Do Not Dismiss Petition U/Article 227 Of Constitution Merely Because Remedy Of Revision U/Sec 115 CPC Is Available : Supreme Court

The Supreme Court set aside an Allahabad High Court order that dismissed a petition under Article 227 of the Constitution merely on is not maintainable as remedy by way of revision under Section 115 CPC is available.

There is a difference and distinction between the entertainability and maintainability, the bench of Justices MR Shah and Krishna Murari observed.

In this case, the plaintiffs filed a 'writ petition' under Article 227 of the Constitution of India, challenging the order passed by the trial Court dismissing the application under Order 6 Rule 17 CPC. The High Court dismissed the writ petition,  observing that the same is not maintainable as remedy by way of revision under Section 115 CPC is available to the plaintiff.

In appeal, the Apex Court bench noted that where there is availability of remedy under Section 115 CPC normally "the petition under Article 227 of the Constitution of India would not lie". The court observed:

"That does not mean that writ petition, under Article 227 of the Constitution of India, shall not be maintainable at all. There is a difference and distinction between the entertainability and maintainability. The remdedy under Article 227 of the Constitution of India available is a constitutional remedy under the Constitution of India which cannot be taken away. In a given case the Court may not exercise the power under Article 227 of the Constitution of India if the Court is of the opinion that the aggrieved party has another efficacious remedy available under the CPC. However, to say that the writ petition under Article 227 of the Constitution of India shall not be maintainable at all is not tenable."

The bench also observed that in any case the High Court ought to have converted the writ petition under Article 227 of the Constitution into revision under Section 115 of the CPC.

"The High Court ought to have converted the writ petition under Article 227 of the Constitution of India into revision petition under Section 115 CPC and ought to have considered the same in accordance with law and on its own merits, rather than permitting the writ petitioners to file a fresh revision application under Section 115 of the CPC. It would unnecessary increase the burden of the Court", the bench said while allowing the appeal.

Case details

Raj Shri Agarwal @ Ram Shri Agarwal Vs Sudheer Mohan | 2022 LiveLaw (SC) 864 | CA 7266 OF 2022 | 13 October 2022 | Justices MR Shah and Krishna Murari

Headnotes

Constitution of India, 1950 ; Article 227 - Code of Civil Procedure, 1908 ; Section 115 - Appeal against HC order dismissing writ petition under Article 227 on the ground of availability of remedy of revision under Section 115 CPC - Allowed - Where there is availability of remedy under Section 115 CPC normally the petition under Article 227 would not lie - But that does not mean that writ petition under Article 227 shall not be maintainable at all - There is a difference and distinction between the entertainability and maintainability - The High Court ought to have converted the writ petition under Article 227 into revision petition under Section 115 CPC and ought to have considered the same in accordance with law and on its own merits, rather than permitting the writ petitioners to file a fresh revision application under Section 115 of the CPC. It would unnecessary increase the burden of the Court. (Para 3-4)

Constitution of India, 1950 ; Article 227 - The remedy under Article 227 available is a constitutional remedy under the Constitution of India which cannot be taken away - In a given case the Court may not exercise the power under Article 227 if the Court is of the opinion that the aggrieved party has another efficacious remedy available under the CPC. However, to say that the writ petition under Article 227 of the Constitution of India shall not be maintainable at all is not tenable. (Para 3)

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