Petition Under Article 227 Of Constitution Not To Be Entertained If Statutory Alternative Remedy By Way Of Appeal Is Available: Supreme Court

The Supreme Court observed that a writ petition/Revision Petition under Article 227 of Constitution of India ought not to be entertained when a statutory alternative remedy by way of an appeal is available.

The bench comprising Justices MR Shah and BV Nagarathna observed thus while allowing the appeal against the order of the High Court of Madras which, in exercise of powers under Article 227 of the Constitution of India,  set aside the ex­parte judgment and decree passed by the Trial Court.

Before the Apex Court, the appellant- plaintiff contended that when a statutory appeal was provided against the judgment and decree passed by Trial Court, the High Court ought not to have entertained the revision petition under Article 227 of the Constitution of India and ought not to have set aside the judgment and decree in exercise of such powers. The respondents- defendants contended that challenge to the judicial orders could lie by way of statutory appeal or revision or under Article 227.

The bench noted that against the ex­parte judgment and decree, the remedy by way of an appeal before the First Appellate Court was available. Referring to Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Ors. Vs. Tuticorin Educational Society and Ors.; (2019) 9 SCC 538, the bench observed:

"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 High Court ought not to have entertained such a revision application challenging the ex­parte judgment and decree. Once there was a statutory alternative remedy by way of an appeal available to the defendants, the High Court ought not to have entertained a writ petition or revision application under Article 227 of the Constitution of India..

Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, the High Court ought not to 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. Therefore, the High Court has committed a grave error in entertaining the revision petition under Article 227 challenging the ex­parte judgment and decree passed by the learned Trial Court and in quashing and setting aside the same in exercise of powers under Article 227 of the Constitution of India.."

Case details

Mohamed Ali vs V. Jaya | 2022 LiveLaw (SC) 574 | CA 4113 OF 2022 | 11 July 2022

Coram: Justices MR Shah and BV Nagarathna

Headnotes

Constitution of India, 1950 ; Article 227 - Code of Civil Procedure, 1973 ; Order IX Rule 13 - High Court not to entertain a revision application challenging the ex­parte judgment and decree as there was a statutory alternative remedy by way of an appeal available - Referred to Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Ors. Vs. Tuticorin Educational Society and Ors.; (2019) 9 SCC 538. (Para 6-7)

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