Savvy Thakur
Published on: October 20, 2022 at 23:19 IST
The Allahabad High Court‘s decision to dismiss a petition under Article 227 of the Constitution was overturned by the Supreme Court on the grounds that it could not be maintained due to the availability of a revision remedy under Section 115 CPC.
The Justices MR Shah and Krishna Murari’s bench made the observation that entertainability and maintainability differ.
The plaintiffs in this case challenged the trial court’s decision to dismiss the application under Order 6 Rule 17 CPC in a “writ petition” pursuant to Article 227 of the Indian Constitution.
The High Court ruled that the writ petition could not be sustained because the plaintiff had access to a revision remedy under Section 115 CPC.
The bench of the Supreme Court noted in the appeal that, typically, “the petition under Article 227 of the Constitution of India would not lie” when a remedy under Section 115 CPC is available.”
The judge noted:
“That does not mean that writ petition, under Article 227 of the Constitution of India, shall not be maintainable at all. There is a difference and distinction between the entertainability and maintainability. The remedy under Article 227 of the Constitution of India available is a constitutional remedy under the Constitution of India which cannot be taken away.”
“In a given case the Court may not exercise the power under Article 227 of the Constitution of India if the Court is of the opinion that the aggrieved party has another efficacious remedy available under the CPC. However, to say that the writ petition under Article 227 of the Constitution of India shall not be maintainable at all is not tenable.”
The bench also made the observation that the High Court should have, in any case, turned the writ petition under Article 227 of the Constitution into a revision under Section 115 of the CPC.
“Instead of allowing the writ petitioners to submit a new revision application under Section 115 of the CPC, the High Court should have converted the writ petition under Article 227 of the Indian Constitution into a revision petition under Section 115 CPC and evaluated it according to the law and on its own merits. It would unnecessarily make the Court’s workload heavier,” as it accepted the appeal, the bench said.