Madras High Court
Surendra M.Mehta vs Sreekanth S.Mehta on 30 October, 2014
Author: S.Rajeswaran
Bench: S.Rajeswaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 24.01.2013 Reheard on : 28.10.2014 DATED: 30.10.2014 CORAM THE HON'BLE MR.JUSTICE S.RAJESWARAN Civil Revision Petition (NPD) Nos.1763 and 4414 of 2012 and M.P.No.1 of 2012 C.R.P.(NPD) No.1763 of 2012 1.Surendra M.Mehta 2.Suresh B.Mehta Tushaar Mehta (deceased) 3.Naresh Mehta 4.Vaidehi T.Mehta ... Petitioners Vs. 1.Sreekanth S.Mehta 2.Pranav H.Mehta 3.Pravina H.Mehta 4.Neetha H.Mehta 5.Tuhin T.Mehta 6.Rohan T.Mehta ... Respondents (R5 and R6 are given up) Prayer: This petition has been filed under Section 115 of the Civil Procedure Code against the fair and decreetal order dated 16.03.2012 passed in I.A.No.2043/2011 in I.A.No.1366/2011 in O.S.No.2652/1997 by the learned Additional District Munsif, Alandur. For petitioners : Mr.Rajah for M/s.Rajah and Venkatesan For respondents R1 and R2 : Mr.B.Ravi Raja R3 and R4 : Mr.M.Devaraj C.R.P.(NPD) No.4414 of 2012 1.Tuhin T.Mehta 2.Rohan T.Mehta ... Petitioners Vs. 1.Sreekanth S.Mehta 2.Pranav H.Mehta 3.Pravina H.Mehta 4.Neetha H.Mehta 5.Surendra M.Mehta 6.Suresh B.Mehta Tushaar Mehta (deceased) 7.Naresh Mehta 8.Vaidehi T.Mehta ... Respondents Prayer: This petition has been filed under Section 115 of the Civil Procedure Code against the fair and decreetal order dated 16.03.2012 passed in I.A.No.2043/2011 in I.A.No.1366/2011 in O.S.No.2652/1997 by the learned Additional District Munsif, Alandur. For petitioners : Mr.J.Sivanandaraaj For respondents R2 : Mr.T.V.Sekar (Caveator) COMMON ORDER
In both the revision petitions, the petitioners challenge the fair and decreetal order dated 16.03.2012 passed in I.A.No.2043/2011 in I.A.No.1366/2011 in O.S.No.2652/21997, on the file of the learned Additional District Munsif, Alandur and therefore, a common order is being passed to dispose of both the Civil Revision Petitions.
2.C.R.P.No.1763/2012: This has been filed by the plaintiffs in O.S.No.2652 of 1997.
O.S.No.2652/1997 has been filed by the plaintiffs for a judgment and decree, declaring that the suit schedule properties belong to the firm M/s.Bapalal & Co. and for a permanent injunction restraining the defendants from alienating, encumbering or otherwise dealing with the suit properties in any manner to the detriment of the interest of the plaintiffs who continue to be the partners of M/s.Bapalal & CO.
3.Written statement has been filed by the second defendant and the suit was contested. The second defendant also filed an additional written statement, for which, a reply statement has been filed by the third plaintiff.
4.In O.S.No.2652 of 1997, an application was filed by the defendants to reject the plaint, but, the same was dismissed by the trial court on 22.03.2010. Thereafter, the suit was adjourned for several reasons and it was ultimately posted to 12.07.2010. As there was no representation on behalf of the plaintiffs on 12.07.2010, the suit was dismissed for default on that day.
5.To restore the suit which was dismissed for default on 12.07.2010, an application in I.A.No.1366/2011 has been filed by the plaintiffs under Order IX Rule 9 CPC and as there was a delay in filing the restoration application, another application has been filed to condone the delay of 134 days in filing the restoration petition under Section 5 of the Limitation Act.
6.The application filed to condone the delay of 134 days was allowed on condition that the plaintiffs should pay a sum of Rs.1,000/- and the same was complied with. Thereafter, the restoration application filed in I.A.No.1366/2011 was taken up for hearing and it was again dismissed for default on 28.10.2011. Thereafter, another application has been filed in I.A.No.2043/2011 by the plaitniffs to restore I.A.No.1366/20111, which was dismissed for default on 28.10.2011. The trial court on 16.03.2012 dismissed I.A.No.2043/2011 and aggrieved by the same, some of the plaintiffs filed C.R.P.No.1763/2012 under Section 115 of CPC.
7.Challenging the very same order dated 16.03.2012 passed in I.A.No.1366/2011 in O.S.No.2652/1997, two other plaintiffs filed C.R.P.(NPD)No.4414/2012 under Article 227 of the Constitution of India.
8.Heard the learned counsel appearing for the petitioners in C.R.P.(NPD)No.1763/2012, the learned counsel appearing for the respondents 1 and 2 and the learned counsel appearing for the respondents 3 and 4 in C.R.P.(NPD)No.1763/2012. I have also heard the learned counsel appearing for the petitioners in C.R.P.(NPD)No.4414/2012 and the learned counsel appearing for the second respondent in C.R.P.(NPD)No.4414/2012. I have also gone through the entire documents made available on record.
9.This matter was already argued and thereafter posted on 28.10.2014 before me for certain clarifications. All the learned counsel appearing for the parties made their submissions fully once again in detail with regard to the entire matter.
10.The learned counsel appearing for the respondents in C.R.P.No.1763/2012 contended that as the application filed in I.A.No.2043/2011 has been dismissed, the proper remedy for the petitioners is to file an appeal and not to file a revision under Section 115 of CPC. According to them, as per Section 141 of the Code of Civil Procedure, the procedure provided in the Code in regard to suits shall be followed in all proceedings in any Court of Civil jurisdiction. They also pointed out the explanation given under Section 141 CPC, according to which, the expression 'proceedings under Order IX', but, it does not include any proceeding under Article 226 of the Constitution of India. Therefore, the learned counsel appearing for the respondents submits that when an application filed for restoration under Order IX Rule 9 CPC is dismissed by the trial court, the proper remedy for the aggrieved parties is to file an appeal under Order 43 Rule 1(c) of CPC. Hence, they questioned the maintainability of the revision petition filed under Section 115 by the petitioners in C.R.P.(NPD)No.1763/2012.
11.In so far as the other revision petition filed under Article 227 of the Constitution of India, challenging the very same proceedings is concerned, the learned counsel appearing for the respondents submitted that when there is an alternative remedy provided under the Code, it is not open to the petitioners to resort to Article 227 of the Constitution of India and therefore, according to them, C.R.P.(NPD)No.4414/2012 filed under Article 227 of the Constitution of India is also not maintainable.
12.In support of his submissions, the learned counsel for the respondents 1 and 2 in C.R.P.(NPD)No.1763/2012 relied on a judgment of the Apex Court, reported in 2010 STPL (Web) 518 SC (2010 (8) SCC 329) (Shalini Shyam Shetty and another vs. Rajendra Shankar Patil) and an unreported judgment of this Court dated 19.11.2012 made in C.R.P.(NPD)No.1305/2012
13.On the other hand, the learned counsel for the petitioners in C.R.P.(NPD)No.4414/2012 contended that a manifest illegality has been committed by the trial court while dismissing the application and therefore, to do complete justice, the revision petition has been filed under Article 227 of the Constitution of India and this Court has got all the powers to do complete justice, when the trial court has committed a patent illegality and thus failing to exercise its jurisdiction in accordance with law.
14.In support of his submissions, the learned counsel for the petitioners relied on the following judgments:
1.2008 (14) SCC 58 (Ramesh Chandra Sankla and others vs. Vikram Cement and others) 2.2003 (6) SCC 675 (Surya Dev Rai vs. Ram Chander Rai and others) 3.1997 (5) SCC 76 (Achutananda Baidya vs. Prafullya Kumar Gayen and others)
15.The learned counsel further pointed out that one of the judgments relied on by the trial court for dismissing the application, i.e. The judgment reported in 1989 (1) LW 1371, is absolutely irrelevant and the learned Judge has also not fully considered the judgment reported in AIR 2007 JHAR 45, on which, she placed strong reliance for dismissing the application.
16.I have considered the rival submissions carefully with regard to facts and circumstances, and the citations relied on by both the counsel.
17.The facts are not in dispute.
18.The suit filed in O.S.No.2652/1997 was dismissed for default on 12.07.2010. A restoration application has been filed under Order IX Rule 9 CPC, in I.A.No.1366/2011. As there was a delay in filing the restoration application, an application has been filed under Section 5 of the Limitation Act, to condone the delay of 134 days. The delay was condoned and later on I.A.No.1366/2011 was also dismissed for default on 28.10.2011. The reason given by the trial court for dismissing I.A.No.1366/2011 is that the petitioners were called absent, vakalat not filed, no representation for petitioners and the petition is dismissed for default. Thereafter I.A.No.2043/2011 has been filed under Section 151 CPC to restore I.A.No.1366/2011. This was hotly contested by the defendants and by order dated 16.03.2012, the learned Additional District Munsif, Alandur dismissed I.A.No.2043/2011 and aggrieved by the same, both the revision petitions have been filed by the plaintiffs in the suit. It is true that C.R.P.(NPD)No.1763/2012 has been filed under Section 115 of CPC and C.R.P.(NPD)No.4414/2012 has been filed by some of the plaintiffs under Article 227 of the Constitution of India.
19.A perusal of the order dated 16.03.2012 would show that the learned Judge dismissed the application for the following reasons.
1.The application filed under Section 151 CPC is not maintainable, since the Court cannot exercise the appellate power under Section 151 CPC.
2.The prayer is not properly worded and it is specifically absent with regard to the restoration of I.A.No.1366/2011.
3.No sufficient cause was shown in the affidavit for allowing the petition.
4.The defects found in I.A.No.1366/2011 have not been rectified till date.
5.The affidavit to the petition has been sworn by an Association Counsel.
6.As per the decision in AIR 2007 JHAR 45 (Rajeshwar Singh vs. Dashrath Rai) only an appeal will lie against an order under Order IX Rule 9 CPC.
20.From the above, it is very clear that the trial court has not properly considered the issue in hand and has miserably failed to exercise its jurisdiction resulting in grave injustice caused to the plaintiffs and in such circumstances, I am of the considered view that this Court can definitely invoke its superintendent powers under Article 227 of the Constitution of India to direct the trial court to exercise its jurisdiction in a manner known to law.
21.In 2008 (14) SCC 58 (cited supra), the Hon'ble Supreme Court held as follows:
90. Now, it is well settled that jurisdiction of High Courts under Articles 226 and 227 is discretionary and equitable. Before more than half a century, the High Court of Allahabad in the leading case of Jodhey v. State, AIR 1952 All 788 observed;
"10.....There are no limits, fetters or restrictions placed on this power of superintendence in this clause and the purpose of this Article seems to be to make the High Court the custodian of all justice within the territorial limits of its jurisdiction and to arm it with a weapon that could be wielded for the purpose of seeing that justice is meted out fairly and properly by the bodies mentioned therein." (emphasis supplied)
91.The power of superintendence under Article 227 of the Constitution conferred on every High Court over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction is very wide and discretionary in nature. It can be exercised ex debito justitiae, i.e. to meet the ends of justice. It is equitable in nature. While exercising supervisory jurisdiction, a High Court not only acts as a court of law but also as a court of equity. It is, therefore, power and also the duty of the Court to ensure that power of superintendence must `advance the ends of justice and uproot injustice'.
98.From the above cases, it clearly transpires that powers under Articles 226 and 227 are discretionary and equitable and are required to be exercised in the larger interest of justice. While granting relief in favour of the applicant, the Court must take into account balancing interests and equities. It can mould relief considering the facts of the case. It can pass an appropriate order which justice may demand and equities may project. As observed by this Court in Shiv Shankar Dal Mills v. State of Haryana, (1980) 1 SCR 1170, Courts of equity should go much further both to give and refuse relief in furtherance of public interest. Granting or withholding of relief may properly be dependent upon considerations of justice, equity and good conscience.
22.In 1997 (5) SCC 76 (cited supra), the Hon'ble Supreme Court held as follows:
10.The power of superintendence of the High Court under Article 227 of the Constitution is not confined to administrative superintendence only but such power includes within its sweep the power of judicial review. The power and duty of the High Court under Article 227 is essentially to ensure that the Courts and Tribunals, inferior to High Court, have done what they were required to do. Law is well settled by various decisions of this Court that the High Court can interfere under Article 227 of the Constitution in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary ot capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no material, or resulting in manifest injustice. As regards finding of fact of the inferior court, the High Court should not quash the judgment of the subordinate court merely on the ground that its finding of fact was erroneous but it will be open to the High Court in exercise of the powers under Article 227 to interfere with the finding of fact if the subordinate court came to the conclusion without any evidence or upon manifest misreading of the evidence thereby indulging in improper exercise of jurisdiction or if its conclusions are perverse.
23.In 2003 (6) SCC 675 (cited supra), the Hon'ble Supreme Court held as follows:
22.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. Without prejudice to the generality of such power the High Court has been conferred with certain specific powers by sub-Articles (2) and (3) of Article 227 with which we are not concerned hereat. It is well-settled that the power of superintendence so conferred on the High Court 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. The paramount consideration behind vesting such wide power of superintendence in the High Court is paving the path of justice and removing any obstacles therein. The power under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. Else the parameters invoking the exercise of power are almost similar.
38.Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:-
(1) Amendment by Act No.46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a 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 in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.
39.Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self-restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where 'a stitch in time would save nine'. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge.
24.Even in the judgment relied on by the learned counsel for the respondents, reported in 2010 STPL (Web) 518 (cited supra), the Hon'ble Supreme Court observed as under:
52.To the same effect is the judgment rendered in the case of Laxmikant Revchand Bhojwani and another vs. Pratapsingh Mohansingh Pardeshi reported in (1995) 6 SCC 576. In paragraph 9, page 579 of the report, this Court clearly reminded the High Court that under Article 227 that it cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principle of law and justice (see page 579-580 of the report).
54.In a rather recent decision of the Supreme Court in case of Surya Dev Rai vs. Ram Chander Rai and others, reported in (2003) 6 SCC 675, a two judge Bench of this Court discussed the principles of interference by High Court under Article 227. Of course in Surya Dev Rai (supra) this Court held that a writ of Certiorari is maintainable against the order of a civil Court, subordinate to the High Court (para 19, page 668 of the report). The correctness of that ratio was doubted by another Division Bench of this Court in Radhey Shyam and another vs. Chhabi Nath and others [(2009) 5 SCC 616] and a request to the Hon'ble Chief Justice for a reference to a larger Bench is pending. But in so far as the formulation of the principles on the scope of interference by the High Court under Article 227 is concerned, there is no divergence of views.
55.In paragraph 38, sub-paragraph (4) at page 695 of the report, the following principles have been laid down in Surya Dev Rai (supra) and they are set out:
"38 (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate Court has assumed a 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 in to exercise its supervisory jurisdiction."
56.Sub-paras (5), (7) and (8) of para 38 are also on the same lines and extracted below:
"(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) xxx xxx (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character."
62.On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, 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 this Article 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 High Court.
(n) 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 of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.
25.It is true that when there is a clear alternative remedy, this Court will not normally invoke Article 227 of the Constitution of India, but, at the same time, alternative remedy is not a bar in a given case, where this Court finds that patent illegality has been committed and gross injustice is caused to one side.
26.The case in hand is one such because where the trial court has miserably failed to read the facts and the issues involved in the proper perspective and has failed to exercise its jurisdiction by relying on irrelevant facts and wrong judgments resulting in the suit itself is not being taken up for deciding the lis between the parties, which, according to me, is a grave injustice caused to the plaintiffs in the suit. Therefore, I have no hesitation in holding that the revision petition filed by some of the plaintiffs in C.R.P.(NPD)No.4414/2012 under Article 227 of the Constitution of India is very much maintainable.
27.Now, let me consider the reasons given by the Trial Judge for rejecting I.A.No.2043/2011 in O.S.No.2652/1997.
28.The learned Judge held that as the application filed to restore the suit in I.A.No.1366/2011 was also dismissed for default, the application filed by the plaintiffs in I.A.NO.2943/2011 to restore I.A.No.1366/2011 is also said to have been filed under Order IX Rule 9 and therefore, the only remedy that is available to the plaintiffs is not filing another restoration petition, but filing an appeal as decided by the Jharkand High Court, reported in AIR 2007 JHAR 457 (cited supra).
29.A perusal of the above said judgment would show that when a suit is dismissed for default, a miscellaneous petition is filed for its restoration and if the miscellaneous petition is also dismissed for default, in view of the provision contained in Section 141 r/w. Order IX Rule 9 CPC, a restoration petition can also be filed. The Jharkand High Court has further held that an appeal shall also lie from the order under Rule 9 of Order IX CPC, rejecting an application over an order to set aside the dismissal of the suit. Therefore, there is no legal impediment in preferring such an appeal against such order. The relevant portion of the judgment reads as follows:
5. On perusal of record, it is evident that the Title Suit No. 134 of 1987 was dismissed for default and thereafter Misc. Case No. 13 of 1993 was filed for setting aside the said dismissal and for restoration of the suit, but the said miscellaneous case was also dismissed for default on 11-10-1993. The petitioner, in view of the provision contained in Section 141 read with Order IX Rule 9 of the Code of Civil Procedure, could have prayed for restoration of the said miscellaneous case. The Court could have restored the case even in exercise of its Jurisdiction under Section 151 of the Code of Civil Procedure, but in view of the provision, as contained in Rule 1(c) of Order XLIII even an appeal against such order is not barred. Rule 1(c) of Order XLIII runs as follows:
1. Appeal from orders.- An appeal shall lie from the following orders under the provisions of Section 104, namely:
(c) an order under Rule 9 of Order IX rejecting an application (in a ease open to appeal) for an order to set aside the dismissal of a suit:
6. On plain reading of the said provision, it is clear that an appeal shall lie from an order under Rule 9 of Order IX of the Code of Civil Procedure rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit. No distinction has been made between rejection of application on merit or rejection thereof for default and as such even if an application under Order IX Rule 9 of the Code of Civil Procedure is dismissed/rejected for default, there is no legal impediment in preferring an appeal against such order. Similar view has been taken by a Full Bench of Patna High Court in Doma Choudhary AIR 1959 Pat 121 (supra). Learned Court below has committed an error in holding that the appeal, against the said order of dismissal of miscellaneous case for default, is not maintainable. The decision in Laisram Tomba Singh AIR 1961 Manipur 35 (supra), in my view, does not spell the correct view as no distinction has been made in the said provision of Rule 1(c) of Order XLIII between dismissal of the application on merit and dismissal/rejection of the application for default.
30.From the above, it is very clear that the Jharkand High Court has not barred an application being filed for restoration of the miscellaneous petition, which was also dismissed for default. In view of the same, the trial court has not properly understood the law laid down by the Jharkand High Court and its reliance on this judgment to dismiss I.A.No.2043/2011 as not maintainable, is absolutely illegal warranting interference by this Court under Article 227 of the Constitution of India.
31.The trial court has found fault with the Advocate for filing an affidavit in support of the petition, for which, she relied on a judgment reported in 1989 (1) LW 137 (H.C.Lodha vs. Ranganathan and others). A perusal of this judgment would show that it deals with fixation of a fair rent under the provisions of Tamil Nadu Buildings (Lease and Rent Control) Act and it does not deal with filing of an affidavit by the counsel in support of a petition that has been filed for restoration of an application or a suit. Even assuming that citation is wrong and it is a printing error, the law laid down by this Court in this regard is well settled. There is absolutely no bar for an advocate swearing to an affidavit in support of a petition and in case the advocate is called upon to give evidence, then, he is no longer expected to represent the party in whose support, he has filed the affidavit. In this case, admittedly, no evidence has been let in by both the parties and in such circumstances, such a question does not arise and the Court can very well go through the documents and render its findings, instead of finding fault with the advocate for filing the affidavit. In fact, in certain matters like what has happened in the Court with regard to a particular proceeding or proceedings, the advocate is the most competent person to speak about that, as a litigant may not be well versed with the Court proceedings. Therefore, this reason given by the learned Trial Judge for rejecting I.A.No.2043/2011 is also unacceptable and therefore, the same requires to be interfered with.
32.Further, the learned Judge has found fault with the plaintiffs for not properly providing the legal provisions under which, the application has been filed. It is well settled, quoting a wrong provision of law should not be held against the petitioners and therefore that reason will also not stand the scrutiny of law.
33.Yet another reason by the trial court in rejecting the application in I.A.No.2043/2011 is that the prayer portion has not been properly worded as it does not mention that the petitioners wanted to restore I.A.No.1366/2011. This reason is also too technical and if the prayer portion is not happily worded, further clarifications would have been sought for from the counsel or the office could have returned the papers for putting the prayer correctly. At any event, this cannot be the reason for rejecting the application.
34.The Trial Judge has also held that no sufficient cause has been shown in the affidavit, which again, in my view, is not correct. In a matter of this nature, there is always some mistake on the part of the persons and instead of magnifying the same and rejecting their claim, it is always better to give a liberal approach in dealing with such applications as the ultimate aim of the Court is to decide the lis between the parties instead of throwing it out on technicalities. Thus looking at any angle, the order passed by the learned Trial Judge is absolutely illegal causing grave injustice to the petitioners and therefore, I deem it a fit case to interfere with, under the powers conferred on the High Court under Article 227 of the Constitution of India. Accordingly, the order passed by the learned Trial Judge in I.A.No.2043/2011 is set aside and the revision petition filed in C.R.P.(NPD)No.4414/2012 is allowed.
35.In view of setting aside the order dated 16.03.2012 passed in I.A.No.2043/2011, the trial court is directed to take up I.A.NO.1366/2011 and decide the same on merits and in accordance with law within a period of eight weeks from the date of receipt of a copy of this order.
36.In the result, C.R.P.(NPD)No.4414/2012 is allowed. No costs.
37.It is true that the revision filed under Section 115 of CPC in C.R.P.(NPD)No.1763/2012 is not maintainable, as the order has to be challenged by way of an appeal, as rightly contended by the learned counsel for the respondents 1 and 2, since a common order passed rejecting an application under Order IX Rule 9 is available under the Code of Civil Procedure. However, considering the fact that C.R.P.(NPD)No.4414/2012 filed under Article 227 of the Constitution of India, is allowed, setting aside the order dated 16.03.2012 in I.A.No.2043/2011 in O.S.No.2652/1997 and considering the fact that the very same order is under challenge in C.R.P.(NPD)No.1763/2012, this Court cannot take a different view and the order passed in C.R.P.(NPD)No.4414/2012 will apply to C.R.P.(NPD)No.1763/2012 also.
38.In the result, both the Civil Revision Petitions are allowed. No costs. Consequently, other miscellaneous petition is closed.
30.10.2014 cse Index:Yes/No Internet:Yes/No S.RAJESWARAN,J cse To The learned Additional District Munsif, Alandur.
Pre-delivery order made in C.R.P.(NPD) Nos.1763 and 4414 of 2012 and M.P.No.1 of 2012 30.10.2014