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PETITIONER: DURGA PRASAD

       Vs.

RESPONDENT: NAVEEN CHANDRA & ORS.

DATE OF JUDGMENT:       11/03/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 SCC  (3) 300        JT 1996 (3)   564  1996 SCALE  (3)40

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      The  respondent   has  filed   a  suit   for   specific performance and  after the  evidence of  the  appellant  was closed on  12.3.1991,  the defendant’s evidence was directed to be recorded on 20.3.1991. It would appear that the matter was adjourned  from tine  to time  till 11.1.1994.  On  that date, the  respondent seemed to have declined to contest the suit and sought adjournment. The application for adjournment was rejected  and  after  hearing  arguments,  judgment  was reserved and  was pronounced  on 14.1.1994.  Respondent No.2 made an application on 27.1.94 to set aside the decree under Order 9  Rule 13 CPC. Similar application was filed by other respondents.  While   that  application   was  pending,  the appellant   moved    an   application   objecting   to   the maintainability of  the application  and to  hear  it  as  a preliminary point. That petition came to be dismissed by the trial  Court   on  7.10.95.  Against  the  said  order,  the appellant  filed   writ  petition  under  Art.  226  of  the Constitution and  that was  dismissed by  the impugned order dated 21.12.95  by the  High  Court.  Thus  this  appeal  by special leave.      On the  last occasion  when the  matter had come up for admission, we  had asked  the learned  counsel as to how the writ petition  is maintainable  in  the  circumstances.  The learned counsel  sought for  and the  matter was  adjourned. Thus it has come up today. The appellant’s counsel contended that three remedies are open to the appellant under the CPC, namely, right  of appeal  under section  96 or  appeal under Order 43  read with  section 104 or a revision under section 115 CPC.  In view  of the fact that the matter does not come within the  four corners  of any  of the three remedies, the appellant is  left with  no other  remedy except approaching the High  Court under  Art.226. It is true that the impugned order is not appealable one either under section 96 or under

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Order 43  Rule 1  read with  section 104  CPC. But  still  a revision would  be maintainable  and whether the order could be revised  or not  is a matter to be considered by the High Court on merits. But instead of availing of that remedy, the appellant has  invoked jurisdiction  under Art.226  which is not warranted  and the  procedure prescribed  under the  CPC cannot  be   bye--passed  by  availing  of  the  remedy  not maintainable under  Article 226.  Under these circumstances, we decline  to interfere  with the  order, it is open to the appellant to avail of such remedy as is open under law.      The appeal is accordingly dismissed . No costs.