Bombay High Court Sets Aside Commercial Suit Review Heard By Another Judge Despite Availability Of Order-Passing Judge

Holding that an alternate judge had effectively “sat in appeal” over a coordinate bench, the Bombay High Court has ruled that a review application cannot be entertained by another judge when the original judge remains available under Order XLVII Rule 5 of the Code of Civil Procedure.

A Division Bench of Justices R.I. Chagla and Advait M. Sethna set aside an ex parte review order passed on April 25, 2025 by an alternate judge of the City Civil Court at Dindoshi, observing that the course adopted violated the mandate of law.

Order XLVII Rule 5 CPC provides that where the judge who passed the order sought to be reviewed “continues to be attached to the Court” and is not precluded by absence for a period of two months after the review application is filed, “such Judge shall hear the application, and no other Judge of the Court shall hear the same.”

“This period of absence may be shorter provided the Applicant cannot wait any longer for hearing of his review application which certainly is not the case here. Further, there is no pleading which would warrant the application of review to be moved before the alternate Judge by not waiting for an additional week when the coordinate Court who had passed the Order under review was available,” the Bench observed.

The dispute arose from a commercial suit filed in April 2025 by Oriental Export Corporation seeking injunctions against alleged defamatory and disparaging statements affecting its business reputation.

On April 17, 2025, the presiding judge of the commercial court refused to register the suit without compliance with the mandatory requirement of pre-institution mediation under Section 12A of the Commercial Courts Act, 2015.

Thereafter, during the regular judge's two-week leave, the plaintiff filed a review application before an alternate judge. By an ex parte order dated April 25, 2025, the alternate judge set aside the April 17 order and permitted registration of the suit without insisting on pre-institution mediation.

Advanced Technology Products Inc., the original defendant, challenged that order before the High Court.

Allowing the appeal, the High Court held that the alternate judge could not have taken up the review when the judge who passed the original order was only on a short leave and continued to be attached to the same court.

The Bench further observed that the impugned order had, in effect, treated the review as an appeal, emphasising that review jurisdiction is confined to limited statutory grounds and cannot be used to re-argue the case on merits.

Setting aside the April 25 review order, the High Court also rejected the Oriental Export's request for a stay of its judgment.