V S SAINI Vs. D C M

JUDGEMENT

(1.) The Petitioners in these Revisions were Defendants in sundry summary suits who had unsuccessfully applied for leave to defend those suits. The Respondents have raised the preliminary objection questioning their very maintainability of the Revisions. It is not as if one is on virgin territory, since this question has been considered by the Division Bench of this Court in Siri Krishan Bhardwaj v. Manohar Lal Gupta and another, AIR 1977 Delhi 226. It had been noted in that Judgment that two Learned Judges had returned divergent opinions on this subject. B.C. Misra, J. had opined that a Revision is maintainable whereas D.K. Kapur, J. took the diametrically opposite view that only an appeal against the decree can be entertained. The Division Bench clarified that a Revision entailed only the bringing of an `error` to the notice of the High Court and conferred no further right of hearing on the aggrieved party. It went on to discuss that an order refusing to grant Leave to Defend has far reaching consequences and would normally fall within the ambit of the phrase "any case which has been decided", bringing the adjudication to a virtual end so far as the Defendant is concerned. It held that irrespective of the decree that may have been passed, a Revision against such an order is competent. The Division Bench however decided the controversy on the assumption that such orders were not appealable. This view would normally have held sway but for two subsequent events -- firstly the observations of the Hon'ble Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania and another, AIR 1981 SC 1786, and secondly, the enforcement of the amendments carried to Section 115 of the CPC by Act 46 of 1999 with effect from 1.7.2002.

(2.) It may also be mentioned that S.N. Kapoor, J. has followed Siri Krishan's case (supra) in M/s. Skylark Motors v. Lakshmi Commercial Bank Limited, AIR 1997 Del 46, but Babulal Khimji's case (supra) was neither cited nor discussed by my Learned Brother. Copies of orders of various other Benches have also been filed where Revision petitions against similar orders passed under Order XXXVII of the CPC had been heard and decided. None of these decisions, however, contain a discussion of whether revisory powers ought to have been exercised instead of directing the Petitioner to seek its remedy by way of an Appeal.

(3.) In Babulal Khimji's case (supra) a suit had been filed on the Original side of the Bombay High Court for the Specific Performance of a contract, in which proceedings the interim relief of the appointment of a Receiver of the suit property had been prayed for. The Learned Single Judge had declined the relief of the appointment of a Receiver and had also not granted the interim injunction prayed for. The ensuing appeal was dismissed by the Division Bench as not maintainable on the ground that the impugned order was not a `Judgment' as contemplated by Clause 15 of the Letters Patent of the High Court. No doubt, in the course of its detailed Judgment the Hon'ble Supreme Court had clarified that the Court was not concerned with the revisional powers of the High Court (paragraph 75). The Apex Court took note of the fact that unless such interlocutory orders were to be held analogous to a judgment, these orders would be impervious to an attack except in the Supreme Court. The favoured view was the treating of such orders as judgments, so as to be amenable to judicial review under the Letters Patent. In the 120th paragraph the Court enumerated some illustrations of interlocutory o s which may be treated as judgments within the meaning of Letters Patent, one of which is an order declining Leave to Defend the suit in an action under Order XXXVII of the CPC. Counsel for the Revisionist have strenuously submitted that the observations must be restricted only to cases of Letters Patent and not where the High Court exercises powers under Section 115 of the CPC in respect of such o s passed in the District Courts. Although this contention is attractive, in view of the settled position that even obiter dicta of the Supreme Court is binding on all the other Courts, the observation of the Apex Court that an interlocutory O such as the refusal to permit Leave to Defend is a "judgment", renders the decision in Siri Krishna's Judgment inefficacious. On a deeper cogitation, it appears to me that if an o in respect of which the redress of an appeal has deliberately and consciously not been formally provided for can nevertheless be assailed in appeal by deeming or treating it as a judgment, no other remedy can be legitimately invoked where an appeal is eventually available against an order. Therefore, in my opinion the Khimji dicta would apply a fortiori to legal assaults of the present genre, where the unsuccessful defendant can certainly avail of a second opportunity to present its defence by way of filing an appeal.