Kerala High Court
Babu Kottayil vs Kerala Vyapara Vyavasaya Ekopana ... on 13 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 13TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943
OP(C) NO. 1757 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 27-09-2021 IN O.S
NO.511/2021 OF II ADDITIONAL MUNSIFF COURT, THRISSUR
PETITIONERS:
1 BABU KOTTAYIL
AGED 48 YEARS
S/O. KRISHNANKUTTY, PRESIDENT, KERALA VYAPARI
VYAVASAYI EKOPANA SAMITHY, PALAKKAD DISTRICT
COMMITTEE AND MEMBER OF PATTAMBI UNIT VYAPARA
BHAVAN, MANJAKULAM ROAD, PALAKKAD-678 001
2 K.A.HAMEED,
AGED 47 YEARS
S/O. ALIKUTTY, GENERAL SECRETARY, KERALA VYAPARI
VYAVASAYI EKOPANA SAMITHY, PALAKKAD DISTRICT
COMMITTEE AND MEMBER OF CHERUPULASSERY UNIT,
VYAPARA BHAVAN, MANJAKKULAM ROAD, PALAKKAD-678
001
3 K.K.HARIDASAN,
AGED 53 YEARS
S/O. LATE K.R.KRISHNANKUTTY, TREASURER,M/S.
KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY,
PALAKKAD DISTRICT COMMITTEE AND MEMBER OF
VALLANGI UNIT, VYAPARA BHAVAN, MANJAKKULAM ROAD,
PALAKKAD NO.I VILLAGE, PALAKKAD TALUK,
PALAKKAD DISTRICT-678 001
4 K.LIYAKATH ALI
S/O. LATE MUHAMMEDUPPA, VICE PRESIDENT, M/S.
KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY,
PALAKKAD DISTRICT COMMITTEE AND MEMBER OF
ALANELLUR UNIT, VYAPARA BHAVAN, MANJAKULAM ROAD,
PALAKKAD NO.I VILLAGE, PALAKKAD TALUK,
PALAKKAD DISTRICT-678 001
5 CHANDRAN
AGED 60 YEARS
S/O. KUNCHAN, M/S. KERALA VYAPARI VYAVASAYI
EKOPANA SAMITHY, PALAKKAD DISTRICT COMMITTEE AND
MEMBER OF KOZHINJAMPARA FARKA UNIT, VYAPARA
BHAVAN, MANJAKKULAM ROAD, PALAKKAD NO.I VILLAGE,
PALAKKAD TALUK, PALAKKAD DISTRICT-678 001.
O.P(C).No.1757/2021 2
6 ZAKKARIA
S/O. P.C.ALI, PRESIDENT, M/S. KERALA VYAPARI
VYAVASAYI EKOPANA SAMITHY, PALAKKAD DISTRICT
COMMITTEE AND MEMBER OF PTRMA UNIT, VYAPARA
BHAVAN, MANJAKKULAM ROAD, PALAKKAD NO.1 VILLAGE,
PALAKKAD TALUK, PALAKKAD DISTRICT-678 001
7 JAMES
S/O LATE VARGHESE, AGED 61 YEARS
VICE PRESIDENT, M/S. KERALA VYAPARI VYAVASAYI
EKOPANA SAMITHY, PALAKKAD DISTRICT COMMITTEE AND
MEMBER OF AKDA UNIT, VYAPARA BHAVAN, MANJAKKULAM
ROAD, PALAKKAD NO.1 VILLAGE, PALAKKAD TALUK,
PALAKKAD DISTRICT-678 001
8 SHAKEER HUSSAIN
S/O SULAIMAN, AGED 40 YEARS
VICE PRESIDENT, M/S. KERALA VYAPARI VYAVASAYI
EKOPANA SAMITHY, PALAKKAD DISTRICT COMMITTEE AND
MEMBER OF KOTTANAD UNIT, VYAPARA BHAVAN,
MANJAKKULAM ROAD, PALAKKAD NO.1 VILLAGE,
PALAKKAD TALUK, PALAKKAD DISTRICT-678 001
9 BASITH MUSLIM
S/O A.Q.MUSLIM, AGED 52 YEARS
SECRETARY,M/S. KERALA VYAPARI VYAVASAYI EKOPANA
SAMITHY, PALAKKAD DISTRICT COMMITTEE AND MEMBER
OF MANARKAD UNIT, VYAPARA BHAVAN, MANJAKKULAM
ROAD, PALAKKAD NO.1 VILLAGE, PALAKKAD TALUK,
PALAKKAD DISTRICT-678 001
10 KOCHUKUTTAN
AGED 53 YEARS
S/O. LATE SANKUNNI, SECRETARY, M/S. KERALA
VYAPARI VYAVASAYI EKOPANA SAMITHY, PALAKKAD
DISTRICT COMMITTEE AND MEMBER OF THIRUVAZHIYODU
UNIT, VYAPARA BHAVAN, MANJAKKULAM ROAD, PALAKKAD
NO.1 VILLAGE, PALAKKAD TALUK, ALAKKAD DISTRICT-
678 001
O.P(C).No.1757/2021 3
11 ULLAS
AGED 44 YEARS
S/O. K.A SYED MUTHU, SECRETARY, M/S. KERALA
VYAPARI VYAVASAYI EKOPANA SAMITHY, PALAKKAD
DISTRICT COMMITTEE AND MEMBER OF KODUVAYOOR
UNIT, VYAPARA BHAVAN, MANJAKKULAM ROAD, PALAKKAD
NO.1 VILLAGE, PALAKKAD TALUK,
PALAKKAD DISTRICT-678 001
12 SHAIK CHINNAVA
AGED 48 YEARS
S/O. CHINNAVAROWTHER, SECRETARY, M/S. KERALA
VYAPARI VYAVASAYI EKOPANA SAMITHY, PALAKKAD
DISTRICT COMMITTEE AND MEMBER OF ALATHUR UNIT,
VYAPARA BHAVAN, MANJAKKULAM ROAD, PALAKKAD NO.1
VILLAGE, PALAKKAD TALUK,
PALAKKAD DISTRICT-678 001
13 PRAJITH
AGED 34 YEARS
S/O. LATE VISWWANATHAN, SECRETARY, M/S. KERALA
VYAPARI VYAVASAYI EKOPANA SAMITHY, PALAKKAD
DISTRICT COMMITTEE AND MEMBER OF PATTAMBI UNIT,
VYAPARA BHAVAN, MANJAKKULAM ROAD, PALAKKAD NO.1
VILLAGE, PALAKKAD TALUK,
PALAKKAD DISTRICT-678 001
14 MUHAMMED SHAMEER,
AGED 40 YEARS
S/O P.K.MUHAMMED, M/S. KERALA VYAPARI VYAVASAYI
EKOPANA SAMITHY, PALAKKAD DISTRICT COMMITTEE AND
MEMBER OF MANNARKKAD UNIT, VYAPARA BHAVAN,
VINAYAKA NAGAR, TIPPUSULTHAN ROAD, MANNARKKAD
NO.I VILLAGE, MANNARKKAD TALUK,
PALAKKAD DISTRICT-678 001
15 N.RAMESH
AGED 51 YEARS
S/O. UNNIKRISHNAN NAIR, GENERAL SECRETARY,
KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY,
MANNARKAT UNIT COMMITTEE AND MEMBER OF MANNARKAD
UNIT, VYAPARA BHAVAN, VINAYAKA NAGAR,
TIPPUSULTHAN ROAD, MANNARKKAD NO.I VILLAGE,
MANNARKKAD THALUK, PALAKKAD DISTRICT-678 001
O.P(C).No.1757/2021 4
16 ILLIYAS
AGED 42 YEARS
S/O. HAMSA, M/S. KERALA VYAPARI VYAVASAYI
EKOPANA SAMITHY, EDATHANATTUKARA UNIT COMMITTEE
MEMBER OF EDATHANATTUKARA UNIT, VYAPARA BHAVAN,
KARUVALLY SHOPPING CENTRE, KOTTAPALLA,
VATTAMANNAPURAM POST ALANALLUR NO.III VILLAGE,
MANNARKKAD THALUK, PALAKKAD DISTRICT-678 001
17 SHAMEEM
AGED 37 YEARS
S/O. MUHAMMED, PRESIDENT, KERALA VYAPARI
VYAVASAYI EKOPANA SAMITHY, EDATHANATTUKARA UNIT
COMMITTEE VYAPARA BHAVAN, KARUVALLY SHOPPING
CENTRE, KOTTAPALLA, VATTAMANNAPURAM POST,
ALANALLUR NO.III VILLAGE MANNARKKAD THALUK,
PALAKKAD DISTRICT-678 001
18 M.S.SIRAJ
AGED 50 YEARS
S/O. A.M.HANEEFA, GENERAL SECRETARY, KERALA
VYAPARI VYAVASAYI EKOPANA SAMITHY, PTRMA UNIT
COMMITTEE NO.II,AND MEMBER OF ALL KERALA TEXTILE
GARMENTS ASSN UNIT, PALAKKAD, VYAPARA BHAVAN,
MANJAKKULAM ROAD, PALAKKAD NO.1 VILLAGE,
PALAKKAD TALUK, PALAKKAD DISTRICT-678 001
BY ADVS.
BINOY VASUDEVAN
T.KRISHNANUNNI (SR.)
RESPONDENTS:
1 KERALA VYAPARI VYAVASAYI EKOPANA SAMITHI
REGISTERED NO.262/1981, VYPARA BHAVAN, CHAMBER
OF COMMERCE BUILDING, PALACE ROAD,
THRISSUR-680 001,
REPRESENTED BY ITS GENERAL SECRETARY RAJU APSARA
2 RAJU APSARA, AGED 53 YEARS
S/O. LATE KOCHUKUNJU, APSARA JEWELLERS,
CHARUMMODE.P.O, ALAPUZHA DISTRICT-690 505,
GENERAL SECRETARY, KERALA VYAPARI VYAVASAYI
EKOPANA SAMITHI, (STATE COMMITTEE),
REGD NO.262/1981, VYAPARA BHAVAN, BANK ROAD,
CALICUT-673 003
O.P(C).No.1757/2021 5
3 T.NAZIRUDHEEN
AGED 76 YEARS
S/O.T.K.MOHAMMED, KERALA VYAPARI VYAVASAYI
EKOPANA SAMITHI, (STATE COMMITTEE), REGD
NO.262/1981, VYAPARA BHAVAN, BANK ROAD,
CALICUT-673 003
4 DEVASYA MECHERI
AGED ABOUT 65 YEARS
S/O.MATHAI, TREASURER, KERALA VYAPARI VYAVASAYI
EKOPANA SAMITHI, (STATE COMMITTEE), REGD
NO.262/1981, VYAPARA BHAVAN, BANK ROAD, CALICUT-
3 DOING BUSINESS AT MECHERIYIL STORES,PAYYANNUR
P.O., KANNUR DISTRICT-670 633
5 K.AHAMMED SHEREEF,
AGED 54 YEARS
STATE VICE PRESIDENT AND DISTRICT PRESIDENT,
KASARAGOD, BISMILLAH ENTERPRISES, KOTTYKKOOL,
CHANGAD, KASARAGOD,-671 534
6 N.K.THOMASKUTTY
AGED 58 YEARS
STATE VICE PRESIDENT, AND DISTRICT PRESIDENT,
KOTTAYAM, MUTHUPUNNACKAL AGENCIES, ERATTUPETTAH,
KOTTAYAM-686 121
7 K.V.ABDUL HAMEED
AGED 52 YEARS
STATE VICE PRESIDENT AND DISTRICT PRESIDENT,
THRISSUR, GOLDEN AGENCIES, CHETTUVA ROAD,
CHAVAKKAD P.O., THRISSUR DISTRICT-680 506
8 P.KUNHAVU HAJI, AGED 64 YEARS
STATE VICE PRESIDENT AND DISTRICT PRESIDENT,
MALAPPURAM, ALANKAR GOLD PALACE, KUTTIPPURAM,
MALAPPURAM-679 571
9 PERINGAMALA RAMACHANDRAN,
STATE VICE PRESIDENT AND DISTRICT PRESIDENT
TRIVANDRUM, 'PRIYA', PERINGAMALA P.O., PACHA
(VIA) TRIVANDRUM-695 563
O.P(C).No.1757/2021 6
10 K.K.VASUDEVAN, AGED 54 YEARS
STATE VICE PRESIDENT AND DISTRICT PRESIDENT,
WAYANAD, ANJALI TRADERS, KEERTHI TOWER, SULTHAN
BATHERI, WAYANAD-673 592
11 P.C.JACOB, AGED 64 YEARS
STATE SECRETARY AND DISTRICT PRESIDENT,
ERNAKULAM BRIGHT EQUIPMENT, S.R.M ROAD, PACHALAM
P.O., ERNAKULAM-682 012
12 K.N.DIVAKARAN, AGED 69 YEARS
STATE SECRETARY AND DISTRICT PRESIDENT, IDUKKI,
KALARICKAL STORES, ADIMALI P.O., IDUKKI-685 561
13 A.J.SHAJAHAN, AGED 52 YEARS
STATE SECRETARY AND DISTRICT PRESIDENT,
PATHANAMTHITTA, KVVES VYAPARA BHAVAN, PANDALAM
P.O., PATHANAMTHITTA-689 501
14 DEVARAJAN, AGED 58 YEARS
STATE SECRETARY AND DISTRICT PRESIDENT, KOLLAM,
RAGAM COLLECTIONS, ANCHAL P.O., KOLLAM-691 306
15 K.SETHUMADHAVAN, AGED 52 YEARS
STATE SECRETARY AND DISTRICT GENERAL SECRETARY,
KOZHIKODE K4 GARMENTS, SM STREET,
CALICUT - 673 001
BY ADVS.
B.PREMNATH
SARATH M.S.
JYOTHI C.R.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
06.01.2022, THE COURT ON 13.01.2022 DELIVERED THE
FOLLOWING:
O.P(C).No.1757/2021 7
"C.R"
A. BADHARUDEEN, J.
================================
O.P(C).No.1757 of 2021
================================
Dated this the 13th day of January, 2022
JUDGMENT
This Original Petition (Civil) has been filed under Article
227 of the Constitution of India challenging Ext.P3 judgment
dated 27.9.2011 in O.S.No.511/2021 on the file of the Second
Additional Munsiff Court, Thrissur.
2. Heard both sides.
3. It is submitted by the learned counsel for the
petitioners that the learned Munsiff as per Ext.P3, impugned
order, found that the Munsiff Court lacks territorial jurisdiction to
deal with the issue raised in the above Suit.
4. Refuting this contention, it is submitted by the learned
counsel for the contesting respondents that this Original Petition
is not maintainable since an order returning the plaint under
Order 7 Rule 10 is an appealable order as provided under Order
43 Rule 1(a) of the Code of Civil Procedure. It is submitted
further that availability of appellate remedy can be near to total
bar for exercising supervisory jurisdiction. In this connection the
learned counsel for the respondents placed decision reported in
[2019 (9) SCC 538 : 2019 KHC 7006], Virudhunagar Hindu
Nadargal Dharma Paribalana Sabai & Ors. v. Tuticorin
Educational Society & Ors.
5. However, the learned counsel appearing for the
petitioners would submit that availability of alternative remedy is
not a bar to exercise the supervisory jurisdiction available to the
High Court under Article 227 of the Constitution of India to
address patent illegality. The learned counsel placed decision of
this Court reported in [2011 KHC 2935 : 2011 (4) KLT SN 35],
ING Vysya Bank Ltd. v. M.V.Mathew & anr. Therefore, the vital
question to be decided in this case is as to whether availability of
appellate remedy can be treated as near to total bar for exercising
supervisory jurisdiction.
6. I have perused the decision in Virudhunagar's case
(supra), wherein in para.11, 12 and 13, the Honourable Apex
Court discussed the scope of supervisory jurisdiction under
Article 227 of the Constitution of India. The Apex Court
observed in para.13 and 14 as under:
"13. 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 Art.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
3member Bench of this court, while overruling the decision in Surya
Dev Rai v. Ram Chander Rai, 2003 (6) SCC 675 pointed out in
Radhey Shyam v. 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.
14. 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 Art.227 especially
in a case where a specific remedy of appeal is provided under the
Code of Civil Procedure itself."
Thus it has to be held that though in the earlier decisions the
Apex Court as well as this Court upheld the view that supervisory
jurisdiction may be refused to be exercised, in law an alternative
efficacious remedy by way of appeal or revision is available to
the person aggrieved, it was held further that, so long as an error
capable of being corrected by a superior court, in exercise of
appellate or revisional jurisdiction though available, to be
exercised at the conclusion of the proceedings, it would be not
sound exercise of discretion on the part of the High Court
refusing to exercise power of superintendence. Further, when the
subordinate court has assumed jurisdiction which it does not have
or has failed to exercise a jurisdiction which it does have or the
jurisdiction though available is being exercised by the court in a
manner not permitted by law and failure of justice or grave
injustice has occasioned thereby, the High Court may step into
exercise its supervisory jurisdiction. However, in
Virudhunagar's case (supra), the Hon'ble Supreme Court in
categorical terms held that availability of an appellate remedy in
terms of provisions of the Code of Civil Procedure may have to
be construed as a near to total bar. Otherwise, there is a danger
that someone may challenge in a revision under Article 227 of the
Constitution of India, even a decree passed in a Suit, on the same
grounds on which the jurisdiction of the High Court under Article
227 of the Constitution of India was sought for.
7. In this connection, it is worthwhile to mention that
statutory remedy by way of appeal, in fact, provides re-
appreciation of evidence by the appellate court and to take
appropriate decision on the basis of such re-appreciation. Thus a
party, who has such a statutory remedy, shall have to opt the more
efficacious remedy by way of appeal, instead of invoking the
supervisory jurisdiction under Article 227 of the Constitution of
India, which permits to look into the arbitrariness or perversity of
an order.
8. Following the ratio in Virudhunagar's case (supra), I
have no hesitation to hold that availability of an appellate remedy
in terms of provisions of the Code of Civil Procedure to be
construed as a near total bar in seeking remedy under Article 227
of the Constitution of India. In view of the matter, this Original
Petition filed under Article 227 of the Constitution of India,
challenging an appealable order to be construed as one as near to
total bar in view of specific provision for appeal. In view of the
matter, this Original Petition is found not maintainable.
8. Therefore, I am not inclined to address the legality of
Ext.P3 order.
Consequently, the Original Petition stands dismissed. It is
ordered that the petitioners can move before the appellate court
and redress their grievances.
Sd/-
(A. BADHARUDEEN, JUDGE)
rtr/
APPENDIX OF OP(C) 1757/2021
PETITIONERS' EXHIBITS
Exhibit P1 TRUE COPY OF THE PLAINT DATED
05.03.2021 IN O.S 511/2021 ON THE FILE
OF THE COURT OF THE SECOND ADDITIONAL
MUNSIFF OF THRISSUR
Exhibit P2 TRUE COPY OF THE BYELAWS OF THE 1ST
RESPONDENT SAMITHI
Exhibit P3 TRUE COPY OF THE JUDGMENT DATED
27.09.2021 IN O.S NO.511/2021 ON THE
FILE OF THE COURT OF THE SECOND
ADDITIONAL MUNSIFF OF THRISSUR
