Page No.# 1/3 vs Suruj Banu
2025 Latest Caselaw 940 Gua

Gauhati High Court

Page No.# 1/3 vs Suruj Banu on 6 June, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                        Page No.# 1/3

GAHC010119942025




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                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : CRP(IO)/202/2025

         ATIQUL ISLAM AND 5 ORS.
         S/O. LT. ABDUL NOBI @ NABI

         2: SAHERA @ SAHARA KHATUN
          D/O. LT. ABDUL NOBI @ NABI

         3: SAFURA KHATUN
          D/O. LT. ABDUL NOBI @ NABI

         4: MONUWARA @ MANUWARA SULTANA
          D/O. LT. ABDUL NOBI @ NABI

         5: SANUWARA @ SANUARA SULTANA
          D/O. LT. ABDUL NOBI @ NABI

         6: RUNA LAILA
          D/O. LT. ABDUL NOBI @ NABI
         ALL ARE R/O. OF VILL. BATAMARI
          P/S. BATADRAVA
          MOUZA-BATADRAVA
          DIST. NAGAON
         ASSAM

         VERSUS

         SURUJ BANU
         W/O. BABAR ALI, R/O. VILL.- HAIDUBI, MOUZA- BATADRAVA, DIST.
         NAGAON.

                     For the Petitioner(s)   : Mr. N. B. P. Singha, Advocate

                     For the Respondent(s)   : None appears.
                                                                                Page No.# 2/3


                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                         ORDER

Date : 06.06.2025

Heard Mr. N. B. P. Singha, the learned counsel appearing on behalf of the petitioners.

2. The supervisory jurisdiction of this Court have been invoked challenging the order dated 06.05.2025 passed in Petition No.51/2025 whereby the application filed under Order XXI Rule 97 of the Code of Civil Procedure, 1908 (for short 'the Code') have been rejected.

3. From a perusal of the provision of Order XXI Rule 103 of the Code, it is seen that an order passed in a petition under Order XXI Rule 97 of the Code amounts to a decree. In that view of the matter, an appeal lies under Section 96 of the Code.

4. The Supreme Court in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Others Vs. Tuticorin Educational Society and

Others reported in (2019) 9 SCC 538 had categorically observed that the

jurisdiction under Article 227 of the Constitution should not be invoked when there is an appellate remedy provided under the Code. Paragraph Nos. 12 and 13 of the said judgment being relevant are quoted herein under:

"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 Page No.# 3/3

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."

5. Taking into account the above, the instant petition is not entertained for which the instant petition stands dismissed.

6. Be that as it may, this Court grants liberty to the petitioners to file an appeal under Section 96 read with Order XLI of the Code before the learned Appellate Court against the order dated 06.05.2025 and the period from 02.06.2025 till date be excluded while computing the period of limitation.

JUDGE Comparing Assistant