Kerala High Court
Valiyaparambath Kunhiraman vs M.V.Bharathi on 23 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Thursday, the 23rd day of June 2022 / 2nd Ashadha, 1944
FAO NO. 20917 OF 2021(FILING NO.)
APPELLANT/APPELLANT:
VALIYAPARAMBATH KUNHIRAMAN, AGED 64 YEARS, SON OF LATE KANNAN,
RESIDING AT VALIYAPRAMBATH, KODAKKAD VILLAGE, HOSDURG TALUK,
KASARGOD DISTRICT PIN-671310.
BY ADV. C.MURALIKRISHNAN (PAYYANUR), ABRAHAM GEORGE JACOB AND AKSHAY R
RESPONDENTS/RESPONDENTS:
1. M.V.BHARATHI, AGED 68 YEARS, WIFE OF LATE VALIYAPARAMBATH NARAYANAN.
RESIDING AT MADHUPAN, NEAR BABU AUTO ENGINEERING, KALIKADAVU,
PILICODE, PILICODE VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN-
671310.
2. BABURAJ K, AGED 49 YEARS, SON OF LATE VALIYAPARAMBATH NARAYANAN.
RESIDING AT MADHUPAN, NEAR BABU AUTO ENGINEERING, KALIKADAVU,
PILICODE, PILICODE VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN-
671310.
3. MADHU K, AGED 46 YEARS, SON OF LATE VALIYAPARAMBATH NARAYANAN.
RESIDING AT MADHUPAN, NEAR BABU AUTO ENGINEERING, KALIKADAVU,
PILICODE, PILICODE VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN-
671310.
4. SUKUMARAN K, AGED 43 YEARS, SON OF LATE VALIYAPARAMBATH
NARAYANAN,RESIDING AT MADHUPAN, NEAR BABU AUTO ENGINEERING,
KALIKADAVU, PILICODE, PILICODE VILLAGE, HOSDURG TALUK, KASARAGOD
DISTRICT, PIN- 671310.
This First appeal from orders having come up for orders on
23.06.2022, the court on the same day passed the following:
ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.
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Dated this the 23rd day of June, 2022
ORDER
Anil K. Narendran, J.
The appellant has filed this appeal invoking the
provisions under Section 104(1)(i) read with Order XLIII Rule
1(d) of the Code of Civil Procedure, 1908 against the
judgment dated 08.09.2021 of the Sub Court, Hosdurg in
C.M.A.No.11 of 2020 arising out of the order dated
03.09.2019 of the Munsiff Court, Hosdurg in I.A.No.1841 of
2018 in O.S.No.246 of 2015. I.A.No.1841 of 2018 in
O.S.No.246 of 2015 is one filed invoking the provisions under
Order IX Rule 13 of the Code to set aside the ex-parte decree
dated 12.04.2017 of the Munsiff Court, Hosdurg in
O.S.No.246 of 2015.
2. In this appeal, the defect noted by the Registry is
that no appeal shall lie against the judgment dated
08.09.2021 in C.M.A.No.11 of 2020 of the Sub Court,
Hosdurg.
3. Heard the learned counsel for the appellant.
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4. For setting aside the ex-parte decree dated
12.04.2017 in O.S.No.246 of 2015, the appellant filed
I.A.No.1841 of 2018, under Order IX Rule 13 of the Code.
That application ended in dismissal by the order dated
03.09.2019, against which the appellant preferred
C.M.A.No.11 of 2020 before the Sub Court, Hosdurg, under
Order XLIII Rule 1(d) of the Code, 1908. That appeal ended
in dismissal by the judgment dated 08.09.2021 of the Sub
Court.
5. Section 104 of the Code deals with orders from
which appeal lies. As per sub-section (1) of Section 104, an
appeal shall lie from the orders enumerated in clauses (ff),
(ffa), (g), (h) and (i) of sub-rule (1), and save as otherwise
expressly provided on the body of the Code or by any law for
the time being in force, from no other orders. As per sub-
section (2) of Section 104, no appeal shall lie from any order
passed in appeal under Section 104.
6. The appellant has already availed the appellate
remedy against the order in I.A.No.1841 of 2018, by invoking
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the provisions under Order XLIII Rule 1(d) of the Code, by
preferring C.M.A.No.11 of 2020 before the Sub Court,
Hosdurg. After the dismissal of that appeal, the appellant
cannot challenge that order by filing another appeal, invoking
the provisions under Order XLIII Rule 1(d) of the Code, in
view of the provisions under Section 104(2) of the Code,
which provides that no appeal shall lies on any order passed
in appeal under the Section.
7. In Sree Narayana Dharma Samajam v.
Mohandas [2000 (3) KLT 933] a learned Judge of this
Court held that, against an order in an appeal filed under
Order XLIII Rule 1 of the Code, the remedy open to the party
is to file a Civil Revision Petition under Section 115 of the
Code.
8. Section 115 of the Code deals with revision. As per
the proviso to sub-section (1) of Section 115, substituted by
Section 4 of the Code of Civil Procedure (Amendment) Act,
1999 (Act 46 of 1999), with effect from 01.07.2002, the High
Court shall not, under this section, vary or reverse any order
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made, or any order deciding an issue, in the course of a suit
or other proceeding, except where the order, if it had been
made in favour of the party applying for revision would have
finally disposed of the suit or other proceedings.
9. In Surya Dev Rai v. Ram Chander Rai [(2003)
6 SCC 675] the Apex Court held that, Article 227 of the
Constitution confers on every High Court the power of
superintendence over all courts and tribunals throughout the
territories in relation to which it exercises jurisdiction
excepting any court or tribunal constituted by or under any
law relating to the Armed Forces. The jurisdiction under
Article 227 can be traced back to Section 15 of High Courts
Act, 1861 which gave a power of judicial superintendence to
the High Court apart from and independently of the provisions
of other laws conferring revisional jurisdiction on the High
Court. Section 107 of the Government of India Act, 1915 and
then Section 224 of the Government of India Act, 1935 were
similarly worded and reproduced the predecessor provision.
However, sub-section (2) was added in Section 224 which
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confined the jurisdiction of the High Court to such judgments
of the inferior courts which were not otherwise subject to
appeal or revision. That restriction has not been carried
forward in Article 227 of the Constitution.
10. In Surya Dev Rai (supra) the Apex Court held
further that, proceedings under Article 226 are in exercise of
the original jurisdiction of the High Court while proceedings
under Article 227 of the Constitution are not original but only
supervisory. Article 227 substantially reproduces the
provisions of Section 107 of the Government of India Act,
1915 excepting that the power of superintendence has been
extended by this Article to tribunals as well. Though the
power is akin to that of an ordinary court of appeal, yet the
power under Article 227 is intended to be used sparingly and
only in appropriate cases for the purpose of keeping the
subordinate courts and tribunals within the bounds of their
authority and not for correcting mere errors. The power may
be exercised in cases occasioning grave injustice or failure of
justice such as when (i) the court or tribunal has assumed a
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jurisdiction which it does not have, (ii) has failed to exercise a
jurisdiction which it does have, such failure occasioning a
failure of justice, and (iii) the jurisdiction though available is
being exercised in a manner which tantamount to
overstepping the limits of jurisdiction.
11. The decision of the Apex Court in Surya Dev Rai
(supra) on the point that the High Court can exercise its
extraordinary jurisdiction under Article 226 to interfere with a
judicial order passed by a court of competent jurisdiction now
stands overruled by the decision of a Three-Judge Bench in
Radhey Shyam v. Chhabi Nath [(2015) 5 SCC 423].
12. In Radhey Shyam (supra), the Apex Court held
that, judicial orders of Civil Courts are not amenable to a writ
of certiorari under Art.226 and that the scope of Article 227 is
different from Article 226. Dealing with the submission made
on behalf of the respondent that the view in Surya Dev Rai
(supra) stands approved by Larger Benches in Shail v.
Manoj Kumar [(2004) 4 SCC 785], Mahendra Saree
Emporium (II) v. G.V. Srinivasa Murthy [(2005) 1 SCC
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481] and Salem Advocate Bar Association (II) v. Union
of India [(2005) 6 SCC 344] and on that ground
correctness of the said view cannot be gone into, the Three-
Judge Bench observed that, in 'Shail', though reference has
been made to 'Surya Dev Rai', the same is only for the
purpose of scope of power under Article 227, as is clear from
paragraph 3 of the said judgment. There is no discussion on
the issue of maintainability of a petition under Article 226. In
'Mahendra Saree Emporium', reference to 'Surya Dev Rai' is
made in paragraph 9 of the judgment only for the proposition
that no subordinate legislation can whittle down the
jurisdiction conferred by the Constitution. Similarly, in 'Salem
Bar Association' in paragraph 40, reference to 'Surya Dev Rai'
is for the same purpose.
13. In Radhey Shyam (supra) the Three-Judge Bench
held that Article 227 can be invoked by the High Court suo
motu as a custodian of justice. An improper and a frequent
exercise of this power will be counterproductive and will
divest this extraordinary power of its strength and vitality.
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The power is discretionary and has to be exercised very
sparingly on equitable principle. 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 in the
larger public interest, whereas Article 226 is meant for
protection of individual grievances. Therefore, the power
under Article 227 may be unfettered but its exercise is
subject to high degree of judicial discipline. The object of
superintendence under Article 227, 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 Article 227 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 the High Court.
14. The supervisory jurisdiction of the High Court
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under Article 227 of the Constitution is limited, where
interference qua an interlocutory order of a subordinate court
or tribunal is concerned. In such matters, the High Court has
to consider the question as to whether such an interlocutory
order of the subordinate court or tribunal was vitiated due to
want of jurisdiction or that the said court or tribunal had
exceeded its jurisdiction or that the order passed by it had
resulted in failure of justice. This view is supported by the
decision of the Apex Court in Kokkanda B. Poondacha v.
K.D. Ganapathi [(2011) 12 SCC 600].
15. Therefore, the power of superintendence conferred
on the High Court under Article 227 is administrative as well
as judicial and is capable of being invoked at the instance of
any person aggrieved or may even be exercised suo motu. It
is exercised to keep the subordinate courts or tribunals within
the bounds of their jurisdiction. It can be invoked when a
subordinate court or tribunal over which the High Court have
superintendence has assumed a jurisdiction which it does not
have or has failed to exercise a jurisdiction which it does have
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or the jurisdiction though available has been exercised in a
manner which is not permissible by law and a grave failure of
justice has occasioned.
16. In view of the law laid down by the Apex Court in
the decision referred to supra, the appellant can challenge the
judgment dated 08.09.2021 of the Sub Court, Hosdurg in
C.M.A.No.11 of 2020, invoking the supervisory jurisdiction of
this Court under Article 227 of the Constitution of India, in
case the challenge made in that original petition falls within
the purview of Article 227.
17. At any rate, in view of the bar under Section 104
(2) of the Code, the appellant cannot challenge the judgment
dated 08.09.2021 of the Sub Court, Hosdurg in C.M.A.No.11
of 2020 in this F.A.O. filed under Section 101(i) read with
Order XLIII Rule 1(d) of the Code.
18. In such circumstances, the defect noted by the
Registry sustained.
Registry to forthwith return the certified copy of the
judgment dated 08.09.2021 in C.M.A.No.11 of 2020 of the
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Sub Court, Hosdurg to the learned counsel for the appellant,
after retaining an attested copy in the Judges Papers.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
MIN
23-06-2022 /True Copy/ Assistant Registrar
