Shobhit Sah And 3 Others vs M/S Induranta Realtors And 3 ...
2022 Latest Caselaw 5748 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							                                     AFR
 
							     Reserved on 05.05.2022
 
                                                                           Delivered on 04.07.2022       
 
         
 
Case :- MATTERS UNDER ARTICLE 227 No. - 3386 of 2022
 

 
Petitioner :- Shobhit Sah And 3 Others
 
Respondent :- M/S Induranta Realtors And 3 Others
 
Counsel for Petitioner :- Shreya Gupta
 

 
Hon'ble Saral Srivastava,J.

1. Heard Ms. Shreya Gupta, learned counsel for petitioners.

2. The petitioners through the present petition under Article 227 of the Constitution of India have prayed for quashing of plaint of Original Suit No.557 of 2022.

3. The facts, in brief, are that plaintiff-respondent no.1 (for convenience referred to as 'respondent no.1') instituted a suit bearing Original Suit No.557 of 2022 against the petitioners, who are defendant nos.2, 3, 4 & 7 in suit (for convenience referred to as 'petitioners') stating therein that a registered partnership agreement was entered into between the respondent no.1, petitioners and respondent nos.2 to 4, who are defendant nos.1, 5 & 6 in the suit, (for convenience referred to as 'respondent nos.2 to 4). Under the partnership agreement, petitioners shall transfer the ownership of suit property to respondent no.1, and the respondent no.1 shall bear all expenses in developing the suit property. The details of the suit property have been stated at the foot of the plaint. Under the partnership agreement, multistory building, residential complex, commercial complex, multiplex complex, hotel/motel apartment club, etc. will be constructed and respondent no.1 was given possession of the suit property.

4. The further averments in the plaint is that respondent no.1 incurred a huge amount in developing the suit property and started construction on 21.04.2022. The petitioners with some unscrupulous persons came to the suit property and started threatening respondent no.1 and made an attempt to dispossess respondent no.1 from the suit property. It is further stated that the cause of action for the institution of suit arose on 21.04.2022 when respondent no.1 came to know that the petitioners want to sell the suit property to some other person at a higher price. In the aforesaid backdrop, the following relief has been prayed for in the suit:-

12- यह कि वादी निम्नलिखित दादरसी के लिये निवेदन करता हैः-

क- यह कि बजरिये हुकुम इम्तनाई दवामी दवाम के लिये प्रतिवादीगण को मुमानियत किया जावे कि प्रतिवादीगण किसी दीगर सख्स को किसी प्रकार का कोई भी अन्तरण व हस्तान्तरण, सट्टा या बैनामा या किसी भी प्रकार का Assign Agreement प्रश्नगत जायदाद जिसका विवरण वादपत्र के अन्त में मय नक्शा नजरी व चौहद्दी के दिया गया है, का न करें तथा वादी के स्वामित्व की भी भूमि पर वादी के शान्ति पूर्ण अध्यासन में कोई अवरोध पैदा न करें तथा उसके उपयोग उपभोग व निर्माण कार्य जो चल रहा है उसको न रोके तथा किसी तरह की कोई मुजाहिमत पैदा न करे।

ख- यह कि कुल खर्चा मुकदमा बहक वादी खिलाफ प्रतिवादीगण आयद फरमाया जाय।

ग- यह कि अलावा ख्वाह बजाय मुतजिकरह सदर वदानिश्त राय अदालत वादी और भी जिस किसी दादरसी को पाने का मुश्तहक करार पावे उसकी भी डिग्री बहक वादी खिलाफ प्रतिवादीगण आयद फरमाया जावे।"

5. The description of the suit property as stated at the foot of the plaint is as follows:-

"मकान नम्बर एस० 8/106 जो आराजी नम्बर 140/1 रकबा 1.2790 हे० आराजी नं० 141 रकबा 0.3360 हे०, 113/2 रकबा 0.0260 हे०, 117 रकबा 0.3200 हे०, 118/1 रकबा 0.1250 हे०, 143 रकबा 0.3000 हे०, 144 रकबा 0.0120 हे०, 145 रकबा 0.0040 हे०, 146 रकबा 0.0280 हे०, 147 रकबा 0.0040 हे०, 148/1 रकबा 0.0040 हे०, 142 रकबा 0.3360 हे०, 148/2 रकबा 0.320 हे०, 149 रकबा 0.2020 हे०, 150 रकबा 0.4410 हे०, 151 रकबा 0.0200 हे० 153 रकबा 0.0530 हे० पर बना है वाका मुहल्ला खजुरी, वार्ड सिकरौल, शहर वाराणसी जिसको नक्शा मुन्सलिका दाव हाजा मे बकैद पैमाईश जाहिर किया गया है हसब चौहद्दी जैल-

पूरब- आराजी नम्बर-154 व अन्य

पश्चिम- जमीन राजकृष्ण दास आराजी नम्बर 116 व अन्य उत्तर-प्राइवेट रास्ता बादहूं मकबूल आलम रोड (मुख्य मार्ग)

दक्षिणः- आराजी नम्बर 120, 121, 122 व अन्य व मकान नं० एस 8/106ए।"

6. Learned counsel for the petitioners has urged that under clause 21 of the partnership deed, any dispute between partners of the firm shall be referred to an arbitrator who has jurisdiction to decide the dispute. It is further contended that the suit filed by respondent no.1 is sham illusory and inspired by nefarious and vexatious design to harass the petitioners which are established from the record and in such view of the fact, this Court under Article 227 of the Constitution of India has jurisdiction to interfere in the matter and quash the plaint.

7. To buttress the said submission, learned counsel for the petitioners further urged that the fact that dispute between partners is to be referred to the arbitrator is admitted by respondent no.1 which is evident from the record of the case instituted by respondent no.1 under Section 9 of the Arbitration and Conciliation Act, 1996 and Section 2 (1) (C) (XV) of Commercial Court Act, 2015. Accordingly, it is contended that when it is admitted by respondent no.1 that the forum to resolve the dispute between the partners is the arbitration under clause 21 of the partnership deed, the suit is barred under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'Act, 1996'). Accordingly, it is contended that it is a fit case where this Court should exercise its power under Article 227 of the Constitution of India to quash the plaint.

8. Now in view of the submission advanced by the learned counsel for the petitioners, the moot question which arises for consideration is as to whether the present case falls within the periphery of one of such cases where this Court should exercise its power under Article 227 of the Constitution of India to quash the plaint or as the alternative remedy is available to the petitioners in the form of application under Order 7 Rule 11 of C.P.C., they may be relegated to the same.

9. I have considered submissions of counsel for the petitioners and perused the record.

10. The submission advanced by learned counsel for the petitioners is solely based upon application under Section 9 of the Act, 1996 read with Section 2 (1) (C)(XV) of Commercial Court Act, 2015 filed by respondent no.1 registered as Misc. Civil Case No. 113 of 2022. The petitioners have placed reliance upon paragraphs 2, 9 to 11 and prayer made by respondent no.1 in para 15 of the application. Para 2, 9 to 11, and 15 of Section 9 application are reproduced herein below:

"2.यह है कि विपक्षीगण की जमीन मुहल्ला खजुरी, वार्ड सिकरौल, शहर वाराणसी जिस पर मकान नम्बर एस० 8/106 नगर निगम वाराणसी द्वारा पड़ा है जो प्रार्थनापत्र के साथ (संलग्नक-4) है, तथा जो आराजी नम्बर 141 रकबा 0.3360 हे०, 113/2 रकबा 0.026 हे०, 117 रकबा 0.320 हे०, 118/1 रकबा 0.125 हे०, 143 रकबा 0.300 हे०, 144 रकबा 0.012 हे०, 145 रकबा 0.004 हे०, 146 रकबा 0.028 हे०, 147 रकबा 0.004 है, 148/1 रकबा 0.004 हे०, 142 रकबा 0.336 हे०, 148/2 रकबा 0.032 हे०, 149 रकबा 0.202, 150 रकबा 0.441 हे०, 151 रकबा 0.020 हे०, 153 रकबा 0.053 हे० पर कायम है प्रार्थनापत्र के साथ खतौनी (संलग्नक-3) है। और विपक्षीगण ने जरिये पार्टनरशिप विलेख दिनांक 31.03.2015 को प्रार्थी के फर्म मेसर्स ईन्दू रत्ना रियलटर्स एल.एल.पी. के साथ पार्टनशिप इकरारनामा तहरीर करके रुबरू गवाहान निष्पादित कर दिया। पार्टनरशिप इकरारनामा इस पार्थनापत्र के साथ (संलग्नक-2) है तथा बादहू फर्म निबंधक रजिस्ट्रार उ०प्र० के कार्यालय वाराणसी में संख्या 820/7-3-15105 को दिनांक 21.05.2015 को फर्म निबंधक उ०प्र० वाराणसी द्वारा पार्टनरशिप डीड को निबंधित कर दिया गया। रजिस्ट्रेशन इस प्रार्थनापत्र के साथ (संलग्नक-1) है। तथा मेसर्स ईन्दू रत्ना रियलटर्स एल.एल.पी. (संलग्नक-5) व मुद्दालेहुम के मध्य पार्टनरशिप डीड निबंधित वाराणसी में हुआ उसके अनुसार प्रार्थी को विकसित करने का सम्पूर्ण खर्च वहन करना होगा तथा विपक्षीगण प्रश्नगत आराजियात व मकान नम्बर की जमीन को पार्टनर शिप डीड के अनुसार ईन्दू रत्ना रेसिडेन्सियल्स को बतौर मालिकाना हक प्रदान कर दिये। यानी प्रश्नगत जायदाद के बावत ईन्दूरत्ना रेसीडेन्सियल्स हर फेल मालिकाना हक अमल मे लाते रहेगे।

9. यह कि दिनांक 04.03.2022 को प्रार्थी ने विपक्षीगण से अनुरोध किया कि पार्टनरशिप डीड दिनांकित 31.03.2015 के पैरा 21 के अनुपालन में मध्यस्थ नियुक्त कर एक सप्ताह के भीतर अवगत करावे ताकि विवाद का निस्तारण मध्यस्थम द्वारा किया जा सके।

10. यह कि प्रार्थी, विपक्षीगण की सूचना का इन्तजार करता रहा परन्तु उक्त अवधि व्यतीत हो जाने के बाद तथा उसके बाद भी दस दिन बीत जाने के बाद विपक्षीगण आर्विट्रेशन क्लाज पैरा 21 के अनुपालन मे मध्यस्थम नियुक्त किये जाने मे कोई अभिरुचि नही दिखाई और न ही इस सम्बन्ध में कोई सूचना ही प्रेषित की गई।

11. यह कि प्रार्थी ने प्रश्नगत जायदाद जिसका विवरण नीचे दिया गया है, के संबंध मे कोई अन्य वाद किसी अन्य न्यायालय मे दाखिल नही किया है न ही वह मौजूदा समय मे विचाराधीन है। प्रार्थी का विवादित जायदाद के संबंध मे यह पहला वाद है।

15. यह कि प्रार्थी निम्नलिखित दादरसी के लिये निवेदन करता हैः-

क- यह कि बजरिये हुकुम इम्तनाई दवामी दवाम के लिये विपक्षीगण को मुमानियत किया जावे कि दौरान मुकदमा विपक्षीगण किसी दीगर सख्स को किसी प्रकार का अन्तरण व हस्तान्तरण सट्टा या बैनामा प्रश्नगत जायदाद का जिसका विवरण प्रार्थनापत्र के अन्त में मय नक्शा नजरी व चौहद्दी के दिया गया है, का न करे तथा प्रार्थी के स्वामित्व की भूमि पर प्रार्थी के शान्ति पूर्ण अध्यासन मे कोई अवरोध पैदा न करें तथा उसके उपयोग उपभोग व निर्माण कार्य जो चल रहा है उसको न रोके तथा किसी तरह की कोई मुजाहिमत पैदा न करे।

ख- यह कि कुल खर्चा मुकदमा वहक प्रार्थी खिलाफ विपक्षीगण आयद फरमाया जाय।

ग- यह कि अलावा ख्वाह वजाय मुतजिकरह सदर वदानिश्त राय अदालत प्रार्थी और भी जिस किसी दादरसी को पाने का मुश्तहक करार पावे उसको भी वहक प्रार्थी खिलाफ विपक्षीगण आयद फरमाया जावे।"

11. Placing reliance upon para 9, 10 to 11 of Section 9 application, extracted above, it is contended that the averments contained in the aforesaid paragraphs of Section 9 application discloses that respondent no.1 has admitted that any dispute among the partners shall be referred to the arbitrator, and once admission has been made by respondent no.1 in Section 9 application, it is crystal clear that suit is barred by Section 8 of the Act, 1996 and jurisdiction of the civil court is ousted, hence, the suit is nothing but an abuse of the process of the court and deserves to be quashed by this Court under Article 227 of the Constitution of India.

12. Before proceeding to consider the contention of the petitioners' counsel, it would be fruitful to analyse the judgement relied upon by the learned counsel for the petitioners.

13. In the case of Mohd. Shahid and Another Vs. State of U.P. and Others 2003 AWC 65249, a landlord filed suit under Section 21(1)(b) of the U.P. Act No.13 of 1972 for eviction of the tenant. The application of the landlord was allowed and the matter travelled up to High Court where the order passed by the court below for eviction was affirmed and no special leave petition was preferred against the order passed by the High Court, yet the tenant, who was District Election Officer, instituted a suit against the landlord in which temporary injunction application was rejected, but in the appeal, the injunction was granted. In such view of the fact, the writ petition was filed praying for quashing of the order of the appellate court granting the temporary injunction and quashing the plaint.

14. This Court after analyzing the fact in the said case found that it is a fit case where the institution of the suit by the tenant is nothing but an abuse of the process of the court inasmuch as the decree of the eviction against the tenant-District Election Officer had attained finality till High Court and as the rights of the parties have already been determined, the tenant had no option but to vacate the premises in question and the institution of the suit by the tenant is nothing but an abuse of the process of the court which can very well be corrected by this Court in the exercise of power under Article 227 of Constitution of India by quashing the plaint and the technical objection raised by the Standing Counsel regarding alternative remedy available to the landlord under Order 7 Rule 11 of C.P.C. was overruled.

15. In the case of Shrawan Kumar @ Pappu Vs. Nirmala passed in Writ-C No.62174 of 2012, this Court quashed the plaint as the prayer in the suit was to restrain the respondent from marrying any other person except the petitioner. This Court found that the prayer in the suit was against public policy and as such, it is impliedly barred by Section 9 of C.P.C. In returning the said finding, this Court noticed Section 26 of the Indian Contract Act, 1872 which provides that an agreement to restrain a marriage of any person is void. It was in such peculiar facts, that this Court quashed the plaint suo moto.

16. In the case of Prem Shanker Tripathi Vs. 1st Additional District Judge, Allahabad and Others 1986 ALL. L.J. 1200 this Court quashed the plaint of Original Suit No.139 of 1977 pending in the court of Munsif (West) Allahabad on the ground that controversy in the suit has already been settled by this Court in Writ Petition No.852A of 1976 and Writ Petition No.302 of 1976. In such view of the fact, this Court found that the filing of the suit was a frivolous and vexatious act. The Court further noticed that by filing the suit an effort had been made to get over the order passed by this Court in the writ petition. Accordingly, this Court held that suit is impliedly barred within the meaning of Section 9 of C.P.C.

17. In the case of Gulab Chand Vs. Munsif West Allahabad and Others ARC 1988 (1) this Court quashed the plaint of Original Suit No.102 of 1987 instituted by one Meera Dutta. The facts in that case was that the petitioner-landlord instituted a suit for eviction in the court of Judge Small Causes Court, Allahabad being Suit No.50 of 1981 against O.P. No.3 to 5 for their ejectment from the disputed house. The said suit was decreed and O.P. Nos. 3 to 5 were directed to vacate the disputed house within a month. The decree of eviction was challenged by the tenants O.P. Nos.3 to 5 in revision before the District Judge, who dismissed the revision and affirmed the decree of eviction. Thereafter, O.P. Nos.3 to 5 preferred Writ Petition No.4419 of 1983 before this Court which was also dismissed. The O.P. Nos.3 to 5 when unable to save their eviction, adopted a device to institute a suit by their sister Smt. Meera Dutta (O.P. No.2 in the revision) on the ground that she was also one of the co-tenant of the disputed house and she was not put to notice before passing the eviction decree and thus, the eviction decree is collusive. This Court found that institution of the suit by O.P. No.2 Smt. Meera Dutta is nothing but an abuse of the process of the court inasmuch as it is impossible to believe in view of the averment made in the plaint that she had been residing at the disputed house throughout, yet she could not know about the eviction suit instituted against O.P. Nos.3 to 5. The Court found that it is established that the litigation is sham, illusory, collusive, and inspired by nefarious and vexatious design, therefore, this Court quashed the plaint.

18. Similarly, in the case of Smt. Tajwar Jahan and Another Vs. Munsif North, Lucknow, and Another 1994 ALR 24 528 this Court quashed the plaint in a case where rights of the parties have been adjudicated and have attained finality up to Apex Court.

19. In all five judgements relied upon by the learned counsel for the petitioners, it is pertinent to note that rights among the parties have been determined by a competent court, and to scuttle the execution of the decree, fresh suits have been instituted and in such view of the fact, this Court has held that when the rights among the parties have been determined, the propriety demands that the order or decree determining the rights of the parties which have attained finality must be complied with or adhered to. In such circumstances, this Court held that where it is established on record that the suit is sham, illusory, collusive, and inspired by nefarious and vexatious design, the Courts not only have jurisdiction but owe a duty to throttle such litigation at the threshold.

20. Now at this juncture, it is pertinent to note that though respondent no.1 has filed an application under Section 9 of the Act, 1996 and has stated in para 9, 10, and 11 of the application that clause 21 provides for settlement of dispute among the partners by the arbitrator. Such averment in Section 9 application, for the reasons stated hereinafter, does not amount to an admission by respondent no.1 that the dispute raised in the suit by the respondent no.1 falls within clause 21 of the partnership deed and such dispute can be resolved only through an arbitrator.

21. To determine whether the dispute is to be referred to the arbitrator under clause 21 of the partnership deed, the first question which needs to be determined is whether the dispute among the partners arises out of the partnership deed. The said issue being an issue of fact can be adjudicated by the trial court only on the basis of evidence and material on record, and this Court cannot adjudicate the said issue under its supervisory jurisdiction under Article 227 of the Constitution of India.

22. The matter can be viewed from another angle, that application under Section 9 of the Act, 1996 is an application only for grant of temporary injunction on the existence of any condition enumerated in Section 9 of the Act, 1996, but application filed under Section 11 of the Act, 1996 is the application for referring the matter to the arbitrator under the scheme of the Act, 1996, and power to appoint an arbitrator is conferred upon the High Court in case parties could not appoint the arbitrator under the mode provided in the agreement.

23. In the instant case, there is nothing on record to indicate that any application under Section 11 of the Act, 1996 was filed by respondent no.1 for the appointment of an arbitrator on the ground that the dispute among the partners falls within the ambit of the arbitration clause, and the arbitrator may be appointed to resolve the dispute.

24. In such view of the fact, this Court finds that though an application under Section 9 of the Act, 1996 has been filed by respondent no.1 stating that there is an arbitration clause in the partnership deed that does not amount to estoppel or acquiescence as against the respondent no.1 admitting that dispute falls within the ambit of the arbitration clause, more so, when no application under Section 11 of the Act, 1996 has been filed for appointment of the arbitrator.

25. Though respondent no.1 has filed an application under Section 9 of the Act, 1996 stating that clause 21 of the partnership deed provides for arbitration agreement among the parties, but he got the said application withdrawn and instituted Original Suit No.557 of 2022 for the relief, extracted above.

26. The question as to whether the dispute falls within the ambit of the arbitration clause is yet to be adjudicated upon. It is relevant to notice that respondent no.1 has not approached the proper forum under Section 11 of the Act, 1996 for the appointment of Arbitrator.

27. As the aforesaid question has not been determined and no application under Section 11 of the Act, 1996 was filed by respondent no.1, whether pleading made in Section 9 application will amount to acquiescence on the part of respondent no.1 cannot be adjudicated upon at this stage in a proceeding under Article 227 of Constitution of India as it is an issue to be adjudicated in trial on the basis of evidence under which circumstances the respondent no.1 preferred Section 9 application, therefore, in the opinion of the Court, the submission of learned counsel for the petitioners does not stand to merit.

28. It is also contended that the institution of suit is a nefarious and vexatious act on the part of respondent no.1 which is evident from the fact that when respondent no.1 failed to get an order under Section 9 of the Act, 1996, he instituted Original Suit No.557 of 2022 and obtained an interim injunction order. It may be that respondent no.1 could not succeed in obtaining an injunction order under Section 9 application, but that does not mean that suit instituted by respondent no.1 is frivolous and amounts to abuse of the process of the court as the institution of Section 9 application by the respondent no.1 may be on some wrong legal advice, but fact remains that the respondent no.1 did not file any application under Section 11 of the Act, 1996 for appointment of Arbitrator and got the application under Section 9 of the Act, 1996 withdrawn, and thereafter, instituted Original Suit No.557 of 2022 in which he obtained a temporary injunction. The petitioners have a remedy of contesting the temporary injunction application and get the injunction vacated.

29. It is also contended that the suit has been instituted by concealing the material fact that respondent no.1 has filed an application under Section 9 of the Act, 1996 before the Commercial Court Act wherein he admitted in para 21 that the dispute falls within the ambit of arbitration clause of the partnership agreement, that may be so, but at this stage, it is too early to conclude that suit is liable to be dismissed for the concealment of fact inasmuch as before dismissing the suit on the ground of concealment, the court has to ascertain as to whether such concealment of fact has any bearing on the outcome of the suit, which can be determined only on the basis of evidence and material on record and not by this Court in the exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.

30. In the case of S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar and Others 2004 (7) SCC 166, the Apex has held that the suppression of the material fact disentitles the litigant to any relief, but suppression must be of a material fact which has bearing on the outcome of the decision of the case. Relevant paragraph 13 of the judgment is reproduced herein below:-

"13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the court, whatever view the court may have taken. Thus when the liability to income tax was questioned by an applicant on the ground of her non- residence, the fact that she had purchased and was maintaining a house in the country was held to be a material fact, the suppression of which disentitled her from the relief claimed. Again when in earlier proceedings before this Court, the appellant had undertaken that it would not carry on the manufacture of liquor at its distillery and the proceedings before this Court were concluded on that basis, a subsequent writ petition for renewal of the licence to manufacture liquor at the same distillery before the High Court was held to have been initiated for oblique and ulterior purposes and the interim order passed by the High Court in such subsequent application was set aside by this Court. Similarly, a challenge to an order fixing the price was rejected because the petitioners had suppressed the fact that an agreement had been entered into between the petitioners and the Government relating to the fixation of price and that the impugned order had been replaced by another order."

31. Similar view has been reiterated by the Apex Court in the case of Arunima Baruah Vs. Union of India & Others 2007 (6) SCC 120. Relevant paragraphs 11 & 12 of the judgment are reproduced herein- below:-

11. The court's jurisdiction to determine the lis between the parties, therefore, may be viewed from the human rights concept of access to justice. The same, however, would not mean that the court will have no jurisdiction to deny equitable relief when the complainant does not approach the court with a pair of clean hands; but to what extent such relief should be denied is the question.

12. It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question."

32. Therefore, in the opinion of the Court, the said contention also does not stand to merit.

33. Indeed, the alternative remedy is not always a bar in entertaining a petition under Article 227 of the Constitution of India, but the Apex Court in paragraphs 11 to 13 of the judgement in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Others Vs. Tuticorin Educational Society and Others 2019 (9) SCC 538 has held that the Court should refrain from interfering under Article 227 of Constitution of India where there is an alternate remedy provided under the scheme of the act. Paragraphs 11 to 13 of the said judgement are being reproduced herein below:-

"11. Secondly, the High Court ought to have seen that when a remedy of appeal under Section 104 (1)(i) read with Order 43, Rule 1 (r) of the Code of Civil Procedure, 1908, was directly available, Respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. In A. Venkatasubbiah Naidu Vs. S. Chellappan 2000 (7) SCC 695, this Court held that "though no hurdle can be put against the exercise of the constitutional powers of the High Court, it is a well-recognised principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies before he resorts to a Constitutional remedy"

12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before civil courts in terms of the provisions of Code of Civil Procedure, and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which the Respondents 1 and 2 invoked the jurisdiction of the High Court. This is why, a 3-member Bench of this Court, while overruling the decision in Surya Dev Rai vs. Ram Chander Rai 2003 (6) SCC 675, pointed out in Radhey Shyam Vs. Chhabi Nath 2015 (5) SCC 423 that "orders of civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts".

13. Therefore wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself."

34. In such view of the fact, as the petitioners have the remedy of filing application under Order 7 Rule 11 of C.P.C. for rejection of plaint if the suit is barred by any provision of law, this Court finds that this is not a fit case where this Court should exercise its power under Article 227 of Constitution of India to quash the plaint.

35. Thus, for the reasons given above, the writ petition under Article 227 of the Constitution of India lacks merit and is accordingly, dismissed with no order as to costs.

Order Date:- 4.7.2022/Sattyarth