Delhi High Court
Municipal Corporation Of Delhi vs R.P. Khaitan And Anr. on 30 November, 1995
Equivalent citations: 1995IVAD(DELHI)883, 1995(35)DRJ604, 1996RLR13
Author: R.C. Lahoti
Bench: R.C. Lahoti, Lokeshwar Prasad
JUDGMENT R.C. Lahoti, J.
(1) This petition and a bunch of several others raise an important question of law at the very threshold : Whether a revision under Section 115 of the Code of Civil Procedure, 1908 lies against an order passed in appeal by the Court of Distt. Judge exercising jurisdiction under Section 169 of the Delhi Municipal Corporation Act, 1957? The question has several facets :-
(I)Whether the Distt. Judge exercising jurisdiction under Section 169 of the Delhi Municipal Corporation Act, 1957, acts as a civil court or as a Tribunal?
(II)Whether the appellate order under Section 169 above said is amenable to revisional jurisdiction of High Court under Section 115 Civil Procedure Code or in other words whether the Distt. Judge acting under Section 169 above said is a Court subordinate to the High Court within the meaning of Section 115 CPC?
(III)If a revision lies to the High Court against an appellate order made under Section 169 of the Dmc Act, whether a person aggrieved can be allowed to by-pass the remedy of revision available to him and approach the High Court invoking its extraordinary writ jurisdiction?
(2) We have heard Mr. D.R. Mahajan, Ms.Madhu Tewatia and Ms. Anjana Gosaia, the advocates appearing in the matter and we proceed to deal with the several contentions raised by the learned counsel. It has been contended :-
(I)That the Court of District Judges of Delhi in whom is vested the power to hear appeals - is a tribunal and not a Court subordinate to High Court with in the meaning of Section 115 CPC;
(II)That the order of District Judge is Final and hence no revision would lie there from;
(III)That the remedy of revision is very limited in scope and hence does not satisfy the test of being an equally efficacious alternate remedy excluding writ jurisdiction of High Court.
(3) Chapter Viii of the Delhi Municipal Corporation Act, 1957 (hereinafter 'DMC Act', for short) is a self contained Chapter dealing with taxation by Delhi Municipal Corporation. It contains taxing provisions, machinery provisions and miscellaneous provisions, also provides for the remedy of appeal to the person aggrieved by the levy or assessment of any tax under the Dmc Act. Sections 169 and 171, relevant for the purpose of the present order, are reproduced hereunder :-
"169.APPEALagainst assessment,etc. (1)An appeal against the levy or assessment of any tax under this Act lie to the Court of the district judges of Delhi.
(2)If, before or on the hearing or an appeal under this section, any question of law or usage having the force of law or construction of a document arises, the Court of the district judge on its own motion may, or on the application of any party to the appeal, shall draw up a statement with opinion on the question for the decision of the High Court (3)On a reference being made under sub- section (2) the subsequent proceedings in the case shall be, as nearly as may be in conformity with the rules relating to reference to the High Court contained in Order XlVI of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) (4)In every appeal, the costs shall be in the discretion of the Court.
(5)Costs awarded under this section to the Corporation shall be recoverable by the Corporation as an arrear of tax due from the appellant.
(6)If the Corporation fails to pay any costs awarded to an appellant within ten days after the date of the order for payment thereof, the Court may order the Commissioner to pay the amount to the appellant.
171.Finality of appellate orders-- The order of the court confirming, setting aside or modifying an order in respect of any ratable value or assessment or liability to assessment or taxation shall be Final: Provided that it shall be lawful for the court, upon application or on its own motion, to review any order passed by it in appeal within three months from the date of the order.
(4) Appellate jurisdiction has been conferred on the Court of the Distt. Judges of Delhi. The court of Distt. Judges are pre-established courts of civil jurisdiction functioning in Delhi. It is clear that the legislature has chosen the Court of the Distt. Judges to exercise appellate jurisdiction as civil Courts and not as persona designata. By no stretch imagination the Court of the Distt. Judges of Delhi can be considered to be tribunal.
(5) The distinction between courts and tribunals has been brought out and laid down by the Supreme Court in the case of Harinagar Sugar Mills Ltd. VS. Shyam Sunder Jhunjhunwala & Ors., . It has been held :- "The words "Courts" is used to designate those tribunals which are set up in an organized State for the administration of justice. By administration of justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish "wrongs". Whenever there is an infringement of a right or an injury, the Courts are there to restore the vinpulum Jurisdiction, which is disturbed.
BY "Courts" is meant Courts of Civil Judicature and by "tribunals", those bodies of men who are appointed to decide controversies arising under certain special laws. Among the powers of the State is included the power to decide such controversies. This is undoubtedly one of the attributes of the State, and is aptly called the judicial power of the State. In the exercise of this power, a clear division is thus noticeable. Broadly speaking, certain special matters go before tribunals, and the residue goes before the ordinary Courts of Civil Judicature. Their procedures may differ, but the functions are not essentially different. What distinguishes them has never been successfully established. The real distinction, it is said is that Courts have "an air of detachment". But this is more a matter of age and tradition and is not of the essence.
A Court in the strict sense is a tribunal which is a part of the ordinary hierarchy of Courts of Civil judicature maintained by the Stale under its constitution to exercise the judicial power of the State. These Courts perform all the judicial functions of the State except those that are excluded by law from their jurisdiction. The word "judicial" has two meanings. It may refer to the discharge of duties exercisable by a judge or by justices in court, or to administrative duties which need not be performed in court, but in respect of which it is necessary to bring to bear a judicial mind-that is, a mind to determine what is fair and just in respect of the matters under consideration. That an officer is required to decide matters before him "judicially" in the second sense does not make him a Court or even a tribunal, because that only establishes that he is following a standard of conduct, and is free from bias or interest."
(6) The Court of Distt. Judges of Delhi is neither constituted by nor established under the Dmc Act as a Tribunal. The Court of Disll. Judges of Delhi has been set up in exercise of the Slate's function for the administration of justice under The Punjab Courts Act, 1910 (as extended to the Union Territory of Delhi) to administer justice. They were not brought into being for deciding controversies arising under certain special laws merely. They are a part of the ordinary hierarchy of the Courts of civil judicature. They perform judicial functions. We have no manner of doubt in holding that Section 169 of the Dmc Act has conferred appellate jurisdiction on the Court of the Distt. Judges of Delhi as pre-established civil courts.
(7) Ms. Madhu Tewatia has brought to our notice a single Bench decision of Delhi High Court in Dewan Chand VS. Municipal Corporation, (CR 290/76 decided on 28.7.76) (1976 Municipalities and Corporation cases 244), in support of her contention that the Additional Distt. Judge under Section 169 of Dmc Act acted as a Tribunal and was not a Court. Vide para 10, the learned Judge has held :- "IT is true that no revision lies against the order of the Additional District Judge. The District Judge acts as a tribunal and not as a Court subordinate in the High Court under Section 115 Civil Procedure Code. The Additional Dislt. Judge acting as a tribunal is not a court."
(8) We have grave doubts if the decision in Dewan Chand's case (supra) can be cited as a precedent in support of the proposition which is sought to be canvassed. This we say for two reasons. Firstly, vide para 10, the learned Judge has not assigned any reasons for taking the view which he has done. Secondly, vide para 11 it is stated - "it is not disputed that the Distt. Judge hearing the appeal under Section 169 is a Tribunal." It is clear that the point was. conceded. A view of law based on concession and not supported by reasons cannot be a precedent.
(9) The Court of the Distt. Judge deciding an appeal under Section 169 of the Dmc Act, acts as a Court and not as a persona designata. There is ample judicial authority available for .the proposition. We may refer to a few Full Bench decisions namely, Babulal Bhikaji Mandloi VS. Dattatraya Narayan & Ors., , Vareed s/o. Kunnan Ouseph VS. Mary d/o. Adattukaran Perinchu, : Surindra Mohan VS. Dharam Chand Abrol, Air 1971 Jammu & Kashmir 76 and Sultan All Nanghiana s/o Muhammad Ali VS. Nur Hussain, Air 1949 Lahore 131. These cases also take the view that merely because a Finality is attached to the decision of the Court, it does not cease to be amenable to revisional jurisdiction of the High Court. In other words once it is held that a Court is subordinate to the High Court, its orders are subject to revision by the High Court unless there be a statutory provision excluding such right of revision. In Vareed's case(supra) the Full Bench of Kerala High Court has on a review of case law held as under :- "IN exercising the revisional power under Section 20(1) of the Kerala Buildings (Lease and Rent Control) Act the revisional authority, viz., the District Court functions as a court and not as a persona designata inasmuch as the jurisdiction has been conferred under the Act on the Court itself. Hence the ordinary incidents of the procedure of that Court, including any rights of appeal or revision will attach to the decision rendered by the District Court in the exercise of the jurisdiction conferred by Section 20, so long as there is no statutory provision excluding such right of appeal or revision. A decision of the Subordinate court is amenable to the revisional jurisdiction of the High Court unless that jurisdiction is clearly barred by a special law or an appeal lies there from. No appeal is provided against the decision of the District Court under Section 20 and in Section 18(5) which contains the provision for Finality there is nothing which says that the decision of the revisional authority under Section 20 shall be Final and shall not be called in question in any higher Court. Therefore so long as there is no specific provision in the statute making the determination by the District Court Final and excluding the supervisory power of the High Court under Section 115 of the Civil P.C., the decision rendered by the District Court under Section 20(1) of the Kerala Act, being 'a case decided' by a Court subordinate to the High Court in which no appeal lies thereto, is liable to be revised by the High Court under Section 115, CPC."
(10) So is the view taken by three Division Benches of different High Courts in Jugal Kishore VS. State of U.P., ; K.E.S.B. VS. Cheriyan Varghese & Ors., and Kailashchandra & Ors. VS. Distt. Judge, Bhopal & Ors. .
(11) KAILASHCHANDRA'S case (supra) is very near to the case at hand. Power to hear an appeal against an order of the Rent Controlling Authority Fixing the fair rent was conferred on the Court of Distt. Judge. It was also provided that the decision of the appellate Court shall be Final. Question arose whether a revision lay to the High Court against an appellate order of the Distt. Judge. The Division Bench held :- "IT is clear from the wording of Section 12 that an appeal lies to the Court of the District Judge and not to the District Judge acting as a persona designata. That means, the decision of the Court of the District Judge given in an appeal under Section 12 is open to revision under Section 115, Civil P.C. The Accommodation Control Act does not create a special court or tribunal. The appeal is to a court of ordinary jurisdiction and it is to a Court already established. The decision given by the Court of the District Judge under Section 12 is one to which the ordinary incidents of the procedure of that Court apply. Section 12 also says that the decision of the Appellate Court shall be final. This only means that the decision of the Court of the District Judge is not appealable. It does not imply that it is not open to revision under Section 115."
(12) In Chhagan Lal VS. The Municipal Corporation, Indore, Air 1977 Sc 7555, Section 149 of the M.P. Municipal Corporation Act, 1956 came up for consideration. It provides that an appeal shall lie from the decision of the Municipal Commissioner to the Distt. Court when any dispute arises as to the liability of any land or building to assessment. Sub- Section I of Section 149 provides that the decision of the Distt. Court shall be final. It was submitted that the decision of the Distt. Court was, therefore, final and the High Court was 'in error in entertaining the revision petition. Their Lordships have held :- "THIS plea cannot be accepted for under Section 115 of the Civil Procedure Code the High Court has got a power to revise the order passed by Courts subordinate to it. It cannot be disputed that the District Court is a subordinate Court and is liable to the revisional jurisdiction of the High Court."
(13) It is clear that the Court of the District Judge disposes of an appeal under Section 169 of the Dmc Act, as a Civil Court. It is a court and not a Tribunal. It is not a persona designata. It is a Court subordinate to the High Court and hence its orders are amenable to the revisional jurisdiction of the High Court. Though finality is attached to the appellate orders, by Section 161 of the Dmc Act, it only means that no further appeal lies from the appellate order of the Court of Distt. Judge but the exercise of revisional jurisdiction of the High Court under Section 115 Civil Procedure Code is not taken away, there being no specific provision in the act excluding such revisional jurisdiction.
(14) We may now proceed to examine whether the availability of remedy or revision would exclude right of the person aggrieved to invoke writ jurisdiction of the High Court under Article 226/227 of the Constitution.
(15) It is well settled that so long as an efficacious alternate remedy is available, the person aggrieved should be left to pursue that remedy and should not be permitted to invoke writ jurisdiction of the High Court by-passing such remedy. This is not a rule of law but a rule of discretion and a well established rule of practice governing writ jurisdiction of High Courts. It will be a sound exercise of discretion to follow the above said rule though in appropriate cases the High Court may be inclined to exercise its writ jurisdiction inspite of the availability of an alternate efficacious remedy. In Union of India VS. T.R. Varma, , their Lordships have laid down the law in the following terms :- "IT is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ; but, the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs. And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226, unless there are good grounds therefore."
(16) In the context of property tax matters under Dmc Act itself, their Lordships have laid down the law in Shyam Kishore VS. Mcd, , vide para 42 as under :- "THE resort to Articles 226 and 227 should be discouraged when there is an alternative remedy. Amore satisfactory solution is available on the terms of the statute itself."
(17) In Tansingh Nathmal Vs. A. Mazid, Supdt. of Taxes, Air 1969 Sc 1419, their Lordships have observed - "THE jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Al-ticle. But the exercise of the jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self- imposed limitations.. ...Where it is open to the aggrieved petitioner to move another Tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit, by entertaining a petition under Article 226 of the Constitution, the machinery created under the statute to be by-passed, and will leave the party applying to it to seek resort to the machinery so set up."
(18) The law so laid down, very recently the Supreme Court has reiterated in State of U.P. VS. Labh Chand, Air 1994 Sc 744 as under :- "WHEN a Statutory Forum or Tribunal is specially created by a statute for redressal of specified grievances of persons on certain matters, the High Court should not normally permit such persons to ventilate their specified grievances before it by entertaining petitions under Article 226 of the Constitution is a legal position which is too well settled."
(19) The Legislature while conferring appellate jurisdiction on the Court of Distt. Judge vide Section 169 of Dmc Act was well aware that the appellate order would be subject to challenge in revision before the High Court under Section 115 Civil Procedure Code. The Legislature expressly provided for the remedy of appeal and by conferring appellate jurisdiction on the court of District Judge provided for the remedy of revision against appellate order by necessary implication. So long as the High Court can be moved in revisional jurisdiction for obtaining redress, the High Court would not normally permit entertaining a petition under Article 226 of the Constitution or invoking its supervisory jurisdiction under Article 227 of the Constitution, both being extraordinary jurisdictions of the High Court.
(20) It was submitted by learned counsel for the petitioners that remedy of revision would not be equally efficacious and a remedy alternate to the writ remedy in as much as the jurisdiction under Section 115 Civil Procedure Code is very limited and in many a cases the error committed by the Distt. Judge may not bo capable of correction in revisional jurisdiction though it may well be corrected in exercise of High Court's jurisdiction under Article 226/227 of the Constitution. It is, therefore, submitted that inspite of availability of revisional jurisdiction invoking of writ jurisdiction could not be denied to the petitioners. We are not impressed".
(21) Section 115 of the Civil Procedure Code provides as under :-
Revision.
115.(1)The High Court may call for the record of any Case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereof, and if such subordinate Court appears-
(A)to have exercised a jurisdiction not vested in it by law, or (B)to have failed to exercise a jurisdiction so vested, or (C)TOhave acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks Fit:
Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where-
(A)the order, if it had been made in favor of the parly applying for revision, would have Finally disposed of the suit or other proceeding, or (B)the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was' made.
(2)The High Court shall not, under this Section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.
Explanation : In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding."
(22) In Baldevdas Shivlal & Anr. VS. Filmistan Distributors (India) Pvt. Ltd. & Ors. , their Lordships have summed up the revisional jurisdiction of the High Court in the following words :- "BY Section 115 of the Code of Civil Procedure the High Court is invested with power to call for the record of any case decided by any Court subordinate to such High Court and in which no appeal lies thereto, if such subordinate court appears-(a) to .have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (e) to have acted in the exercise of its jurisdiction illegally or with material irregularity, and to make such order in the case, as it thinks fit. Exercise of the power is broadly subject to three important conditions (1) that the decision must be of a Court subordinate to the High Court; (2) that there must be a case which has been decided by the subordinate Court and (3) that the subordinate Court must appear to have exercised a jurisdiction not vested in it by law or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material it regularity."
(23) In Shankar Ramchandra Abhyankar VS. Krishiluji Duttatrayu Bapat, , their Lordships have held :- "SECTION 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a purl of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statutes basically and fundamentally it is the appellate jurisdiction of the High Court which, is being invoked and exercised in a wider and larger sense.
(24) In Major S.S. Khanna VS. Brig. F.J. Dillon. Air 1964 Sc Hidavatullah J. (as his Lordship then was) has made the following observation regarding nature of jurisdiction under Section 115 Civil Procedure Code :-
"THE power which this section confers is clearly of the nature of a proceeding on a writ of Certiorari."
"THE power given by See lion 115 of the Code is clearly limited to the keeping of the Subordinate Courts within the hounds of their jurisdiction. It does not comprehend the power exercisable under the writ of Prohibition or Mandamus, It is also nol a full power of Certiorari Inasmuch as it arises only in a case of jurisdiction and nol in a case of error, It has been ruled by the Judicial Committee and also by this Court that the Section is concerned with jurisdiction and jurisdiction alone involving a refusal to exercise jurisdiction where one exits or an assumption of jurisdiction where none exists and lastly acting with illegality or material irregularity. Where there is no question of jurisdiction in this manner the decision cannot be corrected for It has also been ruled that a Court has jurisdiction to decide wrongly as well as rightly. But once a flaw of jurisdiction is found the High Court need not quash and remit as is the practice in English Law under the writ of Certiorari but pass such order as it thinks fit."
"A decision of the Subordinate Court is therefore amenable to the revisional jurisdiction of the High Court unless that jurisdiction is clearly barred by a special law or an appeal lies there from."
"THE Section confers a power analogous to the power to issue a writ of Certiorari but only with a view of keeping Subordinate Courts within the bounds of their jurisdiction. This power is exercisable in respect of all orders involving jurisdiction in which no appeal lies to the High Court."
(25) We are clearly of the opinion that writ or supervisory jurisdiction of the High Court cannot be permitted to be invoked so long as remedy under Section 115 Civil Procedure Code is available to the petitioners merely because they feel that the revisional jurisdiction of the High Court is limited in its nature then compared to the jurisdiction under Article 226 and/or 227 of the Constitution. This we say for two reasons. Firstly, the scheme of the legislative provisions contained in the Dmc Act Chapter Viii suggests that the remedy which has to be availed against levy or assessment of tax is by an appeal to the Distt. Judge subject to revisional jurisdiction of the High Court. Secondly, the revisional jurisdiction under Section 115 Civil Procedure Code is most appropriate to be invoked by the person aggrieved. It would invariably be against a case decided as the appellate order of the Distt. Judge would invariably be so. The contentions which are covered by Clauses (a), (b) and (c) of Sub-Section 1 of Section 115 Civil Procedure Code would lake care of all the grievances which can appropriately be raised and deserve to be entertained in respect of or arising out of the levy or assessment of tax. As to such of the contentions which do not fall within the purview of Clause (a), (b) & (c) above said finality must attach to the proceedings of assessment subject to the order in appeal by the Distt. Judge. In a sense the jurisdiction under Section 115 Civil Procedure Code is wider as it would permit passing of such order as may be appropriate by the High Court itself and the High Court would not be constrained to sit back merely by quashing and remand the orders/proceedings impugned.
(26) Ms. Tewatia has placed reliance on a Division Bench decision of this Court in Mcd VS. K.P. Gupta (CWP 438188 decided on 26.4.90) wherein a petition seeking a writ of certiorari against the appellate order of Additional Distt. Judge has been held to be maintainable. We have carefully perused the decision. Therein the contention raised was that in view of the finality attached with the order of the Distt. Judge under Section 171 of the Dmc Act, ratable value or assessment or liability to assessment or taxation became final and could not be subject to challenges in writ jurisdiction under Articles 226/227 of the Constitution. It was this contention which was rejected by the High Court. However, the question whether availability of remedy of civil revision would persuade the High Court not to entertain a petition under Articles 226/227 of the Constitution as is posed before us was not raised and the Division Bench has not expressed any opinion thereon in Mcd Vs. K.P. Gupta's case (supra). Reliance on that decision is misconceived.
(27) A Full Bench of Allahabad High Court has held in Gyan Chand Bhatia VS. Rent Control & Eviction Officer, Lucknow & Anr., as under :- "In the case of an order of eviction under the U.P. (Temporary) Control of Rent and Eviction Act, 1947, applying for revision to the Commissioner under Section 7A(4) or to the State Government under Section 7F is an adequate remedy alternative to that of applying for a writ under Article 226 of the Constitution" "WHERE,therefore, a tenant files a writ petition without applying for revision under these sections, the High Court can refuse a writ on the ground that the petitioner has not availed himself of the remedy of applying to the commissioner or the State Government for revision; whether it should do so or not in a particular case depends upon its circumstances and is a matter within its discretion. The remedy is an alternative adequate remedy within the meaning of the principle of exhaustion but ' really it is immaterial whether it is or is not because even if it is not, it is material fact which the High Court may take into consideration in exercising its discretion of granting or refusing the writ."
(28) In W.Daldanna, the Collector of Central Excise Delhi VS. S. Amarjit Singh, , the Division Bench has held :- "A person aggrieved by an order of confiscation passed under S.167(8), Sea Customs Act read with S.3(2), Import Export (Control) Act has to follow the specific and efficacious remedy provided by the Sea Customs Act, viz. the remedy of appeal and revision provided under Ss. 188 to 191 of that Act and the High Court will not interfere by way of a writ of certiorari under Article 226 of the Constitution if the petitioner has not resorted to those remedies."
(29) Strong reliance was placed by Ms. Tewatia, on a Single Bench decision of Allahabad High Court in Ved Parkash VS. The IIIrd Additional Distt. Judge Mainpuri & Ors., 1977(2) All India Rent Control General 476. It has been held :- "WHILE it is true that the petitioner could approach the High Court under Section 115 Civil Procedure Code but the scope of inquiry in the revision would have been confined to the question of jurisdiction of the Court below. The petitioner could get no redress from the High Court even if it had been shown that the decree of the Court below was contrary to law inasmuch as it could not possibly be treated as a. question of jurisdiction which alone could be looked into a revision petition under Section 115 Civil Procedure Code. Since the revision under Section 115 Civil Procedure Code would not have been an effective or adequate remedy to redress the injury complained of, the present petition is not barred under clause (3) of Article 226 of the Constitution of India. Even if the order complained of could be demonstrated to be erroneous, it should normally be not interfered with and it is only in exceptional cases of grave injustice that the extra-ordinary jurisdiction under the Constitution can be invoked. Normally the High Court is reluctant to exercise its inherent power under Article 226 of the Constitution in a matter where an alternative remedy is available to the aggrieved party to approach the High Court but the existence of an alternative remedy to approach the High Court has never been considered to be an absolute bar to the maintainability of a petition under Article 226 of the Constitution."
(30) A perusal of the law so laid down indicates that the existence of an alternative remedy to approach the High Court is not an absolute bar to the maintainability of a petition. To that extent, there is no dispute. But we are not prepared to go further and subscribe to the view that the remedy of revision under Section 115 Civil Procedure Code is not an effective or adequate remedy. The view so taken is not in line with the settled trend of judicial opinion.
(31) It was submitted at the end by the learned counsel for the petitioners that if this Court be of the opinion that the petition does not deserve to be entertained then instead of dismissing the same as not maintainable, the Court may allow liberty to the petitioners to seek its conversion into a memo of revision under Section 115 Civil Procedure Code. The prayer though earnestly made cannot be acceded to in view of the law laid down by the Supreme Court in Vishesh Kumar VS. Shanti Prasad, . Their Lordships declining a prayer for conversion of revision petition under Section 115 of Cpc into a petition under Article 227 of the Constitution, having held the former as not maintainable, have further held -: "WE are unable to accept that prayer. A revision petition under Section 115 is a separate and distinct proceeding from a petition under Article 227 of the Constitution and one cannot be identified with the other."
The petitioners are still at liberty to file revision petitions and seek condensation of delay in filing the revision if there be one, by resorting to Section 5/14 of the Limitation Act, 1963.
(32) To sum up : remedy of revision under Section 115 Civil Procedure Code as against an appellate order passed by the Court of District Judge under Section 169 of Dmc Act is an appropriate and equally efficacious alternate remedy available to the person aggrieved, The High Court would not ordinarily entertain a petition under Article 226 or 227 of Constitution filed against such appellate order by-passing the remedy of revision.
(33) The present petition and all other petitions which were heard with this one are held to be not maintainable. They are dismissed with liberty to file revision under Section 115 Civil Procedure Code against the impugned orders.