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2006 DIGILAW 717 (CAL)

DILIP TARAFDER v. MANIKA TARAFDAR

2006-11-20

DIPANKAR DATTA, PRABIR KUMAR SAMANTA

body2006
Before Prabir Kumar Samanta And Dipankar Datta, JJ. ( 1 ) IN this Mandamus Appeal the order dated 10. 2. 2006 passed by a learned single Judge in a Civil Revisional Application made under Article 227 of the constitution of India has been challenged. ( 2 ) REPORT of the Stamp Reporter dated 28. 4. 06 on the Memorandum of appeal is as follows : " The instant appeal has been preferred against an order passed in Civil revisional Jurisdiction. It is for consideration of the Hon'bie Court, whether this appeal will lie before this Hon'bie Court or not". ( 3 ) A preliminary question having been raised as to the maintainability of the appeal, it has been contended that though the said petition was described as one under Article 227 of the Constitution of India, but in all purport, the same was one under Article 226 of the Constitution of India and as such, this Mandamus appeal is very much maintainable. ( 4 ) A judgment delivered or order passed by this Court in exercise of its power of superintendence over all Courts and Tribunals under Article 227 of the Constitution of India, is in essence an order made in exercise of this Court's revisional jurisdiction. Clause 15 of the Letters Patent of this Court expressly excludes an intra-Court appeal against an order made in its revisional jurisdiction. In view thereof the present appeal under Clause 15 of the Letters Patent, impugning an order passed by a learned Single Judge of this Court in exercise of power conferred by Article 227 of the Constitution, would not be maintainable. ( 5 ) NOW Looking into the impugned order, we find that in the said petition under Article 227 of the Constitution of India the order dated 30. 11. 2005 passed by the Additional District Judge, 3rd Court at Alipore in Mat. Suit No. 4 of 2004 was challenged. By the said order the learned Trial Court permitted the wife/ opposite party to file her written statement in the suit which was not filed within the time as provided under Order 8 Rule 1 of the amended Code of Civil Procedure. The learned Single Judge refused to interfere with the order passed by the learned trial Court. By the said order the learned Trial Court permitted the wife/ opposite party to file her written statement in the suit which was not filed within the time as provided under Order 8 Rule 1 of the amended Code of Civil Procedure. The learned Single Judge refused to interfere with the order passed by the learned trial Court. ( 6 ) IN support of the contention as to the maintainability of the above mandamus Appeal, it has been strongly contended, in view of the decision of the Supreme Court reported in AIR 2003 SC 3044 : (2003)2 WBLR (SC) 614 ; surya Dev Rai v. Ram Chander Rai, that in a petition under Article 226 of the constitution of India an order passed by the Civil Court could be challenged. Accordingly, the petition under Article 227 of the Constitution of India which was in all purport under Article 226 of the Constitution of India should be treated as one under the writ jurisdiction and therefore this Mandamus Appeal is maintainable. ( 7 ) PARAGRAPH 38 of the decision in Surya Dev Rat (supra) is extracted below: " Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder: -1) Amendment by Act No. 46 of 1999 with effect from 1. 7. 2002 in section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. 2) Interlocutory orders, passed by the Courts subordinate to the High court against which remedy of revision has been excluded by the code of Civil Procedure Amendment Act No. 46 of 1999 are nevertheless open to challenge in and continue to be subject to certiorari and supervisory jurisdiction of the High Court. 2) Interlocutory orders, passed by the Courts subordinate to the High court against which remedy of revision has been excluded by the code of Civil Procedure Amendment Act No. 46 of 1999 are nevertheless open to challenge in and continue to be subject to certiorari and supervisory jurisdiction of the High Court. 3) Certiorari, under Article 226 of the Constitution is issued for correcting gross errors of jurisdiction, i. e. , when a subordinate Court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified and thereby occasioning failure of justice. 4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. 5) Be it a writ of certiorari or the exercise of superirvisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the errror is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. 6) A patent error is an error which is self-evident, i. e. , which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view the error cannot be called gross or patent. 6) A patent error is an error which is self-evident, i. e. , which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view the error cannot be called gross or patent. 7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High court may feel inclined to intervene where the error is such as if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. 8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. 9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate Courts but cannot substitute its own decision in place thereof. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate Courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the Court should have made in the facts and circumstances of the case. ( 8 ) UPON reading of the same, we are clearly of the view that the said petition under Article 227 of the Constitution could not have been filed under article 226 of the Constitution. By accepting the written statement which was not filed within the time as provided under Order 8 Rule 1 of the Code, the learned trial Court did not act absolutely without jurisdiction. Undoubtedly, the learned trial Court was competent to accept the written statement in the suit, if filed, within the time prescribed under Order 8 Rule 1 of the Code. If such acceptance was made in respect of the written statement which was filed beyond the time prescribed therein, then it could at best be said that the learned trial court exercised his jurisdiction which vested in him illegally or wrongfully. Such an action could not be said to be an action without any jurisdiction whatsoever which could be said to be amenable in writ jurisdiction under Article 226 of the constitution. Upon such reasoning, we are unable to treat the petition which has been dismissed by the impugned judgment and order by the learned Trial judge as one under Article 226 of the Constitution to make this appeal maintainable. ( 9 ) THAT apart, rules have been framed by this Court laying down provisions relating to filing of petitions/applications (including those under Article 226 of the Constitution of India) and thereunder, a combined application under articles 226 and 227 of the Constitution is not conceived. The said rules also do not contemplate challenge to an order passed by a Civil Court in a proceeding under Article 226 of the Constitution of India. So long the rules framed by this court subsist, the same have to the respected. The said rules also do not contemplate challenge to an order passed by a Civil Court in a proceeding under Article 226 of the Constitution of India. So long the rules framed by this court subsist, the same have to the respected. The prayer of the learned Counsel to treat the petition filed by his cliient as one under Article 226 of the Constitution, thus, cannot be acceded to also on this ground. ( 10 ) THE issue can be looked at from another angle. It has been held in surya Dev Rai (supra) itself that power under Articles 226 and 227 of the constitution is available to be exercised subject to rules of self-discipline and practice which are well-settled. It has been the long standing practice of this court not to entertain petitions under Article 226 of the Constitution of India impugning an order passed by a Civil Court but to judicially review any order passed by the Civil Court, which is not appealable, by exercising its power of superintendence under Article 227 of the Constitution of India. The principle of cursus curiae est lex curiae has been accepted by the Apex Court and it is settled law that practice of the Court is the law of the Court, and is binding and should normally be adhered to, in the absence of rules to the contrary [see jama/ Uddin Ahmadv. Abu Saleh Najmuddin: (2003)4 SCC 257 ]. The rules of this Court are not contrary to the practice followed and such practice, which has been followed in this Court for decades cannot be allowed to be unsettled at the whims of a litigant who, through a new set of Advocates, seeks to avail of the benefit of an intra-Court appeal after having been unsuccessful in his attempt to have the order of the learned trial Court reversed by the learned judge taking up Article 227 applications on the Civil Side. ( 11 ) THE appeal and the application are accordingly dismissed by treating the appeal as on day's list.