 115 of the Code of Civil Procedure, 1908, and therefore the petition under Article 227 of the Constitution of India is not maintainable. No order as to costs.
Law Points
- Alternate remedy
- Section 115 CPC
- Article 227
- Condonation of delay
- Arbitration and Conciliation Act
- 1996
Case Details
2015 LawText (BOM) (01) 79
Writ Petition No.1245 of 2014
Shri A. S. Jaiswal (Senior Advocate) with Shri N. A. Padhye for petitioner, Smt. Jyoti Dharmadhikari for respondent No.1, Shri Rohit Joshi for respondent Nos. 2 to 5
Jayantrao s/o Marotirao Dhanwatey
Smt. Sumatidevi wd/o Marotirao Dhanwatey, Vijayrao s/o Late Marotirao Dhanwatey, Smt. Sanyogita w/o Vijayrao Dhanwatey, Vishal s/o Vijayrao Dhanwatey, Ram s/o Vijayrao Dhanwatey
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Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging an order rejecting an application for condonation of delay in filing an appeal under Section 37(2)(b) of the Arbitration and Conciliation Act, 1996.
Remedy Sought
The petitioner sought to challenge the order dated 21/12/2013 passed by the learned Principal District Judge, Nagpur, rejecting his application for condonation of delay.
Filing Reason
The petitioner's application for condonation of delay in filing an appeal under Section 37(2)(b) of the Arbitration and Conciliation Act, 1996 was rejected by the District Judge.
Previous Decisions
The learned Principal District Judge, Nagpur, passed the order dated 21/12/2013 on M.C.A. No.669 of 2013, rejecting the application for condonation of delay.
Issues
Whether a writ petition under Article 227 of the Constitution of India is maintainable against an order rejecting an application for condonation of delay in filing an appeal under Section 37(2)(b) of the Arbitration and Conciliation Act, 1996, when an alternate remedy under Section 115 of the Code of Civil Procedure, 1908 is available.
Submissions/Arguments
Respondent No.5 argued that an alternate remedy under Section 115 CPC was available as the order rejecting condonation of delay is a 'case decided', relying on ITI Ltd. v. Siemens Public Communications Network Ltd.
Petitioner argued that the condonation application is not a separate proceeding and that if delay had been condoned, the appeal would have been heard on merits, so the order did not dispose of the entire proceedings, making revision under Section 115 CPC unavailable.
Ratio Decidendi
An order rejecting an application for condonation of delay is a 'case decided' within the meaning of Section 115 of the Code of Civil Procedure, 1908, and a revision lies against such order. Since the petitioner had an effective alternate remedy, the writ petition under Article 227 of the Constitution of India is not maintainable.
Judgment Excerpts
At the outset, Shri Rohit Joshi learned counsel appearing for respondent No.5 raised preliminary objection to the tenability of the writ petition on the ground that an alternate remedy under Section 115 of the Code of Civil Procedure (for short 'the Code') was available to the present petitioner for challenging the aforesaid impugned order.
He relied upon the decision of Supreme Court in case of ITI Ltd. Vs. Siemens Public Communications Network Ltd. (2002) 5 Supreme Court Cases 510 and especially paragraphs 8 to 13 of said judgment.
In reply to aforesaid submissions, learned senior counsel Shri A.S. Jaiswal submitted that the application seeking condonation of delay could not be treated to be separate proceeding in itself.
He submitted that under Section 115 of the Code, only if the order impugned is set aside and the same has the effect of disposing of the entire proceedings, only then the remedy of revision would be available.
He therefore submitted that remedy under Section 115 of the Code was not available in the present case.
After considering the submissions, I find that the preliminary objection raised on behalf of the respondent No.5 deserves to be upheld.
The order rejecting the application for condonation of delay is a 'case decided' and a revision under Section 115 of the Code is maintainable.
Since the petitioner has an alternate remedy, the writ petition under Article 227 of the Constitution of India is not maintainable.
Procedural History
The petitioner filed an application for condonation of delay in filing an appeal under Section 37(2)(b) of the Arbitration and Conciliation Act, 1996 before the learned Principal District Judge, Nagpur. The application was rejected on 21/12/2013. The petitioner then filed the present writ petition under Article 227 of the Constitution of India challenging that order. The respondent No.5 raised a preliminary objection regarding maintainability due to availability of alternate remedy under Section 115 CPC. The court heard the parties and dismissed the writ petition on the preliminary ground.
Acts & Sections
- Arbitration and Conciliation Act, 1996: Section 37(2)(b)
- Code of Civil Procedure, 1908: Section 115
- Constitution of India: Article 227
