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2007 DIGILAW 3726 (MAD)

T. S. Krishnamoorthy v. M. Balasubramanian

2007-11-21

A.C.ARUMUGAPERUMAL ADITYAN

body2007
Judgment :- The revision has been preferred under Article 227 of Constitution of India for quashing the decree and Judgment dated 30.11.1988 made in O.S.No.9641 of 1988 on the file of XII Assistant Judge, City Civil Court, Chennai. 2. The grievance of the revision petitioner is that one C.Krishnamoorthy had executed a sale deed in respect of the property purchased by him under the sale deed dated 27. 1978 to the revision petitioner. O.S. No.9641 of 1988 was filed by one Marimuthu Chettiar, father of the respondent herein against C.Krishnamoorthy, the vendor of the revision petitioner herein under the sale deed dated 27. 1978. The said suit was filed for declaration that the sale deed dated 27. 1983 said to have been executed by one V.Ramesh in favour of the plaintiff Marimuthu Chettiar is valid and binding on the defendant. In the said suit the defendant viz., C.Krishnamoorthy, the vendor of the revision petitioner under the sale deed dated 27. 1978 has submitted to a decree. 3. The grievance of the revision petitioner is that the sale deed dated 27. 1983 relates to the same property sold to the revision petitioner under the sale deed dated 27. 1978 executed by the said C.Krishnamoorthy, the defendant in O.S.No.9641 of 1988. Admittedly the decree in O.S.No.9641 of 1988 was passed on 30.11.1988. Now after an elapse of 19 years, the revision petitioner has come forward with this revision petition seeking for a remedy from this Court under Article 227 of Constitution of India to quash the proceedings in O.S.No.9641 of 1988. .4. Mr.P.Jayaraman, the learned senior Counsel appearing for the revision petitioner would contend that at the threshold, Civil Revision Petition itself is not maintainable under law and is to be rejected. In support of his contention, the learned Senior Counsel would rely on several ratio decidenti of the Honourable Apex Court as well as this Court. The first dictum on which the reliance was placed by the learned Senior Counsel for the above proposition of law is Kalaivasagam and another-v-Kammavar Ilaignar Sangam, Sivakasi and others (2006) 4 M.L.J.926). The ratio decidenti in the said dictum is that a third party to the suit can only file appeal against the decree, if he/she is aggrieved by the same and cannot maintain a revision under Article 227 of the Constitution against the decree passed in the suit. The ratio decidenti in the said dictum is that a third party to the suit can only file appeal against the decree, if he/she is aggrieved by the same and cannot maintain a revision under Article 227 of the Constitution against the decree passed in the suit. Admittedly, the present revision petitioner is not a party in O.S.No.9641 of 1988. Article 227 of the Constitution, the Honourable Apex Court in Sadhana Lodh-v-National Insurance Company Ltd., (2003) 3 S.C.C.524 = AIR 2003 S C 1561) has observed as follows: ."The supervisory jurisdiction conferred on the High Court under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law in exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior Court or Tribunal purports to have passed the order or to correct errors of law in the decision." .iii) The same principle has been reiterated in Ouseph Mathi and others-v-M.Abdul Khadir (2002)1 SCC 319 ) as follows: ."Assailing the impugned Judgment it has been argued on behalf of the appellants landlords that even though the High Court had the power of superintendence under Article 227 of the Constitution of India, yet the same was required to be exercised sparingly and only in cases where the subordinate Courts and Tribunals are shown to have erroneously assumed jurisdiction or failed to exercise the jurisdiction vested in them and the order impugned showed some error of law apparent on the face of the record. Arriving at a finding which is alleged to be perverse or based on no material could not be a ground to exercise the power under the aforesaid Article. It is not denied that the powers conferred upoon the High Court under Article 226 and 227 of the Constitution are extraordinary and discretionary powers as distinguished from ordinary statutory powers. . Arriving at a finding which is alleged to be perverse or based on no material could not be a ground to exercise the power under the aforesaid Article. It is not denied that the powers conferred upoon the High Court under Article 226 and 227 of the Constitution are extraordinary and discretionary powers as distinguished from ordinary statutory powers. . No doubt Article 227 confers a right of superintendence over all courts and tribunals throughout the territories in relation to which it exercises the jurisdiction but no corresponding right is conferred upon a litigant to invoke under the said Article as a matter of right". .iv) The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India has been referred to in the Judgment in M/s Estrakka Rubber-v- Dass Estate (Private) Ltd., (2001) 8 SCC 97 (101): AIR 2001SC .3295)as follows: ."The exercise of power under this Article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do duty expected or required by them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the Courts subordinate or tribunals... . . . . . . . . . . .It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate Court or substitute its own judgment in place of that of the subordinate Court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the Court or tribunal has come to". .It is to be noted at this juncture that the decree passed in O.S.No.9641 of 1988 on the file of XII Assistant Judge, City Civil Court, Chennai is not a contesting decree but the decree was passed only on the basis of the defendant is a consent decree. .It is to be noted at this juncture that the decree passed in O.S.No.9641 of 1988 on the file of XII Assistant Judge, City Civil Court, Chennai is not a contesting decree but the decree was passed only on the basis of the defendant is a consent decree. .v) It has further been observed by the Honourable Apex Court in the said ratio, relying on an earlier decision of the Apex Court in Babhutmal Raichand Oswal -v- Laximbai R.Tarte and Anr(AIR 1975 SCC 1297) as follows: ."The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a Court of appeal and that the High Court in exercising its jurisdiction under Article 227 cannot convert itself to a court of appeal when the legislature has not conferred a right of appeal." .Admittedly, the decree passed in O.S.No.9641 of 1988 on the file of XII Assistant Judge, City Civil Court, Chennai is a consent decree. So as per Section 96(3) of CPC, no appeal shall lie from a decree passed by the Court with the consent of parties. .5. It is brought to the notice of this Court that the revision petitioner has filed a suit before this Court in C.S.No.552 of 2004 against one J. Gopalakrishnan and Mrs. Neelam Jain and that in the said suit, a specific issue has been framed to the effect that " Whether the decree in O.S.No.9641 of 1988 on the file of XII Assistant Judge, City Civil Court, Chennai was obtained by fraud and collusion and is not binding on the plaintiff?" Under such circumstances, having challenged the decree and Judgment passed in O.S.No.9641 of 1988 on the file of XII Assistant Judge, City Civil Court, Chennai in a comprehensive suit in C.S.No.552 of 2004, I am of the view that it is not open for the revision petitioner to ask this Court to quash the proceedings in O.S.No.9641 of 1988 which in my opinion cannot be done in lieu of the several ratio decidenti of the Apex Court mentioned above. 6. In fine, the civil revision petition is dismissed before admission holding that this Court cannot grant the prayer asked therein under Article 227 of the Constitution of India. No costs. Connected M.P.No.3 of 2007 is also dismissed. 6. In fine, the civil revision petition is dismissed before admission holding that this Court cannot grant the prayer asked therein under Article 227 of the Constitution of India. No costs. Connected M.P.No.3 of 2007 is also dismissed. The learned counsel appearing for the revision petitioner would contend that necessary directions may be given to the registry for an early disposal of C.S.No.552 of 2004. Registry is directed to obtain necessary orders from My Lord the Honourable the Chief Justice for an early disposal of C.S.No.552 of 2004 before the appropriate Court. ii) While dealing with the Supervisory jurisdiction conferred on the High Court under