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2023 DIGILAW 367 (JK)

Vishal Gupta v. Japna Sharma

2023-08-09

RAHUL BHARTI

body2023
JUDGMENT : 1. The petitioners in this case figured as defendants in a civil suit filed by the respondent herein on file no. 87/2021 before the Court of learned Additional District Judge (Commercial Court), Jammu instituted on 08.04.2021. 2. The civil suit filed by the respondent/plaintiff was suit for recovery of an amount of Rs. 17,30,000/- along with interest @ 24% per annum w.e.f. 02.06.2016 till its actual realization. 3. The respondent/plaintiff filed the civil suit by resorting to Order XXXVII of the Code of Civil Procedure, 1908 providing for summary procedure with regard to the specified suits. 4. The facts which led to the filing of the civil suit by the respondent/plaintiff against the petitioners/defendants in brief are that vide a Deed of Conveyance dated 02.06.2016 the respondent/plaintiff had agreed for the sale of lease hold rights qua plot no. 56 40 x 80 sq. ft. situated in Sector no. 4-JDA Housing Colony, Roop Nagar, Jammu which was held by the respondent/plaintiff from the Jammu Development Authority with a right reserved to transfer the same. 5. The conveyance deal between the respondent/plaintiff and the petitioners/defendants qua the aforesaid plot of land came to be documented in the form of a registered Deed of Conveyance dated 02.06.2016 in terms whereof the sale consideration payable by the petitioners/defendants to the respondent/plaintiff was Rs. 17,30,000/- for payment of which a cheque bearing no. 004986 dated 05.07.2016 drawn on J&K Bank Ltd Branch Mishriwala Akhnoor Road had come to be issued by the petitioners/defendants to the respondent/plaintiff. The said cheque was issued against the account of a partnership firm of the petitioners/defendants but the said cheque came to be dishonoured on account of insufficiency of funds. The respondent/plaintiff had served a legal notice dated 29.10.2020 to the petitioners/defendants seeking payment of the said consideration amount of Rs. 17,30,000/- along with interest. Failure on the part of the petitioners/defendants to respond to the said demand of the respondent/plaintiff resulted in the respondent/plaintiff instituting the suit for recovery by taking recourse to Order XXXVII of the Code of Civil Procedure, 1908 (in short ‘CPC’). 6. The petitioners came to seek leave to defend the suit from the trial court of learned Additional District Judge (Commercial Court), Jammu. 6. The petitioners came to seek leave to defend the suit from the trial court of learned Additional District Judge (Commercial Court), Jammu. The trial court of learned Additional District Judge (Commercial Court), Jammu came to reject the plea of the petitioners/defendants for leave to defend the suit and consequently passed a judgment and decree for recovery of an amount of Rs. 17,30,000/- with pendente lite and future interest @ 6% per annum on the decretal amount till its realization. 7. The judgment and decree dated 15.12.2021 thus came to be passed in the suit against the petitioners/defendants. It is against this judgment dated 15.12.2021 that the petitioners/defendants are seeking to maintain a civil revision on the pretext that since their relief of leave to defend the suit was negated by the impugned judgment passed by the court below as such in that context the petitioners/defendants have a right to file the revision under Section 115 of the CPC. 8. The very fact that with the passing of the judgment dated 15.12.2021 by the court of learned Additional District Judge (Commercial Court), Jammu resulting in passing of a decree for recovery of an amount of Rs. 17,30,000/- along with interest, the petitioners/defendants came to be the judgment debtors and the respondent/plaintiff as decree holder in the eyes of law. 9. Now, whether with respect to a judgment and decree against which an appeal lies either to the High Court or to any court subordinate thereto, a revision under Section 115 of the Code of Civil Procedure, 1908 can be resorted to by the judgment debtors to upset the judgment underlying the decree is the question which came to be posed by this Court to the learned counsel for the petitioners/defendants by citing provision of Section 115 of the CPC. Section 115 of the Code of Civil Procedure, 1908 is reproduced as under : “115. Revision.- [(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court in which no appeal lies thereto, and if such subordinate court appears- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity. the High Court may make such order in the case as it thinks fit: [Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.] [(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.] [(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.] Explanation.- In this section, the expression “any case which has been decided” includes any order made, or any order deciding an issue, in the course of a suit or other proceeding. 10. In reply to the query so raised by this Court, the learned counsel for the petitioners/defendants submitted that the revision is maintainable on account of the fact that the petitioners/defendants are not seeing the judgment of the court of learned Additional District Judge (Commercial Court) Jammu to be a judgment amenable to appeal under the Code of Civil Procedure, 1908 in the sense that it declined leave to defend the suit filed by the respondent/plaintiff and to that extent, the petitioners/defendants are concerned with the judgment and rest of the part is of non-relevance to them. 11. This Court is not inclined to lend an iota of acceptance to such a submission of the learned counsel for the petitioners/defendants. The judgment and decree has been born against the petitioners/defendants in a duly instituted civil suit filed by the respondent/plaintiff by invoking the provisions of Order XXXVII CPC and the judgment/decree so passed under the said Order XXXVII CPC can be set aside only by a Court which passed it by reference to Order XXXVII Rule 4 CPC which course of action has not been adopted by the petitioners/defendants. 12. A judgment and decree passed under Order XXXVII of the CPC is amenable to routine appeal under Section 96 CPC because the decree so passed is an original decree by a civil court. 12. A judgment and decree passed under Order XXXVII of the CPC is amenable to routine appeal under Section 96 CPC because the decree so passed is an original decree by a civil court. Had it been the intention of the legislators providing for Order XXXVII in the Code of Civil Procedure, 1908 that the matter of denial of leave to defend under Order XXXVII CPC is to be segregated from passing of final judgment and decree in a civil suit under Order XXXVII of the CPC then the law makers would have provided for such a scope by an express provision to that extent but the same is not the position. 13. This Court in a civil revision cannot split the judgment of the trial court which has merged into a decree. It is only by a challenge to a decree by mode of an appeal filed by the aggrieved party under the Code of Civil Procedure, 1908 that an appellate court can go into the legality and illegality of the judgment passed by the trial court including examining the legality of denial to grant leave to defend by the trial court. 14. The petitioners/defendants for the reason best known to them have insisted to persist with their civil revision as if revisional jurisdiction under Section 115 of the CPC is available as a matter of demand from the High Court at the cost of keeping aside the other applicable provisions of the CPC, one of which being remedy of appeal provided thereunder. 15. Learned counsel for the petitioners/defendants has cited the case of the Hon’ble Supreme Court in ‘Wada Arun Asbestos Private Limited vs. Gujarat Water Supply and Sewerage’ reported in (2009) 2 SCC 432 to plead that right of revision is clearly recognized in terms of the said judgment and, therefore, the present revision is maintainable. 16. A close scrutiny of the facts and circumstances of the said case would show that the state of facts obtaining in the present case are different than what led to the passing of the judgment by the Hon’ble Supreme Court in the aforesaid case. In the case before the Hon’ble Supreme Court, the conditional leave had come to be granted by the trial court under Order XXXVII CPC. In the case before the Hon’ble Supreme Court, the conditional leave had come to be granted by the trial court under Order XXXVII CPC. It is in that context that in para 16 of the judgment aforementioned of the Hon’ble Supreme Court of India formulated the question as to whether a revision petition was maintainable against an order granting conditional leave needs to be considered. 17. The Hon’ble Supreme Court, in the aforementioned judgment, appreciated the position of law that if right to challenge a final decree in an appeal is made available under the Code of Civil Procedure, 1908 then an aggrieved party to a civil suit under Order XXXVII CPC cannot be denied a challenge to an order which was subject to revision in his memorandum of appeal filed from the decree ultimately passed. 18. The very fact that there was a separate conditional order granting leave which was there in existence makes the said case qualitatively different from the present one. In the present case, the denial of leave to defend came to take place by simultaneous passing of the final judgment and decree in the civil suit by the trial court of Additional District Judge (Commercial Court) Jammu and, therefore, if this Court is called upon to examine the judgment in a civil revision then the existence and operation of a decree is untouchable and that scenario in itself would result in an absurdity of procedure. 19. A defendant in a civil suit under Order XXXVII of the CPC is not a class in himself so as to have the privilege of revision as well as an appeal as simultaneous remedies at his pleasure whereas the judgment debtor in a regular suit is left with no other remedy except by way of filing a regular first appeal against the decree passed in a civil suit by a competent court of law under the Code of Civil Procedure, 1908. 20. In view of what has been stated above, this Court holds that the present revision petition preferred by the petitioners/defendants against the judgment dated 15.12.2021 passed by the Court of learned Additional District Judge (Commercial Court), Jammu in the civil suit on file no. 87/21 is not maintainable and is accordingly dismissed along with connected application(s).