Ram Gopal Agarwal and Anothers v. Bhimsen Sethi and Ors.
1998-01-12
M.RAMAKRISHNA, P.C.PHUKAN
body1998
DigiLaw.ai
M. Ramakrishna, C. J.- This writ appeal is directed against the order passed by the learned Single Judge sitting at Shillong in Civil Rule No.209(SH) of 1997 dated 2nd December, 1997, by which the learned Single Judge issued the following direction : "In the circumstances, I set aside the impugned order for being wholly illegal and direct the MSEB to immediately restore electrical connection to the shops of the petitioners without further delay and in any case within one week from today. The trial Court shall proceed to decide the question relating to want of jurisdiction which has been raised by the defendants-respondents for which it had already fixed a date which has however by now expired. It shall therefore fix another date for the purpose on 8.12.97 when both the parties are directed to appear before it. It will however, be desirable that the trial Court dispose of the point at the earliest possible. In view of the fact that the Court of Assistant District Judge is not available even now it will be open to the petitioners to approach the District Judge, Shillong, for obtaining an order for permission to deposit rent in Court as per law and for regularisation of deposits already made by them earlier. In case an application to the above effect is filed or in case it has already been filed before (he District Judge he shall after hearing both the parties pass orders thereon in accordance with law on merits alone." It is this order which is called in question in this appeal by the appellants, who were the respondents in the writ petition referred to above, for the grounds taken in the memorandum of appeal. 2. We have heard the learned counsel on both the sides. 3. An affidavit sworn by the appellant No.2 in regard to the facts and circumstances, has been presented by Mr. PC Deka in this case today. 4. The learned counsel for the respondents argued two aspects : Firstly, that since the writ petitioner had no alternative but present a petition invoking the provisions of Article 227 of the Constitution of India,1950, the writ Court rightly considered the relieves sought for in the petition and granted the same, this Court need not interfere with that order.
4. The learned counsel for the respondents argued two aspects : Firstly, that since the writ petitioner had no alternative but present a petition invoking the provisions of Article 227 of the Constitution of India,1950, the writ Court rightly considered the relieves sought for in the petition and granted the same, this Court need not interfere with that order. The other aspect is that the writ appeal, as brought by the appellants herein, is not maintainable inasmuch as the writ Court is competent to modify its order in the event of the opposite party approaching the Court by way of an application seeking to modify the same. But for reasons known to the opponents, this action was not taken in the instant case for modifying the interim order granted by the writ Court. Therefore, the appellate Court need not interfere with that order of the learned Single Judge. 5. Mr. PC Deka, the learned counsel for the appellants, however, argued that since the learned Single Judge granted reliefs in favour of the writ petitioner knowing fully well that the trial Court was dealing with the legal issues arising out of the suit for restoration and declaration, and that a date had been decision of the same including the question of jurisdiction, the learned Single Judge ought to have seen that when an issue regarding declaratioin of rights of the parties and restoration of electricity to the tenants was pending before the trial Court under section 7 of the Meghalaya Urban Areas Rent Control Act, it was not open to the writ petitioners to have invoked the extraordinary jurisdiction of the Court under Article 227 of the Constitution of India,1950 and that, that is not the remedy available under law. The other submission of Mr. Deka, the learned counsel for the appellants is that presuming for the purpose of argument that the order made by the Munsiff on llth November, 1997 in Title Suit No. 16 (H) of 1997 whereby the interim order granted earlier by him was ordered to be stayed till disposal of the petition is concerned, in the event of the applicant having been aggrieved by this order, it was open for such applicant to seek for appropriate reliefs either in a revision under section 115 of the Code of Civil Procedure, CPC in short, or in an appeal under Order XLIII CPC.
In other words, the legal argument of Mr. PC Deka, the learned counsel for the appellants, is that not following the remedy available under the statute, resorting to the provisions of Article 227 of the Constitution would not be available to the petitioners which factum the writ petitioners failed to see. Therefore, the order passed by the learned Single Judge seeking to grant reliefs in favour of the writ petitioners cannot be sustained in law. 6. Contrary to these argument of Mr. Deka, the learned counsel for the appellants, Mr. PK Deb, the learned counsel for the respondents, however, maintained that regard being had to the provisions of section 115 CPC and Order XLIII CPC, it was not possible for the writ petitioners to have sought for the reliefs under either of the above provisions of the law. His submission is that in view of the law as laid down in the case of Baldevdas Shivlal & another vs. Filmistan Distributors (India) (P) Ltd & others, by the Hon'ble Supreme Court and as reported in (1970) 1 SCR 435 , it was not possible for the applicants to have invoked either the provisions of section 115 CPC with a view to present a revision, or an appeal under Order XLIII CPC. 7. Let us now examine this legal argument of the learned counsel for the respondents. It is true that regard being had to the scope of section 115 CPC, it is clear that this is not an order whereby the case came to be disposed of finally, therefore, the provisions of revision under section 115 CPC cannot be available. But, in so far as the submission of the learned counsel for the respondents saying that there is no remedy under Order XLIII CPC is concerned, let us examine the provisions of sub-rule 1 (r) of Order XLIII CPC which lays down as follows : "1.
But, in so far as the submission of the learned counsel for the respondents saying that there is no remedy under Order XLIII CPC is concerned, let us examine the provisions of sub-rule 1 (r) of Order XLIII CPC which lays down as follows : "1. An appeal shall lie, from the following orders under the provisions of section 104, namely : (r) an order under Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10 of the Order XXXIX." In otherwords, regard being had to the language employed in sub-rule 1 (r) of Order XLIII CPC, it is abundantly made clear that an appeal will lie as against an order passed by the competent Court (Munsiff in the instant case) invoking the provisions of either Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10 of Order XXXIX CPC. In the instant case, as there was an application, Interim Application No.l, presented under Order XXXIX Rules 1 and 2 CPC, there was an order made by the Munsiff granting interim relief pending consideration of the main matter. It is also an admitted fact that, that order could not be executed for some reason or the other and that the order passed by the Munsiff on 11.11.97, by which the earlier orders made by him came to be stayed, is the order that has given rise to the grievance of the applicants. In other words, it is this order which was called in question in a petition under Article 227 of the Constitution of India,1950. Therefore, now let us examine as to whether the legal argument of the learned counsel for the respondents saying that no appeal lies against such order of the Munsiff is proper? 8. Since an application presented by a party in a suit seeking relief by way of an interim measure and such order passed as interim measure for some reason or the other could not be given effect to, whether such person can file another application seeking similar relief is the question. We are of the view that any order passed by the Munsiff staying operation of the earlier orders made by him by way of interim relief, cannot be said to be an order coming under the purview of Rule 10 of Order XXXIX CPC. It is always open to the parties to seek a similar relief before that Court.
We are of the view that any order passed by the Munsiff staying operation of the earlier orders made by him by way of interim relief, cannot be said to be an order coming under the purview of Rule 10 of Order XXXIX CPC. It is always open to the parties to seek a similar relief before that Court. Instead a writ petition invoking the provisions of Article 227 of the Constitution has been presented seeking relief at the hands of the writ Court. Looking at the provisions of Article 227 or 226 of the Constitution as the case may be, it is made clear that a citizen can seek relief with a view to enforce the fundamental rights under Article 32 of the Constitution before the Supreme Court, or under Article 226 of the Constitution before the High Court. Now, admittedly, no question of fundamental right has been involved in the instant case, Therefore, we will have to see as to whether a citizen can seek for similar relief even without enforcing fundamental rights No doubt, even without fundamental right, a citizen can seek for relief before the competent Court of law invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution in the event of any enforceable right under the statute being available to such a person. 9. In so far as the provision of Article 227 of the Constitution is concerned, it is also an extraordinary jurisdiction. It is made clear that the jurisdictions under the two Articles are separate and independent. It is now settled that the power of superintendence conferred under Article 227 of the Constitution on the High Courts, is not confined to administrative superintendence only, but includes the power of judicial revision even where no appeal or revision lies to the High Court under the ordinary law. Therefore, let us examine as to whether the writ petitioners had no remedy other than the remedy available under Article 227 of the Constitution. This provision of the law is available so as to move the High Court in a case where an order or a decision of an inferior Tribunal is sought to be quashed. In the instant case the order made by the Munsiff does not arise out of such order said to have been made constituted as a Tribunal.
This provision of the law is available so as to move the High Court in a case where an order or a decision of an inferior Tribunal is sought to be quashed. In the instant case the order made by the Munsiff does not arise out of such order said to have been made constituted as a Tribunal. In other words, the Munsiff was not passing an order as a Tribunal. Regard being had to the law as laid down by the Supreme Court, it is made clear that the High Court's power in exercise of the power under Article 2.27 of the Constitution of India,1950 dealing with the power of superintendence can be invoked only where : (i) The subordinate Court, in setting aside an inadequate valuation of a plaint, directs the plaintiff to give a specified valuation, instead of asking him to revise his valuation. (ii) An inferior Court refuses to follow the decision of the High Court of the State, in proceedings before it, notwithstanding the absence of a specific provision corresponding to Article 141 of the Constitution. In otherwords, the limited scope of the provisions of Article 227 of the Constitution cannot be extended to an order passed by a Munsiff in a suit in a regular couse of action. Therefore, the learned Single Judge failed to see that the order made by the Munsiff, the subject matter of the writ petition, can be assailed in an appeal under Order XLIIICPC. On the other hand, such an order cannot be called in question in a petition under Article 227 of the Constitution which has a limited scope. 10. Therefore, in view of the foregoing, it is not possible to accede to the contentions of the learned counsel for the respondents; nor is it possible to sustain the order under appeal. 11. In the result and for the reasons stated above, the appeal is allowed. The order made by the learned Single Judge in Civil Rule No.209 (SH) of 1997 on 2nd December, 1997 is set aside. But, liberty is reserved to the writ petitioners, respondents herein, to seek for the reliefs in accordance with the law.
11. In the result and for the reasons stated above, the appeal is allowed. The order made by the learned Single Judge in Civil Rule No.209 (SH) of 1997 on 2nd December, 1997 is set aside. But, liberty is reserved to the writ petitioners, respondents herein, to seek for the reliefs in accordance with the law. We may also make an observation that in the event of application(s) presented by the writ petitioners/respondents before the Munsiff who is now seized of the matter, such application(s) shall be heard and disposed of within a period of 4 (four) weeks.