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Judgment
Srinivasan, J.—This is an extraordinary case demanding this Court''s invoking its suo motu powers u/s 115 C.P.C. and Article 227 of the
Constitution of India, in order to prevent the perpetuation of grave and gross injustice caused by the trial court''s overlooking an express provision
of law. Facts are as follows: The parties will be referred to according to their array in the suit. The plaintiff is the wife of one Velu, who died on 15-
7-1983. The defendant is his mother. The plaintiff has filed the suit O.S. No. 170 of 1984 for a declaration of her title to the property described in
the plaint and for delivery of possession of the same by the defendant. In the plaint, it is stated that the husband of the plaintiff had saved money
from his salary earned by him on employment in a milk depot and kept it in the custody of his mother, with the aid of which, he purchased the suit
property on 13-6-1979. The amount had been paid on 9-6-1976 from out of the money kept by the plaintiffs husband with his mother, the
defendant, to the vendor. The plaintiff married the deceased Velu on 1-7-1982, and as there was some misunderstanding between the plaintiff and
the defendant, the plaintiff decided to live separately. She was taken to her father''s place in Karumbur village on 13-7-1983 by her husband, who
returned to Karaikudi on 14-7-1983 and wrote a letter to her. The plaintiff got information that her husband died on 15-7-1983 and rushed to
Karaikudi, but even before her arrival, the body was cremated. The property was purchased with the self-acquired funds of the plaintiff''s husband
and nobody other than the plaintiff is his heir. The plaintiff is a Class I heir under the Hindu Succession Act. The defendant has taken the sale deed
into her custody, taking advantage of the death of her son and has been preventing the plaintiff from enjoying the property from 27-11-1983. The
plaintiff owned several jewels and vessels which were brought as ''Stridhana'' to her husband''s house. The plaintiff would file a separate suit with
regard to the same. The defendant has no right whatever in the suit property and she was bound to deliver possession to the plaintiff. Hence the
plaintiff has prayed for declaration of title and recovery of possession.
A written statement was filed by the defendant in which several pleas were raised, including a challenge of the status of the plaintiff as the wife of
the deceased Velu. It is not necessary for the purpose of this order to refer to the defence set up by the defendant in the suit. The suit was posted
for trial to 19-6-1985 in the list. The defendant filed an application for adjournment and it was dismissed. Her counsel reported no instructions.
The plaintiff gave evidence as P.W.I and marked two documents as Ex. A-1 and A-2. The suit was decreed exparte on the basis of such
evidence.
The defendant filed I.A.734 of 1985 for setting aside the exparte decree and it was allowed on 3-4-1987. The suit was posted for trial once
agree to 17-6-1987. On that day too, the defendant remained exparte and the plaintiff examined her father as P. W. 1. Two documents were
marked as Ex. A-1 and A-2. The suit was decreed exparte on the basis of the evidence. The trial court granted a declaration that the plaintiff is the
owner of the property and directed the defendant to deliver possession on or before 17-8-1987 to the plaintiff.
Even before the suit was disposed of, a third party, by name, Peria Karuppanna Chettiar filed a suit O.S. 102 of 1986, on the file of the District
Munsif, Devakottai, against the plaintiff and the defendant, for a declaration of his title to the property and for recovery of possession after removal
of the superstructure and closing of the well in the suit property. There was also a prayer for mesne profits besides damages for use and
occupation. The plaintiff remained ex parte in that suit and the defendant filed a written statement, contesting the same. That suit was dismissed by
the District Munsif on 12-4-1989 long after the disposal of O.S.170 of 1984. In the course of the judgment, there was an observation that the
defendants therein were rightly claiming as heirs of the deceased Velu.
The plaintiff filed an Execution Petition No. 71 of 1990 for delivery of possession pursuant to the decree dated 17-6-1987 in O.S. No. 170 of
1984. A counter statement was filed by the defendant contesting the execution proceedings. The defendant also filed an Application u/s 47 of the
CPC in E.A.575 of 1990, praying that the Execution Petition should be dismissed as the suit property belonged to her. The contention raised in
that application is that in O.S.102 of 1986 to which both the plaintiff and defendant were parties, a judgment had been given on 12-4-1989 in
favour of the defendant herein and the decree in O.S.170 of 1984 became ineffective as a consequence thereof. The application was contested
and the Executing Court dismissed the same by order dated 11-1-1991. It is the said order which is challenged by the defendant in C.R.P. 509 of
1991.
When the Civil Revision Petition was being heard, learned counsel for the petitioner contended that the plaintiff was claiming only under the
Hindu Succession Act as Class I heir of her deceased husband and the defendant would naturally be another Class I heir of the plaintiffs husband,
she being his mother. It was, therefore, argued that the decree in the suit declaring the exclusive title of the plaintiff and directing the defendant to
deliver possession was unsustainable in law and such a decree could not be executed. At that time, I had occasion to look into the records of the
suit O.S.170 of 1984, and found that the District Munsif had completely ignored the provisions of the Hindu Succession Act and failed to note that
the plaintiff would be entitled to only one half share in the property even on the basis of the facts set out in the plaint. Hence I passed an order on
27-9-1991, expressing my opinion that the decree in O.S.170 of 1984 was really per incuriam, and exercising my powers u/s 115 of the CPC suo
motu, ordered issuance of notice to the respondent herein, to show cause why the decree should not be set aside.
I had also sent for all the records in O.S. No. 170 of 1984 through Court besides the execution records. When the matter was taken up for
hearing after the receipt of records, learned counsel for the respondent raised several objections to which I will refer in detail later, including an
objection that Section 115(2) of the CPC prevents this Court from interfering with the decree in the suit. At that stage, I thought it better to call
upon the counsel to argue as to why I should not exercise my powers under Art. 227 of the Constitution of India suo motu and set aside the
decree. I gave sufficient time to learned counsel on both sides to prepare their arguments with reference to Article 227 of the Constitution, and the
matter was finally heard on 18-11-1991.
The facts set out by me earlier would clearly show that the decree in C.S.170 of 1984 is unsustainable in law. I have referred to the contents of
the plaint. There is no averment in the plaint that the plaintiff husband bequeathed the property to the plaintiff by testament or conveyed the
property to the plaintiff by any other instrument. The only basis of the claim of the plaintiff is that she is a Class I heir under the provisions of the
Hindu Succession Act. By the samp token, the mother of the husband of the plaintiff would equally be a Class I heir. There being no other heir of
the deceased, the plaintiff and the defendant would equally be entitled to the property. Strangely, the prayer in the plaint is to the effect that the
plaintiff is to be declared entitled to the entire property. Counsel for the plaintiff should have advised the plaintiff to claim only such relief to which
she would be entitled, to law. He did not do so. The defendant did not point out in the written statement that the plaintiff would be entitled to only
one half share even on the basis of the averments in the plaint, probably, because, the defendant wanted to defeat the claim of the plaintiff in
entirety. One plea taken by her is that the plaintiff had lost her status as the wife of the deceased by a divorce according to caste custom. Another
plea is that the property was purchased by her with her own funds in the name of her son when he was a minor, and he was not entitled to any
interest in the property.
In any event, the court ought to have borne in mind the provisions of the Hindu Succession Act and passed a decree in accordance with law.
The Court has completely failed to apply its mind to the relevant provisions of law. It should also be noted that the evidence adduced before the
court does not also warrant the grant of a declaration as prayed for. The plaintiffs father who has given evidence as P.W. 1, has merely stated that
his. daughter is the wife of deceased Velu, and that the property was purchased under Ex-1. Ex. A-2 is a letter written by the deceased Velu to
the plaintiff on 14-7-1983. Thus, on the totality of the evidence and the averments in the plaint, the only decree which could have been legally
passed by the Court is to declare the right of the plaintiff to one half share and reject the prayer for recovery of possession. In the normal course,
the plaintiff should have been directed to file a suit for partition.
When this Court finds that a decree suffers from an error of law apparent on the fact of the record owing to non-application of mind of the
Court, to the relevant principles of law, this Court cannot keep silent and allow the decree to be in force, particularly, when it causes grave
injustice. There can be no doubt whatever that under the Hindu Succession Act, certain persons are designated as Class I heirs and all of them are
entitled to succeed to the estate of a deceased Hindu. There is no earthly reason for depriving the mother of the deceased of her legitimate share in
the estate which in this case happens to be a moiety. This is a typical case of miscarriage of justice which should be rectified the moment it comes
to the notice of this Court. It is only for that reason, I am exercising my powers u/s 115 of the CPC and Article 227 of the Constitution of India.''
There is no period of limitation for exercising suo motu powers u/s 115 C.P.C. - vide Chowdhury Ram Prasad Rai and Others Vs. Mahesh
Kant Chowdhury, and Muthu Chettiar v. Narayanan ( AIR 1928 Mad 528 = 28 L.W.297). It is also held that if a provision of law is completely
disregarded by a subordinate court, that will be a ground for exercising the powers u/s 115, C.P.C. - vide Rasu v. Rattara (A.I.R. 1924 Ran 349).
It is held in that case, ""When a Court has applied its mind to the law and decides wrongly, then there is ground for revision; but where it disregards
some provision of law, and has not applied its mind to that provision, then there is ground for revision. In lmam Din v. Shag Singh (A.I.R. 1931
Lah 746), Jai Lal, J. held that if an obvious principle of law is omitted to be applied by the subordinate Judge, it would amount to illegally acting in
the exercise of jurisdiction.
Learned Counsel for the plaintiff placed reliance on the Judgment of a Division Bench in R. Krishnamurthy v. G. Parthasarathy and another
(A.I.R. 1949 Mad 780), to contend that the revisional powers of this Court cannot be exercised merely because there is an error in the Order of
the lower Court. The Bench has referred to a distinction between an inherent want of jurisdiction where a decree would be absolutely void and
want of jurisdiction on grounds to be determined by the court in which case the decree cannot be set aside by collateral proceedings. It is also
pointed out that if the question which is alleged to a create the want of jurisdiction is one which the Court is bound to decide, the matter is not one
relating to jurisdiction, and if there is any error in the decision, it can be only remedied by an appeal or other procedures known to law. -
Learned counsel invites my attention to the decision if Shri Kumar Dwivedi and others v. Thakurji Maharaj Brijman and another (A.I.R. 1950
All 43) wherein a Division Bench of the Allahabad High Court held that the revisional jurisdiction of the High Court was confined to the four
corners of the powers given in Section 115 of the CPC and every error of law, or every error of procedure or every error of fact could not be
revised by the High Court under that Section. It was observed:
It is therefore clear that the powers of the High Court in revision are not available for correction of errors of law, however gross those errors may
be, and whatever may be the result of those errors on the merits of the case. This power of the High Court is only available where the High Court
could legitimately hold that the court below had exceeded its jurisdiction or had refrained from exercising jurisdiction vested in it or it acted illegally
or with material irregularity in the exercise of that jurisdiction, namely committed such an error of procedure, a mandatory procedure, and the error
had resulted in failure of justice or some such thing.
Learned counsel referred to the judgment of the Supreme Court in Major S.S. Khanna Vs. Brig. F.J. Dillon, ). Reliance is placed on the
following passage:-
The power given by S. 115 of the Code is clearly limited to the keeping of the subordinate courts within the bounds of their jurisdiction. It does
not comprehend the power exercisable under the writ of Prohibition or Mandamus. It is also not a full power of Certiorari inasmuch as it arises
only in a case of jurisdiction on and not in a case of error. It has been ruled by the Judicial Committee and also by this Court that the section is
concerned with jurisdiction and jurisdiction alone, involving a refusal to exercise jurisdiction where one exists or an assumption of jurisdiction where
none exists and lastly acting with illegality or material irregularity. Where there is no question of jurisdiction in this manner the decision cannot be
corrected, for, it has also been ruled that a Court has jurisdiction to decide wrongly as well as rightly. But once a flaw of jurisdiction is found the
High Court need not quash and remit as is the practice in English law under the writ of Certiorari but pass such order as it thinks fit.
Learned counsel referred to a decision in Vora Abbasbhai Alimahomed Vs. Haji Gulamnabi Haji Safibhai, . It was held in that case that the power
of the High Court u/s 115, C.P.C is severely restricted and it cannot be exercised in a case where the trial court had jurisdiction to decide a
question and did decide it, whether it decided rightly or wrongly.
Learned counsel cited the judgment in The The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad
Tarway, wherein it was held that the High Court should not interfere even if the order of the lower court is right or wrong or in accordance with
law or not, unless the lower court had exercised its jurisdiction illegally or with material irregularity.
He relied on the observations found in Arvind Berry v. Rear Admiral A.P.S. Bindra reported in AIR 1985 Del 248, that an order may be
wrong in law, but if a court had jurisdiction over the subject-matter and parties, it cannot be said to be a nullity.
Learned counsel drew my attention to the judgment in Balambika v. Elizabeth (1990 -1 M.L.J 369 : 1990-L.W.218) in which Abdul Hadi, J.
refused to interfere with an order of the lower Court u/s 47 of the Code of Civil Procedure, on the ground that justice had been rendered.
All the rulings referred to by learned counsel for the plaintiff do not have a bearing in this case. I have already pointed out that disregarding an
obvious provision of law would nullify the decision of the subordinate court, but if the Court had considered the question and come to a conclusion,
that cannot be interfered with in Revision, even if the same is wrong in law. In the present case, the Court never applied its mind to the question
whether the plaintiff was entitled to the entirety of the property, and on her showing she was entitled to only one half thereof. When the plaintiff has
chosen to refer to the provisions of the Hindu Succession Act and claimed as a Class I heir, the Court should have immediately realised that the
defendant is also a Class I heir under the same Act. In all the cases referred to by learned counsel for the plaintiff, it has Been held that their
revisional jurisdiction of this Court should not be exercised to set right a decision which is erroneous in law. No doubt, mere errors of law cannot
be corrected u/s 115 of the CPC unless they relate to the jurisdiction of the Court. But when the errors are apparent on record, in utter disregard
of a substantive provision of law, and there is flagrant violation of justice, this Court is entitled to interfere and bound to interfere u/s MS, C.P.C.
Learned counsel for the plaintiff argued that the judgment in O.S. 170 of 1984 would operate as res judicata in these proceedings. There is no
merit in the contention. It is the validity of the said judgment that is being questioned here. Hence the principle of res judicata will have no
application. It is then contended by learned counsel for the plaintiff that no plea was raised by the defendant in the suit that the plaintiff is entitled to
only one half share. I have already referred to that aspect of the matter. I am of the view that even if there is no plea by the defendant, the Court is
bound to respect the relevant provisions of law and apply the same correctly before passing any decree in the matter.
It is then contended that this Court has no more excessive power than that of the executing Court which is bound to execute the decree, and it
cannot go behind the decree. There is no substance in this contention also, t am not merely disposing of C.R.P. 509 of 1991 which is arising out of
the execution proceedings. I am exercising suo motu powers u/s 115 of the CPC as against the decree in O.S.170 of 1984. My powers are
governed by Section 115, C.P.C. and they are certainly wider than that of the executing Court.
Learned counsel for the plaintiff referred to the provisions of sub-section (2) of the Section 115, C.P.C. and contended that this Court shall not
under the subsection, ''vary or reverse any decree or order against which an appeal lies either to this court or to any Court subordinate thereto.''
Learned counsel rightly pointed out that an appeal was available to the defendant as against the decree in the suit, to the District Court or the Sub-
Court. Hence sub-section (2) bars the grant of any relief u/s 115, C.P.C. to the defendant. Sub-section (2) was introduced by the Amendment Act
104 of 1976. The amendment itself was brought about by a recommendation of the Law Commission and on the basis of the Report of the Joint
Committee. Before the amendment was introduced, the Supreme Court had construed sub-section (1) in Smt. Vidya Vati Vs. Shri Devi Das, and
held that a Revision in the High Court was maintainable if no appeal lay to the High Court from the order sought to be revised. The words ""in
which no appeal lies thereto"" were interpreted by the Supreme Court to mean that ""no appeal must lie to the High Court from the order in question
and where an appeal against an order lies to the District Court or other subordinate Court and not to the High Court, a Revision is maintainable u/s
115 C.P.C.
Long after the Amendment was introduced, Sathiadev, J., in P. Ramaswamy Vs. Dhandayuthapani Finance, Sankari, , held that the fact that an
appeal against the impugned order lies to a Subordinate Court does not oust the jurisdiction of the High Court to entertain a Revision Petition.
There is no reference in the judgment to sub-section (2) of Sec. 115 C.P.C. introduced by the Amendment Act of 1976.
There was no difficulty whatever when the Section stood as it was before the Amendment. Complications have arisen only after the
amendment. The Law Commission of India, in its 14th Report, on Reform of Judicial Administration Volume I, Chapter 17, made the following
suggestions:-
Though we do not feel justified in recommending any general curtailment in the powers of revision conferred by section 115, we are of the view
that the difficulties created by conflicting judicial views in the interpretation of the section need to be removed. We, therefore, make the following
recommendations indicating the lines on which Section 115 should, in our opinion, be amended:
(1) The expression ""case decided'' in the Section should be clarified so as to include within it an interlocutory order including an order deciding an
issue from which no appeal lies.
(2)Provision should, however, be made in the section, limiting the power of revision to such interlocutory orders which if decided in favour of the
petitioner would be sufficient for the final disposal of the suit or proceeding; or in which the order is likely to occasion a failure of justice or cause
an irreparable injury.
(3) The words ""in which no appeal lies thereto"" in the first part of the section should be altered so as to make untenable the view of the Rajasthan
High Court that a revision will lie if the order could be brought before the High Court eventually in Second Appeal or be made the subject matter
of a ground of appeal to the High Court u/s 105 of the Civil Procedure Code. Our intention is that the right of moving the High Court in revision
should be denied only in cases where an appeal lies either to the High Court or to the District Court from the order in question.
Apart from the provisions of Section 115, it is not unusual to invoke jurisdiction under Article 227 of the Constitution in order to induce the High
Courts to interfere in revision. We are of the view, however, that such powers as the High Courts possess under Article 227 need to be preserved,
notwithstanding their occasional use for the purpose of reviewing decisions of the Courts below.
Similar observations are found in the 27th Report of the Law Commission also. Based on the Recommendations made by the Law Commission,
the Select Committee suggested the amendment as seen at present. As a result of the Amendment, sub-section (1) prescribes the basic condition
for entertaining a Revision Petition in this Court, it being that ''no appeal lies to this Court''. Under sub-section (1), this Court may make such order
in the case as it thinks fit if any of the conditions set out in clauses (a) to (c) of subsection 1 is present. The proviso introduced by the Amendment
refers to interlocutory orders which have no relevance in this case. Sub-section (2) reads that this Court ''shall not vary or reverse any decree or
order against which an appeal lies to this Court or any court subordinate.'' If sub-section (2) is read independently, it would mean that no revision
would lie in a case where the decree or order in question is appealable. If that had been the intention of the Legislature, it need not have introduced
sub-section (2) to section 115, C.P.C., but could have achieved the object by deleting the word ""thereto"" in sub-section (1). If the section enables
this Court to exercise its power of Revision in a case in which no appeal lies, that would certainly be sufficient, and there would have been no
doubt whatever that whenever an appeal lies against a particular order or decree, a revision cannot be entertained. Reference may be made to
Section 114 of the CPC in which the Code provides for a review of a decree or order under clause (b) of the said section. The expression used is,
decree or order from which no appeal is allowed by this Code."" Similar expression in Section 115, C.P.C would have served the purpose. But
the Parliament has, in its wisdom, chosen to retain the language of the section as it stood in tact and numbered it as sub-section (1), and added
sub-section (2) thereto. Thus, it has become the duty of the Court to give a harmonious construction to sub-section 1 and sub- section (2). If the
contention of learned counsel for the plaintiff is accepted, sub-section (1) would become meaningless, inasmuch as it restricts the power of
Revision to cases in which the appeal does not lie to this court. The incongruity in the situation has been pointed out by Sarkar on Civil Procedure,
Seventh Edition, Volume 1, at pages 263 and 264 in the following passage:-
In view of the express provisions made in subsection (2), the words"" in which no appeal lies thereto"" should have thus been appropriately omitted
from subsection (1). It may be pointed out that Law Commission, in 54th Report opined that in view of Art. 227 of the Constitution S. 115 was no
longer necessary and recommended omission of S. 115, and S.116 was as such deleted in original Bill. The Joint Committee, however, felt that, in
spite of the alternative remedy available under Art. 227 of the Constitution, S.115 serves useful purpose as a cheap and easy remedy and,
recommending the retention of S.115 and following the Recommendations of Law Commission''s 14th and 27th Reports, added the proviso, sub-
section (2) and Explanation reproducing verbatim the draft Amendment proposed in the 27th Report but overlooking that in the said draft
Amendment in sub-section (1) the words ""and in which no appeal lies thereto"" were consequentially omitted (vide P.40 of the Report). The re suit
has been that while according to the basis condition in Sub-S.(1) the High Court may entertain an application for revision from an order against
which an appeal may lie to the lower appellate court (see Khanna v. Dillon, and Vidyawati, v. Devadas, Sup), the High Court according to sub-
Sec.(2) is incompetent to revise that order. The position is quite incongruous.
In my opinion, the section should be construed in such a manner that sub-section (2) would not apply to cases where this Court chooses to
exercise its power suo motu, and not on any application by a party. When this Court decides to exercise its power suo motu, it means that there is
a flagrant violation of justice, and this Court wants to prevent the perpetuation thereof by exercising its suo motu powers. In such case, it would be
unreasonable to say that if an appeal lies to any Court against the decree or order, which has caused the miscarriage of justice, this Court is not
entitled to vary or reverse the same. Hence sub-section (2) should be limited in its application to petitions filed by parties u/s 115, C.P.C. invoking
the power of Revision of this Court. That sub-section cannot, in the nature of things, apply to the suo motu exercise of power of Revision and
restrict the same in any manner. When it is found that the Revisional power of this Court is necessarily to be exercised suo motu, even if any party
has not moved this Court therefor, the procedural fetters cannot stop this Court from exercising the same.
It is also possible to consider the matter from a different angle. The words used in sub-section (2) are ""vary or reverse"". In sub-section (1), this
Court may make ""such order in the case as it thinks fit"". If the two sub-sections are to be construed harmoniously so that both may exist together,
sub-section (1) should be interpreted in such a manner as to enable the Court to pass an order, which will not fall within the scope of the
expression ""vary or reverse"". In other words, a third kind of order other than ''varying or reversing'' is contemplated. In section 99 of the Civil
Procedure Code, while referring to the powers of the Appellate Court in an appeal against the original decree of a Subordinate Court, the section
uses the following expression:-
No decree shall be reversed or substantially varied, nor shall any case be remanded....,
That Section contemplates decree being (1) reversed, and (2) substantially varied and (3) the case being remanded. The Appellate Court has got
powers under that section to pass three kinds of Orders. If sub-Section (1) is to be construed as enabling the High Court to make three kinds of
Orders, namely, (1) varying the Order of the trial Court, (2) reversing, the same and (3) remaining the matter for fresh disposal, it could be said to
be a harmonious construction. However, I do not want to dispose of this case on the basis of the latter construction of Section 115 C. P. C. I
prefer the former construction set out supra. I am also entitled to invoke the powers under Article 227 of the Constitution of India which have been
recognised by the Supreme Court to be complementary to section 115 C.P.C. - Vide Smt. Kishori Devi v. Kala Narain Raigal (1969) 1
S.C.W.R. 133).
Turning to Article 227 of the Constitution of India, the power of superintendence of this Court is not only administrative but also judicial. It is
open to this Court under that Article to interfere with a judicial order made by a subordinate court, if and when necessary. Vide In Re:
Gangalakurthi Pattisam and Others, , Naryam Singh and another v. Amarnath and another (A.I.R.1954 S.C.215) and Hari Vishnu Kamath Vs.
Syed Ahmad Ishaque and Others,
In Surendra Nath Bibra Vs. Stephen Court Ltd., the Supreme Court cautioned that the power under Article 227 of the Constitution of India
should ordinarily be used sparingly by the High Court. But, at the same time, it was pointed out that it would not be a ground to throw out an
application where it was necessary to exercise the power, in the circumstances of the case.
In State of Gujarat v, Vakhatsinghji (A.I.R.1964 S.C.1481), it is held that the power of superintendence over all courts and tribunals which the
High Court has under Article 227, cannot be limited by any Act of the State Legislature, and that the supervising jurisdiction extends to keeping the
subordinate tribunals within the limits of their authority and to seeing that they obey the Law.
In Josephy Santa Vincent Vs. Ambico Industries and Others, Tarkunde, J. expressed the law thus:-
On the preliminary objection Mr. Banaji argued that it was open to the petitioner to file a revision application u/s 115 of the CPC from the
decrees passed by the courts below and that the hearing of this petition under Article 227 of the Constitution must, therefore, be confined to such
contentions as can be entertained by this Court in the exercise of its revisional jurisdiction. Since no error was committed by the courts below in the
exercise of their jurisdiction, this petition, according to Mr. Banaji was not tenable. I do not find any merit in this preliminary objection. If a revision
application were an adequate remedy in the present case, the petitioner would not have been entitled to invoke the jurisdiction of this Court under
Article 227 of the Constitution. This petition has been filed because, according to the petitioner, the decree passed by the courts below are vitiated
by an error of law which is apparent on the face of the record, but which is not an error_ in the exercise of their jurisdiction. In Sp. Civil Appln.
No. 459 of 1965, decided by a Division Bench of this Court on 14th and 15th December, 1965, it was held that a party who is aggrieved by a
decree passed against him, and who claims that the decree is vitiated by an error of law apparent on the face of the record, can approach this
Court under Article 227 of the Constitution, if the error is not capable of being corrected u/s 115 of the Civil Procedure Code. Moreover, the
question must now be held to have been concluded by the decision of the Supreme Court, Surendra Nath Skluma Bi-bro v. Stephen Court Ltd.,
AIR 1965 SC 1361. That was an appeal form the judgment of the Calcutta High Court in an application which had been filed in the High Court u/s
115 of the CPC as well as Article 227 of the Constitution. What was challenged before the High Court was a decree of the Court of Small
Causes, Calcutta. The Supreme Court held that, since the application in the High Court had been filed under Article 227 of the constitution as well
as section 115 of the Civil Procedure Code, it was open to the High Court to correct an error of the Court below which was not an error in the
exercise of that Court''s jurisdiction. In the case before me the alleged error of law of the Courts below is apparent on the face of the record and
the petition is, therefore, tenable under article 227 of the Constitution.
The learned Judge has clearly pointed out that if an error is apparent on the face of the record, this Court can exercise its jurisdiction under Article
227 of the Constitution of India.
30 In Saral Dev Sharma Versus Lila Ram (1972 All India Rent Control Journal 552), the Delhi High Court held that an incompetent appeal can be
converted by the High Court into an Application under Art. 227 of the Constitution of India suo motu in the interest of justice and to prevent
miscarriage of justice.
In Ram Bahal Singh and others v. Chhote Narain Singh and others (A.I.R. 1975 Patna 241), a Division Bench of the Patna High Court held
that in the supervisory jurisdiction of the High Court under Art. 227 of the Constitution, if it comes across any order which is contrary to law, the
Court has got ample jurisdiction to quash the same suo motu.
In Smt. Santosh Kumari v. Surjit Singh (1990 Cri.L.J. 1012), Kasliwal, CJ. exercised his power under Article 227 of the Constitution of India
and set aside the order of the subordinate court on the ground that it was against the elementary principles of law and would perpetuate the offence
of bigamy. By the order passed by the Subordinate Judge in the case, he granted a declaration that due to ill and weak health of the plaintiff she
was unable to satisfy the sexual desire of the defendant and the defendant was permitted to solemnise second marriage while the plaintiff would be
entitled to be called as legally wedded wife and the defendant (husband) shall provide her (plaintiff) all amenities till her death, and the marriage of
their daughter shall be performed by the defendant. While holding that the decree was absolutely wrong and illegal and it was against the clear
provisions of the Hindu Marriage Act, the learned judge pointed out that it would enable the party to commit the offence of bigamy as defined by
the Indian Penal Code. The learned Judge observed as follows: -
Parties are admittedly Hindus and they were married on April 14, 1986 according to Hindu rites. There is no allegation that any divorce had taken
place between the parties or their marriage had been declared void by any competent court of law before filing the present suit for declaration.
In the face of these circumstances, no order or decree should have been passed permitting the defendant Sh. Surjit Singh to solemnise second
marriage during the subsistence of marriage with his legally wedded wife Smt. Santosh Kumari. The Sub-Judge has clearly ignored the provisions
of the Hindu Marriage-Act as well as the Indian Penal Code in this regard The Sub Judge is expected to know such elementary principle of law
and it is a gross mistake on his part to have ignored such principle of law and to have given a decree contrary to the provisions of Hindu Marriage
Act and perpetuate a criminal offence of bigamy punishable under the Indian Penal Code.
I am tempted to make some observations as made by the learned Judge in the above passage, with reference to the District Munsif,
Devakottai who passed the decree in O.S, 170 of 1984.
Very recently, Venkataswami, J. had occasion to consider the powers of this Court under Article 227 of the Constitution of India in Rathinam
and others versus Pavathal (1991 II M.L.J. 323 : 1991-2-L.W.688). An order of interim injunction made by the District Judge was challenged
before this Court and it was set aside. While rejecting the contention urged by the respondent''s counsel that the power under Article 227 of the
Constitution should not be invoked where alternative remedy was available under the Civil Procedure Code, the learned Judge observed as
follows:-
...It is true that the petitioners have remedies available under the Code of Civil Procedure. When they have invoked such alternative remedy and
finding that they could not get justice speedily, then only, they have filed this revision under Art. 227 of the Constitution, and this is quite obvious
from the tacts narrated above. Under such circumstances, this Court is not helpless to remedy the situation. If Art. 227 of the Constitution is not
available to remedy situations like this, I fail to understand under what better circumstances. Art. 227 of the Constitution can be invoked. It may
not be out of place to just point out that O. 39, Rule 1 of the CPC enumerates the circumstances under which temporary injunction can be granted.
Rule 3 directs the issue of notice to the opposite party before granting injunction and in the event of grave urgency requiring grant of ""Injunction
without notice"", the Court shall record the reasons explaining the object of granting the injunction and Rule 3-A further enjoins the Court to dispose
of the application for injunction within 30 days. In spite of all these in-built precautions, the District Judge has thrown overboard all these principles
and granted interim injunction, and adding insult to the injury, continued the injunction even though the abuse of process of Court by the
plaintiff/petitioner before him was clearly brought to his notice and also established before him.
On the facts of the present case, 1 am of the view that if Article 227 of the Constitution of India does not enable this Court to remedy the
injustice caused by the decree made by the District Munsif, it is as if there is no such provision in the Constitution of India.
Learned counsel for the plaintiff placed reliance on the Judgment in Satyanarayan Laxminarayan Hegde and others v. Mallikarjuna Bhavanappa
Tinmuite reported in AIR 1960 S.C.I 37, in support of his contention that a mere error of law does not warrant the exercise of powers under
Article 227 of the Constitution. Reliance is placed on the following passage in the said Judgment: -
We have noticed that in the application to the High Court the respondent asked that Court to exercise its power of superintendence under Art.
227 of the Constitution by the method of issuing a writ of certiorari or any other suitable writ. Art.227 corresponds to S. 107 of the Government of
India Act, 1915. The scope of that section has been discussed in many decisions of Indian High Courts. However wide it may be that the
provisions of S.115 of the Code of Civil Procedure, it is well established that the High Court cannot in exercise of its power under that section
assume appellate powers to correct every mistake of law. Here there is no question of assumption of excessive jurisdiction or refusal to exercise
jurisdiction or any irregularity or illegality in the procedure, or any breach of any rule of natural justice. If anything, it may merely be an erroneous
decision which, the error not being apparent on the face of the record, cannot be corrected by the High Court in revision under S.115 of the CPC
or under Art. 227.
The above ruling does not help the plaintiff. The passage extracted above itself makes it clear that if there is an error apparent on the face of
the record, that will enable the Court to correct the record by exercising its jurisdiction.
Learned counsel relied on the judgment of the Supreme Court in Miss Maneck Gustedji Burjarji Vs. Sarafazali Nawabali Mirza, K.K.
Shrivastava and Others Vs. Bhupendra Kumar Jain and Others, and S.T. Muthusami Vs. K. Natarajan and Others, to contend that when there is
alternative remedy available in law, Article 227 of the Constitution of India should not be invoked. I have already referred to the rulings which have
expressed the view that the existence of an alternative remedy will not prevent this Court from exercising its powers under Article 227 of the
Constitution whenever necessary. It is only when a party tiles an application under Article 227, the principle of alternative remedy may come into
play. That will not apply to a case where the power is exercised suo motu by this Court.
Learned counsel placed reliance on certain observation made by the Madhya Pradesh High Court in Malam Singh Vs. The Collector, Sehore,
M.P. and Others, . A passage at page 198 was read out. In that passage, the High Court had only quoted in extenso from the judgment of the
Supreme Court in N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, ). In paragraph 12 of its judgment, the Supreme
Court stated as follows:
(12) It is now well-recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy
provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. In Woolver Hampton New Water Works Co.
v. Hawkesford, (1859) S.C.B.(R.S-) 335, at P.356 in the following passage:
There are three classes of cases in which a liability may be established founded upon statute. One is, where mere was a liability existing at
common law and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at
common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party
suing has his election to pursue either that or the statutory remedy. The second class of case law, where the statute gives the right to sue merely,
but provides no particular form of remedy; there, the party can only proceed by action at common law. But there is a third class, viz., where a
liability not existing at in common taw is created by a statute which at the same time gives a special and particular remedy for enforcing it....The
remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class.
The form given by the statute must be adopted and adhered to.
The rule laid down in this passage was approved by the House of Lords in Nevite v. London Express Newspaper Ltd., (1919) A.C.368 and has
been reaffirmed by the Privy Council in Attorney- General of Trinidad and Tobago v. Gordon Grant & Co., 1935 A.C.532 and Secretary of State
v. Mask & C, 44 Cal.W.N.70? = (1940) 52 L.W.I (P.C.); and it has also been held to be equally applicable to enforcement of rights (see
Hurautrat v. Off. Assignee of Calcutta, 52 Cal W.N. 343 at P.349.) That being so, I think it will be a fair inference from the provisions of the
Representation of the People Act to state that the Act provides for only one remedy, that remedy being by an Election Petition to be presented
after the election is over, and there is no remedy provided at any intermediate stage.
The Madhya Pradesh High Court applied the above dictum of the Supreme Court in that case which related to an election under the Madhya
Pradesh Panchayats Act (70 of 1962).
That principle cannot help the plaintiff in this case. This is not a special right conferred by a statute. Right to the property in question has
accrued under the law of Succession, viz., Hindu Succession Act. The said Act does not prescribe any particular procedure. It leaves the parties
to approach the civil court under the general law of procedure to get the relief they want. Hence, the principle that if a statute confers a particular
right and prescribes a procedure to enforce the same, the party should resort only to such procedure, will not apply to the present case.
Learned counsel also invited my attention to a decision of the Supreme Court in Mohd. Yunus Vs. Mohd. Mustaqim and Others, and a
decision of this Court in Poosariar Ekambaram Pillai v. Visalakshi and others ((1990) II M.L.J. 90), to contend that under Article 227 of the
Constitution of India, this Court should not interfere with the decisions of Civil Court or Tribunal even if there is an error of law or fact. It is pointed
out in those cases that simply because the High Court can come to a different conclusion, it will nor be a ground for interfering under that Article.
On the facts of this case, no Court can come to a different conclusion that the plaintiff is entitled only to a half share in the property. The District
Munsif has taken a view which is patently erroneous in law and it is not a case of coming to a different conclusion on the facts of the case. This is a
case where there can be only one conclusion on the facts set out in the plaint and accepted by the District Munsif as proved. The issues framed in
the Suit are, (1) whether the plaintiff had title to or enjoyment of the suit property at any time, (2) whether the property was purchased benami in
the name of the plaintiff''s husband when he was a minor, (3 whether the plaintiffs husband had the means to purchase the property, and (4)
whether the marriage of the plaintiff and her husband Velu was dissolved according to caste custom. The fifth am sixth issues related to the reliefs
to be granted to the plaintiff.
On the basis of the evidence of P.W.1 and Exs. A-1 and A-2, the first four issues have been found in favour of the plaintiff as there is no
evidence whatever to the contra. These finding, cannot be disturbed by this Court under Article -227 of the Constitution of India even if they are
erroneous or even if it is possible for this Court to come to a different conclusion. There is no question of setting aside these findings or giving
another opportunity to the defendant to adduce evidence in support of her case in the written statement. These findings will remain untouched On
such findings, the only conclusions which a court of law can arrive at is to declare the plain-tiffs title to one half share in the property. No other
conclusion is possible. Hence, the conclusion of the District Munsif that the plaintiff is en -titled to the entire property and recover possession
thereof is set aside.
Consequently, the decree passed in O.S. No. 178 of 1984 on 17-6- 1987 is set aside. As stated earlier, the normal rule is to pass a decree
declaring the plaintiffs right to a half share and directing her to file a suit for partition. But in the circumstances of the case, it will be unjust to drive
the plaintiff to another suit, particularly when the findings on issues 1 to 4 remain unaltered and there is no other sharer to claim any interest in the
property. There being no other question to be decided as between the parties, there is no impediment to pass a preliminary decree for partition in
this suit itself so that parties can resort to consequential final decree proceedings for dividing the property. Hence, I direct the District Munsif,
Devakottai to pass a preliminary decree in the suit O.S. No. 170 of 1984 declaring that the plaintiff is entitled to one half share in the property and
that she will be entitled to file an application for passing of final decree for division of the property and separate allotment of the said half share. It
will be open to the trial court to grant such other appropriate consequential reliefs as the parties may be entitled to. In view of my setting aside the
decree in O.S. No. 170 of 1984, nothing remains to be executed. Consequently, the execution proceedings and the Execution Petition No. 508 of
1991 have become infructuous. The Civil Revision Petition as well as the Execution proceedings instituted by the plaintiff are dismissed on that
ground. The suo motu Revision u/s 115, C.P.C and Article 227 of the Constitution of India is allowed. The parties will bear their respective costs.