MAA COMMUNICATIONS BOZELL LTD Vs. K L SHROFF

JUDGEMENT

(1.) This Court has considered the maintainability of revision petitions against orders declining Leave to Defend under Order XXXVII of the Code of Civil Procedure in V.S. Saini & Anr. v. D.C.M. Limited, 110 (2004) DLT 641, rendering this Revision not maintainable. On the last date of hearing, on the request of the learned counsel for the Petitioner, an adjournment was granted in this matter.

(2.) Learned counsel for the Petitioner has contended that the decision in V.S. Saini's case (supra) may not be correct. I find no reason to reconsider the said Judgment and the Petitioner can surely avail of its remedies. Relying on the decision in State of Bihar vs. Kalika Kuer @ Kalika Singh and others, AIR 2003 SC 2443 it is sought to be contended that the observations of the Hon'ble Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania and another, AIR 1981 SC 1786 are not in the nature of obiter dicta but are per incurium . I am unable to appreciate how the decision in Kalika Singh's case (supra) advances the case of the Petitioner. In any event even if the observations of the Hon'ble Supreme Court are per incurium as counsel for the Petitioner has contended, its persuasive if not binding effect on this Court cannot be doubted or debated; the concern of the Apex Court was how its judgments must be treated by coordinate Benches. I also fail to appreciate the manner in which the decision of the Apex Court in K. Ajit Babu and others v. Union of India and others, (1997) 6 SCC 473, is of any assistance to the Petitioner.

(3.) In V.S. Saini's case (supra) it had specifically been noted that the view of the Division Bench in Siri Krishan Bhardwaj v. Manohar Lal Gupta & another, AIR 1977 Delhi 226 would have held sway but for two subsequent events - firstly the observations of the Hon'ble Supreme Court in Khimji's case (supra) and secondly, the enforcement of the amendments carried to Section 115 of the CPC. Learned counsel for the Petitioner cannot seriously contend that the opinion of the Division Bench must continue to hold the field even after these two subsequent events. Learned counsel for the Petitioner has also drawn my attention to the decision of the Division Bench in Vinod Kumar Gupta & others v.Sanjay Gupta & others, 94 (2001) DLT 947 (DB) decided on 5.10.2001. In that case the Division Bench had merely accepted that the counsel for the appellant had by bona fide mistake treated the Appeal as an RFA (OS) instead of an FAO (OS). There is no discussion in that Judgment as to whether, in respect of Summary suits governed by Order XXXVII of the CPC, an Appeal must be filed from the Decree or from the Order declining leave to defend. Neither Khimji's case (supra) nor Siri Krishan's case (supra) was either cited or considered by the Bench.