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1991 DIGILAW 322 (KER)

Pookkoya Thangal v. Valsan

1991-07-27

PADMANABHAN

body1991
Judgment :- An interesting question of law of general importance has arisen in this original petition filed under Art.227 of the Constitution. Petitioner is the plaintiff in O.S.60 of 1990 on the file of the 4th respondent Subordinate Judge (Additional), Vadakara. That is a suit for compensation filed as an indigent person on account of the tortures alleged to have been suffered at the hands of a Sub Inspector of Police. Petitioner's application to examine the Doctor who treated him was allowed by the 4th respondent. In spite of repeated process the presence of the Doctor could not be procured. Ultimately the request of the petitioner to examine the Doctor was turned down and the case was posted for arguments after closing evidence. Copy of the order was not given to him. He therefore filed this petition praying that as writ of mandamus or any other appropriate writer order or direction may be issued commanding the 4th respondent Subordinate Judge to summon the Doctor as a witness and give him sufficient opportunity to examine him and stay the proceedings till then. Thus even though the petition is purported to have been filed under Art.227, it is in effect one under Art.226. Probably the petitioner did so because he was aware of the fact that the Subordinate Judge was well within his bounds and if at all what is involved is only an error in the exercise of jurisdiction. 2. I am not at the question whether the impugned order is appealable or revisable. Code of Civil Procedure is a self-contained code providing for all the necessary remedies n a civil litivation. Even if an order is not appealable or revisable, as S.105 of the Code indicates, when a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal: The appellate judge could rectify that error, defect or irregularity and make appropriate provision. I said so inspite of the provision contained in S.115 of the Code I feel that the tendency in pursuit of new avenues for remedies in relation to a civil litigation under Article 226 or 227 of the Constitution may prove dangerous to the smooth functioning of the civil courts. It will lead us to very disastrous results. I said so inspite of the provision contained in S.115 of the Code I feel that the tendency in pursuit of new avenues for remedies in relation to a civil litigation under Article 226 or 227 of the Constitution may prove dangerous to the smooth functioning of the civil courts. It will lead us to very disastrous results. In saying so, I am not forgetful of what the Supreme Court said in Nataraja Chettair v. Sulekha Amma (1987 (1) KLT 829) in view of the Decision in Aundal Amma's case that a petition under Art.227 of the Constitution could be had against a revisional decision of the District Judge in an appropriate case in a rent control proceedings. That is against the final decision against which there is no other statutory remedy. It is an in disputed proposition of law that in situations like this, where there are other efficacious remedies available under the Statute, resort to Art.226 of 227 cannot be had. If each and every interlocutory order of a civil court is made the subject-matter of review under Articles 226 or 227 of the Constitution that will be against the mandate of the Code of Civil Procedure as well as Art.226 of the Constitution and the functioning of the civil courts will be in jeopardy. Litigants will have to bear this in mind when the jurisdiction of the High Court is invoked. 3. The power of superintendence conferred by Art.227 is to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and" not for correcting mere errors even though interference may be justified in exceptional cases in order to do justice when it is found that the Subordinate Courts or Tribunals arrived at perverse conclusions by misguiding themselves on questions of facts or law resulting in failure of justice. But it has to be remembered, as held in Waryam Singh v. Amamath (AIR 1954 SC 215) followed in Nalla Koya v. Admr. Lacadives (1967 KLT 395), that as pointed out in Dalmial Jain Airways v. Sukumar Mukherjee (AIR 1951 Calcutta 193), the power of superintendence under Art.227 with orders of judicial or quasi-judicial nature are not greater than the powers under Art.226 of the Constitution. Lacadives (1967 KLT 395), that as pointed out in Dalmial Jain Airways v. Sukumar Mukherjee (AIR 1951 Calcutta 193), the power of superintendence under Art.227 with orders of judicial or quasi-judicial nature are not greater than the powers under Art.226 of the Constitution. Under Art.226, the power of interference may extend to quashing an impugned order on the ground of mistake apparent on the face of the record. But under Art.227 of the Constitution, the power of interference is limited to see that the Tribunal functions within the limit of authority. Hence, interference by the High Court in these cases either under Art.226 or 227 of the Constitution is not justified. In Rajkamal Kalamandir v. I.M.P.E.Union (1965 S.C.W.R.233), the conclusion was that under Art.227 only jurisdictional errors and not mere errors of law can be corrected. For the purpose of this case, it is not necessary to take note of any change of law by subsequent decisions as to what further extent this Court can go under Art.227. 4. A judicial order passed by a court of competent jurisdiction cannot be attacked in a proceeding under Art.226 or 227 of the Constitution on the ground that it violates the fundamental rights of the citizen. That is quite so in spite of the fact that as held in Nalla Koya v. Admr. Lacadives (1967 KLT 395) that in view of Articles 20,21, and 22 of the Constitution it may be reasonable to presume that the Constitution makers intended to include the judicial organ also in the concept of 'State' though not expressly mentioned in Art.12. That is because otherwise a rule made by the judiciary will not be open to attack. In such cases, judiciary does not function as judiciary, but exercises legislative function, subordinace or otherwise, and therefore, the mere fact that the judiciary may make rules which may violate the fundamental right of a citizen just as those in Articles 20, 21 or 22, cannot give immunity to these legislations and they could be challenged constitutionally. Otherwise a writ cannot lie against a judicial pronouncement and interference could only be to the extent provided in Art.227. 5. Otherwise a writ cannot lie against a judicial pronouncement and interference could only be to the extent provided in Art.227. 5. That question has been considered in Premchand Garg and another v. Excise Commissioner, U.P. and others (AIR 1963 SC 996) and Naresh v. State of Maharastra (AIR 1967 SC 1) with reference to the rule making powers under Art.145 of the Constitution which is subject to any law made by the Parliament as well as the provisions of Art.142. These aspects were considered by a Bench of this Court in Nalla Koya v. Admr. Union Territories of Laccadives etc. (1968 KLT 60) which said that the effect of what the Supreme Court said is that a writ could not be issued to a civil court notwithstanding what is stated in AIR 1963 SC 996) in a different context namely in the light of Articles 142 and 145 of the Constitution. Prayer in the writ application was to quash an order passed by the Administrator of the Union Territory of Laccadives, Mincoy and Amindivi Islands who is a civil court. It was refused. I do not find any reason to have a different view. 6. In this case if the petitioner was aggrieved, he could have gone in revision. Otherwise he could have challenged the order in an appeal against the judgment to be passed if his rights are affected by the refusal to examine the witness. If this trend is allowed to continue, then even a party who is aggrieved by an order of a civil court rejecting an application for adjournment could move the High Court under Articles 226 or 227 for appropriate writ or direction or order to allow the application and adjourn the case. Art.227 does not contemplate issuance of any writ. Functioning of the Civil courts will thus become difficult. Hard cases cannot make bad law or bad precedents. Parties will have to confine themselves within the four walls of the Code of Civil Procedure and cannot resort to constitutional remedies in such situations. The original petition is dismissed.