U.P. Rajkiya Nirman Nigam Ltd. ... vs M/S C & C Construction Ltd. And Anr.
2018 Latest Caselaw 3163 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
						         Reportable.
 
Court No.36
 
Case :- MATTERS UNDER ARTICLE 227 No. - 1895 of 2017
 
Petitioner :- U.P. Rajkiya Nirman Nigam Ltd. (Uprnnl)
 
Respondent :- M/S C & C Construction Ltd. And Anr.
 
Counsel for Petitioner :- Swetashwa Agarwal,Ashish Kumar Singh,Manish Shekhar
 
Counsel for Respondent :- Manish Goyal,Priyanka Midha,Ram M. Kaushik,S.C.
 
		Alongwith
 
Case :- MATTERS UNDER ARTICLE 227 No. - 1896 of 2017
 

 
Petitioner :- U.P. Rajkiya Nirman Nigam Ltd. (Uprnnl)
 
Respondent :- M/S C & C Construction Ltd. And Anr.
 
Counsel for Petitioner :- Swetashwa Agarwal,Ashish Kumar Singh,Manish Goyal
 
Counsel for Respondent :- S.C.
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Heard Shri Anoop Trivedi, learned counsel for the petitioner and Shri Navin Sinha, learned Senior Advocate assisted by Ms. Priyanka Midha, learned counsels for the respondents.

At the outset Shri Navin Sinha, learned Senior Advocate for the respondent raised a preliminary objection with regard to the maintainability of the present petition under Article 227 of the Constitution of India. The short question of law involving the availability of remedy of revision under Section 115 of the Code of Civil Procedure, 1908 (in short the C.P.C.) vis-a-vis constitutional remedy under Article 227 of the Constitution of India is being raised by way of preliminary objection. Since the answer to the question does not involve any factual adjudication, the Court does not make any reference to the factual controversy. Suffice it to note that the petitioner is assailing the order passed by the District Judge, Bareilly whereby the application under Section 14(2) of the Arbitration and Conciliation Act, 1996 (in short 'the 1996, Act') has been rejected on the ground that during the pendency of the arbitration proceedings, the civil court would have no jurisdiction to entertain the said application in view of the nature of objections raised therein.

Shri Navin Sinha, learned Senior Advocate placing the Full Bench judgment of this Court in Jupiter Chit Fund Pvt. Ltd. v. Dwarka Dhiesh Dayal & Ors. reported in AIR 1979 ALL 218, submits that the order impugned is revisable under Section 115 C.P.C.. In view of the available statutory remedy, the petition under Article 227 of the Constitution invoking extraordinary supervisory jurisdiction of the High Court would not be maintainable. The present petition, therefore, deserves dismissal, outrightly.

Placing the judgment of the Apex Court in ITI Ltd. v. Siemens Public Communications Network Ltd. reported in (2002) 5 SCC 510, it is contended that the issue being raised herein stands settled with the said decision, inasmuch as, it has been held therein that the High Court has the jurisdiction to entertain a revision petition against an order passed by the civil court in its original jurisdiction in a matter arising out of the Arbitration and Conciliation Act, 1996. It is submitted that the Apex Court has categorically held therein that the revisional jurisdiction of a superior Court cannot be taken as excluded simply because the sub-ordinate courts exercises a special jurisdiction under a Special Act. There is no express prohibition against the application of the Code of Civil Procedure to the proceedings arising out of the 1996' Act before a civil court. In absence of any express exclusion no inference can be drawn to hold that the Code is not applicable. The jurisdiction of the civil court to which a right to decide a lis between the parties has been conferred can only be taken by the statute in specific terms and such exclusion of right cannot be easily inferred because there is a strong presumption that the civil courts have a jurisdiction to decide all questions of civil nature. The mere fact that the 1996' Act has not provided it to be applicable, by inference it cannot be held that the Code is inapplicable.

It is then contended that the jurisdiction under Article 227 of the Constitution is an extraordinary supervisory jurisdiction which is to be exercised sparingly and in appropriate cases and it is not to be exercised ordinarily and specially when adequate alternative legal remedy is available to the applicant/petitioner.

On the said submission, Shri Anoop Trivedi, learned counsel for the petitioner submits that there cannot be a dispute that the petition under Article 227 of the Constitution of India is maintainable against the order under Section 14 (2) of the 1996' Act as the question for examination herein is to the validity of the judicial order passed by the sub-ordinate Civil court. The jurisdiction under Article 227 cannot be limited by any Act of the legislature. The supervisory jurisdiction is wide and is used to meet the ends of justice. Though the scope of interference in the proceeding under Article 227 of the Constitution of India is limited, but that by itself does not mean that the petition under Article 227 can be held to be not maintainable relegating the petitioner to file revision under Section 115 C.P.C., simply because against the order passed by the Civil court in a matter arising out of arbitration proceedings revision has been held to be maintainable in ITI Ltd. (supra). The judgment of the High Court of Hyderabad in Civil Revision Petition No.1861 of 2015 (Gurcharan Singh Sahney & Ors. v. Harpreet Singh Chabbra & Ors.) has been placed before the Court to submit that the specific issue with regard to the maintainability of the petition under Article 227 of the Constitution assailing the order under Sections 14(2) and 15 of the 1996' Act has been answered in the said matter.

He has further placed reliance upon the recent judgment of the Apex Court in Civil Appeal No. 11584 of 2016 (arising out of SLP(C) No. 2865 of 2015) (Mahanagar Telephone Nigam Limited V. M/s Applied Electronics Ltd.) to submit that the law laid down in ITI Ltd (supra) has been doubted by the Apex Court by in its recent decision dated 24.11.2016 and the matter has been referred to Hon'ble the Chief Justice of India for constitution of Larger Bench. It is, thus, submitted that in the aforesaid scenario, the following questions would emerge for consideration:-

(1) Whether Section 5 contained in Part I of the 1996' Act can be read to mean that by virtue of the said provision, the applicability of the C.P.C. is limited to the extent to which the 1996' Act permits as it is a self-contained Code. In other words, whether Section 5 of the 1996' Act contemplates express or implied exclusion of the provisions of the C.P.C. except to the extent that it has been made applicable specifically by the 1996' Act.

(2) Whether the provisions under Section 115 C.P.C. provide substantive right to a party to assail the order passed in a matter arising out of the proceedings before the civil court or it is only procedural in nature i.e. whether a revision under Section 115 C.P.C. can be said to be an alternative remedy available to such an applicant.

(3) Whether the availability of the remedy of revision under Section 115 C.P.C. would bar, eclipse or circumscribe the remedy available under Article 227 of the Constitution of India or they are the alternative remedies available to the applicant by sheer change of nomenclature.

(4) The last contentious question which has to be determined as to whether after two years, on the preliminary objection raised by the respondent, during the course of final arguments, the present petition under Article 227 of the Constitution is to be thrown on the ground of availability of remedy of revision under Section 115 C.P.C. Admittedly, when no such objection had been taken by the respondent at the stage of admission of the petition or in the counter affidavit.

Shri Navin Sinha, learned Senior Advocate, however, admits to the legal position laid down by the High Court of Hyderabad in Gurucharan Singh Sahney (supra) that the petition under Article 227 of the Constitution of India can be maintained against the order passed by the Civil court in a proceeding under the 1996' Act. His main thrust of argument is that in view of availability of statutory remedy of revision under Section 115 C.P.C., such a petition may not be entertained by this Court as the supervisory jurisdiction has to be sparingly used only in extraordinary circumstances requiring to invoke the same.

In view of the rival submissions of the learned counsel for the parties, first question which needs to be answered by the Court is whether the revision petition under Section 115 C.P.C. is maintainable or the 1996' Act excludes such a remedy.

The said question can be safely answered with the aid of the binding judgment of the Apex Court in ITI Ltd (supra), however, in view of the exhaustive arguments extended by Shri Anoop Trivedi placing the judgment of the Apex Court in Mahanagar Telephone Nigam Limited (supra), referring the previous decision for consideration to a Larger Bench, it would become pertinent to note certain provisions of the 1996' Act and the legal pronouncements on the question as to whether the 1996' Act expressly or by necessary implication excludes the applicability of the provisions of the C.P.C., except as permitted therein.

The 1996' Act has been enacted to consolidate and amend the law relating to domestic, intentional and commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to conciliation and for matters connected therewith or incidental thereto. The main objectives of the Bill as narrated therein are:-

(i) to comprehensively cover international and commercial arbitration and conciliation as also domestic arbitration and conciliation;

(ii) to make provisions for an arbitral procedure which is fair, efficient and capable of meeting the needs of specific arbitration;

(iii) to provide that the arbitral tribunal gives reason for its arbitral award;

(iv) to ensure that the arbitral tribunal remains within the limits of its jurisdiction;

(v) to minimise the supervisory role of Courts in the arbitral process.

(6)...

(7)..

(8)...

(9)...

The main objective of the 1996' Act is to make provision for an arbitral procedure which is fair, efficient and capable of meeting the needs of the specific arbitration and to minimise the supervisory role of Courts in the arbitral process and to permit an arbitral tribunal to use mediation, conciliation or other procedures during the arbitral proceedings in settlement of disputes. (Ref:-Chacko v. Mahadevan reported in AIR 2007 SC 2961).

Section 5 in Part I of the 1996' Act provides that no Court could intervene in the arbitration proceedings except where so provided in the said part. Section 9 confers power on the Court to pass orders on an application made by a party before or during arbitral proceedings or at any time after making of the arbitral award but before it is enforced in accordance with Section 36, in such matters where the controversy relates to any of the grounds referred to in clause (i) and (ii) sub-clause (a) and (e) of the said Section. Section 14 confers jurisdiction on the Court to decide on the termination of the mandate of an arbitrator if the controversy remains concerning any of the grounds referred to in clause (a) of sub-section(1) of that Section. Section 34 in Chapter VII in Part I provides for the remedy against the arbitral award. A party to the arbitral award may take recourse to a Court against the arbitral award by moving application in accordance with sub-sections (2) and (3). Section 37 in Chapter IX in Part I provides Appeal from the orders though mentioned in sub-clauses (a) and (b) and sub-sections (1) and (2) and from no others, to the Court authorised by law to hear appeals from the original decrees of the Court passing the order. Section 37(3) bars Second appeal from an appellate order under sub-sections (1) and (2) thereof.

The "Court" in Section 2(e) is defined as under:-

"Court" means the principal Civil Court of original jurisdiction in a distinct, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes.

In ITI Ltd. (supra), the principle question that arose for consideration was whether the revision petition under Section 115 of the C.P.C. lies to the High Court as against the order made by the civil court in an appeal preferred under Section 37 of the 1996' Act. And if so, whether on the facts and circumstances of that case, such a remedy by way of revision is an alternate and efficacious remedy or not. The counsel for the appellant therein had argued before the Apex Court that by virtue of Section 5 of the 1996' Act, there is a bar against the judicial intervention by any judicial authority, unless same is specifically provided under Part I of the Act. Under Section 37 (3) of the 1996' Act, the right to Second appeal is specifically taken away. Thus, since the revision is not specifically provided for and the Code not being made applicable to the proceedings arising under the 1996' Act generally, a revision to the High Court would not lie.

The Apex Court has, however, held therein that though it is true that in the 1996' Act, application of Code is not specifically provided for but there is no express prohibition against the application of Code to a proceeding arising out of the 1996' Act before a civil court. When there is no express exclusion, it cannot be inferred to hold that the Code is not applicable. It has been held that the jurisdiction of the civil court to which the right to decide a lis between the parties has been conferred can only be taken by a statute in specific terms and such exclusion of right cannot be easily inferred because there is a strong presumption that the sub-ordinate courts have the jurisdiction to decide all questions of civil nature. Merely, because the 1996' Act has not provided C.P.C. to be applicable, no inference can be drawn to hold that the Code is inapplicable.

With regard to the arguments of learned counsel for the parties therein based on Section 5 of the 1996' Act, it was observed that under Part I of the 1996' Act, Section 37(1) provides for appeal to a civil court. The term "Court" has been referred to in the said Section is defined under Section 2(e) of the 1996' Act. The said definition makes it clear that it does not refer to any designated person but to a civil court. In such as a situation, the proceedings before such Court will have to be controlled by the provisions of the Code, therefore, the remedy by way of a revision under Section 115 of the Code will not amount to a judicial intervention not provided for by Part I of the 1996' Act.

It was, thus, held that when Section 37 provides for an appeal to the civil court and the application of the Code not having been expressly barred the revisional jurisdiction of the High Court gets attracted. For the said reason, the bar under Section 5 will not be attracted. It was held that the revisional jurisdiction of a superior Court cannot be taken as excluded simply because the sub-ordinate courts exercise a special jurisdiction under a special Act. The reason for this is when a special Act confers a jurisdiction on an established Court as is distinguished from a persona designata without any words of limitation then the ordinary incident of procedure of that Court including right of appeal or revision against its decision is attracted. The right of Second appeal to the High Court though has been expressly taken away by sub-section (3) of Section 37 of the Act, but for that reason it cannot be held that the right of revision has also been taken away.

Per contra, in a recent jugdment in the Mahanagar Telephone Nigam Ltd. (supra), the Apex Court was required to examine the same question while considering the validity of the order passed by the High Court of Delhi wherein it had opined that the cross objection preferred by the respondent therein was maintainable and, accordingly, entertained the same after condoning the delay. The issue before the Apex Court was with regard to the applicability of C.P.C. within the Scheme of the 1996' Act. It was urged therein before the Apex Court that in absence of an express provision under the 1996' Act, the legislative intent is not to make it applicable. The 1996' Act is a self-contained Code. Sections 5, 34, 37 and 50 of 1996' Act provides the measures for deciding validity of the award or the interim orders. The recourse to any other method under the C.P.C. to challenge the order or the award passed under the 1996' Act would create an anomalous situation and frustrate the intention of the legislature. The intention is to minimise the supervisory role of Courts in the arbitral process. Section 5 is specific and has a definite purpose leading to the exclusion path for judicial intervention and does not countenance any other method.

The Apex Court having gone through the provisions as contained in Part I of the 1996' Act as aforesaid, had held that it seems that the legislature has intentionally not kept any provision pertaining to the applicability of the C.P.C. While referring the legal proposition laid down in ITI Ltd. (supra) for reconsideration to a larger bench, the Apex Court has noticed its previous judgments in Municipal Corporation of Delhi & Ors. v. International Security & Intelligence Agency Ltd. reported in (2004) 3 SCC 250, Pandey & Company Builders (P) Ltd. v. State of Bihar & Anr. reported in (2007) 1 SCC 467 and Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. reported in (2011) 8 SCC 333 with approval. With the aid of the said pronouncements, the Apex Court in Mahanagar Telephone Nigam Ltd. (supra) has emphasised the effect and impact of Section 5 of the 1996' Act and observed that it seems to have been enacted by way of abundant caution. Pointing out the distinction between the language of the Arbitration Act' 1940 and 1996' Act, it was observed that the 1996' Act is a self-contained Code on matters pertaining to the arbitration. The 1996' Act enacts, consolidates, amends and design the law relating to arbitration and makes it exhaustive. It carries a negative import that only such acts which are mentioned in the 1996' Act are permissible to be done and acts or things not mentioned therein are not permissible to be done. It was, thus, held that the "letters patent" appeal would be excluded by the application of one of the general principles that where the special Act sets out a self-contained Code, the applicability of the general law procedure would be impliedly excluded. The observations of the Apex Court in SBP & Co. v. Patel Engineering Ltd. & Anr. reported in (2005) 8 SCC 618 have been noted with approval to emphasize that the stress is on the minimal intervention of the Court. In essence, the concept of dispute resolution under the law of arbitration, rests on the fulcrum of promptitude. The 1996' Act as it manifests provides restrictions for challenging the award or orders in arbitral proceedings and, thus, emphasis is on the expeditious disposal. It was then observed that since Section 5 commences with a non-obstante clause, it clearly stipulates that no judicial authority shall intervene except where so provided in Part I of the 1996' Act. The final observations in Mahanagar Telephone Nigam Ltd. (supra) in Paragraph '28' read as under:-

"28........As we perceive, the 1996 Act is a complete Code and Section 5 in categorical terms along with other provisions, lead to a definite conclusion that no other provision can be attracted. Thus, the application of CPC is not conceived of and, therefore, as a natural corollary, the cross-objection cannot be entertained. Though we express our view in the present manner, the judgment rendered in ITI Ltd. (supra) is a binding precedent. The three- Judge Bench decision in International Security & Intelligence Agency Ltd. (supra) can be distinguished as that is under the 1940 Act which has Section 41 which clearly states that the procedure of CPC would be applicable to appeals. The analysis made in ITI Ltd. (supra) to the effect that merely because the 1996 Act does not provide CPC to be applicable, it should not be inferred that the Code is inapplicable seems to be incorrect, for the scheme of the 1996 Act clearly envisages otherwise and the legislative intendment also so postulates."

Thus, the view expressed in ITI Ltd. (supra) has been referred for reconsideration to a Larger Bench framing the question that the analysis in the said matter to the effect that merely because the 1996' Act does not provide C.P.C. to be applicable, it should not be inferred that the Code is inapplicable, seems to be incorrect being against the Scheme of the 1996' Act and legislative intent.

With the aid of the aforesaid observations made by the Apex Court in Mahanagar Telephone Nigam Ltd. (supra), it is vehemently contended by Shri Anoop Trivedi that the preliminary objection raised by Shri Navin Sinha, learned Senior Advocate on the premises that the order impugned is revisable under Section 115 C.P.C. is liable to be thrown.

The judgments of the Apex Court in Upadhaya Hargovind Devshankar v. Dhirendrasihn Virbhadrasinhji reported in (1988) 2 SCC 1 and the Full Bench judgment of the Rajasthan High Court in Ramdhan v. Bhanwarlal in Civil Special Appeal No.9 of 1980 have been placed before the Court to lay stress on the legal proposition that where the statute creates a new right and also prescribes the remedy for the enforcement of such a right, it must be held that the right and the remedy are given "uno flatus" and one cannot be dissociated from the other. Where new rights are created by the statute which have no existence apart from the statute creating it and if the statute at the same time prescribes a particular method of enforcement of such rights, then such remedy is the exclusive remedy available for enforcement of the new rights created by the statute. When the statute directs that certain Acts shall be done in a specified manner, or by certain person their performance in any other manner than that specified or by any other person than one of those named is impliedly prohibited. The 1996' Act creates a specific right of appeal and prohibits Second appeal and judicial intervention except as provided in the Part I of the Code, the applicability of the general right of remedy, therefore, would be impliedly barred.

Shri Navin Sinha, at this stage, lay stress on the Full Bench judgment of this Court in Jupiter Chit Fund Pvt. Ltd. (supra) to emphasise that as the 1996' Act by creating right of appeal confers the jurisdiction to an established Court, and that conferment is without any words of limitation, the ordinary incidents and procedure of the civil court including the right of revision against the order passed by it in such proceeding, would, thus, be attracted. Placing the said Full Bench judgment, it is emphasised by the learned Senior Advocate that the revisional jurisdiction of the superior Court under Section 115 C.P.C. is not only confined to the impugned order passed in a case decided in an original suit but also attracted to revise an order passed in "other proceedings" by a sub-ordinate court. The Full Bench has held therein that the words "or other proceedings" in the phrase "arising out of original suits or other proceedings" refer to the proceedings of original nature. These words have been added in order to bring within the purview of the revisional jurisdiction all the orders passed in the proceedings of an original nature which are not of the nature of suits, like arbitration proceedings. It is, thus, submitted that a conjoint reading of the provisions as contained in Part I of 1996' Act and Section 115 C.P.C., it has to be held that against the order passed by the civil court in a proceeding under the 1996' Act, a revision petition under Section 115 C.P.C. would be maintainable.

Having heard the rival submissions of the learned counsel for the parties and gone through the legal provisions and pronouncements of the Apex Court and of the High Courts as noted above, this Court though is tempted to express its independent opinion on the question of maintainability of revision under Section 115 C.P.C. but desist itself from doing so being a High Court. The judicial discipline demands that this Court shall follow the judgment rendered in ITI Ltd (supra) as a binding precedent. On the doubt raised by the Apex Court in Mahanagar Telephone Nigam Ltd. (supra) to refer the matter to a larger bench, the judgment in ITI Ltd. (supra) would not be rendered per incuriam or obiter dicta but still is binding on the High Court in view of Article 141 of the Constitution as the law of land. In the end, following the law laid down by the Apex Court in ITI Ltd. (supra), it is held that against the order impugned in the present petition, passed by the District Judge, the revision under Section 115 C.P.C. is maintainable before this Court.

The second aspect that has to be considered is the respective scope of the revisional jurisdiction under Section 115 C.P.C. and under Article 227 of the Constitution of India of the High Court in view of the fact that both the remedies lie before this Court.

Section 115 C.P.C. confers jurisdiction on a superior court to revise the order passed in a case decided in a suit or other proceedings by sub-ordinate court, where no appeal lies against the order and where the sub-ordinate court has committed jurisdictional error in not exercising the jurisdiction vested in it or exercise a jurisdiction which is not vested in it by law or has acted in exercise of such jurisdiction illegally and with material irregularity. Thus, the supervisory jurisdiction under Section 115 C.P.C. is a power conferred on the High Court to call for the record of any case which has been decided by any Court sub-ordinate to it, such power is now circumscribed by the amendment of 2002 by U.P. Act No.14 of 2003 w.e.f. 1.7.2002. From the language of Section 115 C.P.C., it is clear that the power of superintendence therein has been conferred on the High Court for the purpose of considering the legality, propriety, jurisdiction-wise error, if any, of the orders made by the Court sub-ordinate to it.

It has been held in Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers & Ors. reported in (2003) 6 SCC 659 that Section 115 C.P.C. is essentially a source of power for the High Court to supervise the sub-ordinate courts. It does not, in any way, confer a right on a litigant aggrieved by any order of the sub-ordinate court to approach the High Court for relief. The scope of making a revision under Section 115 C.P.C. is not linked with a substantive right. While considering the effect of amendment to Section 115 C.P.C. on the pending revision on the date of amendment, it was held therein that the revision is a procedure prescribed and provided by the Court for exercise of power of superintendence of the courts sub-ordinate to it. No person has a vested right in a course of procedure. Being procedural remedy, if by a statutory change the mode of procedure is altered, the parties are to proceed according to the altered mode without exception.

Reference may also be made to the judgment of Bombay High Court in Rajabhau v. Dinkar reported in 2003 (1) BOMCR 40; Madhya Pradesh High Court in Ramchandra & Ors. v. Dattatraya & Anr. reported in AIR 1986 MP 191 and Patna High Court in Bishwanath Das & Ors. v. Sushil Kumar Gupta & Ors. in C.R. No.1512 of 2009 decided on 27.4.2010.

Thus, it cannot be said that the right of revision is a substantive right. It is only a procedural remedy which confers a jurisdiction on the High Court to supervise the jurisdiction of the courts below and it does not confer any right on the litigant.

After the amendments in 2002, the High Court's power of superintendence has been curtailed as the remedy of revision against the interlocutory orders passed by the Courts sub-ordinate to it has been excluded, nevertheless such orders are open to challenge under the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India.

The scope of exercise of jurisdiction under Article 227 of the Constitution by a High Court came under scanner in a number of decisions of the Apex Court. It has been held again and again that the supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the sub-ordinate courts within the bounds of their jurisdiction and has to be used sparingly and only in appropriate cases, where the judicial conscious of the High Court dictates it to act lest or gross failure of justice or grave injustice had occasion. Care, caution and circumspection needs to be exercised when the said jurisdiction is sought to be invoked during the pendency of any suit or proceedings in a sub-ordinate court. The observations of the Apex Court in Abdul Razak (D) through L.Rs. & Ors. v. Mangesh Rajaram Wagle & Ors. reported in 2010 (2) ALD 136 (SC) are relevant to quote here:-

".....The error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. "

The question about the scope of constitutional power of the High Courts under Article 227 on account of amendment made in Section 115 C.P.C. came for consideration before the Apex Court in Surya Dev Rai v. Ram Chander Rai & Ors. reported in AIR 2003 SC 3044; Salem Advocate Bar Association, Tamil Nadu v. Union of India (UOI) reported in (2005) 6 SCC 344; Radhey Shyam & Anr. v. Chhabi Nath & Ors. reported in (2015) 5 SCC 423 and Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil reported in (2010) 8 SCC 329, it has been held therein that the power of the High Court under Article 227 of the Constitution is always in addition to the revisional jurisdiction conferred on it. The curtailment of revisional jurisdiction of the High Court under Section 115 of the Code does not take away and could not have taken away the constitutional jurisdiction of the High Court. The power exist untrammelled by the amendment in Section 115 C.P.C. The amendments to Section 115 C.P.C. has not resulted in curtailment or expansion of the High Court's power of superintendence. However, while exercising its jurisdiction, High Courts must follow the regime of law. From time and again, the Apex Court has put a word of caution against frequent interference by High Courts under Article 227 of the Constitution with pending civil or criminal cases before the sub-ordinate courts which may affect early disposal of cases by the said courts. The principles for invoking the jurisdiction under Article 227 have been formulated in Paragraph 49 in Shalini Shyam Shetty & Anr. (supra) as under:-

"49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution 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 of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.

(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal 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 down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

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

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

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts 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 superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered 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 suo motu.

(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 the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article 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 High Court.

(n) 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 of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

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

Thus, it can be seen that the powers of the High Court under Section 115 C.P.C. and Article 227 of the Constitution are analogous subject to their own limitations and can be exercised in a case of jurisdictional error committed by the sub-ordinate court. With the amendment of Section 115 C.P.C., the revision against an interlocutory order is maintainable subject to the conditions provided in the said Section i.e. in case, it amounts to finally disposing of the suit or proceeding or likely to occasion a failure of justice or cause irreparable injury. The petition under Article 227 of the Constitution, however, can be maintained irrespective of the nature of the order passed by the sub-ordinate court, however, the power is restricted in a sense that it is to be invoked only to correct errors of jurisdiction. Where the Court poses itself a wrong question or approaches a question in an improper manner, in such a situation even the findings of fact rendered by the sub-ordinate court would be amenable to correction at the hands of the High Courts under Article 227 of the Constitution as the failure to render necessary finding to support its order would be jurisdictional error liable to correction. The supervisory jurisdiction of the High Court under Article 227 of the Constitution, therefore, is unfettered and unrestricted power to remedy the glaring mistake committed by the sub-ordinate court. The availability of adequate alternative remedy to the applicant would not bar the jurisdiction of the High Court as a rigid or inflexible rule. There can be extra-ordinary circumstances where despite the existence of alternative legal remedy, the High Court may interfere in favour of an applicant but certainly, there shall be extra-ordinary circumstances to invoke such power. In exercise of supervisory jurisdiction, the High Court may not only give suitable directions so as to guide the sub-ordinate court as to the manner in which it would act or proceed thereafter or afresh in an appropriate case the High Court may itself make an order in supersession or substitution of the order of the sub-ordinate court as that court could have made in the facts and circumstances of the case. The rider is that the High Courts would keep in mind the limitations of the supervisory jurisdiction and refrain from exercising it casually or as a Court of Appeal.

This power of superintendence flows from the Constitution. Seven Judges Constitution Bench in Chandra Kumar v. Union of India & Ors. reported in AIR 1997 SC 1125 had held that the power vested in the High Courts under Article 227 of the Constitution to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is an integral and essential feature of the Constitution, constituting part of its basic structure. It is their duty to oversee that the judicial decision rendered by those who man the sub-ordinate Courts and Tribunals do not fall foul of strict standards of legal correctness and judicial independence.

The legal remedy under Section 115 C.P.C. is, however, much more limited to correct the jurisdictional errors only, though the revisional power by its nature is of superintendence but in exercise of the revisional power, the High Court cannot make an order in substitution of the order of the sub-ordinate Court rather it would have to relegate the matter back, if correction is needed.

Having considered the scope of jurisdiction of the High Court under Article 227 of the Constitution vis-a-vis Section 115 C.P.C., it cannot be said that mere availability of remedy of revision would bar the jurisdiction of the High Court to examine the petition on merits so to satisfy itself as to whether an occasion has arisen to invoke supervisory jurisdiction under Article 227 within its permissible limits.

Nonetheless, the revision under Section 115 C.P.C. is not a statutory substantive remedy for a litigant or the petitioner herein. It is a procedural remedy conferring power on the High Court to supervise the courts sub-ordinate to it. This petition filed under Article 227 of the Constitution, therefore, cannot be said to be not maintainable.

Further more, admitted facts are that the present petition was filed on 5.10.2016 under Article 226 of the Constitution. On the objection raised by the respondent in the counter affidavit filed on 29.11.2016 that the petition under Article 226 of the Constitution against the judicial order was not maintainable in view of the judgment in Radhey Shyam (supra), it was amended and converted into a petition under Article 227 vide order of the Court dated 23.3.2017.

It is noticeable that no objection was raised by the respondent regarding maintainability of the petition under Article 227 of the Constitution in view of the availability of revision under Section 115 C.P.C. before the High Court, to examine the correctness of the order impugned. After a period of two years, after exchange of affidavits at the time of final disposal, objections have been raised regarding maintainability of the petition by way of preliminary objection.

Learned Senior Counsel for the respondent vehemently submits that the petitioner has no option but to file revision petition under Section 115 C.P.C. and the present petition is not convertible into a revision inasmuch as the revision petition under Section 115 C.P.C. is a separate and distinct proceedings under Article 227 of the Constitution and one cannot be identified with the other and they are not interchangeable. With the aid of the judgment of Apex Court in (State of U.P. & Anr. v. U.P. Rajya Khanij Vikas Nigam Sangharsh Samiti & Ors. reported in (2008) 12 SCC 675, it is contended that it cannot be taken as a legal proposition of law that once a petition is admitted it cannot be dismissed on the ground of alternative remedy.

Shri Anoop Trivedi, on the other hand, placing reliance upon the judgments in Salani Ranjan Vidyarthi v. The Chairman Life Insurance Corporation of India & Ors. reported in 1991 AWC 546 ALL; Daya Shanker Mishra v. National Textile Coporation (UP) Ltd. reported in 1994 (3) AWC 1369; Awadesh Rai v. Regional Manager, UPSRTC, Azamgarh reported in 1993 (2) AWC 1077 and of the Apex Court in The State of U.P. v. Mohammad Nooh reported in AIR 1958 SC 86 submits that existence of adequate alternative statutory legal remedy is not a bar to issue a writ or direction by a superior court as it has jurisdiction to correct the errors of the inferior courts or tribunals. The said question, moreover, has been raised after a period of two years of the petition having been entertained and affidavits exchanged between the parties, it may not be appropriate to dismiss this petition on the ground of alternative remedy of revision relegating the petitioner to approach the High Court by filing a revision.

Having noticed the scope of enquiry under Section 115 C.P.C. and Article 227 of the Constitution and the fact that the supervisory power in both jurisdictions to be exercised by the High Court are akin to each other and that the objection regarding the maintainability of this petition on the ground of alternative remedy of revision has been taken after two years of its institution, this Court is of the considered view that this petition under Article 227 of the Constitution cannot be thrown on the ground of entertainability i.e. only for the order impugned being revisable. The legal position that the power of superintendence under Article 227 is to be sparingly used in an appropriate case where the order of civil court is assailed, can not to be taken as a ground to throw this petition outrightly on the plea of maintainability, without entering into the merits of the matter.

Even otherwise, the rule of exhaustion of alternative remedy is not an inflexible rule and it is a rule of policy, convenience and discretion and it does not affect the High Court's jurisdiction to issue writ or necessary directions to the courts sub-ordinate to it.

For the aforesaid, the preliminary objection raised by Shri Navin Sinha with regard to the maintainability of the present petition under Article 227 of the Constitution is liable to be rejected. The question raised before this Court is answered, accordingly.

The matter shall not be treated as tied-up or part heard to this Bench and shall be placed before the appropriate Bench.

(Sunita Agarwal, J.)

Order Date:- 10.10.2018

Jyotsana