MOHAMED ALIversusV. JAYA & ORS.

274                      [2022]REPORTS
               SUPREME COURT   13 S.C.R. 274               [2022] 13 S.C.R.


A                               MOHAMED ALI
                                        v.
                                V. JAYA & ORS.
                         (Civil Appeal No. 4113 of 2022)
B                                 JULY 11, 2022
               [M. R. SHAH AND B. V. NAGARATHNA, JJ.]
             Constitution of India: Art. 227 – Power of superintendence
      over all courts by the High Court – Power of revision – Extent and
      scope of – Revision petitions u/Art. 227 challenging an ex-parte
C
      judgment and decree of specific performance of the trial court,
      and the order refusing to condone of delay in filing of an application
      for setting aside of the ex-parte judgment and decree observing
      that no sufficient cause was shown – High Court allowed the revision
      petitions and set aside the judgment and decree, holding that there
D     was total non-application of mind as the trial court did not consider
      the aspect of readiness and willingness on the part of the plaintiff;
      and that trial court without expressing anything on merits refused
      to condone the delay – On appeal, held: High Court did not at all
      consider whether the trial court was justified in refusing to condone
      such a huge delay of 2345 days – High Court also did not appreciate
E
      and consider the fact that the order passed by the trial court refusing
      to condone the delay of 1522 days in so far as original defendant
      No. 1, had attained the finality – High Court did not consider the
      maintainability of the petition u/Art. 227 – Remedy to challenge the
      ex-parte order was available by way of an appeal before the first
F     appellate court – Thus, the High Court ought not to have entertained
      the revision application u/s. 115 CPC and u/Art. 227 – Also, the
      High Court simply set aside the order refusing to condone the delay
      without any express justification – While setting aside the ex-parte
      judgment and decree, the High Court commented upon the legality
      and validity of the judgment and decree as if it was exercising
G
      appellate jurisdiction – High Court passed the order on irrelevant
      consideration and relevant aspects were not considered – High Court
      exceeded in its jurisdiction while setting aside the ex-parte judgment
      – Therefore, the impugned judgment and order passed by the High
      Court is unsustainable, and quashed and set aside.
H
                                       274
               MOHAMED ALI v. V. JAYA & ORS.                           275


      Allowing the appeals, the Court                                  A
       HELD: 1.1 The High Court has not at all considered
whether the trial court was justified in refusing to condone such
a huge delay of 2345 days. The High Court has also not
appreciated and considered the fact that as such the order passed
by the trial court refusing to condone the delay of 1522 days in so    B
far as original defendant No. 1, had attained the finality. Original
defendant No. 1 straightway challenged the ex-parte judgment
and decree passed by the trial court by way of revision application
under Article 227 of the Constitution of India. Whether the
revision application before the High Court under Article 227 of
the Constitution of India can be said to be maintainable or not        C
has not at all been considered. Even otherwise, the remedy
against an ex-parte judgment and decree available to the
defendants was, either to file an application under Order IX Rule
13 of CPC or to prefer an appeal before the first appellate court.
The defendants availed the first remedy by way of filing the           D
applications under Order IX Rule 13 of CPC. However, there
was a huge delay of 1522 and 2345 days, which was not condoned
by the trial court. Without expressing anything on whether the
trial court was justified in refusing to condone the delay, the High
Court has simply set aside the order passed by the trial court
refusing to condone the delay in so far as original defendant Nos.     E
2 to 4 are concerned. The High Court ought to have dealt with
and considered the question, whether, the trial court was justified
in refusing to condone the delay or not. There is no discussion at
all on the order passed by the trial court refusing to condone the
delay. [Para 6.1][283-B-F]                                             F
      1.2 Against the ex-parte judgment and decree, the remedy
by way of an appeal before the first appellate court was available.
Therefore, the High Court ought not to have entertained the
revision application under Section 115 CPC and under Article
227 of the Constitution of India. The High Court ought not to          G
have entertained such a revision application challenging the ex-
parte judgment and decree. Once there was a statutory alternative
remedy by way of an appeal available to the defendants, the High
Court ought not to have entertained a writ petition or revision
application under Article 227 of the Constitution. [Para 6.2][283-
G-H]                                                                   H
276           SUPREME COURT REPORTS                    [2022] 13 S.C.R.


A           1.3 The High Court ought not to have entertained the
      revision petition under Article 227 of the Constitution of India
      against the ex-parte judgment and decree passed by the trial court
      in view of a specific remedy of appeal as provided under the Code
      of Civil Procedure itself. Therefore, the High Court has
      committed a grave error in entertaining the revision petition
B
      under Article 227 challenging the ex-parte judgment and decree
      passed by the trial court and in quashing and setting aside the
      same in exercise of powers under Article 227 of the Constitution
      of India. [Para 7.1][285-D-E]

C           1.4 Even otherwise considering the impugned common
      judgment and order passed by the High Court, it appears that
      while setting aside the ex-parte judgment and decree, the High
      Court commented upon the legality and validity of the judgment
      and decree passed by the trial court as if the High Court was
      exercising the appellate jurisdiction against the judgment and
D     decree passed by the trial court. Before considering the judgment
      and decree on merits and/or expressing anything on merits on
      the legality and validity of the judgment and decree (ex-parte),
      the High Court was required to consider whether the trial court
      was justified in passing the ex-parte judgment and decree or not.
E     The High Court was also required to consider whether the trial
      court was justified in refusing to condone the delay of 1522 and
      2345 days in filing the petition challenging the ex-parte judgment
      and decree. Therefore, in the facts and circumstances of the case,
      the impugned common judgment and order passed by the High
      Court is unsustainable, both, on law as well as on facts. The High
F     Court has exceeded in its jurisdiction while setting aside the
      ex-parte judgment and decree in exercise of powers under Article
      227 of the Constriction of India. The impugned common judgment
      and order passed by the High Court is on irrelevant considerations
      and the relevant aspects have not been considered and dealt with
G     by the High Court. Under the circumstances, the impugned
      common judgment and order passed by the High Court deserve
      to be quashed and set aside. [Para 7.2][285-F-H; 286-A-B]



H
                MOHAMED ALI v. V. JAYA & ORS.                           277


       1.5 The impugned common judgment and order dated                 A
19.11.2021 passed by the High Court in Civil Revision Petition
(NPD) No. 1054/2021 and Civil Revision Petition (PD) No. 1301/
2021, is quashed and set aside. The ex-parte judgment and decree
passed by the trial court as well as the order(s) passed by the
trial court refusing to condone the delay of 2345 days in preferring
                                                                        B
the revision petition(s) challenging the ex-parte judgment and
decree filed by original defendant Nos. 2 to 4 is restored. [Para
8][286-C-D]
        Radhey Shyam and Anr. v. Chhabi Nath and Ors. (2015)
        5 SCC 423 : [2015] 3 SCR 197; K. P. Natarajan and               C
        Anr. v. Muthalammal and Ors. (2021) SCC Online SC
        467 – referred to.
        Virudhunagar Hindu Nadargal Dharma Paribalana
        Sabai and Ors. v. Tuticorin Educational Society and
        Ors. (2019) 9 SCC 538 – relied on.                              D
                        Case Law Reference
[2015] 3 SCR 197                    referred to         Para 4.2
(2019) 9 SCC 538                    relied on           Para 7.1
                                                                        E
        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4113 of
2022.
     From the Judgment and Order dated 19.11.2021 of the High Court
of Madras at Madurai Bench in Civil Revision Petition (PD) (MD)
No.1301 of 2021.                                                        F
        With
        Civil Appeal No. 4114 of 2022
      R. Balasubramanian, Sr. Adv., Bhupendra Pratap Singh, T. Gopal,
G. Sivabalamurugan, Sachin Sharma, Vimal Pani, S.C.V., Advs. for the    G
Appellant.
     M. Karpagavinayagam, Sr. Adv., Nitin Kumar, Deepak Sharma,
S. Gowthaman, Advs. for the Respondents.
                                                                        H
278             SUPREME COURT REPORTS                           [2022] 13 S.C.R.


A            The Judgment of the Court was delivered by
             M. R. SHAH, J.
             1. Feeling aggrieved and dissatisfied with the impugned common
      judgment and order dated 19.11.2021 passed by the High Court of Madras
      at Madurai Bench in Civil Revision Petition (NPD) No. 1054/2021 and
B     Civil Revision Petition (PD) No. 1301/2021, by which, in exercise of
      powers under Article 227 of the Constitution of India the High Court has
      set aside the ex-parte judgment and decree passed by the learned Trial
      Court, the original plaintiff has preferred the present appeals.
            2. The facts leading to the present appeals in a nutshell are as
C     under: -
             2.1 That the appellant herein – original plaintiff instituted a suit
      being O.S. No. 15/2010 on the file of I Additional District Judge (PCR),
      Trichy for specific performance of an agreement to sell dated 17.07.2009.
      The said suit was filed against four defendants. The defendants were
D     placed ex-parte. The learned Trial Court passed an ex-parte judgment
      and decree dated 31.10.2012. That original defendant Nos. 2 to 4 filed
      an application to set aside the ex-parte judgment and decree. There was
      a delay of 2345 days in filing the petition to set aside the ex-parte judgment
      and decree. Therefore, original defendant Nos. 2 to 4 filed an application
E     requesting to condone the delay of 2345 days. The original defendant
      No. 1 also filed an application to set aside the ex-parte judgment and
      decree. There was a delay of 1522 days in filing the petition to set aside
      the ex-parte judgment and decree. Therefore, original defendant No. 1
      also filed an application to condone the delay of 1522 days in filing the
      petition to set aside the ex-parte judgment and decree. The learned Trial
F     Court dismissed both the applications, one filed by original defendant
      No. 1 and another filed by original defendant Nos. 2 to 4.
              2.2 Feeling aggrieved and dissatisfied with the order passed by
      the learned Trial Court refusing to condone the delay of 2345 days in
      filing the petition to set aside the ex-parte judgment and decree, original
G     defendant Nos. 2 to 4 preferred Civil Revision Petition No. 1054/2021
      before the High Court. Though, original defendant No. 1 did not challenge
      the order passed by the learned Trial Court dismissing his application to
      condone the delay of 1522 days in filing the petition to set aside the ex-
      parte judgment and decree, filed revision petition before the High Court
      under Article 227 of the Constitution of India being Civil Revision Petition
H
                MOHAMED ALI v. V. JAYA & ORS.                                  279
                     [M. R. SHAH, J.]

No. 1301/2021 to set aside the ex-parte judgment and decree. By the            A
impugned common judgment and order, the High Court has allowed the
aforesaid two revision petitions and has set aside the judgment and decree
passed by the learned Trial Court by observing that the judgment and
decree passed by the learned Trial Court is on a total non-application of
mind as before passing the decree for specific performance, the learned
                                                                               B
Trial Court has not considered the aspect of readiness and willingness
on the part of the plaintiff. Thus, by the impugned common judgment
and order in exercise of powers under Article 227 of the Constitution of
India, the High Court has set aside the ex-parte judgment and decree
passed by the learned Trial Court, without expressing anything on merits,
whether the learned Trial Court was justified in refusing to condone the       C
delay of 2345 days in filing the petition to set aside the ex-parte judgment
and decree. Thus, the High Court has allowed Civil Revision Petition
(CRP) No. 1045/2021 filed by original defendant Nos. 2 to 4. Being
aggrieved by the impugned judgment(s) and order(s) passed by the High
Court in CRP No. 1301/2021 (filed by original defendant No. 1 to set
                                                                               D
aside the ex-parte judgment and decree) and CRP No. 1045/2021 (filed
by original defendant Nos. 2 to 4) challenging the order passed by the
learned Trial Court refusing to condone the delay of 2345 days in filing
the petition to set aside the ex-parte judgment and decree, the original
plaintiff has preferred the present appeals.
        3. Shri R. Balasubramanian, learned Senior Advocate, appearing         E
on behalf of the appellant has vehemently submitted that in the facts and
circumstances of the case the High Court has committed a grave error
in setting aside the ex-parte judgment and decree in revision petition in
exercise of powers under Article 227 of the Constitution of India.
       3.1 It is vehemently submitted by learned Senior Advocate               F
appearing on behalf of the appellant that the ex-parte judgment and decree
passed by the learned Trial Court was an appealable order and therefore,
defendant No. 1 ought to have preferred an appeal rather than filing the
revision petition under Article 227 of the Constitution of India. It is
submitted that therefore, when a statutory appeal was provided against         G
the judgment and decree passed by learned Trial Court, the High Court
ought not to have entertained the revision petition under Article 227 of
the Constitution of India and ought not to have set aside the judgment
and decree in exercise of powers under Article 227 of the Constitution
of India.
                                                                               H
280             SUPREME COURT REPORTS                          [2022] 13 S.C.R.


A            3.2 It is further contended that even otherwise the impugned
      judgment and order passed by the High Court setting aside the ex-parte
      judgment and decree is unsustainable. It is submitted that the High Court
      has recorded the findings on legality and validity of the judgment and
      decree passed by the learned Trial Court as if the High Court was
      considering the appeal against the judgment and decree passed by the
B
      learned Trial Court. It is further submitted that the High Court has not at
      all considered and/or given any findings on whether the learned Trial
      Court was justified in passing the ex-parte judgment and decree or not.
      It is submitted that only in a case where the ex-parte judgment and
      decree is set aside after giving the specific findings that the learned Trial
C     Court was not justified and/or right in passing the ex-parte judgment and
      decree that the merits of the judgment and decree was required to be
      considered.
             3.3 It is further submitted by learned Senior Advocate appearing
      on behalf of the appellant – original plaintiff that even otherwise the
D     High Court has not properly considered the fact that there was a delay
      of 1522 days in filing the petition by original defendant No. 1 seeking to
      set aside the ex-parte judgment and decree. It is submitted that the learned
      Trial Court dismissed the application and refused to condone the delay
      of 1522 days. That the order passed by the learned Trial Court refusing
      to condone the delay of 1522 days in filing the petition seeking to set
E     aside the judgment and decree, had attained finality as the same was not
      challenged by original defendant No. 1. It is contended that therefore in
      the absence of any challenge to the order passed by the learned Trial
      Court refusing to condone the delay of 1522 days, the revision petition/
      application filed by defendant No. 1 challenging the ex-parte judgment
F     and decree was not required to be entertained.
             3.4 It is further submitted that even otherwise while setting aside
      the ex-parte judgment and decree in exercise of powers under Article
      227 of the Constitution of India, the High Court has not exercised its
      discretion judiciously and has acted beyond the scope and ambit of
G     exercise of powers under Article 227 of the Constitution of India.
             3.5 It is further urged by learned Senior Advocate appearing on
      behalf of the appellant – original plaintiff that even otherwise there are
      no findings recorded by the High Court on whether the learned Trial
      Court was justified in not condoning the delay of 2345 and 1522 days in
H     filing the petition for setting aside the ex-parte judgment and decree.
                 MOHAMED ALI v. V. JAYA & ORS.                                  281
                      [M. R. SHAH, J.]

That when there was a huge delay of 2345 and 1522 days in filing the            A
petition for setting aside the ex-parte judgment and decree filed by original
defendants No. 2 to 4 and defendant No. 1, respectively and when the
learned Trial Court by a detailed order refused to condone the delay, the
same ought not to have been set aside by the High Court, that too, without
considering the legality and validity of the order refusing to condone the
                                                                                B
delay.
      3.6 It is further submitted by learned Senior Advocate appearing
on behalf of the original plaintiff that the High Court has set aside the
ex-parte judgment and decree in exercise of powers under Article 227
of the Constitution of India as if the High Court was exercising the
appellate jurisdiction.                                                         C

      3.7 Making the above submissions, it is prayed to allow the present
appeals.
       4. Present appeals are vehemently opposed by Shri M.
Karpagavinayagam, learned Senior Advocate, appearing on behalf of               D
the respondents – original defendants.
        4.1 It is vehemently submitted by learned Senior Advocate
appearing on behalf of original defendants that the High Court has rightly
set aside the ex-parte judgment and decree on the ground that the ex-
parte judgment and decree for specific performance of the agreement             E
to sell was not in consonance with the procedure enunciated under Order
XII of the Code of Civil Procedure (CPC). It is submitted that the High
Court has set aside the ex-parte judgment and decree by observing that
while passing the decree for specific performance, the requirement of
proving readiness and willingness was not considered by the learned
Trial Court. It is submitted that even the respondents – original defendants    F
filed written submission before the learned Trial Court. However, the
learned Trial Court did not consider the said aspect while passing the ex-
parte judgment and decree.
       4.2 Now so far as the submissions made by the learned Senior
Advocate appearing on behalf of the appellant on the maintainability of         G
the revision petition under Article 227 of the Constitution of India, the
learned Senior Advocate appearing on behalf of the respondents – original
defendants, has heavily relied upon the decisions of this Court in the
case of Radhey Shyam and Anr. Vs. Chhabi Nath and Ors.; (2015)
5 SCC 423 as well as in the case of K.P. Natarajan and Anr. Vs.
                                                                                H
282             SUPREME COURT REPORTS                            [2022] 13 S.C.R.


A     Muthalammal and Ors; (2021) SCC Online SC 467. Relying upon
      the said decisions, it is submitted that as held by this Court in the aforesaid
      decisions, challenge to the judicial orders could lie by way of statutory
      appeal or revision or under Article 227 but not by way of writ under
      Article 226 or 32. It is submitted that in the present case, the defendants
      invoked the jurisdiction of the High Court under Section 115 of CPC as
B
      well as Article 227 of the Constitution of India by way of two different
      revision petitions and on different grounds. That therefore, having found
      the ex-parte judgment and decree of specific performance of agreement
      to sell passed by the learned Trial Court was not in consonance with the
      procedure to be followed under the CPC and the relevant aspects, which
C     were required to be considered under the provisions of the Specific Relief
      Act, were not considered, the High Court has not committed any error
      in setting aside the ex-parte judgment and decree.
            4.3 Making the above submissions and relying upon the above
      decisions of this Court, it is prayed to dismiss the present appeals.
D           5. We have heard learned Senior Advocates appearing on behalf
      of the respective parties at length. We have also gone through the
      impugned common judgment and order passed by the High Court.
             6. At the outset, it is required to be noted that the learned Trial
      Court passed the ex-parte judgment and decree in the year 2012. That
E     after a period of 1522 and 2345 days, original defendant No. 1 and
      defendants No. 2 to 4, respectively, filed the applications to set aside the
      ex-parte judgment and decree. The learned Trial Court by a detailed
      order refused to condone the delay of 1522 and 2345 days by specifically
      observing that no sufficient cause has been shown in explaining the huge
F     delay in filing the applications to set aside the ex-parte judgment and
      decree. The defendant Nos. 2 to 4 alone filed the revision application
      before the High Court challenging the order passed by the learned Trial
      Court refusing to condone the delay of 2345 days. Defendant No. 1 did
      not file any revision application before the High Court challenging the
      order passed by the learned Trial Court refusing to condone the delay in
G     filing the application to set aside the ex-parte judgment and decree.
      Instead, defendant No. 1 directly filed the revision application before the
      High Court under Article 227 of the Constitution of India challenging the
      ex-parte judgment and decree and without considering the legality and
      validity of the order/orders passed by the learned Trial Court refusing to
H     condone the huge delay of 1522/2345 days, by the impugned common
                MOHAMED ALI v. V. JAYA & ORS.                                 283
                     [M. R. SHAH, J.]

judgment and order, the High Court has set aside the ex-parte judgment        A
and decree in exercise of powers under Article 227 of the Constitution
of India.
       6.1 Having gone through the impugned common judgment and
order passed by the High Court, it can be seen that as such the High
Court has not at all considered whether the learned Trial Court was           B
justified in refusing to condone such a huge delay of 2345 days. The
High Court has also not appreciated and considered the fact that as
such the order passed by the learned Trial Court refusing to condone the
delay of 1522 days in so far as original defendant No. 1, had attained the
finality. Original defendant No. 1 straightway challenged the ex-parte
judgment and decree passed by the learned Trial Court by way of revision      C
application under Article 227 of the Constitution of India. Whether the
revision application before the High Court under Article 227 of the
Constitution of India can be said to be maintainable or not has not at all
been considered. Even otherwise, the remedy against an ex-parte
judgment and decree available to the defendants was, either to file an        D
application under Order IX Rule 13 of CPC or to prefer an appeal before
the First Appellate Court. The defendants availed the first remedy by
way of filing the applications under Order IX Rule 13 of CPC. However,
there was a huge delay of 1522 and 2345 days, which was not condoned
by the learned Trial Court. Without expressing anything on whether the
learned Trial Court was justified in refusing to condone the delay, the       E
High Court has simply set aside the order passed by the learned Trial
Court refusing to condone the delay in so far as original defendant Nos.
2 to 4 are concerned. The High Court ought to have dealt with and
considered the question, whether, the learned Trial Court was justified in
refusing to condone the delay or not. There is no discussion at all on the    F
order passed by the learned Trial Court refusing to condone the delay.
       6.2 Even otherwise and as observed hereinabove, against the ex-
parte judgment and decree, the remedy by way of an appeal before the
First Appellate Court was available. Therefore, the High Court ought
not to have entertained the revision application under Section 115 of         G
CPC and under Article 227 of the Constitution of India. The High Court
ought not to have entertained such a revision application challenging the
ex-parte judgment and decree. Once there was a statutory alternative
remedy by way of an appeal available to the defendants, the High Court
ought not to have entertained a writ petition or revision application under
Article 227 of the Constitution of India.                                     H
284             SUPREME COURT REPORTS                          [2022] 13 S.C.R.


A            7. At this stage, the decision of this Court in the case of
      Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Ors.
      Vs. Tuticorin Educational Society and Ors.; (2019) 9 SCC 538, is
      required to be referred to. In the said decision, it is observed and held by
      this Court that wherever the proceedings are under the Code of Civil
      Procedure and the forum is the civil court, the availability of a remedy
B
      under CPC, will deter the High Court and therefore, the High Court
      shall not entertain the revision under Article 227 of the Constitution of
      India especially in a case where a specific remedy of appeal is provided
      under the CPC itself. While holding so, it is observed and held in
      paragraphs 11 to 13 as under: -
C           “11. Secondly, the High Court ought to have seen that when a
            remedy of appeal under Section 104(1)(i) read with Order 43,
            Rule 1(r) of the Code of Civil Procedure, 1908, was directly
            available, Respondents 1 and 2 ought to have taken recourse to
            the same. It is true that the availability of a remedy of appeal may
D           not always be a bar for the exercise of supervisory jurisdiction of
            the High Court. In A. Venkatasubbiah Naidu v. S. Chellappan
            [A. Venkatasubbiah Naidu v. S. Chellappan, (2000) 7 SCC 695]
            , this Court held that “though no hurdle can be put against the
            exercise of the constitutional powers of the High Court, it is a
            well-recognised principle which gained judicial recognition that
E           the High Court should direct the party to avail himself of such
            remedies before he resorts to a constitutional remedy”.
            12. But courts should always bear in mind a distinction between
            (i) cases where such alternative remedy is available before civil
            courts in terms of the provisions of Code of Civil Procedure, and
F           (ii) cases where such alternative remedy is available under special
            enactments and/or statutory rules and the fora provided therein
            happen to be quasi-judicial authorities and tribunals. In respect of
            cases falling under the first category, which may involve suits and
            other proceedings before civil courts, the availability of an appellate
G           remedy in terms of the provisions of CPC, may have to be
            construed as a near total bar. Otherwise, there is a danger that
            someone may challenge in a revision under Article 227, even a
            decree passed in a suit, on the same grounds on which Respondents
            1 and 2 invoked the jurisdiction of the High Court. This is why, a
            3-member Bench of this Court, while overruling the decision
H
                MOHAMED ALI v. V. JAYA & ORS.                                  285
                     [M. R. SHAH, J.]

      in Surya Dev Rai v. Ram Chander Rai [Surya Dev Rai v. Ram                A
      Chander Rai, (2003) 6 SCC 675] , pointed out in Radhey
      Shyam v. Chhabi Nath [Radhey Shyam v. Chhabi Nath, (2015)
      5 SCC 423 : (2015) 3 SCC (Civ) 67] that “orders of civil court
      stand on different footing from the orders of authorities or tribunals
      or courts other than judicial/civil courts”.
                                                                               B
      13. Therefore wherever the proceedings are under the Code of
      Civil Procedure and the forum is the civil court, the availability of
      a remedy under the CPC, will deter the High Court, not merely as
      a measure of self-imposed restriction, but as a matter of discipline
      and prudence, from exercising its power of superintendence under
      the Constitution. Hence, the High Court ought not to have                C
      entertained the revision under Article 227 especially in a case
      where a specific remedy of appeal is provided under the Code of
      Civil Procedure itself.”
       7.1 Applying the law laid down by this Court in the aforesaid
decision to the facts of the case on hand, the High Court ought not to         D
have entertained the revision petition under Article 227 of the Constitution
of India against the ex-parte judgment and decree passed by the learned
Trial Court in view of a specific remedy of appeal as provided under the
Code of Civil Procedure itself. Therefore, the High Court has committed
a grave error in entertaining the revision petition under Article 227          E
challenging the ex-parte judgment and decree passed by the learned
Trial Court and in quashing and setting aside the same in exercise of
powers under Article 227 of the Constitution of India.
       7.2 Even otherwise considering the impugned common judgment
and order passed by the High Court, it appears that while setting aside        F
the ex-parte judgment and decree, the High Court has commented upon
the legality and validity of the judgment and decree passed by the learned
Trial Court as if the High Court was exercising the appellate jurisdiction
against the judgment and decree passed by the learned Trial Court. Before
considering the judgment and decree on merits and/or expressing anything
on merits on the legality and validity of the judgment and decree (ex-         G
parte), the High Court was required to consider whether the learned
Trial Court was justified in passing the ex-parte judgment and decree or
not. The High Court was also required to consider whether the learned
Trial Court was justified in refusing to condone the delay of 1522 and
2345 days in filing the petition challenging the ex-parte judgment and         H
286              SUPREME COURT REPORTS                       [2022] 13 S.C.R.


A     decree. Therefore, in the facts and circumstances of the case, the
      impugned common judgment and order passed by the High Court is
      unsustainable, both, on law as well as on facts. The High Court has
      exceeded in its jurisdiction while setting aside the ex-parte judgment and
      decree in exercise of powers under Article 227 of the Constriction of
      India. The impugned common judgment and order passed by the High
B
      Court is on irrelevant considerations and the relevant aspects as observed
      hereinabove have not been considered and dealt with by the High Court.
      Under the circumstances, the impugned common judgment and order
      passed by the High Court deserve to be quashed and set aside.
             8. In view of the above and for the reasons stated above, the
C     present Appeals Succeed. The impugned common judgment and order
      dated 19.11.2021 passed by the High Court in Civil Revision Petition
      (NPD) No. 1054/2021 and Civil Revision Petition (PD) No. 1301/2021,
      is hereby quashed and set aside. The ex-parte judgment and decree
      passed by the learned Trial Court as well as the order(s) passed by the
D     learned Trial Court refusing to condone the delay of 2345 days in
      preferring the revision petition(s) challenging the ex-parte judgment and
      decree filed by original defendant Nos. 2 to 4 is/are hereby restored.
      Present appeals are allowed accordingly. In the facts of the case, there
      shall be no order as to costs.
E
      Nidhi Jain                                                 Appeals allowed.
      (Assisted by : Shashwat Jain, LCRA)




F




G




H