Madras High Court
Nagendran vs Thavamani on 1 February, 2021
CRP(PD)(MD).No.SR 8693 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 12.07.2021
Pronounced on : 26.07.2021
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
C.R.P.(MD).No.SR8693 of 2021
Nagendran,
S/o.Karuppaiah Sevai : Petitioner/petitioner/plaintiff
Vs.
1.Thavamani
2.Selvaraj
3.Alagarsamy : Respondents/Respondents/Defendants
PRAYER: Civil Revision Petition is filed under Article 227 of Constitution of
India, to call for the records pertaining to the order passed in I.A.No.107 of
2019 in O.S.No.22 of 2019 dated 01.02.2021 on the file of the District Munsif
Court, Vadipatti, Madurai District and quashing the same.
For Petitioner : Mr.R.Murugappan
ORDER
The Civil Revision Petition is directed against the order passed in
I.A.No.107 of 2019 in O.S.No.22 of 2019 dated 01.02.2021 on the file of the
https://www.mhc.tn.gov.in/judis/
CRP(PD)(MD).No.SR 8693 of 2021
District Munsif Court, Vadipatti, Madurai District, dismissing the
interlocutory application filed under Order 39 Rules 1 and 2 of Civil
Procedure Code.
2.The Registry has raised an objection as to how this petition is
maintainable against the order passed under Order 39 Rules 1 and 2 of CPC,
as CMA will lie before the lower Appellate Court.
3.The revision was represented by making an endorsement that the Civil
Revision Petition is maintainable under Article 227 of the Constitution of
India as the petitioner has prayed to set aside/quash the order passed by trial
Court.
4.Since the Registry was not satisfied, the above petition has come up
before this Court for deciding the maintainability. The revision
petitioner is the plaintiff and he filed a suit against the respondents herein to
declare that the suit property of Karuppannasamy temple absolutely belongs to
the plaintiff and for consequential permanent injunction restraining the
defendants from disturbing the plaintiff's doing Poojai works. The
plaintiff has also filed an application in I.A.No. 107 of
https://www.mhc.tn.gov.in/judis/
CRP(PD)(MD).No.SR 8693 of 2021
2019 under Order 39 Rules 1 and 2 and Section 151 of CPC for temporary
injunction preventing the respondents/defendants disturbing the
petitioner/plaintiff doing pooja works. The learned District Munsif, after
enquiry, has passed the impugned order on 01.02.2021 dismissing the petition.
Aggrieved by the said dismissal order, the plaintiff has come forward with the
present revision petition, invoking Article 227 of the constitution of India.
5.At the outset, it is necessary to refer Order 43 Rule 1 of Code of Civil
Procedure
Appeal from orders- An appeal shall lie from the following orders under
the provisions of Section 104 namely:
(a) ..............
(r) an order under Rule 1, Rule 2, Rule 2(A), Rule 4 or Rule 10 of Order
XXXIX
Considering the above, it is very much clear that statutory appeal
remedy available to challenge the order passed under Order 31 Rules 1 and 2
of CPC is to prefer an appeal under Order 43 Rule 1 of CPC
6. It is necessary to refer the judgment of Hon'ble Supreme Court in
Virudhunagar Hindu Nadargal Dharma Paribalana Sabai & Ors. Vs.
https://www.mhc.tn.gov.in/judis/
CRP(PD)(MD).No.SR 8693 of 2021
Tuticorin Educational Society & Ors. in Civil Appeal No.7764 of 2019
dated 03.10.2019,
''12. Secondly, the High Court ought to have seen that when
a remedy of appeal under section 104 (1)(i) read with Order XLIII,
Rule 1 (r) of the Code of Civil Procedure, 1908, was directly
available, the 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 &
Ors.1, 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 recognized 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".
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 quasijudicial 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,
https://www.mhc.tn.gov.in/judis/
CRP(PD)(MD).No.SR 8693 of 2021
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 Rai2,
pointed out in Radhey Shyam Vs. Chhabi Nath3 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 Article 227
especially in a case where a specific remedy of appeal is provided
under the Code of Civil Procedure itself.''
7.In Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil
reported in (2010) 8 Supreme Court Cases 329, the Honble Apex Court has
made the adjudication for the purpose of exercising power under Article. 227
of the Constitution of India and held that an improper and a frequent exercise
of this power will be counter-productive and will divest this extraordinary
https://www.mhc.tn.gov.in/judis/
CRP(PD)(MD).No.SR 8693 of 2021
power of its strength and vitality and that the power is discretionary and has to
be very sparingly exercised on equitable principle and in appropriate cases,
the power can be exercised suo motu.
8.In Jai Singh & Ors. v. Municipal Corporation of Delhi & Anr.,
reported in (2010) 9 Supreme Court Cases 385, the Honble Apex Court has
adjudicated the matter with regard to exercising power under Art. 227 of the
Constitution of India and the relevant paragraphs is extracted hereunder:-
"15. The High Court, under Art. 227 of the Constitution of India,
has the jurisdiction to ensure that all subordinate Courts as well as
statutory or quasi-judicial tribunals, exercise the powers vested in
them, within the bounds of their authority the High Court has the
power and the jurisdiction to ensure that they act in accordance
with the well-established principles of law. The High Court is vested
with the powers of superintendence and/or judicial revision, even in
matters where no revision or appeal lies to the High Court. The
jurisdiction under this article is, in some ways, wider than the
power and jurisdiction under Art. 226 of the Constitution of India. It
is, however, well to remember the well-known adage that greater the
power, greater the care and caution in exercise thereof. The High
Court is, therefore, expected to exercise such wide powers with great
care, caution and circumspection. The exercise of jurisdiction must
be within the well-recognised constraints. It can not be exercised
https://www.mhc.tn.gov.in/judis/
CRP(PD)(MD).No.SR 8693 of 2021
like a "bull in a china shop", to correct all errors of judgment of a
Court, or tribunal, acting within the limits of its jurisdiction. This
correctional jurisdiction can be exercised in cases where orders
have been passed in grave dereliction of duty or in flagrant abuse of
fundamental principles of law or justice."
9.The petitioner no where whispered in the revision that there has been
a patent perversity in the impugned order or where there has been a gross and
manifest failure of justice or that the learned judge has exceeded his
jurisdiction.
10.On considering the pleadings of both parties and on perusing the
impugned order passed by the learned Trial Judge and in view of the above
judgements of the Hon'ble Supreme Court, this Court is of the clear view that
the petitioner has not made out any case for interference by this Court under
Article 227 of the Constitution of India. Hence, This Court concludes that the
revision petition filed under Article 227 of the Constitution of India is legally
not maintainable and the same is liable to be rejected at the SR stage itself.
11.In the result, the Civil Revision Petition is rejected as not
maintainable at the SR stage itself. However, the petitioner is at liberty to
challenge the order passed in I.A.No.107 of 2019 in O.S.No.22 of 2019 dated
https://www.mhc.tn.gov.in/judis/
CRP(PD)(MD).No.SR 8693 of 2021
01.02.2021 on the file of the District Munsif Court, Vadipatti, Madurai
District, in accordance with law. No Costs.
26.07.2021
tta
To
1.The District Munsif Court, Vadipatti, Madurai District,
2.The Section Officer, (VR Section)
Madurai Bench of Madras High Court,
Madurai.
Note:
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but,
ensuring that the copy of the order that is
presented is the correct copy, shall be the
responsibility of the advocate/litigant
concerned.
https://www.mhc.tn.gov.in/judis/
CRP(PD)(MD).No.SR 8693 of 2021
K.MURALI SHANKAR, J.
tta
PRE-DELIVERY JUDGMENT MADE IN
C.R.P.(MD).No.SR8693 of 2021
26.072021
https://www.mhc.tn.gov.in/judis/
