IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Thursday, the 23rd day of June 2022 / 2nd Ashadha, 1944
FAO NO. 20917 OF 2021(FILING NO.)
APPELLANT/APPELLANT:
VALIYAPARAMBATH KUNHIRAMAN, AGED 64 YEARS, SON OF LATE KANNAN,
RESIDING AT VALIYAPRAMBATH, KODAKKAD VILLAGE, HOSDURG TALUK,
KASARGOD DISTRICT PIN-671310.
BY ADV. C.MURALIKRISHNAN (PAYYANUR), ABRAHAM GEORGE JACOB AND AKSHAY R
RESPONDENTS/RESPONDENTS:
1. M.V.BHARATHI, AGED 68 YEARS, WIFE OF LATE VALIYAPARAMBATH NARAYANAN.
RESIDING AT MADHUPAN, NEAR BABU AUTO ENGINEERING, KALIKADAVU,
PILICODE, PILICODE VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN-
671310.
2. BABURAJ K, AGED 49 YEARS, SON OF LATE VALIYAPARAMBATH NARAYANAN.
RESIDING AT MADHUPAN, NEAR BABU AUTO ENGINEERING, KALIKADAVU,
PILICODE, PILICODE VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN-
671310.
3. MADHU K, AGED 46 YEARS, SON OF LATE VALIYAPARAMBATH NARAYANAN.
RESIDING AT MADHUPAN, NEAR BABU AUTO ENGINEERING, KALIKADAVU,
PILICODE, PILICODE VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN-
671310.
4. SUKUMARAN K, AGED 43 YEARS, SON OF LATE VALIYAPARAMBATH
NARAYANAN,RESIDING AT MADHUPAN, NEAR BABU AUTO ENGINEERING,
KALIKADAVU, PILICODE, PILICODE VILLAGE, HOSDURG TALUK, KASARAGOD
DISTRICT, PIN- 671310.
This First appeal from orders having come up for orders on
23.06.2022, the court on the same day passed the following:
ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.
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Unnumbered F.A.O.No............... of 2022
(Filing No.20917 of 2021)
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Dated this the 23rd day of June, 2022
ORDER
Anil K. Narendran, J.
The appellant has filed this appeal invoking the provisions under Section 104(1)(i) read with Order XLIII Rule 1(d) of the Code of Civil Procedure, 1908 against the judgment dated 08.09.2021 of the Sub Court, Hosdurg in C.M.A.No.11 of 2020 arising out of the order dated 03.09.2019 of the Munsiff Court, Hosdurg in I.A.No.1841 of 2018 in O.S.No.246 of 2015. I.A.No.1841 of 2018 in O.S.No.246 of 2015 is one filed invoking the provisions under Order IX Rule 13 of the Code to set aside the ex-parte decree dated 12.04.2017 of the Munsiff Court, Hosdurg in O.S.No.246 of 2015.
2. In this appeal, the defect noted by the Registry is that no appeal shall lie against the judgment dated 08.09.2021 in C.M.A.No.11 of 2020 of the Sub Court, Hosdurg.
3. Heard the learned counsel for the appellant. Unnumbered F.A.O.No............... of 2022 (Filing No.20917 of 2021) 2
4. For setting aside the ex-parte decree dated 12.04.2017 in O.S.No.246 of 2015, the appellant filed I.A.No.1841 of 2018, under Order IX Rule 13 of the Code. That application ended in dismissal by the order dated 03.09.2019, against which the appellant preferred C.M.A.No.11 of 2020 before the Sub Court, Hosdurg, under Order XLIII Rule 1(d) of the Code, 1908. That appeal ended in dismissal by the judgment dated 08.09.2021 of the Sub Court.
5. Section 104 of the Code deals with orders from which appeal lies. As per sub-section (1) of Section 104, an appeal shall lie from the orders enumerated in clauses (ff), (ffa), (g), (h) and (i) of sub-rule (1), and save as otherwise expressly provided on the body of the Code or by any law for the time being in force, from no other orders. As per sub- section (2) of Section 104, no appeal shall lie from any order passed in appeal under Section 104.
6. The appellant has already availed the appellate remedy against the order in I.A.No.1841 of 2018, by invoking Unnumbered F.A.O.No............... of 2022 (Filing No.20917 of 2021) 3 the provisions under Order XLIII Rule 1(d) of the Code, by preferring C.M.A.No.11 of 2020 before the Sub Court, Hosdurg. After the dismissal of that appeal, the appellant cannot challenge that order by filing another appeal, invoking the provisions under Order XLIII Rule 1(d) of the Code, in view of the provisions under Section 104(2) of the Code, which provides that no appeal shall lies on any order passed in appeal under the Section.
7. In Sree Narayana Dharma Samajam v.
Mohandas [2000 (3) KLT 933] a learned Judge of this Court held that, against an order in an appeal filed under Order XLIII Rule 1 of the Code, the remedy open to the party is to file a Civil Revision Petition under Section 115 of the Code.
8. Section 115 of the Code deals with revision. As per the proviso to sub-section (1) of Section 115, substituted by Section 4 of the Code of Civil Procedure (Amendment) Act, 1999 (Act 46 of 1999), with effect from 01.07.2002, the High Court shall not, under this section, vary or reverse any order Unnumbered F.A.O.No............... of 2022 (Filing No.20917 of 2021) 4 made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings.
9. In Surya Dev Rai v. Ram Chander Rai [(2003) 6 SCC 675] the Apex Court held that, Article 227 of the Constitution confers on every High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction excepting any court or tribunal constituted by or under any law relating to the Armed Forces. The jurisdiction under Article 227 can be traced back to Section 15 of High Courts Act, 1861 which gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisional jurisdiction on the High Court. Section 107 of the Government of India Act, 1915 and then Section 224 of the Government of India Act, 1935 were similarly worded and reproduced the predecessor provision. However, sub-section (2) was added in Section 224 which Unnumbered F.A.O.No............... of 2022 (Filing No.20917 of 2021) 5 confined the jurisdiction of the High Court to such judgments of the inferior courts which were not otherwise subject to appeal or revision. That restriction has not been carried forward in Article 227 of the Constitution.
10. In Surya Dev Rai (supra) the Apex Court held further that, proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this Article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a Unnumbered F.A.O.No............... of 2022 (Filing No.20917 of 2021) 6 jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamount to overstepping the limits of jurisdiction.
11. The decision of the Apex Court in Surya Dev Rai (supra) on the point that the High Court can exercise its extraordinary jurisdiction under Article 226 to interfere with a judicial order passed by a court of competent jurisdiction now stands overruled by the decision of a Three-Judge Bench in Radhey Shyam v. Chhabi Nath [(2015) 5 SCC 423].
12. In Radhey Shyam (supra), the Apex Court held that, judicial orders of Civil Courts are not amenable to a writ of certiorari under Art.226 and that the scope of Article 227 is different from Article 226. Dealing with the submission made on behalf of the respondent that the view in Surya Dev Rai (supra) stands approved by Larger Benches in Shail v. Manoj Kumar [(2004) 4 SCC 785], Mahendra Saree Emporium (II) v. G.V. Srinivasa Murthy [(2005) 1 SCC Unnumbered F.A.O.No............... of 2022 (Filing No.20917 of 2021) 7 481] and Salem Advocate Bar Association (II) v. Union of India [(2005) 6 SCC 344] and on that ground correctness of the said view cannot be gone into, the Three- Judge Bench observed that, in 'Shail', though reference has been made to 'Surya Dev Rai', the same is only for the purpose of scope of power under Article 227, as is clear from paragraph 3 of the said judgment. There is no discussion on the issue of maintainability of a petition under Article 226. In 'Mahendra Saree Emporium', reference to 'Surya Dev Rai' is made in paragraph 9 of the judgment only for the proposition that no subordinate legislation can whittle down the jurisdiction conferred by the Constitution. Similarly, in 'Salem Bar Association' in paragraph 40, reference to 'Surya Dev Rai' is for the same purpose.
13. In Radhey Shyam (supra) the Three-Judge Bench held that Article 227 can be invoked by the High Court suo motu as a custodian of justice. An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality. Unnumbered F.A.O.No............... of 2022 (Filing No.20917 of 2021) 8 The power is discretionary and has to be exercised very sparingly on equitable principle. This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases, but should be directed for promotion of public confidence in the administration in the larger public interest, whereas Article 226 is meant for protection of individual grievances. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline. The object of superintendence under Article 227, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.
14. The supervisory jurisdiction of the High Court Unnumbered F.A.O.No............... of 2022 (Filing No.20917 of 2021) 9 under Article 227 of the Constitution is limited, where interference qua an interlocutory order of a subordinate court or tribunal is concerned. In such matters, the High Court has to consider the question as to whether such an interlocutory order of the subordinate court or tribunal was vitiated due to want of jurisdiction or that the said court or tribunal had exceeded its jurisdiction or that the order passed by it had resulted in failure of justice. This view is supported by the decision of the Apex Court in Kokkanda B. Poondacha v. K.D. Ganapathi [(2011) 12 SCC 600].
15. Therefore, the power of superintendence conferred on the High Court under Article 227 is administrative as well as judicial and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. It is exercised to keep the subordinate courts or tribunals within the bounds of their jurisdiction. It can be invoked when a subordinate court or tribunal over which the High Court have superintendence has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have Unnumbered F.A.O.No............... of 2022 (Filing No.20917 of 2021) 10 or the jurisdiction though available has been exercised in a manner which is not permissible by law and a grave failure of justice has occasioned.
16. In view of the law laid down by the Apex Court in the decision referred to supra, the appellant can challenge the judgment dated 08.09.2021 of the Sub Court, Hosdurg in C.M.A.No.11 of 2020, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, in case the challenge made in that original petition falls within the purview of Article 227.
17. At any rate, in view of the bar under Section 104 (2) of the Code, the appellant cannot challenge the judgment dated 08.09.2021 of the Sub Court, Hosdurg in C.M.A.No.11 of 2020 in this F.A.O. filed under Section 101(i) read with Order XLIII Rule 1(d) of the Code.
18. In such circumstances, the defect noted by the Registry sustained.
Registry to forthwith return the certified copy of the judgment dated 08.09.2021 in C.M.A.No.11 of 2020 of the Unnumbered F.A.O.No............... of 2022 (Filing No.20917 of 2021) 11 Sub Court, Hosdurg to the learned counsel for the appellant, after retaining an attested copy in the Judges Papers.
Sd/-
ANIL K. NARENDRAN, JUDGE Sd/-
P.G. AJITHKUMAR, JUDGE MIN 23-06-2022 /True Copy/ Assistant Registrar