Gauhati High Court
Page No.# 1/5 vs The Bordeuri Sanmilan And 6 Ors on 9 May, 2022
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GAHC010041982022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/44/2022
BASANTA KUMAR MISRA AND 3 ORS.
S/O- LATE BHABANI CHARAN MISRA, R/O- VILL.- BELSOR (BORBHITHA),
P.O. AND P.S. BELSOR, DIST. NALBARI, ASSAM-781304.
2: MANOJ KUKMAR MISRA
S/O- LATE BIPIN CHANDRA MISRA
R/O- VILL.- BELSOR (BORBHITHA)
P.O. AND P.S. BELSOR
DIST. NALBARI
ASSAM-781304.
3: ATUL CHANDRA BHATTA
S/O- LATE JOYKANTA DEVA SARMA
R/O- VILL.- BILLESWAR (DEURIPARA)
P.O. AND P.S. BELSOR
DIST.- NALBARI
ASSAM-781304.
4: PROMOD CHANDRA BHATTACHARYA
S/O- LATE SONAPATI BHATTACHARYA
R/O- VILL.- BILLESWAR (DEURIPARA) P.O. AND P.S. BELSOR
DIST.- NALBARI
ASSAM
PIN- 781304
VERSUS
THE BORDEURI SANMILAN AND 6 ORS.
BILLESWAR DEVALAYA, BELSOR, NALBARI, REPRESENTED BY ITS
PRESIDENT, SRI PRABHAT CHAKRABORTY.
2:PRABHAT CHAKRABORTY
S/O- H. CHAKRABORTY
PRESIDENT
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BORDEURI SANMILAN
BILLESWAR DEVALAYA
BELSOR
NALBARI
ASSAM
3:NABAJYOTI MISRA
S/O- RAJANI MISRA
SECRETARY
BORDEURI SANMILAN
BILLESWAR DEVALAYA
BELSOR
NALBARI
ASSAM
4:RANJIT MISRA
S/O- GANGADHAR MISRA
DOLOI
BORDEURI SANMILAN
BILLESWAR DEVALAYA
BELSOR
NALBARI
ASSAM
5:THE STATE OF ASSAM
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF
ASSAM
DISPUR
GUWAHATI
DIST.- KAMRUP(M)
ASSAM
PIN- 781006.
6:THE DEPUTY COMMISSIONER
DISTRICT- NALBARI
NALBARI MAIN ROAD
NALBARI
ASSAM
PIN- 781335.
7:THE CIRCLE OFFICER
PASCHIM NALBARI REVENUE CIRCLE
CHAMATA
DIST.- NALBARI
ASSA
Advocate for the Petitioner : MR. T DEURI
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Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 09-05-2022
Heard Mr. T. Deuri, learned counsel for the petitioner and Mr. C.
Goswami, learned counsel appearing on behalf of the respondents.
The instant application under Article 227 of the Constitution has
been filed challenging the order dated 05.01.2022 passed by the learned
Court of Munsiff No. 1, Nalbari in Misc. (J) Case No. 93/2021 whereby the
injunction sought for was rejected. Against the said order, an appeal lies
under Order XLI Rule 1(r) of the Code of Civil Procedure, 1908.
Taking into consideration the judgment of the Supreme Court in
the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai &
Ors. v. Tuticorin Educational Society & Ors. reported in (2019) 9 SCC 538
and more particularly to paragraphs 11, 12 and 13 wherein it has been
stipulated that the proceedings under the Code of Civil Procedure and
forum of the Civil Court, the availability of the remedy under the CPC will
detour 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. Paragraphs 11, 12 and
13 of the sad judgment is quoted 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
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Court. In A. Venkatasubbiah Naidu v. S. Chellappan, 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 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 v. Ram Chander Rai, pointed
out in Radhey Shyam v. Chhabi Nath 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."
In view of the above pronouncement, this Court, therefore, holds
that the instant petition under Article 227 of the Constitution is not
maintainable. Taking into consideration that after the order dated
05.01.2022 passed in Misc. (J) Case No. 93/2021, the petitioner have
immediately approached this Court by filing this revision application and
the same has been pending, it is observed that if the petitioner files an
appeal within a period of 30(thirty) days from today, then in that case the
appeal shall be heard on merits without insisting on the question of
limitation. The interim order so passed on 07.03.2022 stands vacated.
JUDGE
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Comparing Assistant
