Full Text
HIGH COURT OF DELHI
JUDGMENT
9089/2023, CM APPL. 9090/2023 MS RANJITA BETARBET ..... Petitioner
Advocates who appeared in this case:
For the Respondent : Ms. Maryada Banerjee, Adv.
1. Ms. Anisha Banerjee, learned counsel appearing for the petitioner submits that she is unable to appear in person as she has fractured her foot, however, has appeared and argued the issue of maintainability through VC. [ The proceeding has been conducted through Hybrid mode ]
2. This Court has taken a consistent view in various matters to the effect that challenge to the dismissal of an application under Order VII Rule 11 CPC, 1908 would not fall within the purview of under Article 227 of the Constitution of India and has to be necessarily dealt with, under appropriate provision under the Code of Civil Procedure, 1908. CM(M) 968/2022 2
3. The aforesaid view is taken on the basis of the judgment of the Hon’ble Supreme Court rendered in Shiv Shkati Coop. Housing Society Vs. Swaraj Developers reported in (2003) 6 SCC 656 whereby it was held that amendments in the year 2002 to the Code of Civil Procedure, 1908 in respect of provision of Section 115 CPC would bar the Court under Article 227 of the Constitution of India to deal with dismissal of an application under Order VII Rule 11 CPC. The relevant para is reproduced as under:-
4. The said view is further fortified by the judgment of Hon’ble CM(M) 968/2022 3 Supreme Court in Sadhna Lodh Vs. National Insurance Co. Ltd. and Another reported in (2003) 3 SCC 524 wherein it was held as under:-
5. In view of the aforesaid ratio and settled law laid down by the Hon’ble Supreme Court in the aforesaid judgments, this Court is of a clear and considered opinion that the dismissal of an application under Order VII Rule 11 CPC, 1908 could be challenged under the provision of Section 115 of the Civil Procedure Code, 1908 and not under Article 227 of the Constitution of India.
6. No doubt, that the exercise of jurisdiction on such aspects may be overlapping, however, once a specific remedy is available under a particular statute, in this case, the Code of Civil Procedure, 1908, the alternate remedy under the writ jurisdiction under Article 227 of the Constitution of India exercising supervisory jurisdiction, ordinarily, ought not to be exercised.
7. That having said, it is also relevant to note that the challenge to an order of dismissal of an application under Order VII Rule 11 CPC, 1908 ordinarily entails challenge on merits raised in such application and not the procedural aspects of exercise of such jurisdiction of the civil Court. It is trite that the Constitutional Courts under Article 227 of the Constitution of India, exercise jurisdiction to correct the errors of procedures and such errors which materially affect the procedure as specified in the Code of Civil Procedure, 1908.
8. Keeping that in view, it is clear that the petition under Article 227 of the Constitution of India challenging the dismissal of an application CM(M) 968/2022 5 under order VII Rule 11 CPC, is clearly not maintainable.
9. However, having regard to the fact that the notice was indeed issued in the present petition and that the petition has been pending for quite some time now, this Court is of the considered view that interest of justice would be subserved to grant liberty to the petitioner to file an appropriate petition before this Court under the appropriate provision of law within four weeks from today.
10. The order dated 14.09.2022 passed by this Court particularly paragraph 5 observed as under:- “Further proceedings in the suit, if any, would remain subject to the outcome of these proceedings” Keeping in view of the interim order, this Court considers it appropriate to extend the same for next four weeks from today within which the alternate remedy be availed.
11. In view of the aforesaid direction, the petition is disposed of with no order as to costs.
12. Pending applications also stand disposed of.
TUSHAR RAO GEDELA, J. MARCH 23, 2023