* THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR + Civil Revision Petition No. 5044 of 2009 % 31.08.2010 # Kedarisetti Atmaram .. Petitioner Vs. $ N. Seetharamaraju .. Respondent <GIST: >HEAD NOTE: ! Counsel for petitioner : Sri S. Sreerama Chandra Murthy ^ Counsel for respondent : Sri P.V. Vidya Sagar ? CASES REFERRED : 1. 2004 (4) ALT 722 2. (2003) 6 Supreme Court Cases 659 3. AIR 1971 Supreme Court 33 4. 1999 Mad.L.J. 395 5. (2003) 6 Supreme Court Cases 675 6. AIR 1967 Supreme Court 1272 7. AIR 1987 SC 117 8. AIR 2002 SC 110 9. AIR 1986 SC 1272 10. AIR 2006 SC 1474 11. AIR 1926 Oudh 192 = AIR 1956 Cal 87 12. AIR 1986 Calcutta 256 13. 1987 (Supp) Supreme Court Cases 340 14. AIR 1963 Supreme Court 70 15. AIR 1955 AP 115 16. AIR 1965 AP 260 17. (1994) 1 Supreme Court Cases 1 18. AIR 2000 Supreme Court 1165 19. 2001 (5) ALT 417 20. AIR 1951 Supreme Court 16 21. (2007) 4 Supreme Court Cases 221 22. AIR 2001 Supreme Court 3404 23. 1987 (2) ALT 229 24. AIR 1976 Patna 208 25. AIR 1963 AP 49 26. 2000 (3) Supreme 253 27. AIR 29 Oudh 71 28. 1957 An.W.R. 253 29. 1971-Myslj-1-463 30. AIR 1978 Andhra Pradesh 342 31. AIR 2001 SC 2967 32. AIR 2008 SC 429 THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION No.5044 of 2009 Dated: 31.08.2010 Between:- Kedarisetti Atmaram …Petitioner AND N. Seetharamaraju …Respondent THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR Civil Revision Petition No.5044 of 2009 Order: This Civil Revision Petition, under Article 227 of the constitution of India, is directed against the order dated 24.08.2007 passed in E.P.No.86 of 2005 in O.S.No.71 of 2002 by the Senior Civil Judge, Tadepalligudem, whereby and whereunder, the objections filed by the petitioner herein in the form of counter for execution of the decree were overruled. 2. While the petitioner herein was facing insolvency proceedings in I.P. No. 14 of 1990 on the file of the Subordinate Judge, Tanuku, the respondent herein, who is also the second respondent in the said insolvency proceedings, filed O.S. No. 71 of 1992 on the file of the Subordinate Judge, Tadepalligudem, for specific performance basing on the agreement of sale. The petitioner herein was set ex parte and an ex parte decree was passed in the said suit on 17.09.1992. The petitioner herein filed an application to set aside the ex parte decree passed against him. He also filed an application to condone the delay of 278 days in filing the said application. However, the said application was dismissed for default. The petitioner again filed another application to restore the same and the same is pending. 3. The I.P. No. 14 of 1990, filed against the petitioner, was allowed on 24.11.1998. The matter was carried in appeal and in appeal the order of the Insolvency Court was set aside in A.S. No. 4 of 1999 on the file of the IV Additional District and Sessions Judge (Fast Track Court), Tanuku. Meanwhile, the respondent filed E.P (SR) No.2394 of 1996 for execution of the decree in O.S. No.71 of 1992. However, an objection was raised that the E.P. was not maintainable for non-deposit of the remaining sale consideration amount and, therefore, the said E.P. was not pressed and consequently it was rejected on 17.07.2002. Subsequently, the respondent filed I.A. No. 302 of 2001 in O.S. No.71 of 1992 to condone the delay of 2928 days in depositing the balance of sale consideration amount. The said petition was allowed on 17.09.2002. Though the said order was challenged in revision in C.R.P. No.3124 of 2008 before this Court, but the said CRP was dismissed on 09.11.2009. Basing on the orders in I.A. No.302 of 2001, the respondent deposited the balance of sale consideration of Rs.20,000/- on 20.09.2002 and then filed the present E.P. No.86 of 2005. The petitioner herein raised several objections. His case was that summons were not served on him and that he filed an application to set aside the ex parte decree and the said application is pending and that the respondent had fraudulently obtained the decree without paying him the sale consideration amount and the endorsements on the agreement of sale Ex.A1 are not genuine and that there is inordinate delay in filing the E.P and that the E.P. was not maintainable. The lower Court, holding that the respondent had already filed I.A. No.302 of 2001 and that the delay in depositing the balance of sale consideration was condoned in the said application and that the earlier petition filed by the petitioner to set aside the ex parte decree was dismissed and therefore there are no valid objections raised by the petitioner, has passed the impugned order on 24.08.2007, which is under challenge in this revision. 4. Heard Sri S. Sreeramachandra Murthy, learned counsel for the petitioner and Sri P.V. Vidya Sagar, learned counsel for the respondent. Both the counsel have advanced elaborate arguments and cited several decisions in support of their contentions. 5. The points that arise for consideration in this revision are 1) Whether the application under Article 227 of the Constitution of India is maintainable without invoking the revisional jurisdiction? 2) When the defendant is set ex parte, whether the Court is not required to consider the plaint averments and the documents filed by the plaintiff and come to an independent conclusion whether the plaintiff is entitled for the decree basing on the material available on record? 3) Whether the acknowledgments made by the defendant with regard to part payment or adjustment of consideration amount which materially alter the earlier terms and conditions of the agreement of sale require registration? 4) Whether the respondent played fraud in obtaining the ex parte decree and consequently the entire proceedings are liable to be vitiated? 5) Whether the E.P is barred by limitation? POINT No.1: 6. Learned counsel for the respondent submitted that the petitioner has approached this Court under Article 227 of the Constitution of India and when an alternate remedy of revision is available to him, he cannot approach the Court under Article 227 of the Constitution of India and, therefore, the petition is not maintainable. It is also his submission that the impugned order is dated 24.08.2007 and limitation starts running from the date of order and that this petition under Article 227 of the Constitution of India is preferred beyond the period of 90 days, therefore, not maintainable. He has relied on a decision reported in Gurram Satyaseshamamba @ Gurram Satya Santamani Vs. Gurram Krishnavenamma (died) by LRs[1]. He further submits that Article 227 of the Constitution of India is an extraordinary jurisdiction and the powers under Article 227 of the Constitution of India should not be exercised as if it were in appellate jurisdiction. He has relied upon judgment in the case between Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and others[2] and would submit that after the amendment by Act 46 of 1999, the amended provision of Section 115 C.P.C., the revisions filed before the High Courts are not maintainable and when there is no power of revision, the petitioner could not have approached this Court under Article 227 of the Constitution of India. 7. The learned counsel for the petitioner, in reply, submits that the question of alternative remedy does not arise when a petition has been filed seeking remedy under Article 227 of the Constitution of India. He has relied on a decision reported in L. Hirday Narain Vs. Income-Tax Officer, Bareilly[3]. It is also his submission that notice before admission was issued to the respondent and that after hearing both the parties the revision was admitted and interim direction was given and once the revision is admitted the question of its maintainability at a subsequent stage does not arise. He has relied on a decision reported i n Alagar @ Savugan, S/o Raman and another Vs. A. Baluchami, S/o Alagar and another[4]. It is also submitted that when a manifest injustice has been done the Court can exercise the powers under Article 227 of the Constitution of India and the remedy under Section 115 CPC cannot be said to be an effective remedy. Reliance is placed on a decision reported in Surya Dev Rai Vs. Ram Chander Rao[5]. Referring to the amended provisions, it is submitted that Section 115 CPC has got three clauses and the words “in the interest of justice” have been deleted after the amendment and that the legislature wanted to cut short the litigation and therefore the petition under Article 227 of the Constitution of India is maintainable. It is also his submission that though alternative remedy is available the powers of the Court under Article 227 of the Constitution of India are wide and any error committed by the lower Court, which resulted in manifest injustice, could be corrected while exercising the powers under Article 227 of the Constitution of India. It is also his submission that merely because alternative remedy is available or that the petitioner failed in his attempt to get the relief in the earlier proceedings or in the review petition these circumstances do not come in the way of a party approaching the Court directly under Article 227 of the Constitution of India for the purpose of correcting the mistake committed by the lower Court and that the High Court, while exercising supervisory powers can always correct the unjust orders in the interest of justice. It is also his submission that the powers of High Court under Articles 226 and 227 of the Constitution of India have been declared as the basic structure of the Constitution and therefore this Court has powers under Article 227 of the Constitution of India where it feels that the impugned order resulted in failure of justice or where it appears that manifest injustice has been done in any case. It is also his submission that no period of limitation has been prescribed for invoking the powers of the High Court under Articles 226 or 227 of the Constitution of India. Reliance is placed on a decision reported in Chandra Bhushan Vs. The Deputy Director of Consolidation, Uttar Pradesh (Regional) Lucknow[6]. 8. In Shiv Shakti’s case (2 supra), it was held as follows:- “If the impugned order is interim in nature or does not finally decide the lis, the revision under Section 115 will not be maintainable. The legislative intent is crystal clear. There is marked distinction in the language of Section 97(3) of the Old Amendment Act and Section 32(2)(i) of the Amendment Act. While in the former, there was a clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in Section 32(2)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered. The parties are to proceed according to the altered mode, without exception, unless there is a different stipulation.” 9. However, in the same judgment, when a request was made that even if the revisional applications are held to be not maintainable, there should not be a bar on a challenge being made under Article 227 of the Constitution of India and that the opportunity may be granted to avail the remedy, the Apex Court observed as follows:- “That if any remedy is available to a party under any statute no liberty is necessary to be granted for availing the same. If the appellants avail such remedy, the same shall be dealt with in accordance with law.” 10. Thus, it appears that the above referred judgments relied by the learned counsel for the respondent, though shows that the revision filed under Section 115 C.P.C. is not maintainable after the amendment came into force with effect from 01.07.2002, but when a request is made to permit the appellants to challenge the impugned orders under Article 227 of the Constitution of India, the observation of the Hon’ble Supreme Court that there is no need to grant any liberty and that if the appellants avail such remedy, the same shall be dealt with in accordance with law, shows that the doors are not closed for the parties for approaching the Court under Article 227 of the Constitution of India. Of course, it is true that only in extraordinary circumstances the High Court should exercise its jurisdiction under Article 227 of the Constitution of India. 11. The Apex Court, dealing with the issue whether the revision could have been filed before the Commissioner of Income Tax or not and whether the revision filed before the High Court was maintainable or not, observed as follows:- “We are unable to hold that because a revision application could have been moved for an order correcting the order of Income Tax necessary under Section 35 but not moved, a High Court would be justified in dismissing as not maintainable, a petition, which was entertained and was heard on merits.” 12. In Alagar alias Savugan’s case (4 supra) it was held as follows:- “If a manifest injustice has been done, a Court will be justified in invoking Article 227 of the Constitution of India. The remedy under Section 115 C.P.C. cannot be said to be an alternative remedy.” 13. In case between Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram[7], the Apex Court observed as follows:- “Powers under Article 227 of the Constitution of India can be exercised only if the order of the lower Court is perverse or it has resulted in manifest injustice.” 14. The settled legal position appears to be that a High Court can interfere under Article 227 (1) of the Constitution of India generally when the subordinate Courts have committed an error in exercising jurisdiction though it has no jurisdiction or failed to exercise the jurisdiction when it has jurisdiction or committed error of law and where the findings are perverse or where there is gross violation of principles of natural justice. 15. In case between Ouseph Mathai Vs. M. Abdul Khadir[8], it was observed as follows:- “Exercise of power under Article 227 may be necessary if it is shown that grave injustice has been done to a party and the case is a fit case.” 16. In case between Umaji Vs. Radhikabai[9], it was held as follows:- “No legislation – and far less a State legislation – can forfeit, curtain, enlarge or abridge the power under Article 227 of the Constitution. By ordinary process of legislation, even the Union Legislature cannot do it” 17. In case between Kishore Kumar Khaitan Vs. Parveen Kumar Singh[10], it was held as follows:- “Finding of the fact reached in improper manner can be corrected under Article 227 of the Constitution of India.” 18. In Surya Dev Rai (5 supra), the Apex Court held thus:- “The power of the High Court under Articles 226 and 227 of the Constitution is always in addition to the revisional jurisdiction conferred on it. The curtailment of revisional jurisdiction of the High Court under Section 115 CPC by Amendment Act 46 of 1999 does not take away – and could not have taken away – the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil Court, nor is the power of superintendence conferred on the High Court under Article 227 of the constitution taken away or whittled down. The power exists, untrammeled by the amendment in Section 115 CPC, and is available to be exercised subject to rules of self-discipline and practice which are well settled.” 19. Normally, a High Court would not interfere with a finding of fact except it is perverse and not based on any material. It is also settled law that the jurisdiction under Article 227 of the Constitution of India must be sparingly exercised and may be exercised to correct the errors of jurisdiction and the like but not to upset pure findings of fact, which falls in the domain of an appellate Court only {(See Khimji Vidhu Vs. Premier High School, AIR 2000 SC 3495)}. 20. Therefore, it is clear that irrespective of the fact whether the petitioner had availed the alternative remedy or not or whether the petitioner had exhausted the other remedies or not, but where it appears that manifest injustice has been done, High Court shall have superintendence over all the subordinate Courts and Tribunals through the territory in relation to which it exercises its jurisdiction and when prejudice is caused to the general provisions, the High Court may call for written explanation from such Courts and make and issue general rules and prescribed norms for regulating the practice and proceedings of such Courts. Thus, the power of superintendence over subordinate Courts and Tribunals are exhaustive and cannot be curtailed even by any legislation. It is also settled law that powers of High Court under Articles 226 and 227 of the Constitution of India forms part of the basic features of Constitution and when they are basic features of Constitution, such powers cannot be curtailed even by amending the Constitution of India. 21. In the light of the above discussion, it is clear that where it appears that manifest injustice has been done, the High Court can interfere under Article 227 of the Constitution of India. Therefore, it is clear that where it appears to the Court that a decree has been obtained by misrepresentation or by playing fraud, the Court can exercise its power under Article 227 of the Constitution of India and entertain a revision and set aside such judgment and decree and see that illegal, unjust and irregular orders do not prevail. It is the duty of the Court to see that fraud played by the parties should not perpetuate and as and when it comes to the notice of any Court at any stage, the Court has to set aside the same in the interest of justice. Point No.2: 22. As seen from the pleadings and evidence let in, the specific case of the respondent is as follows. The petitioner for his business necessity borrowed Rs.1,00,000/- from the respondent and Rs.50,000/- from his wife and executed two separate promissory notes on 01.02.1990. As he could not discharge the debts he agreed to sell the plaint schedule property to the respondent for Rs.1,70,000/- and executed an agreement of sale on 17.09.1990 and the said agreement of sale was registered on the same day. Out of the sale consideration, an amount of Rs.50,000/- was adjusted from the above debts due to the respondent and his wife and the receipt of said Rs.50,000/- was acknowledged in the sale agreement. As per the terms of the sale agreement the petitioner agreed to deliver the plaint schedule property to the respondent on the date of registration of the sale deed. The time for execution of sale deed agreed to be one year from the date of sale agreement. The balance of consideration was agreed to be paid before the Sub-Registrar at the time of registration of the sale deed. In case of default by the respondent, the respondent agreed to pay interest @ 12% p.a., from the date of default. The petitioner has also assured the respondent that the plaint schedule property is free from all encumbrances and delivered the Photostat copies of title deeds to the respondent. Out of balance sale consideration Rs.1,00,000/- was again agreed to be adjusted from the due amount paid to the respondent and his wife and the petitioner acknowledged the receipt of Rs.1,00,000/- on the agreement of sale on 29.10.1990. He has also delivered possession of the plaint schedule property to the respondent on 19.11.1990. The further case of the respondent is that since the petitioner did not execute registered sale deed and did not come forward to receive the balance sale consideration he filed the suit for specific performance after exchange of legal notices. 23. The specific case of the petitioner is that he had borrowed only Rs.25,000/- with interest at 15% p.a., from the respondent. However, the respondent had obtained his signatures by affixing revenue stamps on the promissory notes as security, and when his creditors pressurized him, he again approached the respondent who promised to lend an amount of Rs.50,000/- with interest at 15% p.a., and that he agreed to mortgage his property in favour of the respondent and that believing the words of the respondent he accompanied him to the office of the Sub- Registrar, Attili, and signed on the documents as per the directions of the respondent, however, the respondent did not pay him Rs.50,000/- as premised by him. Subsequently, after about one week, the respondent paid only Rs.5,000/- stating that the remaining amount was already adjusted towards his previous debts and accrued interest thereon and thus great injustice was done to him. It is also his case that he along with his wife left his village for livelihood and subsequently came to know about passing of the ex parte decree against him. Thus, his specific case is that he never borrowed an amount of Rs.50,000/- from the respondent and Rs.1,00,000/- from the wife of the respondent as claimed by the respondent and that he never executed any promissory notes on 01.02.1990 and that he never agreed to sell the plaint schedule property for Rs.1,70,000/- to the respondent and that the alleged acknowledgments adjusting Rs.50,000/- and Rs.1,00,000/- are false and concocted by the respondent to grab his property. His specific case is that the respondent having taken his signatures on blank papers created promissory notes and fraudulently obtained his acknowledgements on the registered agreement of sale. It is also his case that when all the creditors filed I.P. No.14 of 1990 against him and when the respondent is a party to the said insolvency proceedings, he has filed the suit suppressing the fact of pendency of insolvency proceedings. It is also his case that he was never served with the summons and that his application to set aside the ex parte decree has been still pending and that his objections that the E.P. is barred by limitation and that the E.P. is not maintainable were not properly considered by the lower Court. 24. Order IX Rule 6 CPC is as follows. “6. Procedure when only plaintiff appears.- (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then- (a) When summons duly served-If it is proved that the summons was duly served, the Court may make an order that the suit be heard ex parte; (b) When summons not duly served-If it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant; (c) When summons served but not in due time-If it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant. (2) Where it is owing to the plaintiff’s default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.” 25. In State of West Bengal v. Lakshmi Narayan Singh[11], it was held that a decree cannot be passed ex parte merely because the defendant does not appear. In case between M.P. Narayan v. Sm. Sudhadevi[12], it was held that the ex parte decree was liable to be set aside in appeal on the ground of insufficiency of evidence. Merely because the defendant is set ex parte those circumstance alone is not