Madras High Court
Alagar @ Savugan S/O. S. Raman, ... vs A. Baluchami S/O. Alagar, Pattapuli ... on 11 February, 1999
Equivalent citations: 1999(2)CTC535, (1999)IIMLJ395
ORDER
1. Plaintiffs in O.S.No.3 of 1989 on the file of the District Munsif's Court at Periyakulam are the revision petitioners. The revision is filed under Article 227 of the Constitution of India.
2. Suit filed by the plaintiffs was one for permanent prohibitory injunction restraining the defendants from interfering with their right over the pathway, demarcated as 'EFGH' in the plaint attached to the Plan, and also for a mandatory injunction to remove the obstruction caused in the pathway.
3. The suit was seriously contested by the defendants. As per the judgment dated 29.10.90, the lower Court dismissed the suit mainly on the ground that the plaintiffs have not prayed for a declaratory relief. The trial Court was of the view that the suit for injunction simplicitor is not maintainable when the right over the property, of pathway is denied by the defendants.
4. Against the dismissal of the suit, plaintiffs preferred A.S.No. 29 of 1991 on the file of the Subordinate Judge, Periyakulam. Before the appellate Court, additional evidence also let in. The appellate Court found that better opportunity should have been given to the petitioners to prove their case and in case any correction or amendment is required, an opportunity should also be given and in regard to the relief of mandatory injunction also certain directions were given. Finally, in the decretal portion, the entire judgment and decree of the trial court was set aside and the trial Court was directed to dispose of the suit on the basis of the directions stated therein.
5. On remand, the petitioner filed an amendment application seeking to incorporate the relief of declaration. The same was seriously opposed by the respondents and the case was posted for orders. In the meanwhile, respondents filed four applications. One to reopen the amendment application, to advance the posting, to receive the additional counter and to condone the delay in not filing the counter in time. All these applications were dismissed by the trial Court and thereafter, I.A.No. 339 of 1996, the amendment application filed by the plaintiffs is also dismissed taking into consideration the contents in the additional counter.
6. Thereafter, the petitioners filed a Review Application in R.A.No. 555 of 1998 seeking to review the order of dismissal of amendment application on the ground that the lower Court went wrong in taking into consideration the additional counter when the same has already been dismissed, and they wanted to re-hear the amendment application I.A. No.339 of 1996. The same was also seriously opposed by the respondents. In the impugned order, the lower Court allowed the review application and held that it was due to inadvertence, the additional counter was also mentioned in the order rejecting the amendment application and the lower Court also declared that they should not have taken into consideration the contentions raised therein. After allowing the Review Application, simultaneously, the lower Court also passed an order again rejecting the amendment application I.A.No. 339 of 1996.
7. The order of the trial Court is challenged in the revision under Article 227 of the Constitution of India. In the various grounds, it is alleged that when a review petition is allowed, the main application should have been restored and the matter has to be re-heard. That opportunity has not been given since the lower Court has again dismissed the amendment application simultaneously. It is also contended that interpretation given to the order of remand is not correct. The contention is that it is an open remand and that the powers of the trial Court is not restricted.
8. I ordered notice of motion and the further proceedings were also stayed. After the respondents entered appearance, I heard the entire revision in detail.
9. I.A.No. 339 of 1996 was filed by the petitioner seeking to incorporate an amendment to the plaint. The same was rejected by the lower Court. One of the reasons for rejecting the application is that the remand order does not empower the trial Court to allow an application and enlarge the scope of the suit. While dismissing the application, the trial Court also took note of the additional counter filed by the respondents. In fact, that additional counter was refused to be accepted by the trial Court. It is when the amendment application was dismissed, review petition was filed by these petitioners on the ground that the lower Court should not have been taken into consideration the contentions in the additional counter. The lower Court accepted the contention and the review is also allowed.
10. Under normal circumstances, when the review is allowed, the main order will have to be set aside and restored to file. But, in this case, there was a procedural illegality committed by the lower Court by simultaneously allowing the review in para, 8 of the order, as follows:
15. At this juncture, learned counsel for the respondent submitted that the remedy of the petitioners is under Section 115 of Code of Civil Procedure and not under Article 227 of the Constitution. Whether Section 115 or Article 227, the revision lies only to this Court.
16. If a manifest injustice has been done, the Court will be justified in invoking Article 227 of the Constitution of India. The remedy under Section 115 of C.P.C. cannot be said an effective alternative remedy. As it was held in Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, , the Court can exercise its power under Article 227 of the Constitution of India, only if the order of the lower Court is perverse or it has resulted in manifest injustice.
17. It was also held in the recent decision of the Calcutta High Court, reported in Amzad Ali v. Marfat Ali Biswas & Two others, 1998 (II) C.L.T. 462 . In that case, His Lordship held as follows:
"It is settled law that the power under Article 227 of the Constitution involves a duty on the part of the High Court to keep all courts within the bounds of their authorities and to see that they do what their duty requires. This power under Article 227 can also be exercised by the High Court suo motu and is not governed by any technical rules as applicable in cases of exercise of power under Article 226." (Italics supplied) His Lordship further went on and said that the powers of the High Court under Article 227 cannot be taken away or barred by any legislation short of constitutional amendment nor can it be barred by providing that the decision of an inferior tribunal shall be final. It was further held as follows:
"...When the High Court finds that the inferior court, Civil or Criminal, has not acted according to the mandate of law resulting in gross abuse of the process of the Court, the extraordinary power of the High Court under Article 227 of the Constitution can always be exercised."
18. Since I feel there is a manifest injustice done to the petitioners due to the misreading of the order of remand, I feel it is a proper case to exercise a judicial supervisory revision under Article 227 of the Constitution of India.
19. In the result, Civil Revision Petition is allowed. I.A.No. 339 of 1996 in O.S.No. 3 of 1989 on the file of the District Munsif's Court, Periyakulam stands allowed. The petitioners are directed to incorporate the amendment within a period of four weeks on receipt of a copy of this Order by the lower Court. The lower Court shall permit the petitioners to incorporate the amendment and thereafter, post the case for additional written statement of the respondents and proceed the case in accordance with law and also in accordance with the order of remand in A.S.No. 29 of 1991. No costs. Consequently, CMP.Nos.17180 and 17181 of 1998 are dismissed.