Andhra HC (Pre-Telangana)
R.K. Agarwal vs Smt. Ch. Vijaya Kumari on 27 September, 2006
Equivalent citations: 2007(4)ALT838
ORDER V.V.S. Rao, J.
1. The petitioner is the defendant. The Civil Revision Petition is filed feeling aggrieved by order, dated 14.02.2005 in I.A. No. 5643 of 2004 in O.S. No. 70 of 2004 passed by the Court of the II Additional District Judge, Vijayawada, granting ad interim injunction in favour of the respondent (hereafter called, the plaintiff) restraining the petitioner herein (hereafter called, the defendant) from making use of the suit schedule premises, from which the plaintiff was evicted nor alter, meddle with the premises in any manner whatsoever pending disposal of the suit.
2. The plaintiff filed the suit under Section 6 of the Specific Relief Act, 1963 for recovery of possession. She alleged that she is carrying on business in the name and style of M/s. Swagruha Foods, Vijayawada, since 1990 in sweets, pickles and savouries, that the defendant firm was granted licence by Indian Railway Catering and Tourism Corporation Limited (IRCTC) to setup and operate Food Plaza at Vijayawada Railway Station, that the defendant granted a sub- licence to the plaintiff after accepting the deposit of Rs. 2,40,000/-, that a space of 10' x 10' was provided in the Food Plaza for opening a sweet stall, that she opened such sweet stall on 10.05.2004 and that on 30.09.2004, the Manager of the defendant forcibly removed the plaintiffs from the suit premises. She, therefore, claimed recovery of possession under Section 6 of the Specific Relief Act. She also filed I.A. No. 5643 of 2004 for ad interim injunction restraining the defendant from making use of the premises in any manner. The trial Court initially granted ad interim ex parte injunction on 07.10.2004. The plaintiff also filed I.A. No. 6067 of 2004 under Order XXXIX Rules 1 and 2 of Code of Civil Procedure, 1908 (CPC) alleging disobedience by the defendant.
3. The defendant filed written statement as well as counter affidavit in the interlocutory application for injunction. The defendant firm denied the core allegations of the of the plaintiff and set up a case to the effect that M/s.Srinathji Caterers, a partnership firm was granted sub-lease to use the outlet facing towards platform No. 1, and that the said firm is purchasing food items from different concerns including the plaintiff. It was alleged that an amount of Rs. 2,40,000/- was accepted from the plaintiff for security deposit for supply of their sweets to M/s.Srinathji Caterers. The allegation that the premises was given to the plaintiff was denied.
Learned trial Judge considered the pleadings and the documents filed by the contesting parties (Exs.A.1 to A.12 filed by the plaintiffs and Exs.B.1 to B.17 filed by the defendants). After such consideration, lower Court arrived at the following prima facie conclusions: that the suit by the sub-licensee against a licensee is maintainable, that the sub-licence in favour of M/s.Srinathji Caterers as alleged by the defendants on the date of opening of the plaintiff's stall, M/s.Swagruha Foods is not proved, that plaintiff paid a sum of Rs. 2,40,000/- pursuant to oral agreement of sub-licence and that the plaintiff established pre- requisites for grant of temporary injunction. Accordingly, the interim injunction granted on 07.10.2004 was made absolute.
4. It is brought to the notice of this Court - which is not denied by the counsel for the defendant - that the plaintiff filed a caveat petition under Section 148A of CPC before this Court expecting that the defendant would file a Civil Miscellaneous Appeal under Order XLIII Rule 1(r) of the CPC. The defendant did not file C.M.A., within the prescribed period of limitation of 90 days. By reason of this, the order passed by the lower Court became final. Curiously, on 31.01.2006, after almost 11 months after the order of the lower Court, the defendant filed the present Civil Revision Petition under Article 227 of Constitution of India. Presumably for this reason, the learned Counsel for the plaintiff/respondent raised two preliminary objections, that when appeal against order is maintainable under Order XLIII of CPC, Civil Revision Petition under Article 227 of Constitution of India does not lie and that the revision under Article 227 of Constitution of India is not maintainable with delay. Therefore, this Court heard the learned Counsel on these two aspects.
5. Learned Counsel for the petitioner/defendant submits that against the Judgment and Decree under Section 6 of the Specific Relief Act, a regular appeal is not maintainable and only a revision would lie to the High Court. On the same analogy, he would urge that a regular Miscellaneous Appeal under Order XLIII of CPC is not maintainable and therefore, a revision under Article 227 of Constitution of India would lie. Secondly, he would urge that while exercising the prerogative power under Article 227 of Constitution of India, delay and laches is not a bar for exercising such power.
6. There is no denial that though the suit was filed by the plaintiff under Section 6 of the Specific Relief Act, the application being I.A. No. 5643 of 2004 was filed under Order XXXIX Rules 1 and 2 of CPC. It is nobody's case that in a suit for possession under Section 6 of the Specific Relief Act, an interlocutory application under Order XXXIX Rules 1 and 2 of CPC would not lie. Therefore, it stands to reason that though under Sub-section (3) of Section 6 of Specific Relief Act, an appeal against the order of the Court under Section 6 of Specific Relief Act is barred, a Miscellaneous Appeal under Order XLIII of CPC is not expressly barred. Section 6(3) of the Specific Relief Act prohibits an appeal from any order or decree passed in the suit instituted under Section 6(1) of the Specific Relief Act, which only means that the final order or decree after regular trial in the main matter. By no stretch of imagination, the purport of Section 6(3) of the Specific Relief Act can be imported into Order XLIII of CPC. Further more, the jurisdiction under Section 6 of the Specific Relief Act is vested in the Court, which has territorial and pecuniary jurisdiction to try such a suit. Being a civil Court, such authority has all incidental and supplemental powers including the power to grant temporary injunction under Section 94(c) read with Order XXXIX Rules 1 and 2 of CPC. Thus, against an order passed under Order XXXIX Rules 1 and 2 read with Section 94(c) of CPC, a Miscellaneous Appeal would certainly lie under Section 104(1)(i) read with Order XLIII Rule 1(r) of CPC. The submission of the learned Counsel for the defendant is, therefore, devoid of any merit and is misconceived.
7. This Court has good reasons to believe that the defendant has chosen Article 227 of Constitution of India route either because the defendant firm was barred for filing Civil Miscellaneous Appeal after expiry of 90 days and/or because of the caveat petition filed by the plaintiff. Whether a petition under Article 227 of Constitution is maintainable in a matter of filing of regular proceeding is barred by limitation. This Court is afraid that when a regular proceeding - be it an appeal, application, revision or review - in civil appellate jurisdiction; is barred by law of limitation, the constitutional remedy under Article 227 of Constitution of India ordinarily is not available to a person, who allows the orders of the lower Courts to become final by not promptly acting to approach this Court in time. In this case, as seen from the certified copy of the impugned order, the same was delivered to the defendant/petitioner on 21.03.2005 and this present Civil Revision Petition is filed on 31.01.2006 very much beyond the period of 90 days prescribed for filing Civil Miscellaneous Appeal before this Court. When the law of limitation bars a revision or appeal before this Court in its civil jurisdiction, the extraordinary constitutional remedy under Article 227 of Constitution of India cannot always be invokable remedy for such aggrieved person. The petitions filed under Article 227 of Constitution of India with long delay cannot be entertained by this Court. For this reason, the Civil Revision Petition cannot be entertained.
8. That the availability of alternative remedy is clearly a bar for exercise of jurisdiction under Article 227 of Constitution of India is a well settled proposition. A reference may be made to Mohd. Yunus v. Mohd. Mustaqim , Sadhana Lodh v. National Insurance Company Limited AIR 2003 SC 1561 and Surya Dev Rai v. Ram Chander Rai .
9. In Mohd. Yunus v. Mohd. Mustaqim (supra), the Supreme Court observed as under.
10. This special leave petition directed against the judgment and order of the Delhi High Court dated September 3, 1980 must fail as the decision of the High Court on merits is unassailable. But in view of the growing tendency of litigants of by-passing the normal remedy of an appeal or revision by moving the High Court with petitions under Article 227 of the Constitution, we deem it necessary to give the reasons therefor.... The petitioner under Article 227 of the Constitution was wholly misconceived. An appeal lay from an order under Order XXI, Rule 92 setting aside or refusing to set aside a sale, under Order XLIII, Rule 1(i) to the District Judge.
...Even if no appeal lay against the impugned orders of the learned Subordinate Judge, the petitioner had the remedy of filing a revision before the High Court under Section 115 of the Code. Upon any view of the matter, the High Court had no jurisdiction to interfere with the impugned orders passed by the learned Subordinate Judge, under Article 227 of the Constitution.
11. In Sadhana Lodh v. National Insurance Company Limited (supra), Supreme Court laid down as under.
12. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance Co. Ltd. v. Nicolletta Rohtagi . This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of illustration, where a trial court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 CPC, in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution.
13. In Surya Dev Rai v. Ram Chander Rai (supra), Supreme Court observed as under.
14. ...the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a strait-jacket formula or rigid rules. Not less than often, the High Court would be faced with a 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 does, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings.
In the result, for the above reasons, the Civil Revision Petition under Article 227 of Constitution of India is misconceived and is accordingly dismissed with costs.