In Civil Appeal No.7266 of 2022-SC- Where there is availability of remedy u/s 115 CPC, normally petition under Article 227 of Constitution would not lie; HC ought to have converted petition under Article 227 into revision petition u/s 115: SC
Justices M.R. Shah & Krishna Murari [13-10-2022]

 

Read Order: RAJ SHRI AGARWAL @ RAM SHRI AGARWAL AND ANR v. SUDHEER MOHAN AND ORS 

LE Correspondent

New Delhi, October 20, 2022: Clarifying that the remedy under Article 227 of the Constitution is a constitutional remedy which cannot be taken away, the Supreme Court has observed that 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.

The Division Bench of Justice M.R. Shah and Justice Krishna Murari was approached by the appellants who challenged the impugned judgment of the Allahabad High Court dismissing the writ petition preferred by the appellants 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.

This appeal was preferred by the original revisionist.

By the impugned judgment, the High Court had observed that the writ petition, under Article 227, was not maintainable as remedy by way of revision under Section 115 CPC was available to the appellants/plaintiffs. 

“As observed by this Court in catena of decisions and even in the decisions considered by the High Court, the view taken by this Court is 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”. That does not mean that writ petition, under Article 227 of the Constitution of India, shall not be maintainable at all”, the Bench said.

Noting the difference and distinction between the entertainability and maintainability, the Bench opined that 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 further added.

Considering the fact that even according to the High Court, the remedy available to the original plaintiffs was under Section 115 of the CPC, the Bench asserted, “In that view of the matter, 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.”

The Bench allowed the appeal and concluded the matter by observing that to avoid further multiplicity, even the High Court ought to have converted the writ petition under Article 227 of the Constitution into revision under Section 115 of the CPC.