JUDGMENT D.K. Seth, J. Opposite parties Nos. 3 to 10 are the substituted plaintiffs in original suit No. 629 of 1987. In the plaint, the plaintiffs had claimed right of passage which has been shown in the map annexed to the plaint by demarcating the same in blue and red colours and described being the obstruction caused in blue colour passage by letter STUV and that in the red colour passage OPQR and accordingly made a prayer for mandatory injunction directing the defendants to remove the watt OPQR in red colour lane and STUV in blue colour lane. In paragraph 11 of the plaint, the impleadment of defendants 7 to 11 has been explained that they have their house on the east of the plaintiffs house and their presence was necessary for finally setting the issue and in case the said defendants do not dispute the plaintiffs claim, they may be exempted from costs. Subsequently the plaint was amended to the extent that after the filing of the suit, the defendant had raised unauthorised construction at the end of the red colour lane towards north and towards east of the open land which is used as passage. The said amendment was allowed on 12th November 1991. The plaintiff filed an application for restraining the defendants from making any construction on the east add north of the red colour passage. The said application is still pending. Subsequently the plaintiff filed another application which has been numbered as 57 C for directing the defendants to remove the newly constructed wall on the north and east of the red colour passage. That application was allowed ex parte against which a revision was moved unsuccessfully. In an order dated 12th May 1993 passed in Writ petition No. 35576 of 1992 against the said orders, it was found as under: "In my opinion, in view of the finding recorded by the revisional court that land on the south of Bada Ghar is not a passage, the direction for demolition of the walls raised by petitioner could not be given. The order impugned dated 14.9.92 thus cannot be sustained, as the operative part is not in consonance with the findings recorded. The impugned order suffers from manifest error of law." 2. The order impugned dated 14.9.92 thus cannot be sustained, as the operative part is not in consonance with the findings recorded. The impugned order suffers from manifest error of law." 2. Thereafter the matter was heard once again and by order dated 16th April 1994, defendant No. 11 was directed to remove the construction raised in from of the house of the plaintiff within one month from the date of the order and at least the eastern passage and the door of the plaintiff which is shown as D-2 by red colour should be cleared Defendant No. 11 made an application for recalling the said, order dated 16th April 1991. The same was dismissed on account of non appearance of defendant No. 11 on 10th of November 1994. On Ist of December 1994, he moved another application for recalling the order dated 10th November 1994. The application was again rejected on 2nd March 1995 on account of default of appearance of defendant No. 11. On 30th March 1995, another application was moved for setting aside the order dated 3rd March 1995. After hearing this application was rejected on 20th of May 1995. Against this order, the present petition has been moved. 3. On the prayer of the learned counsel for the petitioner, leave is granted to amend the cause title so as to convert the petition tinder Article 227 of the Constitution of India. In support of his contention, Mr. Sharad Sharma holding the brief of Mr. H.N. Sharma, drawing my attention to the map, contended that the wall which has been sought to be removed by the impugned order dated 16th April 1994 which was sought to be recalled was not subject matter of the suit and no where any allegation was made with regard thereto. The claim was only in respect of two passages shown in blue and red colours with which the defendant No. 11 has no quarrel and defendant No. 11 does not dispute the right of the plaintiff with regard to the said two passages coloured blue and red. He further contends that the defendant No. 11 had explained the reason due to which he could not appear on the respective dates and the learned courts ought to have taken into account the said fact. He further contends that the defendant No. 11 had explained the reason due to which he could not appear on the respective dates and the learned courts ought to have taken into account the said fact. Both the courts below had acted illegally and with material irregularity in dealing with the petitioner's applications for recalling the respective orders in the facts and circumstances of the case. His further contention was that while recalling the order, the court should not have looked into the past conduct. The court would have acted on the basis of the explanation given for the default made on a particular date. He further contends that in view of the total illegality in the order dated 16th April 1994 which appears to be wholly without jurisdiction since the property on which the said construction was raised is not subject matter of the suit, therefore, in order to prevent total failure of justice, the petitioner should have been allowed to contest the case. 4. Mr. P.K. Shukla, learned counsel for the respondent No. 3 to 10, on the other hand, vehemently opposes the contention of Mr. Sharma. He points out that there is no infirmity of illegality in the order dated 16th April 1994. He further contends and draws my attention to the fact that the plaint was amended by incorporating the impugned construction at paragraph 10 of the plaint. Therefore, it cannot be said that it was outside the Scope of subject matter of the suit. He further claims that the property of defendant No. 11 is also used as passage by the plaintiff. According to him, by reason of the alleged construction made by defendant No. 11, the ingress and egress from the plaintiff's property has been closed. He contends, relying on the facts of the case, that the conduct of defendant No. 11 was so bad that he is not entitled to claim equality. The defendant has shown thorough negligence and want of diligence in his conduct all through. He has also pointed out that the brother of defendant No. 11 who is a practicing advocate of the trial court would have taken steps on behalf of defendant No. 11. The said brother is also a party to the suit as defendant No. 8. The defendant has shown thorough negligence and want of diligence in his conduct all through. He has also pointed out that the brother of defendant No. 11 who is a practicing advocate of the trial court would have taken steps on behalf of defendant No. 11. The said brother is also a party to the suit as defendant No. 8. According to him, both the courts having found the matter concluded by concurrent findings of facts with which in exercise of the revisional jurisdiction, this court should not interfere. Therefore, the application is liable to be dismissed. 5. In exercise of revisional jurisdiction, High Court never interferes with the concurrent findings of facts unless the same appears to be perverse. The above proposition is well established proposition with which there is no scope for any two opinion. In the present case, the facts have been found by both the courts below against the petitioner, and, therefore, I refrain from interfering with the fact so found. But the fact remains that while considering the question, the revisional court has dealt with the past conduct of defendant No. 11. It is established principle of law that while considering the question of grant of adjournment or recalling of an order, the past conduct is immaterial. The court has to look into the merit of the case confining to the date of the order sought to be recalled was passed. The court has to look out whether sufficient ground has been made out for the default on the very date or not. Looking into the past conduct would be an extraneous consideration which the court should not go into. In that view of the matter, taking into account the past conduct does not seem to me to be fair and correct approach adopted by the learned court below. 6. By looking into the plaint as a whole, it does not appear that any case was made out as against the defendant No. 11 or with regard to the property of defendant No. 11. In the original plaint prior to the amendment, no case was made out claiming any right of passage over the land of the defendant No. 11. The entire claim was confined with the passage shown in blue and red colours. In the original plaint prior to the amendment, no case was made out claiming any right of passage over the land of the defendant No. 11. The entire claim was confined with the passage shown in blue and red colours. The presence of defendants 7 to 11 was sought for only to have the issues finally settled without claiming any relief against them. It is apparent from the statement made in paragraph 11 of the plaint. Then again by way of amendment, a fact was incorporated that construction is being made at the end of the red colour towards north and towards east of the open land and very feebly a case has been sought to be made out that the said open land is used as passage. But no amendment appears to have been made in respect of prayer where the prayers were confined only to the removal of the obstruction shown as OPQR in the red colour passage and STUV in the blue colour passage. However, it has also not been pointed out as to how the plaintiff claims right of passage over the land of defendant No. 11 when in the map annexed with the plaint it has been specifically shown by arrow to mark the passage which is being used by the plaintiffs for reaching the Municipal road. It has not been indicated in the said map that the land of defendant No. 11 as passage. Even from the copy of the amended plaint which has been produced by Mr. Shukla, it appears that no passage is shown on the land of defendant No. 11. The door D-2 as shown in the said plaint also does not open on the land of the defendant No. 11. In front of the door D-2, the land of the property 704-A exists and the arrow mark shows that from the door D-2 the passage runs towards south and then it goes to the east in between House Nos. 704-A and 703. The passage also proceeds to the south in between the land of House Nos. 748 and 704-A and also between 749 and 703 and then 750 and 703. Mr. 704-A and 703. The passage also proceeds to the south in between the land of House Nos. 748 and 704-A and also between 749 and 703 and then 750 and 703. Mr. Sharma candidly confessed that his client has no objection and does not claim any right either over the blue colour passage or red colour passage as shown in the said map and that the land of the defendant No. 11 was never a passage and by reason of the said walls, neither the door D-2 nor the red colour passage has been blocked for reaching the Municipal road as shown in the said plan. 7. Then in the order dated 12th May 1993 passed in Writ petition No. 35576 of 1992, this Court, as quoted hereinbefore had found on the basis of the finding recorded by the revisional court against the earlier order that the land on the south of the Bada Ghar is not a passage. From the plan, Bada Ghar has been shown to be the house of defendant No. 11. It was further found that the direction for demolition of the walls raised by the defendant No. 11 could not be given and, therefore, the order dated 14.9.1992 was set aside since the same suffered from manifest error of law. In the said order, it was observed that the trial court shall rehear the application moved by respondent No. 1 and pass fresh order in accordance with law. It shall be upto the respondent No. 1 to move a fresh application for providing passage through the land OPQR. Looking at the map, it does not appear that the passage OPQR falls on the land of defendant No. 11 and the finding that the land of defendant No. 11 is not a passage and the direction for demolition of the wall raised by defendant No. 11 could not be given arrived at on the basis of the finding recorded by the revisional court appears to have reached finality for the purpose of interlocutory orders though the same may be tentative and may not influence the learned court at the time of final hearing and may not operate as res judicata after the evidence is led at the final hearing, but still then it would be estoppel so far as interlocutory orders are concerned. Such a principle is necessary in order to give finality to interlocutory orders unless new materials are shown or it is provided that the said finding is perverse. The orders passed in interlocutory matters is to be treated as final for interlocutory orders for the same relief but at the same time treating the same as tentative for the final outcome of the suit itself. Otherwise there would be complete contradiction and chaos and reversal of the situation every now and then tilting this position one way and the other by reversing the same finding cannot be allowed to continue. (See G.H. Hook v. Administrative General AIR 1921 PC 11 , Satyadhar v. Deoranjan, AIR 1960 SC 941 and Arjun v. Mahindra, AIR 1964 SC 993 ). 8. Both the courts below, while deciding the case, appears to have either misread or overlooked the implication of me order dated 12th May 1993 while passing the order dated 16th April 1994. Therefore, it appears that there would be a total failure of justice in case such an order is allowed to continue, when it is brought to the notice of the revisional court. While exercising power under Article 227 of the constitution, namely, the power of superintendence over the subordinate courts, neither the High Court is powerless nor should it close its eyes when it is brought to its notice that there has been gross failure of justice and order has been passed which is wholly without jurisdiction on account of its being not a subject matter of the suit and such other circumstances which would warrant activating such power. 9. In the facts and circumstances of the present case, it appears that though the disputed wall had nothing to do with the plaint case so far as it related with the ingress and egress of the plaintiff from its property through blue and red colour passages. Therefore, the present case is a fit one in which this court should interfere and invoke its power of superintendence. In that view of the matter in my view, the order dated 18th September 1995 and the order dated 16th April 1995 are liable to be set aside, and is accordingly hereby set aside. Therefore, the present case is a fit one in which this court should interfere and invoke its power of superintendence. In that view of the matter in my view, the order dated 18th September 1995 and the order dated 16th April 1995 are liable to be set aside, and is accordingly hereby set aside. Such order can be passed in exercise of the power of superintendence as enshrined in Article 227 of the Constitution of India even though the order has not been challenged in revision when it is brought to the notice of the High Court exercising revisional jurisdiction that the order appears to be perverse and had caused gross failure of justice and is without jurisdiction, in that event, in exercise of power of revision, such orders can be interfered with and be corrected. Similar view was expressed in the case of Jatindra Mohan Nandi v. Krishnadas Nandi 58 CWN 858 (D.B.) wherein it was held. "In any event, this court is perfectly competent to see that proper orders are made when the matter comes up in revision before this court. The mere fact that the plaintiffs did not move should not stand in the way of this court making an order in accordance with law, as all the necessary parties are represented before us." Mr. Justice P.N. Mukerjee in the case of Mahendra Dutt & Co. (P.) Ltd. v. Uma Charan Law and others, 68 CWN 179 (D.B.) presiding over the Division Bench had laid down. "It is hardly arguable that a point, which goes to the root of the court's jurisdiction, cannot be taken in a revision application if the said point has not been urged before the trial court That will practically nullify the revisional powers of this court in very appropriate cases in may instances. If the trial court has passed an order, which it had no jurisdiction to make, or which was made in the irregular, or illegal exercise of its jurisdiction, this court will be failing in its duty if it does not revise the same simply because this point of jurisdiction was not taken in the trial court. It is, of course, true the exercise of the revisional power of this court is a matter of discretion and this discretion should be exercised in favour of the petitioner only in appropriate cases. It is, of course, true the exercise of the revisional power of this court is a matter of discretion and this discretion should be exercised in favour of the petitioner only in appropriate cases. But it will be wholly inequitable and wholly against established principle, it the exercise of the discretion is to be refused merely on the ground that a point of jurisdiction, going to the root of the matter, cannot be entertained or allowed by this court, simply because it was not taken in the trial court." "It seems to us that when the rule comes up for final hearing before this court it is open to this court, if it finds that the rule should succeed on some ground, not initially taken or on a ground, which it was not issued, that is, on a ground, other than the one, on which it was issued, to consider the same and allow the application after of course, giving other party proper opportunities to meet the said objection This court, it seems to us, is not so powerless and its powers are not so limited as to preclude it from doing justice between the parties in the exercise of its revisional powers, merely because the rule was not issued at the initial stage on the particular ground or grounds concerned. Indeed, in every Rule, issued by this court, we have the residuary clause, "such other or further order as to this court may seem fit and proper" In our view, those words are comprehensive and wide enough to include all appropriate revisional grounds and to allow this court to interfere in a proper case even on a ground, which was not taken at the time the Rule was issued, or, upon which, the Rule was not initially issued. In other words, such interference may well be made even on a ground other than the one, on which the Rule was issued. In other words, such interference may well be made even on a ground other than the one, on which the Rule was issued. In short, in matter of this kind, where a question of jurisdiction is involved, to deprive a party of suitable relief under the revisional power of this court on the ground that the particular objection was not taken in the trial court, or that even if it was taken in the trial court, no Rule was issued on that ground, would be defeat the ends of justice and in any view, such a restricted interpretation of the scope of the revisional powers of this court would not be consistent either with law or with the principles of justice, or with precedents or authority." 10. Following the said two decisions, the Hon'ble Mr. Justice N.K. Mitra in the case of M/s. Dwarkadas Raghubir Prasad Chowdhry and another 1987 (1) Calcutta Law Journal 479, observed: "The High Court is not so powerless and its powers are not so limited to preclude it from doing justice between the parties in the exercise of revisional powers, merely because Rule was not issued at the initial stage on the particular ground or grounds concerned." 11. The case appears to be an old one and is being drawn for a long time. It is also apparent from the facts that the defendant No. 11 has shown lack of diligence. In that view of the matter, this application is allowed subject to payment of cost to be paid to the plaintiff assessed at Rs. 1,000/- to be deposited within a period of one month from date in the court below. In default the present order shall stand recalled. The plaintiff, however, shall have every right to claim his passage for egress and ingress through blue and red colour passage and may take appropriate step for ensuring their rights. 12. Mr. Sharma, learned counsel for the respondent, assures that his client will co-operate in the matter of early disposal of the suit and all other proceedings connected therewith and shall not take any adjournment unless the same is exceptionally unavoidable A long time having been passed, this court hopes and trusts that the learned trial court shall decide the suit and dispose of the same as early as possible preferably within a period of six months. Defendants Nos. Defendants Nos. 7 to 11 may file their written statement within a period of one month from today. In default, the suit shall proceed ex-parte. All other steps in the suit should be completed within a period of two months from today. This application is thus disposed of. There will, however, be no order as to costs except as indicated above. 13. Certified copy of this order may be issued to the learned counsel for the parties on payment of usual charges within 30 days.