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M/s. Fashion Suiting & Shirtings At 396, Oppanakara Street, Coimbatore v/s A. Krishnamurthy

    C.R.P.(NPD).No.409 of 2004 and C.M.P.No.3488 of 2004

    Decided On, 05 January 2008

    At, High Court of Judicature at Madras


    For the Petitioner : Rajeni Ramadoss, K. Rajasekaran, Advocates. For the Respondent: A. Babu, Advocate.

Judgment Text

(Prayer: Petition filed under Section 115 of the Code of Civil Procedure, against the order dated 7.1.04 passed in I.A.No.19569 of 2003 in O.S.No.944 of 2003 on the file of Hon'ble XV Assistant Judge, City Court, Chennai.)

The civil revision petitioner is the tenant in O.S.No.944 of 2003 on the file of XV Assistant Judge, City Civil Court, Chennai. The civil revision petitioner has filed an I.A.No.19569 of 2003 before the trial Court as applicant under Order 37, Rule 3 C.P.C. praying for the grant of leave to defend the suit.

2. The respondent/plaintiff has filed a counter stating that the application filed under Order 37, Rule 3 C.P.C. is neither maintainable in law nor on facts and that the applicant is liable to pay the suit claim and that the application is bereft of materials and filed with a view to protract proceedings and prayed for dismissal of the said application.

3. The learned XV Assistant Judge, City Civil Court, Chennai has passed an order on 07.01.2004 in I.A.No.19569 of 2003 holding that the applicant/defendant has no triable issues and dismissed the said application without costs. In effect the applicant/defendant was found to be not eligible to claim unconditional leave to defend the suit.

4. The learned counsel for the revision petitioner contends that the trial Court ought to have considered that there are valid defences and arguable points against the fallacious claim made in the suit and that the leave to defend application ought to have been allowed by the Court below and that the trial Court has failed to exercise the discretion in proper perspective and therefore, prayed for setting aside the order passed in I.A.No.19569 of 2003 dated 7.1.2004.

5. It is the specific case of the revision petitioner/defendant that the revision petitioner/defendant admittedly is carrying on business at Coimbatore and from Coimbatore, the orders are placed and that the respondent/plaintiff caused supply at the business premises in Coimbatore and that the cause of action arose only at Coimbatore and as such the suit cannot be filed in Chennai.

6. The two main pleas advanced by the revision petitioner/defendant are: (i) Lack of Jurisdiction (ii) No such liability as averred in the plaint.

7. The contention of the respondent/plaintiff is that the respondent/plaintiff is situated at Chennai and most of the transaction took place in Chennai and as such not withstanding the fact that the revision petitioner/defendant is carrying on business at Coimbatore, where only the cause of action arose partly, that will not fetter it from prosecuting proceedings before the Chennai Court and that the parties have also agreed to have jurisdiction at Chennai, as seen from the invoices with lorry receipts.

8. The learned counsel for the revision petitioner submits that the defence set up by the revision petitioner is not illusory and in support of his contention he cited the decision 2004 (3) CTC 321 (K.Vasantha Devei and another V. Mahesh Kumar Rathi) wherein it is held as follows:

"Code of Civil Procedure, 1908, Order 37, Rule 3(2) - Leave to defend - Principles governing - Suit filed for recovery of sum against husband and Wife - Husband pleaded that he had paid interest up to June 1996 and thereafter issued cheque on 12.11.1996 for specified amount in full and final settlement of claim - Suit was filed on 26.11.1999 - Plea of limitation and also full and final settlement of dues constituted tribal issues - Ratio laid down in Mechalec Engineers and Manufacturers V. Basic Equipment Corporation, AIR 1977 SC 577 followed and leave granted".

9. It is represented that the entire payment was made to the representative of plaintiff and the Collection Agent is said to have played a key role.

10. Admittedly, I.A.No.19569 of 2003 under Order 37, Rule 3 C.P.C. was filed before the trial Court on 09.10.2003.

11. In this connection, it is pertinent to refer to the decision 2003 All India High Court Cases 154 (Rajabhau Mahadeorao Rahate V. Dinkar Shantaram Ingole), on the interpretation of Section 115 C.P.C. as amended in 1999, wherein it is observed as follows:

"(i)The provisions of Section 115 as amended with effect from 1st July, 2002 are applicable from that date to all proceedings pending in High Court under Section 115 of the Civil P.C.

(ii) There is no right in a litigant to move an application under Section 115 of the Civil P.C. for exercise of the jurisdiction mentioned therein.

(iii) That it being not a right, there is no question of it being saved by recourse to provisions of Section 6 of the General Clauses Act, 1897.

(iv)The provisions of Section 32(2)(i) of the Amendment Act of 1999 do not either by direct legislation or by necessary implication save any such proceedings from being affected by the Amendment with effect from 01.07.2002.

(v)As a consequence of the above, all revision application, whether pending as on 1st July 2002 or filed thereafter, will have to be dealt with strictly in accordance with the provisions of Section 115 of the Civil P.C. With effect from 1st July, 2002.

vi) As a further consequence thereof, no revision application against an interlocutory order will be entertainable even if the order is made prior to 1st July, 2002 as moving High Court under Section 115 is held not to be a right."

12. In AIR 2004 Delhi 219 (V.S.Saini and Another V. D.C.M.Ltd.), it is held as follows:

"(A) Civil P.C. (5 of 1908), O.37, R.3(6) S.96 - Summary suit - Refusal to grant leave - Order whether appealable - R.3(6) specifically stipulates that if leave to defend suit is refused plaintiff shall be entitled to judgment - Thus interlocutory order refusing leave to defend partakes form of judgment, thereby making it vulnerable to assault only through substantive and regular appeal - Thus defendant can avail second opportunity to present its defence by filing an appeal."

13. In AIR 2003 SC 3044 (Surya Dev Rai V. Ram Chander Rai), the Hon'ble Supreme Court has removed all possible doubts by posing the question - "is an aggrieved person completely deprived of the remedy of judicial review if he has lost at the hands of the original Court and the Appellate Court, though a case of gross failure of justice having been occasioned can be made out?" and this was answered in the following paragraphs (at page 3055 of AIR):

"In Shiv Shakti Co-op. Housing Society, Nagpur V. M/s.Swaraj Developers, (2003) 4 Scale 241: (AIR 2003 SC 2434), another two Judges Bench of this Court dealt with Section 115 of the CPC. The Court at the end of its judgment noted the submission of the learned counsel for a party 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 for which an opportunity was prayed to be allowed. The Court observed, - "if any remedy is available to a party, no liberty is necessary to be granted for availing the same".

14. As a matter of fact, in (2003) 6 SCC 659 (Shiv Sakthi Co-op. Housing Society, Nagpur V. Swaraj Developers) it is observed that "the amendments are procedural in character and are therefore to be applied to all proceedings that have to be decided". To put it differently, the amendments have retrospective applicability in the considered opinion of this Court.

15. In view of the amendments made to Section 115 of C.P.C., a revision can no longer be filed on the basis that the order, if allowed

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to stand, would result in failure of justice or cause irreparable injury. 16. In that view of the matter, without going into the merits and demerits of the case, this Court opines that the revision is not ex facie maintainable and this Court is of the considered opinion that the interlocutory order refusing leave to defend partakes the form of judgment and only a regular and substantive appeal will lie against the interlocutory order passed in I.A.No.19569 of 2003 dated 7.1.2004 and if so aggrieved the revision petitioner/ defendant/applicant necessarily will have to pay the proper Court fee in appeal by filing the same and in that view, the Civil Revision Petition is dismissed. Considering the facts and circumstances of the case, the parties are directed to bear their own costs. Consequently, connected miscellaneous petition is also dismissed.