Durga
Prasad Vs. Naveen Chandra & Ors [1996] INSC 368 (11 March 1996)
Ramaswamy,
K.Ramaswamy, K.G.B. Pattanaik (J)
CITATION:
1996 SCC (3) 300 JT 1996 (3) 564 1996 SCALE (3)40
ACT:
HEAD NOTE:
O R D
E R
Leave
granted.
The
respondent has filed a suit for specific performance and after the evidence of
the appellant was closed on 12.3.1991, the defendant's evidence was directed to
be recorded on 20.3.1991. It would appear that the matter was adjourned from
tine to time till 11.1.1994. On that date, the respondent seemed to have
declined to contest the suit and sought adjournment. The application for
adjournment was rejected and after hearing arguments, judgment was reserved and
was pronounced on 14.1.1994. Respondent No.2 made an application on 27.1.94 to
set aside the decree under Order 9 Rule 13 CPC. Similar application was filed
by other respondents. While that application was pending, the appellant moved
an application objecting to the maintainability of the application and to hear
it as a preliminary point. That petition came to be dismissed by the trial
Court on 7.10.95. Against the said order, the appellant filed writ petition
under Art. 226 of the Constitution and that was dismissed by the impugned order
dated 21.12.95 by the High Court. Thus this appeal by special leave.
On the
last occasion when the matter had come up for admission, we had asked the
learned counsel as to how the writ petition is maintainable in the
circumstances. The learned counsel sought for and the matter was adjourned.
Thus
it has come up today. The appellant's counsel contended that three remedies are
open to the appellant under the CPC, namely, right of appeal under section 96
or appeal under Order 43 read with section 104 or a revision under section 115
CPC. In view of the fact that the matter does not come within the four corners
of any of the three remedies, the appellant is left with no other remedy except
approaching the High Court under Art.226. It is true that the impugned order is
not appealable one either under section 96 or under Order 43 Rule 1 read with
section 104 CPC. But still a revision would be maintainable and whether the
order could be revised or not is a matter to be considered by the High Court on
merits. But instead of availing of that remedy, the appellant has invoked
jurisdiction under Art.226 which is not warranted and the procedure prescribed
under the CPC cannot be bye--passed by availing of the remedy not maintainable
under Article 226. Under these circumstances, we decline to interfere with the order,
it is open to the appellant to avail of such remedy as is open under law.
The
appeal is accordingly dismissed . No costs.
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