M/s.Fashion Suiting & ShirtingsAt 396, Oppanakara Street,Coimbatore, 641 001 v. Mr.A.Krishnamurthy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 05.01.2008CORAM:THE HONOURABLE MR.JUSTICE M.VENUGOPALC.R.P.(NPD).No.409 of 2004andC.M.P.No.3488 of 2004M/s.Fashion Suiting & ShirtingsAt 396, Oppanakara Street,Coimbatore, 641 001.... PetitionerVs.Mr.A.Krishnamurthy... RespondentPrayer: Petition filed under Section 115 of the Code of CivilProcedure, against the order dated 7.1.04 passed in I.A.No.19569of 2003 in O.S.No.944 of 2003 on the file of Hon'ble XVAssistant Judge, City Court, Chennai.For Petitioner: M/s.Rajeni Ramadoss For M/s.K.RajasekaranFor Respondent: Mr.A.BabuO R D E RThe civil revision petitioner is the tenant in O.S.No.944of 2003 on the file of XV Assistant Judge, City Civil Court,Chennai. The civil revision petitioner has filed an I.A.No.19569of 2003 before the trial Court as applicant under Order 37, Rule3 C.P.C. praying for the grant of leave to defend the suit.2.The respondent/plaintiff has filed a counter stating thatthe application filed under Order 37, Rule 3 C.P.C. is neithermaintainable in law nor on facts and that the applicant isliable to pay the suit claim and that the application is bereftof materials and filed with a view to protract proceedings andprayed for dismissal of the said application.3.The learned XV Assistant Judge, City Civil Court, Chennaihas passed an order on 07.01.2004 in I.A.No.19569 of 2003holding that the applicant/defendant has no triable issues anddismissed the said application without costs. In effect the https://hcservices.ecourts.gov.in/hcservices/ applicant/defendant was found to be not eligible to claimunconditional leave to defend the suit. 4.The learned counsel for the revision petitioner contendsthat the trial Court ought to have considered that there arevalid defences and arguable points against the fallacious claimmade in the suit and that the leave to defend application oughtto have been allowed by the Court below and that the trial Courthas failed to exercise the discretion in proper perspective andtherefore, prayed for setting aside the order passed inI.A.No.19569 of 2003 dated 7.1.2004.5.It is the specific case of the revisionpetitioner/defendant that the revision petitioner/defendantadmittedly is carrying on business at Coimbatore and fromCoimbatore, the orders are placed and that therespondent/plaintiff caused supply at the business premises inCoimbatore and that the cause of action arose only at Coimbatoreand as such the suit cannot be filed in Chennai.6.The two main pleas advanced by the revisionpetitioner/defendant are: (i) Lack of Jurisdiction (ii) No suchliability as averred in the plaint.7.The contention of the respondent/plaintiff is that therespondent/plaintiff is situated at Chennai and most of thetransaction took place in Chennai and as such not withstandingthe fact that the revision petitioner/defendant is carrying onbusiness at Coimbatore, where only the cause of action arosepartly, that will not fetter it from prosecuting proceedingsbefore the Chennai Court and that the parties have also agreedto have jurisdiction at Chennai, as seen from the invoices withlorry receipts. 8.The learned counsel for the revision petitioner submitsthat the defence set up by the revision petitioner is notillusory and in support of his contention he cited the decision2004 (3) CTC 321 (K.Vasantha Devei and another V. Mahesh KumarRathi) wherein it is held as follows:"Code of Civil Procedure, 1908, Order 37, Rule 3(2) –Leave to defend – Principles governing – Suit filedfor recovery of sum against husband and Wife – Husbandpleaded that he had paid interest up to June 1996 andthereafter issued cheque on 12.11.1996 for specifiedamount in full and final settlement of claim – Suitwas filed on 26.11.1999 – Plea of limitation and alsofull and final settlement of dues constituted tribalissues – Ratio laid down in Mechalec Engineers andManufacturers V. Basic Equipment Corporation, AIR 1977 https://hcservices.ecourts.gov.in/hcservices/ SC 577 followed and leave granted".9.It is represented that the entire payment was made to therepresentative of plaintiff and the Collection Agent is said tohave played a key role. 10.Admittedly, I.A.No.19569 of 2003 under Order 37, Rule 3C.P.C. was filed before the trial Court on 09.10.2003.11.In this connection, it is pertinent to refer to thedecision 2003 All India High Court Cases 154 (RajabhauMahadeorao Rahate V. Dinkar Shantaram Ingole), on theinterpretation of Section 115 C.P.C. as amended in 1999, whereinit is observed as follows:"(i)The provisions of Section 115 as amended witheffect from 1st July, 2002 are applicable from thatdate to all proceedings pending in High Court underSection 115 of the Civil P.C.(ii) There is no right in a litigant to move anapplication under Section 115 of the Civil P.C. forexercise of the jurisdiction mentioned therein.(iii) That it being not a right, there is noquestion of it being saved by recourse to provisionsof Section 6 of the General Clauses Act, 1897.(iv)The provisions of Section 32(2)(i) of theAmendment Act of 1999 do not either by directlegislation or by necessary implication save any suchproceedings from being affected by the Amendment witheffect from 01.07.2002.(v)As a consequence of the above, all revisionapplication, whether pending as on 1st July 2002 orfiled thereafter, will have to be dealt with strictlyin accordance with the provisions of Section 115 ofthe Civil P.C. With effect from 1st July, 2002.vi) As a further consequence thereof, no revisionapplication against an interlocutory order will beentertainable even if the order is made prior to 1stJuly, 2002 as moving High Court under Section 115 isheld 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 whetherappealable - R.3(6) specifically stipulates that ifleave to defend suit is refused plaintiff shall beentitled to judgment – Thus interlocutory orderrefusing leave to defend partakes form of judgment, https://hcservices.ecourts.gov.in/hcservices/ thereby making it vulnerable to assault only throughsubstantive and regular appeal – Thus defendant canavail second opportunity to present its defence byfiling 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 byposing the question – "is an aggrieved person completelydeprived of the remedy of judicial review if he has lost at thehands of the original Court and the Appellate Court, though acase of gross failure of justice having been occasioned can bemade out?" and this was answered in the following paragraphs (atpage 3055 of AIR):"In Shiv Shakti Co-op. Housing Society, Nagpur V.M/s.Swaraj Developers, (2003) 4 Scale 241: (AIR 2003SC 2434), another two Judges Bench of this Court dealtwith Section 115 of the CPC. The Court at the end ofits judgment noted the submission of the learnedcounsel for a party that even if the revisionalapplications are held to be not maintainable, thereshould not be a bar on a challenge being made underArticle 227 of the Constitution for which anopportunity was prayed to be allowed. The Courtobserved, - "if any remedy is available to a party, noliberty is necessary to be granted for availing thesame".14.As a matter of fact, in (2003) 6 SCC 659 (Shiv SakthiCo-op. Housing Society, Nagpur V. Swaraj Developers) it isobserved that "the amendments are procedural in character andare therefore to be applied to all proceedings that have to bedecided". To put it differently, the amendments haveretrospective applicability in the considered opinion of thisCourt.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 to stand, would result in failure of justice or causeirreparable injury.16.In that view of the matter, without going into themerits and demerits of the case, this Court opines that therevision is not ex facie maintainable and this Court is of theconsidered opinion that the interlocutory order refusing leaveto defend partakes the form of judgment and only a regular andsubstantive appeal will lie against the interlocutory orderpassed in I.A.No.19569 of 2003 dated 7.1.2004 and if soaggrieved the revision petitioner/ defendant/applicantnecessarily will have to pay the proper Court fee in appeal by https://hcservices.ecourts.gov.in/hcservices/ filing the same and in that view, the Civil Revision Petition isdismissed. Considering the facts and circumstances of the case,the parties are directed to bear their own costs. Consequently,connected miscellaneous petition is also dismissed.SglSd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe XV Assistant Judge, City Court, Chennai.+ 1 cc to Mr. K. Rajasekaran, Advocate SR No. 1071RS(CO)SR/9.1.2008Order in C.R.P.(NPD).No.409 of 2004