Bombay High Court
M/S. Hasth Shilp And Ors vs Smt. Sarita Balkrishna Dhoot Thr. Poa. ... on 7 August, 2019
Equivalent citations: AIRONLINE 2019 BOM 2735
Author: R. G. Ketkar
Bench: R. G. Ketkar
Dinesh Sherla p-502-crast-10875-19(2)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION (ST) NO. 10875 OF 2019
M/s. Hasth Shilp and ors. .. Applicants
vs.
Smt. Sarita B. Dhoot and anr. .. Respondents
Mr. Vijay D. Upadhyay for the Applicants.
CORAM : R. G. KETKAR, J.
DATE : 7th AUGUST 2019.
P.C. :-
1] Not on board. At the request of Mr. Vijay D. Upadhyay, the matter is taken up in the production board. 2] Heard Mr. Vijay D. Upadhyay, learned counsel for the applicants.
3] By this Application under Section 115 of the Code of Civil Procedure, 1908 (for short "CPC"), the applicants, hereinafter referred to as the defendants, have challenged the order dated 7th March 2019 passed by the learned Civil Judge, Senior Division, Pune below Exhibit-27 in Special Summary Suit No. 90 of 2018. By that order, learned Trial Judge granted leave to defend the application made by defendant Nos.2,3 and 4, subject to condition of depositing 1/5 ::: Uploaded on - 08/08/2019 ::: Downloaded on - 08/08/2019 23:13:23 ::: Dinesh Sherla p-502-crast-10875-19(2) principal amount of Rs.58,16,500/- or execute bank guarantee of equal sum within one month. 4] The respondents, hereinafter referred to as the plaintiffs, have instituted the suit under Order XXXVII of the CPC. In that suit, defendant Nos.2,3 and 4 filed application for unconditional leave to defend. By the impugned order, learned Trial Judge has granted leave to defend subject to the conditions. It is against this order, Civil Revision Application is preferred.
5] In view of proviso to Section 115 of CPC, even if the defendants succeed in the Civil Revision Application, it will not have effect of disposing of the suit finally. 6] Mr. Upadhyay relied upon the decision of the Apex Court in the case of Wada Arun Asbestos (P) Ltd vs. Gujarat Water Supply and Sewerage Board - AIR 2009 SC 1027 and particularly in paragraphs 13 and 18 to contend that the Civil Revision Application challenging the order granting conditional leave to defend is maintainable. 2/5 ::: Uploaded on - 08/08/2019 ::: Downloaded on - 08/08/2019 23:13:23 ::: Dinesh Sherla p-502-crast-10875-19(2) The said decision was subsequently followed in the case of Dineshkumar M. Patel vs. AMI Corporation - MANU/GJ/0998/2018 and particularly in paragraph 29.
7] Section 115 of the CPC reads thus:
"Section 115(1) - The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and 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, a 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.3/5 ::: Uploaded on - 08/08/2019 ::: Downloaded on - 08/08/2019 23:13:23 :::
Dinesh Sherla p-502-crast-10875-19(2) 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.] "
8] In the case of Wada Arun Asbestos (P) Ltd. (supra), the Apex Court has considered the judgments rendered by various High Courts. Paragraph 13 of the said decision reads thus:
"13. It is in the aforementioned backdrop, the question as to whether a revision petition was maintainable against an order granting conditional leave must be considered. We will proceed on the basis that an order imposing a conditional leave to defend the suit was a jurisdictional question and, thus, a revision application would be maintainable as has been held by various High Courts, notable amongst them are The New Ashapuri Co- operative Housing Society Ltd. & Anr. v. Arvindkumar Manilal Patel [AIR 1975 Gujarat 76]; Fateh Lal v. Sunder Lal [MANU/RH/0048/1980]; Modi Ram & Anr. v. Smt. Sugan Bai [MANU/RH/0308/2004]; and A.K. Velan v. Narnyanan and Co. (P) Ltd. [AIR 1972 Madras 118]."
9] In paragraph 18, the Apex Court has observed thus:
"18. A statutory right conferred on a litigant cannot ordinarily be taken away. A civil revision application might have been maintainable as against the order dated 27.11.2002 granting conditional leave. The said remedy was also available where leave to defend a suit is refused. Leave to defend a suit, as noticed hereinbefore, should ordinarily be granted. It was, therefore, permissible for the defendant to raise the said contention in the appeal although it had asked for time to comply with the conditions."
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Dinesh Sherla p-502-crast-10875-19(2) 10] A perusal of paragraph 13 above shows that the Apex Court considered various judgments rendered by various High Courts. The said decisions clearly show that they were rendered prior to amendment of Section 115 of CPC with effect from 1st July 2002. In view thereof, reliance placed by Mr. Upadhyay on the decision of the Apex Court as also the decision of Gujarat High Court does not advance his case that Civil Revision Application is maintainable. 11] In view thereof, leave to convert the Civil Revision Application into Writ Petition is granted. Amendment shall be carried out within one week from today. Order accordingly.
(R. G. KETKAR, J.) 5/5 ::: Uploaded on - 08/08/2019 ::: Downloaded on - 08/08/2019 23:13:23 :::