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2017 DIGILAW 7 (ORI)

P. S. Venkateswaralu v. A. Bhanu

2017-01-02

D.DASH

body2017
JUDGMENT : This application under Article -227 of the Constitution has been filed seeking quashment of order dated 04.02.2000 passed by learned Civil Judge (Sr. Division), Berhampur in Title Suit No. 161 of 1993 and the order of learned District Judge, Berhampur in Civil Revision No. 23 of 2000 under Annexure-5. By the above order, the trial court has allowed the opposite party no. 1 to 7, the defendants in the said suit for being transposed as plaintiffs in place of deceased original plaintiff no. 2 being the legal representatives. The present petitioner who had earlier been transposed as plaintiff had carried Civil Revision No. 23 of 2000 in knocking the revisional jurisdiction of the learned District Judge under section 115 of the Code of Civil Procedure complaining the jurisdictional error committed by the trial court in the matter as above and seeking its rectification. The revisional court having refused to interfere with the said order finding no such jurisdictional error to have committed by the trial court in passing the same, the matter has now been placed before this Court in a proceeding under Article 227 of the Constitution seeking quashment of those orders. 2. I have heard learned counsel for the petitioners and learned counsel for the opposite parties at length on the question of maintainability as per the earlier order. 3. The question is to the maintainability of the present application under Article -227 of the Constitution in seeking quashment of an order passed by the trial court in seisin of a suit before it with which the revisional court in exercise of its jurisdiction under section 115 of the Code of Civil Procedure has refused to interfere finding the same to have not been so passed either in exercise of jurisdiction not vested in it by law or that in passing it, there has been exercise of jurisdiction illegally or with material irregularity. It is necessary to state here that the revisional order with which we are concerned had been passed when the provision of section 115 of the Code was not visited with the amendment by Act no. It is necessary to state here that the revisional order with which we are concerned had been passed when the provision of section 115 of the Code was not visited with the amendment by Act no. 46 of 1999 coming into force with effect from 01.07.2002 introducing the proviso bringing in the concept that the order sought to be revised has to be one that the same if would have been so passed in favour of the revisionist-petitioner, the same would have entailed the effect of a ‘case decided’. In the instant case, after the revisional court has found the order of the trial court sought to be revised therein to be in order and as not amenable to revision, that every order is now again placed for being tested by this Court in exercise of its supervisory jurisdiction as enjoined under Article 227 of the Constitution. 4. By Orissa Amendment Act no. 26 of 1991, the forum of revision had been changed that in cases arising out of original suits or other proceedings of the value in which the appeals against the final order, judgment and decree lie to the High Court, the jurisdiction of High Court would remain to exercise the power of revision. But, in cases arising out of the original suit or other proceedings of the value upto which the appeals against the final order, judgment and decree lie to the District court, the revisional power is exercisable by the District court. This change of forum has been made by the Orissa Amendment in the matter of above division of the revisional jurisdiction under section 115 of the Code upon the court, keeping in view the court’s competency to hear the appeals against final orders, judgments and decrees arising out of the suits or proceedings in disposing the suits or proceedings. 5. The Code nowhere permits further revision and its thus not permissible for even the superior court to exercise that power of revision again once it has been so exercised and as such its not so available. Therefore, once the District court has exercised its revisional jurisdiction, the High Court is not competent to assume the jurisdiction to sit upon to revise that very order. That necessarily leads to a view that any such move tantamounting to second revision and in its garb has to be declined. 6. Therefore, once the District court has exercised its revisional jurisdiction, the High Court is not competent to assume the jurisdiction to sit upon to revise that very order. That necessarily leads to a view that any such move tantamounting to second revision and in its garb has to be declined. 6. The revisional jurisdiction is exercisable only in cases where the subordinate court passing the order sought to be revised (1) has exercised jurisdiction not vested in it by law; (2) has failed to exercise jurisdiction so vested; and (3) has acted in exercise of its jurisdiction illegally or with material irregularity. 7. Undeniably, the scope of a revision application is narrower than the scope of an appeal. However, when the revisional jurisdiction of the superior court is invoked, it is so done as the superior court is in position to interfere with the said order for the purpose of rectifying the jurisdictional errors if any committed by the court below. Although section 115 of the Code circumscribes the limitation of the jurisdiction but still the jurisdiction which is being exercised is a part of general appellate jurisdiction as a superior court. It is only one of the modes of exercising power conferred by the statute. Basically and fundamentally it is the appellate jurisdiction of the Code which is being invoked and exercised although its not as a matter of right conferred upon the party nonetheless, a remedy. If the order is not challenged by carrying revision undoubtedly as provided in section 105 of the Code, its correctness and sustainability still remain open for examination in the appeal filed against the final order, judgment and decree to the extent as stated therein when the same is taken as a ground to attack the final order, judgment and decree in the appeal. Once such a remedy of revision has been availed of within the scope, it assumes finality and their correctness and sustainability are no more open to challenge again in the appeal banking upon the provision of section 105 of the Code which has not been engrafted in the Code to be taken further aid of in that eventuality. 8. In the case of Radhey Shyam & another vrs. 8. In the case of Radhey Shyam & another vrs. Chhabi Nath and others, (Civil Appeal No. 2548 of 2009 decided on 26.02.2015), the Apex Court while answering the question referred to as to whether the judicial order of the civil court is amenable to writ jurisdiction under Article 226 of the Constitution, while overruling the contrary view taken in the case of Surya Dev Rai vrs. Ram Chander Rai and others, 2004(1) SCC 675 has clearly said that the order of the civil court could be challenged under Article 227 and not Article 226 of the Constitution. In course of discussion in the said case, it has been held that the power under Article 227 has to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and the Tribunals within the bounds of their authority and not for correcting the mere errors. (Reliance has been placed in case of Rupa Ashok Hurra v. Ashok Hurra; 2002(4) SCC 388 .) It has been accepted that the exercise of supervisory jurisdiction under Article 227 is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. In appropriate cases, the High Court, while exercising supervisory jurisdiction, may not only quash or set aside the proceedings, judgment or order of the inferior court or tribunal but it may also substitute a decision on its own in place of the impugned decision, as the inferior court or tribunal should have made, and that jurisdiction is exercisable even suo motu. 9. Now, therefore, it needs to be placed here that under what circumstance there can be interference with the impugned order of a civil court in exercising of the supervisory jurisdiction by this court under Article 227 of the Constitution. Before that let me place the following paras which are important for the purpose as noted in the case of Shalini Shyam Shetty vrs. Rajendra Shankar Patil, (2010) 8 SCC 329 . “64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Before that let me place the following paras which are important for the purpose as noted in the case of Shalini Shyam Shetty vrs. Rajendra Shankar Patil, (2010) 8 SCC 329 . “64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions. 65. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority. 66. We may also observe that in some High Courts there is a tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expending the High Court’s power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law. 67. As a result of frequent interference by the Hon’ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problem in the administration of justice. 67. As a result of frequent interference by the Hon’ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problem in the administration of justice. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon’ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice within their jurisdiction will adhere to them strictly.” 10. The settled law is that the supervisory jurisdiction is basically to keep the tribunals and courts within the bounds of their authority and their orders would stand for examination in exceptional cases when manifest miscarriage of justice has been caused or that there has been flagrant violation of justice or the order is completely in breach of the provision of law. Such power is not even exercisable to correct a mistake of fact and law. 11. All these above aspects touch ordwell upon the jurisdictional error, if any to have been committed by the court below in passing the said judicial order which stands for examination in any proceeding in exercise of the supervisory jurisdiction under Article 227. The power may be exercised in cases occasioning grave injustice or failure of justice such as (i) when the court or tribunal has assumed a jurisdiction which it does not have, (ii)such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tentamounts to overstepping the limits of jurisdiction. Therefore in my considered view, the scope of a proceeding under Article 227 has been the same as in case of a revision under section 115 of the Code in so far as the examination of said judicial orders having any jurisdictional errors are concerned which of course now been curtailed after the amendment to the extent as aforesaid as regards the entertainment. Thus, in a case where the judicial order of the civil court once having been tested in a revision when has been found to be in order holding the court below to have committed no such jurisdictional error, the entertainment of the petition under Article 227 of the Constitution again to examine all those very aspects would tentamount to sit over the said order in revision again. Therefore, the application under Article 227 of the Constitution in my considered view is not entertainable in the eye of law and thus the supervisory jurisdiction of this Curt is not exercisable in the instant case.. 12. In the wake of aforesaid, the application under Article 227 of the Constitution thus stands dismissed. No order as to cost. Application dismissed.