Rugmini and Others vs Addl. Sub Judge and Others

J.B. Koshy, J.—The important question to be considered in this Original Petition is that whether an order passed by a civil court on a petition to set aside a commissioner''s report filed under Order 20 Rule 18 is revisable u/s 115 of the CPC or the only remedy available is under Article 227 of the Constitution of India. A Division Bench of this Court in Kanaran Nair v. Madhavan Nair (1996 (1) KLT 162) held that report of the Commissioner is not binding as such on the Court and it is only a piece of evidence. Therefore, it is not a final order and parties are free to adduce further evidence in the suit and it is not revisable u/s 115 of the Code of Civil Procedure. In Narayani, A Vs. Kittan Alias Krishnan and Another it was held that against such orders an original petition under Article 227 of the Constitution also will not lie unless it is passed without jurisdiction and caused miscarriage of justice. In this case petitioners want to set aside Ext.P6 order of the Sub Court, Palghat in I.A. No. 1095 of 1996 dismissing an application for remitting commissioner''s report. It is contended that in view of the Division Bench decision in Kanaran Nair''s case when revision Petitions are filed registry is not allowing to number the revision petitions and hence this original petition. (No revision petition was filed in this case.) As far as the facts of this case are concerned, second respondent filed O.S. No. 518 of 1981 for partition of the property. Petitioners were impleaded as legal representatives of the first defendant. The suit was dismissed. Three appeals were filed as A.S. Nos. 519, 535 and 540 of 1983. The decretal portion of the judgment reads as follows:

In the result, I set aside the Judgment of the Court below and pass a preliminary decree directing partition of the immovable properties scheduled in the plaint except items 4, 6 and 2 acres and 97 cents in item 1. Plaintiff is entitled to one share out of the 4 shares. Defendant No. 2 is entitled to one share so also defendants 3 to 8 together are entitled to one share out of the 4 shares. The legal representatives of the first defendant are also entitled to one share out of the 4 shares. In passing the final decree, as far as possible, the properties claimed by various parties on the basis that they are holding those properties and that they have improved the properties, should be allotted to them. I make it clear that the sharers are not entitled to claim value of improvements, if any, made by them. But in allotting the shares the court which passes the final decree can give all possible equitable relief to the parties entitled to it. I am told that defendants 3 to 8 have paid large amounts as purchase price for the properties now ordered to be partitioned. If there is proof regarding payment of purchase price, the final decree should provide for the same. There is no decree for past mesne profits. In passing the final decree, the court should make appropriate orders in regard to future profits from the date of this judgment. The plaintiff can apply for passing a final decree. If the other sharers pay the proper court fee, their shares of properties also can be separated and be allowed to them.

A.F. As filed against the above decrees and judgments were dismissed. Civil Appeal Nos. 270, 270A and 270B of 1993 were filed before the Supreme Court which are not yet finally disposed of. Supreme Court ordered as follows:

We have heard counsel for the parties. We direct that till the final decree is passed the appellant shall continue depositing a sum of Rs. 30,000/- (Rupees thirty thousand only), for each agricultural season, with the Court for cultivating and growing crops on the land which is in his possession.

The orders/directions issued by the trial court shall continue. It shall be open to the respondents to move the trial Court in respect of those items of property, the dispute of which has become final.

Final decree proceedings have been initiated by the plaintiff in I.A. No. 144 of 1991 and a Commissioner was deputed to file a report and plan. Commissioner filed a report and plan. In C.R.P. Nos. 2214 and 2215 of 1994 and in C.M.A. No. 206 of 1992 the matter was again reconsidered by this Court. In C.R.P. No. 2214 of 1994 this court held as follows:

Counsel for the parties are right to say that the impugned order is untenable and has to be set aside. I do so. In the circumstances the commissioner already appointed shall be directed to identify the partible properties in terms of their survey number and boundaries and file a report within two weeks of receipt of a copy of the order by the court below, which shall within three weeks of its receipt grant permission to the commissioner to auction the right to cultivate the partible properties in the light of this Court''s order in C.M.A. No. 206 of 1992 and of the Supreme Court, to which reference was made on behalf of the first respondent, who shall produce a copy of the same, if it is not already received by the court.

I.A. No. 5702 of 1995 was filed to set aside the above report. Trial Court remitted the plan and report to the Commissioner to consider the objections and to file necessary plan and report. Again Commissioner filed Ext.P3 report and Ext.P4 plan. Again Commissioner filed a report and plan. I.A. Nos. 1095 and 1196 of 1996 were filed for setting aside the above report and plan. Those applications were dismissed by Ext.P6 order.

The first question to be considered is whether Ext.P6 order can be challenged under Article 227 of the Constitution of India. It is clear from the decision of the Supreme Court reported in Bhutnath Chatterjee v. State of West Bengal and Ors., (1969) 3 SCC 675 that jurisdiction of the High Court is limited and it is not intended to transgress the limits of jurisdiction by subordinate court or tribunal. The High Court''s power under Articles 226 and 227 of the Constitution is restricted to interfere only in cases of grave dereliction of duty and violation of law and will be exercised sparingly. It cannot be used as appellate or revisional power. It is true that under Article 227, the general superintendence, which the High Court has over all Courts and Tribunals, is a duty to keep them within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But as held by the Supreme Court in Waryam Singh and Another Vs. Amarnath and Another, the power under the article is an extraordinary one and intended to be used only in exceptional cases and not as a substitute for ordinary revisional or appellate powers. The power is not to be exercised for the purpose of getting round provisions of law which may preclude an appeal or revision unless there is a very strong case for interference by the High Court. The High Court is not entitled under this Article to go into the merits of the dispute before the inferior Court in the absence of grounds such as want of jurisdiction, grave irregularity of procedure to the prejudice of one of the parties and so on. It was held in the decision in Narayani, A Vs. Kittan Alias Krishnan and Another that the High Court cannot on the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal and made the decision of the subordinate court or tribunal final on facts. High Court also cannot while exercising jurisdiction under Article 227 interfere with the findings of fact recorded by the subordinate court or tribunal. Its function is limited to see that the subordinate court or tribunal functions within the limits of its authority. High Court may refuse to interfere under Article 227 unless there is grave miscarriage of justice. A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227. In exercising the jurisdiction under Article 227 High Court does not act as an appellate court or tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision.

Only in cases the order passed by the trial court is perverse, or that the court has exceeded its jurisdiction, or manifest injustice of grave nature has been committed or the court transgressed its limitation, High Court need interfere under Article 227 of the Constitution. Even in such cases when there an effective alternate remedy is provided such as appeal or revision, High Court will not ordinarily interfere. Therefore High Court cannot permit the extra ordinary jurisdiction to be converted into a civil court, or as a revisional or appellate court under Articles 226 or 227 of the Constitution. It cannot be stated that Ext.P6 is without jurisdiction. It is the contention of the petitioners that there is no alternate remedy as revision petition will not lie in view of the Division Bench decision of this Court in Kanaran Nair v. Madhavan Nair (1996 (1) KLT 162) against an order refusing to remit the Commissioner''s report. According to me that contention is not correct in so far as commission report in final decree proceedings is concerned. The Commissioners report considered by the trial court is different from a commissioner''s report filed in the Court on final decree proceedings after preliminary decree is passed. Order 20 Rule 18 reads as follows: Decree in suit for partition of property or separate possession of a share therein: Where the Court passes a decree for the partition of properly or for the separate possession of a share therein the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.

The questions contested between the parties are concluded by the preliminary decree. Section 97 of the CPC specifically debars any challenge against the preliminary decree unless it is appealed against. A decision is said to be final when, so far as the court rendering it is concerned, it is unalterable except by resort to such provisions of the CPC as permit its reversal, modification or amendment. A final decision is one which would operate as res judicata between the parties if it is not sought to be modified or reversed by appeal, revision or review, as is permitted. A preliminary decree is not tentative, but is conclusive so far as matters dealt with and decided. Final decree could only be subject to the preliminary decree regarding matters directed therein. Working out the shares and details of accounting as well as such other matters not in conflict with the preliminary decree alone could be had in the final decree proceedings. The Commissioner is appointed only to work out the details as directed by the decree and as per the directions in the Supreme Court order as well as C.M.A. No. 206 of 1992 passed by this Court. An order passed refusing to set aside the Commission report in the final decree proceedings under Rule 18 has finality eventhough it is an order of interim nature. Therefore, it cannot be equated to a Commission report passed at the trial stage wherein parties are free to adduce further evidence also before passing a final decree. Therefore, I am of the view that bar of filing a revision petition u/s 115 of the CPC against an order passed in an application to remit the Commissioner''s report during trial proceedings is different from an order passed in a final decree proceedings and revision petition will lie against an order passed in a petition to set aside the commission report in a final decree proceedings, i.e. in a proceeding under Order 20 Rule 18. Hence if petitioners are aggrieved by Ext.P6 order their remedy is to file revision petition as provided under the CPC and not an original petition under Article 227 of the Constitution of India. Therefore, I dismiss the Original Petition under Article 227 of the Constitution without prejudice to the petitioners'' right to avail any other remedies available to them under the Code of Civil Procedure.