Virender Parkash vs Rikhi Ram and Others

Deepak Gupta, J.—This petition is directed against the order dated 6th April, 2005 passed by the learned Civil Judge (Junior Division), Court No. 2, Kangra, whereby she dismissed the suit filed by the Plaintiff as having abated.

Ms. Charu Gupta, learned Counsel appearing for Respondents No. 2, 5, 7 and 10 to 14 has raised preliminary objections that the petition is not maintainable since the Petitioner has an efficacious alternative remedy of filing an appeal under Order 43 Rule 1 (k) of the Code of Civil Procedure. Her second objection is that the petition is highly belated.

As far as the first objection is concerned, the Petitioner, who is a lawyer, is appearing in person and places reliance upon two judgments of the Apex Court, i.e. Vadivelu Vs. Sundaram and Others, and Shalini Shyam Shetty and Anr. v. Rajendra Shankar Patil, (2010) 8 SCC 329.

In Vadivelu''s case, the Apex Court dealing with the powers of superintendence vested in the High Court under Article 227 of the Constitution of India held that when there is an error of jurisdiction or flagrant violation of law laid down by the Apex Court, the High Court in its revisional powers can set aside the order passed by the Tribunal. The Apex Court did not deal with the issue of efficacious alternative remedy and the scope and ambit of Article 227 of the Constitution.

In Shalini Shyam Shetty''s case, the Apex Court, after making reference to the entire law on the subject and after referring to acatena of judgments, held as follows:

Articles 226 and 227 stand on substantially different footing. As noted above, prior to the Constitution, the Chartered High Courts as also theJudicial Committee of the Privy Council could issueprerogative writs in exercise of their original jurisdiction. [See 1986 sup SCC 401 at page 469)]. 58. However, after the Constitution everyHigh Court has been conferred with the power toissue writs under Article 226 and these are original proceeding. State of Uttar Pradesh Vs. Dr. Vijay Anand Maharaj, page 951].

The jurisdiction under Article 227 on the otherhand is not original nor is it appellate. This jurisdiction of superintendence under Article 227 isfor both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate indifferent fields. Another distinction between these two jurisdictions is that under Article 226, High Court normally annuls or quashes an order or proceeding but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling theproceeding, can also substitute the impugned orderby the order which the inferior tribunal should havemade. {See Surya Dev Rai (supra), para 25 page 690 and also the decision of the Constitution Bench of this Court in Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others,

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On an analysis of the aforesaid decisions of thisCourt, the following principles on the exercise of High Court''s jurisdiction under Article 227 of theConstitution may be formulated:

(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history ofthe conferment of writ jurisdiction on HighCourts is substantially different from the historyof conferment of the power of Superintendenceon the High Courts under Article 227 and havebeen discussed above.

(c) High Courts cannot, on the drop of a hat, inexercise of its power of superintendence under Article 227 of the Constitution, interfere with theorders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court ofappeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided,that would also operate as a restrain on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid downby this Court. In this regard the High Court must be guided by the principles laid down by theConstitution Bench of this Court in Waryam Singh (supra) and the principles in WaryamSingh (supra) have been repeatedly followed bysubsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh(supra), followed in subsequent cases, the HighCourt in exercise of its jurisdiction of superintendence can interfere in order only tokeep the tribunals and Courts subordinate to it,`within the bounds of their authority''.

(f) In order to ensure that law is followed by suchtribunals and Courts by exercising jurisdictionwhich is vested in them and by not declining toexercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and(f), High Court can interfere in exercise of itspower of superintendence when there has been apatent perversity in the orders of tribunals andCourts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendenceHigh Court cannot interfere to correct mere errors of law or fact or just because another viewthan the one taken by the tribunals or Courtssubordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) The High Court''s power of superintendence under Article 227 cannot be curtailed by anystatute. It has been declared a part of the basicstructure of the Constitution by the ConstitutionBench of this Court in the case of L. Chandra Kumar Vs. Union of India and others, and therefore abridgment by aConstitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment ofa rather cognate provision, like Section 115 ofthe CPC by the Civil ProcedureCode (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court''s powerunder Article 227. At the same time, it must beremembered that such statutory amendment does not correspondingly expand the High Court''s jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suomotu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of theentire machinery of justice in such a way as itdoes not bring it into any disrepute. The power ofinterference under this Article is to be kept tothe minimum to ensure that the wheel of justicedoes not come to a halt and the fountain of justice remains pure and unpolluted in order tomaintain public confidence in the functioning ofthe tribunals and Courts subordinate to High Court.

(n) This reserve and exceptional power of judicialintervention is not to be exercised just for grantof relief in individual cases but should be directed for promotion of public confidence inthe administration of justice in the larger publicinterest whereas Article 226 is meant for protection of individual grievance. Therefore, thepower under Article 227 may be unfettered butits exercise is subject to high degree of judicialdiscipline pointed out above.

(o) An improper and a frequent exercise of thispower will be counter-productive and will divestthis extraordinary power of its strength and vitality.

The Petitioner relying upon the observations in paras 46 and 47, quoted hereinabove, submits that the petition under Article 227 of the Constitution of India is maintainable. In my view, this contention cannot be accepted because while summing up, the Apex Court in para 49 (c) clearly laid down that where an alternative statutory mode of redressal has been provided, the High Court should restrain in exercising the powers under Article 227 of the Constitution of India. Article 227 of the Constitution cannot be invoked by a litigant when there is an efficacious alternative remedy available to the Petitioner.

Order 43 Rule 1 (k) of the CPC provides an alternative remedy of an appeal against an order passed under Rule 9 of Order 22 CPC refusing to set aside the abatement or dismissal of a suit. Thus, an appeal lay to the District Judge and the appeal had to be filed within the period of limitation. The order was passed on 6th April, 2005 and an appeal would lie to the District Judge within thirty days. No appeal was filed and the present petition was filed after lapse of two years in the year 2007. Even thereafter, there were many office objections and it was finally registered only in the year 2008. There is no explanation worth the name given in the petition as to why the appeal could not be filed. There is also no explanation for the delay in filing the present petition itself. At the time of hearing, the Petitioner submitted that he did not know about the order which had been passed. It is not possible to believe this version. The Petitioner is a lawyer and it cannot be believed that for two years, he did not even try to find out what order had been passed in his case.

In any event, the Petitioner should have, in his petition, stated the reasons and given the explanation for condoning the delay and also for not invoking the alternative remedy. There is not a word stated in the petition by the petitioner, who is a lawyer and expected to know the law, why he could not file an appeal to the District Judge. There is no explanation with regard to the long delay in filing the petition. Therefore, without going into the merits of the case and on the basis of the preliminary objections raised, the petition is held to be not maintainable, since an efficacious alternative remedy was available to the petitioner and the same is also not maintainable on the principles of delay and laches. No order as to costs.