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2010 DIGILAW 705 (GAU)

Nimai Kar v. Bishnupada Saha

2010-09-10

UTPALENDU BIKAS SAHA

body2010
ORDER U.B. Saha, J. 1. This petition under Article 227 of the Constitution of India is filed by the Petitioner, Sri Nimai Kar, challenging the order dated 16-12-2009 passed by the learned Civil Judge, Senior Division, North Tripura, Kailashahar in T.S. No. 39 of 2009 whereby the application under Order 7, Rule 10, Code of Civil Procedure filed by the Petitioner as Defendant No. 1 in the said suit for returning the plaint has been rejected. 2. In the instant petition, notices to the Respondents were issued on 11-1-2010. On receipt of the notice, the Respondent No. 1 has entered appearance through his learned Counsel Mr. S. Bhattacharjee assisting Mr. S.M. Chakraborty, learned senior Counsel. None appears for and on behalf of the Respondent No. 2, though notice was sent to the Respondent, No. 2 by registered post with A.D. on 2-3-2010. Hence, in view of the provision of Order V, Rule 9(5) Code of Civil Procedure, notice is deemed to have been served upon the Respondent No. 2. However, as agreed to by the learned Counsel for the parties, this petition is taken up for final disposal at this stage including the question of maintainability. 3. Heard Mr. D.K. Biswas, learned Counsel appearing for the Defendant No. 1 -- Petitioner and Mr. S.M. Chakraborty, learned senior Counsel assisted by Mr. S. Bhattacharjee, learned Counsel appearing for the Plaintiff-Respondent No. 1. 4. Today, when the matter is taken up for admission hearing, Mr. Chakraborty, learned senior Counsel, at the very outset, raised the question of maintainability of the instant revision petition on the ground that whether an order of the civil Court can be challenged invoking extraordinary jurisdiction of this Court under Article 227 of the Constitution when the said order can be assailed under Section 115 of the Code of Civil Procedure. 5. The brief facts needed to be discussed for disposal of the instant revision petition are as follows: The Petitioner, (hereinafter referred to as Defendant No. 1) and the Respondent No. 1, (hereinafter referred to as Plaintiff) are civil contractors. The Respondent No. 2 Hindustan Steel Works Construction Ltd. (in short, HSCL) invited tenders issuing four Notices Inviting Tenders for execution of village roads under the PMGSY Scheme at Kailashahar Sub-Division, North Tripura. The Respondent No. 2 Hindustan Steel Works Construction Ltd. (in short, HSCL) invited tenders issuing four Notices Inviting Tenders for execution of village roads under the PMGSY Scheme at Kailashahar Sub-Division, North Tripura. Since the Plaintiff has the ability and experience for the said works, the Defendant No. 1 asked the Plaintiff to execute the said works in a joint venture with the Defendant No. 1 on the basis of sub-contract and as agreed to, the Defendant No. 1 dropped the tenders in pursuance of the said NIT and ultimately got the work orders in his favour for the aforesaid four tenders. So on mutual understanding, they made a joint declaration in the letter head (Pad) of the Defendant No. 1 on 10-9-2007, but as it has no force of agreement, the Plaintiff requested the Defendant No. 1 to execute a formal agreement and on the same date, an unregistered agreement in a non-judicial stamp paper of Rs. 10/- was executed between the Plaintiff and the Defendant No. 1 in presence of the witnesses. The condition No. 4 of the said agreement was that the bank guarantee of Rs. 1,67,01,275.00 given by the first party i.e. the Defendant No. 1 shall be recovered from the bill amount which shall be adjusted against the profit margin of Rupees 3,30,00,000.00, if the amount of bank guarantee is recovered, then 10% after balance amount shall be recovered from the R.A. bill till receipt of profit of Rs. 3,30,00,000.00, Condition No. 5 was that the second party i.e. the Plaintiff would be responsible for the said works to be completed as per specification within the stipulated time and he also would be responsible thereafter for five years after completion of the aforesaid contract works and if any loss or damage is sustained, then it shall be borne by the Plaintiff and the condition No. 6 specified that the declaration made earlier by the Plaintiff and the Defendant No. 1 would be treated as cancelled and withdrawn. Thereafter, the Defendant No. 1 executed four deeds of general power of attorney on 11-9-2007 appointing the Plaintiff as his attorney to execute the said works. But subsequently the Defendant No. 1 expressed his desire to execute the work of NIT 24 himself. Plaintiff agreed to that and started to execute the other works under NIT No. 22, 23 and 25. But subsequently the Defendant No. 1 expressed his desire to execute the work of NIT 24 himself. Plaintiff agreed to that and started to execute the other works under NIT No. 22, 23 and 25. After execution of part of work, the first R.A. bill was raised in the name of Defendant Nos. 1 as he entered into contract with the HSCL and the first R.A. bill was paid accordingly. The Defendant No. 1 released the agreed amount to the Plaintiff and the rest amount was retained by him as per terms of the agreement dated 10-9-2007. Thereafter, the second R.A. bill was raised and that was paid for an amount of Rs. 2,80,00,000.00 (approx). But the Defendant No. 1 in gross violation of the terms and conditions of the agreement dated 10-9-2007 recovered an amount of Rs. 1,67,01,275.00 from the second R.A. bill without obtaining consent from the Plaintiff and retained the said amount with him. The Plaintiff then requested the Defendant No. 1 to refund him the said amount stating, inter alia, that otherwise he would not be in a position to proceed with the work. Ultimately, the Defendant No. 1 agreed to pay an amount of Rs. 30,00,000/- to the Plaintiff for execution of the work, out of which, an amount of Rs. 9,00,000/- was paid on 21-4-2008, Rs. 6,00,000/- on 22-4-2008 and it was assured that the rest amount of Rs. 15,00,000/- would be paid immediately out of the mutually agreed amount of Rs. 1,46,24,427/-. The Plaintiff further requested the Defendant No. 1 to pay more to maintain proportionate progress, but the Defendant No. 1 did not pay the balance amount of Rs. 1,15,11,000/-. Thereafter, exchange of letters was made between the parties and by a letter dated 8-7-2008, the Defendant No. 1 intimated the Plaintiff that he revoked the general power of attorney executed by him in favour of the Plaintiff on 11-9-2007. For the purpose of execution of the road works in joint venture, 2 (two) road rollers were sent by the Defendant No. 1 at the work site for execution of works by the Plaintiff for which hiring charges were to be borne by the Plaintiff, but the Defendant No. 1 even after withholding the amount of Rs. For the purpose of execution of the road works in joint venture, 2 (two) road rollers were sent by the Defendant No. 1 at the work site for execution of works by the Plaintiff for which hiring charges were to be borne by the Plaintiff, but the Defendant No. 1 even after withholding the amount of Rs. 1,15,11,000/- tried to take back both the road rollers stealthily in the night of 19-5-2008 and when the Plaintiff found that the said road rollers were missing in his work site, he lodged FIR in Kumarghat P.S. on 20-5-2008. Upon hearing the same, the Defendant No. 1 sent back the said two road rollers to the work site again. Ultimately, when the Defendant No. 1 did not act according to the request of the Plaintiff, the Plaintiff filed T.S. No. 22 of 2008 in the Court of the Civil Judge, Sr. Division, North Tripura, Kailashahar, with the following prayers: 1. Pass a decree declaring the cancellation of 4 Nos. of deeds of power of attorney by the letter of the Defendant bearing No. NK/BPS/POA/2008 dated 8-7-2008 as illegal, un-authorized, arbitrary and void and liable to be quashed; 2. Pass a decree quashing/cancelling the impugned letter of the Defendant dated 8-7-2008 as mentioned in prayer No. 1; 3. Pass an order of perpetual injunction restraining the Defendant from entering into the work sites covered by NIT Nos. 22, 23 and 25 as specifically described in the schedule; 4. Pass an order of attachment of 2 (two) Nos. road rollers of the Defendant lying under the custody of the Plaintiff to ensure the payment of the outstanding amount of Rs. 1,15,11,000/-; 5. Pass a decree for payment of money amounting to Rs. 1,15,11,000/- by Defendant to the Plaintiff; 6. Pass a decree for cost and incidental thereto and also for interest at bank rate. 6. The Plaintiff also filed two other Misc. cases, namely, Civil Misc. Case No. 18 of 2008 for attachment of property and Civil Misc. Case No. 19 of 2008 for interim injunction. The Defendant No. 1 appeared in the suit and filed his written statement. On 8-9-2008 the learned Civil Judge passed an order which reads as under: ....till disposal of the Misc. Case 19/08. cases, namely, Civil Misc. Case No. 18 of 2008 for attachment of property and Civil Misc. Case No. 19 of 2008 for interim injunction. The Defendant No. 1 appeared in the suit and filed his written statement. On 8-9-2008 the learned Civil Judge passed an order which reads as under: ....till disposal of the Misc. Case 19/08. the Petitioner Bisnupada Saha is entitled to retain the Schedule 2 - rollers in his custody and the Defendant-O. P. is restrained from causing any action of removal of these 2 rollers from the custody of Bisnu Pada Saha by applying his muscle men and any other agency and O/C Kumarghat P.S. and S.P. North are directed Under Section 151 Code of Civil Procedure as is quoted by Advocate S.P. Datta Purkayastha, to assist Petitioner Bisnu Pada Saha to retain the Schedule 2-rollers in his custody till disposal of Misc. 19/08. 7. Against the aforesaid order dated 8-9-2008, the Defendant filed the Civil Misc. Appeal No. 5 of 2008 in the Court of the District Judge, North Tripura, Kailashahar and the learned appellate Court by an order dated 15-9-2008 stayed the said order dated 8-9-2008. Aggrieved by, the Plaintiff filed CRP No. 70 of 2008 along with C.M. Application No. 82 of 2008 before this Court and this Court by an order dated 26-9-2009 stayed the aforesaid appellate order dated 15-9-2008 as an interim measure. 8. Meanwhile, the Defendant No. 1 also lodged an FIR on 30-8-2008 vide Kumarghat P.S. Case No. 74 of 2008 under Section 406 IPC and managed to get the aforesaid two rollers utilizing the order dated 15-8-2008. When both the civil and criminal proceedings were pending, the Defendant No. 1 approached the proforma Defendant No. 2, the Pro-Respondent No. 2 herein, with proposal for compromising all disputes and cases/suit with the Plaintiff upon which the Plaintiff was requested to meet the Pro-Defendant No. 2 in Kolkata. Accordingly, the Plaintiff in the month of November, 2008 went to the office of the Pro-Defendant No. 2, in Kolkata and found the Defendant No. 1 there. Accordingly, the disputes between the parties were compromised in the office of the pro-Defendant No. 2, but no written document was made. It was settled that the Defendant No. 1 would arrange to pay Rs. 64,00,000/- to the Plaintiff within December, 2008 and if required, by installments. Accordingly, the disputes between the parties were compromised in the office of the pro-Defendant No. 2, but no written document was made. It was settled that the Defendant No. 1 would arrange to pay Rs. 64,00,000/- to the Plaintiff within December, 2008 and if required, by installments. Relying upon such arrangement of the Defendant No. 1, the Plaintiff thereafter did not prosecute his suit, cases etc. and those civil suit/cases were dismissed for default of both the parties viz main suit was dismissed on 18-12-2008 and misc. cases were dismissed on 29-1-2009. Thereafter, the Defendant No. 1 by three installments paid in total Rs. 45,46,000/-, but the rest amount of Rs. 18,54,000/- was not paid by the Defendant No. 1 to the Plaintiff. Ultimately, the Plaintiff filed a suit for declaration, consequential relief of attachment and also claiming money of Rs. 69,65,000/- to be recovered from the Defendant No. 1, Petitioner herein, which was registered as T.S. 39 of 2009. The Defendant No. 1 filed his written statement and along with the written statement, also filed an application under Section 21(1) read with Order 7, Rule 10, Code of Civil Procedure stating, inter alia, that the learned Court lacks in territorial jurisdiction to try the instant suit inasmuch as the cause of action arose wholly in Agartala and the Defendant against whom the money is sought to be recovered is also at Agartala. Hence, a prayer has been made that the plaint is required to be returned to file it in the appropriate Court. The learned Court below by the impugned order dated 16-12-2009 has rejected the application of the Defendant No. 1-Petitioner for return of the plaint. Being dissatisfied with the aforesaid order, the Defendant No. 1-Petitioner has filed the instant revision petition. 9. Mr. The learned Court below by the impugned order dated 16-12-2009 has rejected the application of the Defendant No. 1-Petitioner for return of the plaint. Being dissatisfied with the aforesaid order, the Defendant No. 1-Petitioner has filed the instant revision petition. 9. Mr. Chakraborty, learned senior Counsel would contend that the provisions contained in Order 43, Rule 1(a) of the Code of Civil Procedure prescribes for an appeal against an order passed by the trial Court under Rule 10 of Order VII i.e. the returning a plaint to be presented to the proper Court, but no appeal is provided against an order of refusal in returning the plaint and thereby the provision of Section 115 of the Code of Civil Procedure shall come into operation as the provisions of the said Section clearly says that the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto. He further contended that when a revision lies under Section 115 of the Code of Civil Procedure against an order of rejection on an application under Rule 10 of Order VII, Code of Civil Procedure, then the petition under Article 227 of the Constitution is not maintainable. Hence, the instant revision petition is liable to be dismissed. He again contended that in view of the proviso of Sub-section (1) of Section 115 Code of Civil Procedure as substituted by the Code of Civil Procedure (Amendment) Act (46 of 1999), Section 12, if the learned Court below passed an order rejecting the prayer for returning of the plaint to the Plaintiff, then the suit before the said learned Court would have been finally disposed of and the said Court would not have any jurisdiction to pass any order in the suit after returning the plaint. Therefore, the proviso of Sub-section (1) of Section 115Code of Civil Procedure attract and revision lies against the said order. He further submits that if the Court below returns the plaint to the Plaintiff for filing a suit afresh before the appropriate Court, then the Court which passed the said order would not have any control over the same and the presentation of the plaint after return would be considered as a fresh suit and not as a continuation of the earlier suit. In support of his aforesaid contention, he placed reliance upon a decision of the Apex Court in the case of Joginder Tuli v. S.L. Bhatia, (1997) 1 SCC 502 and Harshad Chimanlal Modi (II) v. DLF Universal Ltd. and Anr. , (2006) 1 SCC 364 : AIR 2006 SC 646 . He finally contended that in view of the decisions of the Apex Court in the aforesaid two cases, no petition under Article 227 of the Constitution is maintainable, only remedy is available before the aggrieved party, like the Defendant No. 1 under Section 115 of the Code of Civil Procedure, as it is a settled law that when an alternative remedy is available, the Court should not exercise its extraordinary supervisory jurisdiction under Article 227 of the Constitution for correcting the order passed by the Court below exercising its discretionary power. 10. Mr. Biswas, learned Counsel for the Petitioner while resisting the question of maintainability as raised by Mr. Chakraborty, would contend that the order of rejection of the application under Order VII, Rule 10 of the Code of Civil Procedure can be challenged by the aggrieved party like the Petitioner-Defendant No. 1 under Article 227 of the Constitution as the impugned order is hit by the proviso to Sub-section (1) of Section 115 Code of Civil Procedure which contend, inter alia, that in the course of a suit or other proceeding except where the order, if it had been made in favour of the party applying for the revision would have been finally disposed of the suit or other proceedings. He again contended that if the Court below returns the plaint by allowing the petition of the Defendant under Rule 10 of Order VII Code of Civil Procedure, then the suit would not have been finally disposed of, rather the plaint has been returned and the lis between the parties is pending. According to him, plaint is an instrument of the suit while the suit is the process only. Disposal of the suit means determination of the process undertaken by the Court for deciding the issue in the lis between the two contending parties. Thus, the plaint is an integral part of the process of suit, but forming completely to two different definitive areas. Disposal of the suit means determination of the process undertaken by the Court for deciding the issue in the lis between the two contending parties. Thus, the plaint is an integral part of the process of suit, but forming completely to two different definitive areas. He finally contended that the question in the instant petition arises whether the revision petition filed by the petition under Article 227 of the Constitution is maintainable in view of the proviso to Sub-section (1) of Section 115 of the Code of Civil Procedure and for such decision, the Court is to see what is the meaning of the suit and what is the meaning of plaint. 11. Having heard the learned Counsel for the parties and upon consideration of the issues involved in the instant revision petition, it would be proper for this Court to examine the meaning of the plaint, suit and finally decided. As the suit is not defined by the Legislature anywhere, therefore, it would be proper for this Court to look on the general meaning of the suit as available in the legal dictionary like the Black's Law Dictionary and the Law Lexicon. 12. Let us see first what is plaint? A 'plaint' is the process by which the proceedings in the Courts, are, generally commenced or otherwise the first process in Court wherein a statement in writing of the cause of action in a suit is made. 13. The word 'suit' is also not legislatively discussed and defined any where in the Code. Therefore, it would be proper to look on general meaning of the suit. According to Black's Law Dictionary, 6th Edition, 'suit' means a general term, of comprehensive signification, referring to any proceeding by one person or persons against another or others in a Court of law in which the Plaintiff pursues, in such Court, the remedy which the law affords him for the redress of an injury or the enforcement of a right, whether at law or in equity. 14. In the Law Lexicon, 'suit' means prosecution or pursuit of some claim, demand or request; the act of suing, the process by which one endeavours to gain an end or object; a proceeding in a Court of Justice for the enforcement of a right. 15. 14. In the Law Lexicon, 'suit' means prosecution or pursuit of some claim, demand or request; the act of suing, the process by which one endeavours to gain an end or object; a proceeding in a Court of Justice for the enforcement of a right. 15. Though the word 'suit' is not defined by the Legislative authority, but various Courts including the Apex Court discussed about the word suit. In Smt. Shukantla v. Peoples' Bank of Northern India Ltd. in liquidation through Bhagwati Shanker, Official Liquidator and Anr AIR 1941 Lah 392, a Full Bench of Lahore High Court, while deciding a question in an appeal, inter alia, whether a person wishing to bring a suit under Order 21, Rule 63 of the Code against a company in liquidation must first obtain leave under Section 171 of the Companies Act, from the Court by which the winding up order has been made, discussed about the word 'suit' and stated, inter alia, "Neither the word 'suit' nor the expression 'legal proceeding' is, however, defined in the Companies Act, the Code of Civil Procedure or the General Clauses Act. They have different meanings in different statutes according to the context, but there is no doubt as to their meaning in Section 171. As stated in Section 26, Civil P.C., a 'suit's a proceeding under the Code, which is instituted with the presentation of a plaint in a Court of original jurisdiction and it is in this sense that this word is used here. The expression 'legal proceeding' in this section is coupled with 'suit' and obviously means proceedings ejusdem generis, that is to say, original proceedings in a Court of first instance, analogous to a suit, initiated by means of a petition similar to a plaint. It does not include proceedings taken in the course of the suit nor proceedings arising from the suit and continued in a higher Court like an appeal from an interlocutory or final order passed in the suit. 16. It does not include proceedings taken in the course of the suit nor proceedings arising from the suit and continued in a higher Court like an appeal from an interlocutory or final order passed in the suit. 16. In Municipal Committee, Tara Taran through Executive Officer v. State of Punjab through the Secretary to the Government Labour Department, Chandigarh and Ors., AIR 1967 P&H 369 , a Division Bench of Punjab High Court discussed about the word 'suit' inter alia, "the word 'suit' is a term of art and ordinarily means a proceeding instituted in a civil Court by the presentation of the plaint and also took note of a decision of the Privy Council in Hans Raj Gupta v. Dehra Dun Mussorie Electric Tramway Co. Ltd., AIR 1933 PC 63, wherein the Privy Council held that "the word 'suit' ordinarily means, and apart from some context must be taken to mean a civil proceeding instituted by the presentation of a plaint. 17. This Court also in Chandan Kumar Roy and Anr. v. Smt. Rajeswari Devi and Ors. AIR 1976 Gau 7 , considered the expression 'suit' used under Section 11 of the Code of Civil Procedure and stated inter alia, "the expression 'suit' used in Section 11 it is well settled, means the dispute as might have formed the subject of a separate suit independently of the provisions of the Code of Civil Procedure which enables a person to join several causes of action in one and the same suit. In other words, if it is possible to treat the entire cause of action upon which the latter suit is founded as divisible and if in the earlier suit one of the component parts of the cause of action was relied on, then the previous decision will stand as a bar to the extent of the matter involved in the earlier suit. 18. The Apex Court in Mst. Gulab Bai and Ors. 18. The Apex Court in Mst. Gulab Bai and Ors. v. Manphool Bai, AIR 1962 SC 214 , also discussed the word 'suit', inter alia, that "the word 'suit' has not been defined in the Code; but there can be little doubt that in the context the plain and the grammatical meaning of the word would include the whole of the suit and not a part of the suit, so that giving the word 'suit' its ordinary meaning, it would be difficult to accept the argument that a part of the suit or an issue in a suit is intended to be covered by the said word in the material clause. The argument that there should be finality of decisions and that a person should not be vexed twice over with the same cause can have no material bearing on the construction of the word 'suit'. Besides, if considerations of anomaly are relevant it may be urged in support of the literal construction of the word 'suit' that the finding recorded on a material issue by the Court of the lowest jurisdiction is intended not to bar the trial of the same issue in a subsequent suit filed before a Court of unlimited jurisdiction. To hold otherwise would itself introduce another kind of anomaly. Therefore, it seems to us that as a matter of construction the suggestion that the word 'suit' should be liberally construed cannot be accepted. This position would be abundantly clear if we consider the legislative history and background of Section 11. 19. 'Finally disposed of the suit' means ultimately ending of the suit either for default of the parties or compromise or due to the order of the Court. This position would be abundantly clear if we consider the legislative history and background of Section 11. 19. 'Finally disposed of the suit' means ultimately ending of the suit either for default of the parties or compromise or due to the order of the Court. In Harshad Chimanlal Modi (II) (supra), the Apex Court noted the case of Joginder Tuli (supra) and while considering the provisions of the Limitation Act and Order 7, Rule 10 of the Code, the Apex Court stated, "It was, however, argued by counsel for the Appellant that the suit instituted in the trial Court by the presentation of the plaint after it was returned for presentation to the proper Court was continuation of the suit filed in the Karnal Court and, therefore, the suit filed in Karnal Court must be deemed to have been filed in the trial Court-We think there is no substance in the argument, for, when the plaint was returned for presentation to the proper Court and was presented in that Court, the suit can be deemed to be instituted in the proper Court only when the plaint was presented in that Court. In other words, the suit instituted in the trial Court by the presentation of the plaint returned by the Panipat Court was not a continuation of the suit filed in the Karnal Court. 20. In Pandurang Ramchandra Mandlik (since deceased) by L. Rs. and Anr. v. Shantibai Ramchandra Ghatge and Ors., 1989 Supp (2) SCC 627, AIR 1989 SC 2240 , the Apex Court discussed regarding the meaning of 'suit' and 'heard and finally decided'. According to the Apex Court, the 'suit' is a proceeding which is commenced by a plaint. As provided in Section 26 of the Code of Civil Procedure every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. 21. The word finally decided - what is the meaning of the 'case decided' has been discussed in Major S.S. Khanna v. Brig. As provided in Section 26 of the Code of Civil Procedure every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. 21. The word finally decided - what is the meaning of the 'case decided' has been discussed in Major S.S. Khanna v. Brig. F.J. Dillon, AIR 1964 SC 497 , wherein it has been stated that "where the Subordinate Judge held by an interlocutory order that the suit filed by the Plaintiff, for recovery of the amounts advanced to the Defendant, was not maintainable, it was manifestly a decision having a direct bearing on the rights of the Plaintiff to a decree for recovery of the loan alleged to have been advanced by him, which he says the Defendant agreed to repay, and if the expression 'case' includes a part of the case, the order of the Subordinate Judge must be regarded as a 'case which has been decided. 22. Now let us see the provisions of Order IV and Order v. of the Code of Civil Procedure. In Rule 1of Order IV deals with the commencement of the suit wherein it is stated that every suit shall be instituted by presenting a plaint in duplicate to the Court or such officer as it appoints in this behalf and every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable. 23. Rule 2 of the Order IV deals with the register of suits and Rule 1 of Order v. deals with issuance of summons and Rule 3 of Order v. states, inter alia, where the Courts sees reason to require the personal appearance of the Defendant, the summons shall order him to appear in person in Court on the day therein specified and where the Court sees reason to require the personal appearance of the Plaintiff on the same day, it shall make an order for such appearance. Rules 5, 6 and 7 of Order v. are relating to issuance of summons to the parties for settlement of the issues or for final disposal of the suit and summons to appear and also for production of documents relied on by answering the pleadings of the Plaintiff. Rules 5, 6 and 7 of Order v. are relating to issuance of summons to the parties for settlement of the issues or for final disposal of the suit and summons to appear and also for production of documents relied on by answering the pleadings of the Plaintiff. On conjoint reading of the Order IV and V, it can be easily said that the Defendant can be summoned only after registration of the suit and the Defendant can file his written statement and produce document in a suit. In the instant case, it is the admitted position that the Defendant Petitioner herein appeared before the learned Trial Court and filed his written statement raising the question of jurisdiction and also filed an application under Order 7, Rule 10 of the Code of Civil Procedure for returning the plaint. Unless the suit is there, question may arise as to which term the written statement was filed. Therefore, according to this Court, after filing of the plaint by the Plaintiff Respondent No. 1 herein, the suit is initiated. 24. Now question is if the prayer of the Defendant for returning the plaint is accepted, then whether the suit would be ended or it will continue till the plaint is submitted before a Court having jurisdiction for the lis or not. In view of the decision of the Apex Court, in Harshad Chimanlal Modi (II) (supra), it can be said that after return of the plaint by the Trial Court so far as the suit in that Court is concerned is ended and/or finally disposed of. The suit would be deemed to have been instituted afresh when the plaint is presented before an appropriate Court. Therefore, the submission of Mr. Biswas, learned Counsel for the Petitioner that even after return of the plaint also, the suit remain, has no force and, as such, this Court is unable to accept the said submission of Mr. Biswas. 25. Further after return of the plaint by the trial Court for presentation of the same before the Court having jurisdiction, the Plaintiff is not in any obligation to present the same before a Court having jurisdiction. It is with the Plaintiff whether he will present the plaint before that Court for institution of fresh suit or not. So far as the trial Court is concerned, the suit is finally ended after return of the plaint. 26. It is with the Plaintiff whether he will present the plaint before that Court for institution of fresh suit or not. So far as the trial Court is concerned, the suit is finally ended after return of the plaint. 26. The right of appeal and revision is a statutory right of a party and where the law provides the remedy of filing of appeal and/or revision, the grounds of challenge cannot be enlarged by filing a petition under Article 227 of the Constitution on the premises that the said alternative remedy is not adequate one. But that does not mean that even when the provisions of alternative remedy like revision is available, then the High Court cannot exercise its power under Article 227 of the Constitution. There is a divergent view regarding exercise of power under Article 227 of the Constitution. One view is when there is an alternative remedy prescribed under the statute, then the High Court should not exercise its extraordinary supervisory power vested on it. The other view is even if the alternative remedy is available like revision, then also the Court can exercise its power under Article 227 of the Constitution in an exceptional cases, but not as a substitute for revisional and appellate power. 27. In Aundal Ammal v. Sadasivan Pillai, AIR 1987 SC 203 , the Apex Court in Para 24 of the said report held that: 24. It was urged that in case we are of the opinion that a revision under Section 115 of the Code of Civil Procedure does not lie, the case should be remitted to the High Court for consideration as a petition under Article 227of the Constitution. We are unable to accede. A petition under Article 227of the Constitution is different from revision under Section 115 of the Code of Civil Procedure. The two procedures are not interchangeable though there are some common features. It must, however, be emphasized that we are not dealing in this appeal with the constitutional powers of the High Court under Article 227 of the Constitution nor are we concerned with the powers of the High Court regulating appeals under the Kerala High Court Act, 1958. We are concerned in this case whether the High Court, in view of the scheme of the Act, had jurisdiction to interfere under Section115 of the Code of Civil Procedure. We are concerned in this case whether the High Court, in view of the scheme of the Act, had jurisdiction to interfere under Section115 of the Code of Civil Procedure. We reiterated that to vest the High Court with any such jurisdiction would be contrary to the scheme of the Act, would be contrary to the public policy and would be contrary to the legislative intent as manifest from the different sections of the Act. 28. From the aforesaid findings of the Apex Court, it can be easily said that the power under Section 115 of the Code of Civil Procedure and the power under Article 227 of the Constitution is quite distinct and different and not interchangeable. Therefore, when there is a remedy available under Section 115 Code of Civil Procedure, then the Court should not exercise its power under Article 227 of the Constitution unless it is an exceptional case where it is so necessary to interfere with the order of the Court subordinate to it to prevent from miscarriage of justice. In Koyilerian Janaki and Ors. v. Rent Controller (Munsiff), Cannanore and Ors., (2000) 9 SCC 406 , the Apex Court in para-4 of the said report held that.... "The power under Article 227 is exercisable where it is found by the High Court that due to a certain grave error an injustice has been caused to a party." In the instant case, from the impugned order, it appears that the trial Court neither committed any error of jurisdiction vested on it nor can the order be said perverse. But the facts remain that had the trial Court passed the order returning the plaint to file the same before a Court having jurisdiction as sought for, then the suit would have ended so far that Court is concerned. Therefore, the impugned order is not hit by proviso to Sub-section (1) of Section 115of the Code of Civil Procedure. Even if it is considered that the Court below failed to exercise the jurisdiction vested on it in not returning the plaint, then the remedy to a party, like the Petitioner is a revision under Section 115 of the Code of Civil Procedure, not under Article 227 of the Constitution. 29. Even if it is considered that the Court below failed to exercise the jurisdiction vested on it in not returning the plaint, then the remedy to a party, like the Petitioner is a revision under Section 115 of the Code of Civil Procedure, not under Article 227 of the Constitution. 29. The aforesaid view of the Court gets support from the law reports as referred to supra, this Court is of considered opinion that the return of the plaint to the Plaintiff for presenting the same to the Court having jurisdiction regarding lis between the parties is final and confers jurisdiction on the latter Court. Therefore, prescription in proviso to Sub-section (1) of Section 115 Code of Civil Procedure is fulfilled, as if the prayer of the Defendant for returning the plaint had been accepted, then the suit would have been finally disposed of so far the trial Court is concerned. There is no doubt that the power vested upon this Court under Article 227 of the Constitution can be invoked to keep the Courts subordinate to it within its bounds, but when there is a specific provision in the Code of Civil Procedure, prescribing a specific mode for preferring either revision on appeal, it would not be proper for this Court to exercise its supervisory power as an application under Article 227 of the Constitution is not maintainable. As this Court holds that the instant petition under Article 227of the Constitution is not maintainable, it is not necessary for this Court to discuss regarding any other contention made by the learned Counsel of the parties as that would affect the merit of the suit pending before the Trial Court. 30. For the foregoing reasons and discussion, the instant revision petition is dismissed. No order as to costs. Petition dismissed