High Courts Shouldn't Entertain Petitions Under Article 227 When Statutory Remedy Is Available Against Ex-Parte Decree - SC

Senior Advocate Shri R Balasubramanian appeared on behalf of the Appellant. Senior Advocate Shri M Karpagavinayagam appeared on behalf of the Respondents.

In this case, the High Court had exercised powers under Article 227 of the Constitution of India and set aside an ex-parte judgment and decree passed by the Trial Court.

The suit was instituted for the specific performance of an agreement before the Trial Court, and the judgment and decree were passed ex-parte. The Respondents filed an application to set aside the judgment and decree, with a delay of 2345 and 1522 days in filing the Petition. The Trial Court dismissed the applications.

However, on appeal, the High Court set aside the judgment and decree passed by the Trial Court in the exercise of powers under Article 227 of the Constitution of India, on the grounds that the Trial Court had not considered the aspect of readiness and willingness on part of the Plaintiff, before passing the decree for specific performance.

The Supreme Court noted that no sufficient cause had been shown in explaining the huge delay in filing the applications to set aside the ex-parte judgment and decree. To that end, the Court opined that "The High Court ought to have dealt with and considered the question, whether, the learned Trial Court was justified in refusing to condone the delay or not. There is no discussion at all on the order passed by the learned Trial Court refusing to condone the delay."

Further, the Supreme Court noted that "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 Court relied on the judgment of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Ors. Vs. Tuticorin Educational Society and Ors., to opine 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. 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.

Therefore, the Supreme Court opined that the High Court should not 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.

To that end, the judgment and order passed by the High Court was set aside and the ex-parte judgment and decree passed by the Trial Court were restored.