Yesudasan Nadar vs Principal Munsiff and Another

Padmanabhan, J.—Petitioner is the Plaintiff in O.S. No. 1423 of 1989 on the file of Principal Munsiff, Kollam, first Respondent. Second Respondent is a tenant of the Petitioner in a building and he is the sole Defendant in that case. Suit is one for injunction. Dispute is regarding possession of the vacant land on the back side of the building. Interim injunction was confirmed in favour of Petitioner in I.A. No. 4671 of 1989 filed for a temporary injunction. Alleging disobedience of injunction, Petitioner filed I.A. No. 164 of 1990 to prosecute second Respondent. He also filed I.A. No. 159 of 1990 for a temporary mandatory injunction to direct second Respondent to remove the pipes alleged to be stocked in the backyard in violation of the order of injunction.

Complaint of the Petitioner is that though second Respondent filed objections and written statement, these interlocutory applications were not disposed of even after eighteen postings. It is said that thereafter he moved I.A. No. 4568 of 1990 on 11th December 1990 requesting police authorities to be directed to implement the order of injunction. Finally, on 11th April 1991, I.A. No. 4568 of 1990 was heard and posted for orders to 12th April 1991. Instead of passing orders, case was thereafter posted for settlement of issues alone and the interlocutory applications were ordered to be posted along with suit.

Though original petition is purported to have been filed under Article 227, it is really one under Article 226 and the prayer is that a writ of mandamus may be issued directing first Respondent to re-post the petitions and pass appropriate orders without delay, thereby interfering with the judicial discretion exercised by Munsiff to post the inter locutory applications along with suit. In effect, what Petitioner wants is to quash the order of the Munsiff posting the interlocutory applications for decision along with suit and direct him by a writ of mandamus to discharge judicial function of re-posting and disposing the interlocutory applications immediately against his judicial discretion.

It has to be remembered that shortly after the above suit was filed, second Respondent also filed Anr. suit against Petitioner as O.S. No. 1431 of 1989 in the same court for injunction. It is true that his injunction application was dismissed. Subject matter in both suits is the same. Injunction applications are decided only on prima facie grounds. They do not decide the disputes finally and are intended only to preserve status quo till final decision. Final decision will be only after taking evidence. Final decision can be against the interlocutory order. It is not known under what circumstance, Munsiff thought of posting the interlocutory applications along with suit, Probably, he might have thought of deciding these applications after taking evidence because they involve action for violation of injunction and ordering mandatory injunction. Probably, Munsiff wanted more assurance from further evidence to satisfy his conscience.

Petitioner himself has made it clear that he has no doubt in the integrity of Munsiff and he has no reason to believe that Munsiff is biased against him. According to him, what is involved is only misapplication of mind or wrong exercise of discretion in a matter which required prompt and speedy orders. Munsiff must have thought otherwise and considered that proper exercise of judicial discretion could be had only after he gets some more assurance from the evidence at a later stage.

What could be gathered by a combined reading of the decision in Waryam Singh and Another Vs. Amarnath and Another, , Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee, and Nalla Koya v. Administrator, Union Territories of Laccadives 1967 KLT 395 is that the powers of superintendence under Article 227 are not greater than those under Article 226. Under Article 227, power of interference is limited to see whether subordinate courts or tribunals function within the limits of their authority. Interference of High Court in cases of this type either under Article 226 or 227 may not be normally justified. A writ cannot lie against a court acting in exercise of its judicial functions, though a writ may lie when the court acts in its rule making powers Prem Chand and Anr. v. Excise Commissioner 1963 S.C. 996 and Naresh Shridhar Mirajkar and Others Vs. State of Maharashtra and Another, These aspects were considered in Nalla Koya''s case 1960 KLT 60 which said that a writ cannot be issued to a civil court notwithstanding what is stated in Prem Chand''s case 1963 S.C. 996 in a different context.

In an appropriate case, in exercise of the power of superintendence under Article 227, this Court may be justified in giving some directions whenever it is found necessary or essential in the interest of justice. But that should only be in rare and appropriate cases where the judicial discretion is found to be exercised in such a patently perverse manner that no tribunal acquainted with law or legal procedure would have acted like that and no other remedy is available. It has to be remembered that even though a particular interlocutory order or refusal to exercise the judicial power may not be appealable or revisable, all these matters could be challenged in an appeal against final decision as Section 105 of the CPC indicates. In a case where a court purposely or without any justifiable reason refuses to exercise jurisdiction resulting in prejudice or miscarriage of justice, for the rectification of which the party cannot afford to wait till final decision, and no statutory remedy under the CPC is available, an appropriate direction under Article 227 may be justified in deserving cases. But this Court cannot issue a writ to a court to act in a particular way. Interference under Article 227 may depend on facts and circumstances. In an appropriate case, a judicial officer may be justified in postponing decision of a matter to a later stage of the litigation. In this case itself, if the postponement is justified in the circumstances, it may not be proper to give a direction interfering with the judicial discretion. Exercise of jurisdiction under Article 227 in such cases, even if it is permitted, must be only in exceptional cases and that too only with utmost care and caution. Tendency of approaching this Court in such cases under Article 226 or 227 in a routine manner has to be curbed in the interest of judiciary and public, including litigants.

From the facts and circumstances, I am not satisfied that this is a fit case for interference. Circumstances under which or reason why Munsiff postponed the matters are not clear. Petitioner could have Munsiff himself with a petition praying that the interlocutory applications may be posted and disposed of without delay. If that was disallowed, he could have challenged the order within the four walls of the CPC itself. He could have thought of having resort to Section 151 of the Code also. He has not done so. There is nothing to show that action of the Munsiff in posting the interlocutory applications along with suit is a wrong or illegal exercise of jurisdiction. In an appropriate case, he will be justified in refusing to decide the petition and postponing the decision to a future date. All such exercises cannot be challenged under Article 227, at any rate. Resort to Article 227, in such cases, may create a bad precedent, which will have to be avoided.

Original petition is dismissed.