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2012 DIGILAW 413 (KER)

Baby v. Jose

2012-04-12

S.S.SATHEESACHANDRAN

body2012
ORDER : S.S. Satheesachandran, J. 1. This unnumbered petition poses a question whether a caveat petition under Section 148A of the Civil Procedure Code, for short, the 'Code', can be entertained against a proceeding instituted under Article 227 of the Constitution of India. 2. Petitioner is the second respondent in an interlocutory application filed in a civil miscellaneous appeal, which had been disposed by the Sub Court, Ottapalam in his favour. An interim injunction applied for in that interlocutory application against the petitioner, the respondent in that petition, had been dismissed. Apprehending that the applicant in that interlocutory application is likely to move an Original Petition challenging the adverse order passed against him, before this Court, petitioner has moved the above said petition under Section 148A of the Civil Procedure Code, 1908, for short, the 'Code', styling himself as a Caveator, to seek notice to him before any interim order is passed in such Original Petition. Registry raised an objection that no caveat petition is entertainable against an Original Petition moved under Article 227 of the Constitution of India. On the request made by the counsel for the petitioner, the question raised has come up for consideration. 3. The learned counsel for the petitioner Sri. P. Jayaram, adverting to some judicial precedents contends that in the Original Petition filed under Article 227 of the Constitution of India, provisions of the Code are applicable, and, therefore, having regard to Section 141 of the Code, a caveat filed under Section 148A of the Code is entertainable in such proceedings. What this Court exercises in proceedings under Article 227 of the Constitution of India when a challenge is raised against any order passed by a subordinate court, according to the learned counsel, is akin to the revisional jurisdiction under Section 115 of the Code, and that being so, a caveat petition filed under Section 148A of the Code is perfectly maintainable in an Original Petition filed under Article 227 of the Constitution of India. Reliance is placed by the counsel on Musaji Mohamadali Master and Sons & Anr. v. Mr. Gulamali Dadabhai Amreliwala (2005) 107(3) Bom. LR 179 (188)) and M/s. Shakti Trading Co. v. District Judge, Bareilly & Ors. (1997 AIHC 2931) to contend that the provisions of the Code are applicable to proceedings under Article 227 of the Constitution of India. Reliance is placed by the counsel on Musaji Mohamadali Master and Sons & Anr. v. Mr. Gulamali Dadabhai Amreliwala (2005) 107(3) Bom. LR 179 (188)) and M/s. Shakti Trading Co. v. District Judge, Bareilly & Ors. (1997 AIHC 2931) to contend that the provisions of the Code are applicable to proceedings under Article 227 of the Constitution of India. The learned counsel has also placed reliance on the observations made in Surya Dev Rai v. Ram Chander Rai & Ors. ( 2003 (3) KLT 490 (SC) : (2003) 6 SCC 675 ), Radhey Shyan & Anr. v. Chhabi Nath & Ors. (2009) 5 SCC 616 ) and Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil (2010) (3) KLT SN 86 (C.No.90) SC : (2010) 8 SCC 329 ) to urge that the exercise of jurisdiction under Articles 226 and 227 of the Constitution of India stands on substantially different footing and so far as the jurisdiction under Article 227 of the Constitution of India it is not original nor appellate but one of administrative and judicial superintendence. A proceeding under Article 227 of the Constitution of India is not strictly governed under the Original Side Rules of the High Court and in such proceedings, the provisions of the Code, so far as applicable, can be resorted to, submits the counsel. Objection raised by the Registry that the caveat petition moved by the petitioner is not entertainable in respect of an Original Petition filed under Article 227 of the Constitution of India is not sustainable and has to be overruled, submits the counsel. 4. The Apex Court in Waryam Singh & Anr. v. Amar Nath & Anr. ( AIR 1954 SC 215 ) has held that the power of superintendence conferred on the High Court under Article 227 of the Constitution of India is intended "to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors." Exercise of that supervisory jurisdiction, is it controlled by procedural checks covered by the Code, more particularly, entertaining a caveat petition forestalling the passing of an interim order even if an Original Petition thereof is otherwise found entertainable and so admitted and taken on file, arises for consideration. The learned counsel for the petitioner has not brought to my notice any judicial pronouncement by any of the High Courts to buttress the submission made that a caveat petition under Section 148A of the Code is entertainable in relation to an Original Petition filed under Article 227 of the Constitution of India. It is one thing to say that some of the provisions covered by the Code can be resorted to as found proper and appropriate to advance the ends of justice, in a proceeding under Article 227 of the Constitution of India, but, to contend that procedural checks under that Code applicable to civil suits and proceedings govern the supervisory jurisdiction exercised by this Court in such proceedings which has been conferred with the object to see that the subordinate courts "function within the bounds of their authority". In Musaji Mohamadali Master's case, cited supra, the learned Single Judge of the Bombay High Court has held that in a petition filed under Article 227 of the Constitution of India, the procedure provided by the Code is required to be followed in filing and prosecuting such petition. Taking such a view, it has been further held that the Code is applicable to the petition filed under Article 227 of the Constitution of India. What was considered in that decision to express the views as aforesaid was the challenge raised whether a finding entered by the Tribunal against a party which was not assailed by him by way of cross objection in the appeal preferred by the opposite party against the order of the Tribunal could be canvassed of in the proceedings under Article 227 of the Constitution of India. No question whether proceedings under Article 227 of the Constitution of India are regulated by the provisions of the Code arose for consideration in that decision, and the observations made in the decision by the learned Single Judge having regard to the rules framed by the Bombay High Court that the procedure provided by the Code has to be followed in filing and prosecuting petition under Article 227 of the Constitution of India cannot be given much significance. In fact, a close reading of the decision would also show that after dilating on the question whether a challenge could be raised without assailing a finding by way of cross objection in the appeal before the lower forum, as indicated above, the learned Single Judge has held that what is conferred under Article 227 of the Constitution of India is a special jurisdiction which is not fettered by procedural checks in permitting either side to assail adverse finding making oral submissions. In Surya Dev Rai's case (cited supra), the Apex Court has held that the jurisdiction exercised under Article 226 and 227 of the Constitution of India by the High Court is almost similar, and, in fact there is nothing in that decision to assist the contention advanced by the learned counsel that the procedural checks covered by the Code placed any interdiction on the supervisory jurisdiction exercised by the High Court under Article 227 of the Constitution of India. Some of the observations made in Surya Dev Rai's case, that even judicial orders passed by the civil court can be examined and then corrected/reversed by a writ under Article 226 in exercising of the power of the High Court under a writ of certiorari were doubted in Radhey Shyam's case, cited supra. Taking note of the decisions rendered earlier by the Apex Court expressing a contrary view, the above question was referred for consideration by a larger bench. While making such a reference in Radhey Shyam's case, it is seen, what has been stated in Surya Dev Rai's case, over the distinction between exercise of power under Articles 226 and 227 of the Constitution of India was affirmed. In Radhey Shyam's case, no question arose for consideration whether procedures covered by the Code are applicable in exercise of the special jurisdiction of the High Court under Article 221 of the Constitution of India. In Shalini Shyam Shetty's case, cited supra, dilating on the distinction over the exercise of power by the High Court under the two articles, namely, Articles 226 and 227 of the Constitution of India, the Apex Court has laid down certain principles applicable to the articles pointing out the distinction between the two articles and also that the exercise of power under them is different. A writ under Article 226 is a proceeding under the original jurisdiction of the High Court. A writ under Article 226 is a proceeding under the original jurisdiction of the High Court. The jurisdiction under Article 227 on the other hand is not original nor is it appellate. The Apex Court has made it unequivocally clear that the jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence and a proceeding thereof is not governed under the Original Side Rules of the High Court. Exercise of jurisdiction under Article 227 is entirely discretionary and no person can claim it as a matter of right. As against an order of a Single Judge passed under Article 226, a letters patent appeal or an intra-court appeal is maintainable. But no such appeal is maintainable against the order passed by a Single Judge of a High Court in exercise of power under Article 227. The Apex Court has also taken note in the above decision that all High Courts have framed rules for regulating the exercise of jurisdiction under Article 226 but not for exercise of power under Article 227, observing that such exercise is entirely in the domain of the discretion of the High Court. In such exercise, that is purely discretionary by the High Court, no party can claim that he has any right to file a caveat petition to forestall the passing of any order under Section 148A of the Code setting forth a claim that before passing of any interim order in such a proceedings, notice has to be ordered and he be heard. Such an interdiction over the exercise of its jurisdiction under Article 227 of the Constitution of India, which is purely discretionary, cannot be canvassed by any party. There is no merit in the case advanced by the petitioner that the Code regulate the proceedings under Article 227 since the exercise of power under that article by the High Court does not fall within its original jurisdiction. What is exercised under Article 227 is a special jurisdiction which is not in any way interdicted by the rules on the original side or the procedural checks of the Code, and exercise of power thereunder is entirely within the domain of the discretion of the High Court. 5. What is exercised under Article 227 is a special jurisdiction which is not in any way interdicted by the rules on the original side or the procedural checks of the Code, and exercise of power thereunder is entirely within the domain of the discretion of the High Court. 5. In respect of proceedings under Article 226 of the Constitution of India, a learned Single Judge of this Court has held in Harikrishnan v. Jacob (2005 (2) KLT 488) that a caveat petition is not maintainable. That view has been reiterated later by another learned Judge in Secretary, Ministry of Health and Family Welfare & Ors. v. Aswathy Elsa Mathew ( 2008 (2) KLT 670 = ILR 2008 (2) Ker.298). In the latter decision referred to above, it has been clarified that the principles underlining the Code can be taken as guiding beacons in the exercise of authority under Articles 226 and 227, but the procedural checks under that Code cannot place any impediment in exercise of the jurisdiction under those articles by the High Court. Constitutional powers of the High Court to exercise its jurisdiction under Articles 226 and 227 of the Constitution of India are not controlled by any Code of Procedure, and it is fallacious to contend that exercise of the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India is regulated by one or other provisions covered by the Code. Objection raised by the Registry that no caveat petition is entertainable in respect of a proceeding under Article 227 of the Constitution of India is sustained, and the unnumbered caveat petition is rejected.