Madras High Court
Nirmala Balagopal Rep.By vs Venkatesulu Balagopal on 21 October, 2003
Equivalent citations: AIR 2004 MADRAS 255, 2004 (2) CTLJ 169, (2004) 1 HINDULR 583, (2004) 2 RECCIVR 81, (2003) 3 MAD LJ 805, (2003) 4 MAD LW 565, (2005) 1 MARRILJ 66, (2004) MATLR 532
Author: S.R.Singharavelu
Bench: S.R.Singharavelu
In the High Court of Judicature at Madras
Dated: 21/10/2003
Coram
The Honourable Mr.Justice S.R.SINGHARAVELU
Civil Revision Petition (PD) NO.2296 of 2002
and
CMP.NO.19071 OF 2002
Nirmala Balagopal rep.by
power agent V.Jagannath ..Petitioner
-Vs-
Venkatesulu Balagopal ..Respondent
PETITION under Article 227 of The Constitution of India against the
initiation of the proceedings in HMOP.No.207 OF 2002 on the file of the Family
Court, Coimbatore.
!For Petitioner : Mr.Sriram Panchu, SC for
Mr.Srinath Sridevan
^For Respondent : Mr.T.R.Rajagopalan, SC for
T.R.Rajaraman
:O R D E R
The civil revision petition arises against the order of the Presiding Officer, Family Court, Coimbatore on his having taken on file HMOP.NO.207 of 2002 on the application of the respondent herein and thereupon against the issuance of summons to the revision petitioner.
2. The marriage between the petitioner Nirmala Balagopal and the respondent Venkatesaulu Balagopal had, admittedly, taken place at Coimbatore 30 years back, more particularly on 8.6.1972. Thereafter, they lived in United States of America as permanent residents thereof and also obtained green cards for their domicile there. Since there was some misunderstanding between them, the petitioner wife filed proceedings for separation in the Court of State of Connecticut, United States of America and for reciprocal obligations, they entered into a post marital agreement on 21.1.2000 whereby the respondent husband agreed that whether or not he resides in India, he will not file any legal action for divorce or legal separation against wife in India. This is found in Clause 11.2 in the above said agreement.
3. Subsequently, in the month of November 2000, both of them came to India and began to live in a rented flat in the Race Course Road, Coimbatore. Again, the relationship became strained and that is why the respondent husband preferred a petition before the Presiding Officer, Family Court, Coimbatore for dissolution of marriage. In that petition, he contended that although he parted away with US$ 400000 to the petitioner wife according to Clause 3.1 of the said agreement and although he declared the petitioner wife as the sole beneficiary of his accounts IRA and 401 K at United States of America, the details of which were given in Schedule III of the said agreement, the petitioner wife continued to ill-treat him by showing scant respect to him and also abused him day in and day out in vulgar language. Despite the same, the respondent husband was continuing to spend for family expenses including house rent and allied charges and for the comfortable living of the petitioner. He also met the expenses for the treatment of his wife.
4. It is in these circumstances, the respondent husband wanted to modify the said agreement dated 21.1.2000 as mentioned in paragraph 15 of his petition for dissolution of marriage stating that the petitioner wife was not worthy of any benefits granted to her already. It was further stated that in spite of Clause 11.2 of the said agreement regarding jurisdiction, there is no impediment for entertaining the petition, as enforcement of statutory right of jurisdiction cannot be nullified by agreement including the one, which was made between the parties on 21.1.2000 in United States of America. By saying so, he wanted the Court below to take the petition on file in spite of the fact that there is a bar of jurisdiction in Clause 11.2 of the said agreement.
5. The whole grievance of the petitioner wife is that now she is living in United States of America and she cannot be made to fly at frequent intervals to attend the proceedings before the Family Court regarding the petition made by the respondent for dissolution of marriage. It is a fraud on the part of her husband to have moved the Court below after giving a go-by to Clause 11.2 of the said agreement dated 21.1.2000.
6. Mr.Sriram Panchu, learned Senior Counsel for the petitioner - wife submitted that the Court below ought not to have taken on file the petition filed by the respondent husband and that even after the mention made about the said agreement regarding bar of jurisdiction contained therein and even after including a copy of the agreement in the said petition, the Court below ought to have returned the same either for arguments regarding maintainability of the same in view of the bar of jurisdiction or for presentation before proper forum. Thus, it was argued that the Court below had exceeded its jurisdiction after assuming powers, which it did not have.
7. Even in the petition for dissolution of marriage filed by the respondent before the Court below, the cause of action was mentioned as the date of marriage solemnised at Coimbatore and in November 2000 from which the parties were living at Coimbatore. The petition was taken on file and the summons were issued on 14.5.2002.
8. According to Section 20 of the Civil Procedure Code, suits may be instituted in a Court within local limits of whose jurisdiction, at the commencement of suit, the defendants reside, carry on business or acquiesce in such institution or the cause of action wholly or partly arises.
9. Under the provisions of the Hindu Marriage Act, 1955, only the District Court, within the local limits of whose original civil jurisdiction -
i. the marriage was solemnised; or ii.the respondent at the time of presentation of the petition resides; or iii.the parties to the marriage last resided together; or iv.the petitioner is residing at the presentation of the petition in a case where the respondent is, at that time, residing outside the territories to which the Act extends or has not been heard of as being alive for a period of seven years or more, has jurisdiction to entertain the petition.
10. Section 9 of the Civil Procedure Code provides that the Courts shall have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is expressly or impliedly barred.
11. Mr.T.R.Rajagopalan, learned Senior Counsel for the respondent husband contended that the jurisdiction of the Courts will remain there and what parties could agree is the option for exercise of the same.
12. No one could and would say that there was ouster of jurisdiction of Courts at Coimbatore. What is in issue is whether after exercising the option at the exclusion of the Indian Courts, can the respondent again come and say that his statutory rights could not be debarred or nullified by bi-lateral agreement. To mention again, can there not be any waiver for the exercise of jurisdiction in Indian Courts by operation of clauses of bi-lateral agreement is in issue.
13. In this connection, learned Senior Counsel for the respondent husband contended that whatever be the point on merits in favour of the petitioner wife, she must not have chosen to file this revision under Article 227 of The Constitution of India and before coming to this Court by way of revision, every statutory remedy should have been availed of.
14. Learned Senior Counsel for the respondent husband relied upon the following judgments :
"i. Venkatasubbiah Naidu, A Vs. S.Challappan (2000 IV CTC 358); and ii. Sadhana Lodh Vs. National Insurance Company Ltd. (2003 II CTC 12 2)."
15. In the judgment reported in 2000 IV CTC 358 (supra), it has been observed as follows :
"It is a well recognised principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy.."
16. In the judgment reported in 2003 II CTC 122 (supra), it has been observed as follows :
"The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law....It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior Court or Tribunal purports to have passed the order or to correct errors of law in the decision."
17. The further argument of the learned Senior Counsel for the respondent was that the respondent husband having preferred a petition for certain remedies before the Court below, even if it is not maintainable, it is for the petitioner wife to resist the case by putting forth her case of maintainability before that Court and should obtain an order on the preliminary point. Also, it is not as if no arguments can be made on the question of maintainability about the preliminary point and that no order can be passed thereon.
18. In fact, in the case of Mitsubishi France Vs. Neyveli Lignite Corporation Limited (AIR 1985 Madras 300), there was a case of breach of contract and when the suit for damages was filed, the defendant raised a question of jurisdiction and a Division Bench of this Court found that in order to avoid the ordeal of trial, the preliminary finding on the maintainability of the suit is very much necessary. In that case, while answering the preliminary question, Order XIV Rule 2 of the Civil Procedure Code was also discussed and finally and it was found as follows :
"After all if the point of jurisdiction is held in favour of the appellant, he need not undergo the ordeal of trial. No doubt, it may be in mixed question of facts and law. Nevertheless, where in the event of the appellant succeeding on this issue, it could avoid the ordeal of trial, certainly it is not only desirable but also just that this issue be tried as a preliminary issue."
19. In the case of Gopalakrishnan, V.R. Vs. Andiammal (2002 II CTC 5 13), the question of Court fee was heard as a preliminary issue. The provisions under Section 12(2) of the Tamilnadu Court Fees and Suits Valuation Act and Order XIV Rule 2 of the Civil Procedure Code and their interactions were vividly dealt with. It was held that the substantial law will prevail over the procedural code and consequently it follows that whenever the defendant files an application requesting the Court to decide the issue of valuation of the suit property or payment of Court fee and all questions arising on such pleas as preliminary issues, the Court has to necessarily consider as per the provisions of Section 12(2) of the Tamilnadu Court Fees and Suits Valuation Act. That was the case decided only recently on 25.1.2002 by our High Court.
20. By considering the observations made in the above two case laws i.e AIR 1985 Madras 300 (supra) and 2002 II CTC 513 (supra), I am of the view that it is not as if no preliminary point regarding maintainability could ever be argued and the Court is precluded from giving any initial finding thereon.
21. Therefore, learned Senior Counsel for the respondent husband contended that there is no much inconvenience for the petitioner wife to argue the case on maintainability through her counsel without even making her presence in the Court below. On this aspect, she may not even be necessitated to come to Coimbatore all the way from United States of America. By leaving all these particulars, it is not for her to come before this Court for a remedy under Article 227 of The Constitution of India, which normally would be availed only if the Court below is guilty of grave dereliction of duty, flagrant abuse of power and as a consequence of great injustice occurred.
22. Per contra, learned Senior Counsel for the petitioner wife contended that even for agitating the maintainability of the petition, both are debarred to approach the Court below as a result of the bilateral agreement entered into between them and therefore, a direction to make her to come to Coimbatore and argue the case on preliminary point is of no use. It is actually against her case of assertion of the bi-lateral agreement and the waiver of jurisdiction of Indian Courts made therein. It is on that score, a direction to avail all statutory remedy before coming by way of revision is also of no use. It was a fraud on the part of the respondent - husband played not only on the petitioner wife, but also on the Courts in India to have preferred a petition before the Court below after having waived the jurisdiction in India.
23. In this connection, learned Senior Counsel for the petitioner wife relied upon a judgment in the case of Y. Narasimha Rao Vs. Y. Venkata Lakshmi (1991 III SCC 451) wherein it was held as follows :
"The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: (i)...(ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii)..."
24. Before going further, we should know what is fraud. Lord Justice Cotton in the case of Derry Vs. Peek (1889 14 A.C. 337) observed as follows :-
"What in my opinion is a correct state of law is this that where a man makes a statement to be acted upon by others which is false and which is known by him to be false or is made by him, recklessly or without care whether it is true or false, that is fraud."
25. Mr.Justice Watkin Williams in the case of Joliffs Vs. Baker (188 3 11 Q.B.D. 255) observed as follows :
"Ever since 1845 it has been clear and established law that the term 'fraud' must be used and understood in the common meaning of the word as it is ordinarily used in the English language and as implying some base conduct and moral turpitude."
26. Mr.Justice Maule in the case of Evans vs. Edmonds (1853 13 C.B.
777) observed as follows :
"I conceive if a man having no knowledge whatever of a subject takes upon himself to represent a certain state of facts to exist, he does so at his peril, and if it be done either with a view to secure some benefit to himself or to deceive a third person, he is guilty of fraud."
27. There are two actions on the part of the respondent husband, which could be alleged as fraud. The first one is entering into a post marital agreement on 21.1.2000 with the petitioner wife knowing fully well that he is not going to oblige the terms thereof. The other one is having entered into an agreement, the approach to the Court below by defying Clause 11.2 of the said agreement.
28. Learned Senior Counsel for the petitioner wife did not mention that the second action amounted to fraud. What he mentioned was that the first action amounts to fraud.
29. If the first action should be considered as fraud, the mental condition of the respondent husband at the time of entering into the agreement should be proved as polluted one containing fraudulent ideas. In-as-much as that has not been proved, this Court is not accepting the case of fraud projected on behalf of the petitioner.
30. After having found that the breach of Clause 11.2 of the agreement aforesaid cannot exactly be termed as fraud on the part of the respondent, next we have to examine whether at all the inclusion of such a clause in the agreement was opposed to public policy. Learned Senior Counsel for the respondent - husband contended that any contract vesting jurisdiction only on a Court in a particular country is opposed to public policy and may get vitiated under Section 28 of the Indian Contract Act. Per contra, learned Senior Counsel for the petitioner argued otherway by placing reliance on the judgments in the cases of :-
"i. H.K.Dada (India) Ltd. Vs. M.P.S.Mills Co.Ltd. (AIR 1954 Madras 8 45);
ii. Hakam Singh Vs. Gammon (India) Ltd. (AIR 1971 SC 740); and iii. M/s.Angile Insulations Vs. M/s.Davy Ashmore India Ltd. (AIR 199 5 SC 1766)."
31. In the judgment reported in AIR 1954 Madras 845 (supra), it has been held as follows :
"All disputes in respect of this contract shall be settled by arbitration failing which shall be settled in the Court of the seller's jurisdiction where this contract shall be deemed to have been entered into."
This restriction of jurisdiction only upon the Courts of seller's jurisdiction was agitated in that case. Quoting the law laid down in the cases of Haji Abdulla Vs. G.R.Stamp (AIR 1924 Bombay 381), Achratlal Keshavlal Mehta and Co. Vs. Vijayan and Co. (AIR 1925 Madras 114 5), Gopaldas Vs. Harikishan Das (AIR 1936 Allahabad 514), National Petroleum Co.Ltd., Bombay Vs. Meghraj (AIR 1937 Nagpur 334) and Musarji Lukmani Vs. Durgadas (AIR 1946 Lahore 57 (FB)), it was further held by Abdur Rahaman,J as follows :
"The parties did not thus deprive any court of its inherent or even territorial jurisdiction but themselves of their right of exercising it partially in one out of the two or three courts. Jurisdiction is one thing, right to exercise it another."
It was also held that that part of Clause 8, which provides for institution of a suit in the Court of the seller's jurisdiction, comes into force only on failure of arbitration and as there had been no attempt at arbitration, that provision cannot be relied upon.
32. Thus, it was found that such an agreement would not be contrary to the provisions of Section 28 of the Indian Contract Act because the party is not thereby restricted absolutely from enforcing his rights under or in respect of the contract by the usual legal proceedings in the ordinary tribunals, as the restriction is only partial. It was emphatically held that such an agreement is not against the public policy.
33. In the judgment reported in AIR 1971 SC 740 (supra), it has been held as follows :
"It is not open to the parties by agreement to confer by their agreement jurisdiction on a Court which it does not possess under the Code. But where two Courts or more have under the Code of Civil Procedure jurisdiction to try a suit or proceeding an agreement between the parties that the dispute between them shall be tried in one of such Courts is not contrary to public policy."
34. In the judgment reported in AIR 1995 SC 1766 (supra), it has been held as follows :
"On the other hand, this Court laid that where there may be two or more competent Courts which can entertain a suit consequent upon a part of the cause of action having arisen therewith, if the parties to the contract agreed to vest jurisdiction in one such court to try the dispute which might arise as between themselves, the agreement would be valid. If such a contract is clear, unambiguous and explicit and not vague, it is not hit by Ss.23 and 28 of Contract Act."
35. Both the latter two views were taken only in consonance with the view taken by Rajamannar, C.J., who took such a view in the judgment reported in AIR 1954 Madras 845 (supra) after having considered the earlier case laws and laid the law in that case.
36. Learned counsel for the petitioner wife also relied upon the judgments in the cases of S.E.Asia Co.Ltd. Vs. H & M (Ind.) P.Ltd. ( AIR 1962 Calcutta 601) and U.L.Lastochkina Odessa, USSR Vs. Union of India (AIR 1976 Andhra Pradesh 103).
37. Before going into the facts of the above two case laws, this Court wants to cull out the proposition of law relied upon therein and to cull out from Halsbury's Laws of England, the text of Cheshire and the finding of Burger,CJ. In Halsbury's Laws of England (Lord Simon' s III Edition), Volume-7, under the head 'Law Chosen by Parties, it was stated as follows :
"Where parties expressly stipulate that the contract shall be governed by a particular law, that law will be the proper law of the contract provided the selection is bona fide and there is no objection on the ground of public policy and, apparently, even where the law has no real connection with the contract."
38. Cheshire has this to say in his famous treatise on private international law at page 222 of the sixth edition:
"In accordance with the excellent principle that a contractual undertaking should be honoured, there is indeed, a prima facie rule that an action brought in England in defiance of an agreement to submit to arbitration abroad will be stayed ... but nevertheless the court has a discretion in the matter and where the parties are amenable to the jurisdiction ... it will allow the English action to continue if it considers that the ends of justice will be better served by trial in this country."
39. In the case of Zapata Offshore Co. Vs. The 'Bremen' and Unterweser Reederi G.M.B.H. (The 'Chaparral') (1972 II Lloyd's LR 315), at page 318, Burger,CJ observed as follows :
"Absent a contract forum, the considerations relied on by the Court of Appeals would be persuasive reasons for holding an American forum convenient in the traditional sense but in an era of expanding world trade and commerce, the absolute aspects of doctrine of the Carbon Black case have little place and would be a heavy hand indeed on the future development of international commercial dealings by Americans."
40. By considering all these aspects, in the judgment reported in AIR 1962 Calcutta 601 (supra), it has been held as follows :
"In this case, we have found nothing wrong in the contract contained in the bill of lading and when parties with their eyes wide open entered into an agreement to have their dispute settled in Sweden according to Swedish law, it would, we think, be improper, in the absence of any circumstance of an overriding nature to supersede that agreement."
41. Similarly, in the judgment reported in AIR 1976 AP 103 (supra), it has been held as follows :
"Where the bill of lading clearly provided that all disputes arising under and in connection with the same shall be judged in USSR and the plaintiff sued the Shipping Company and its agent at Visakhapatnam for short delivery.
Held that having regard to the fact that the claim was small and that the shipping company had its agent at Visakhapatnam who was also arrayed as defendant 2 the balance of convenience and interest of justice were in favour of the Visakhapatnam court deciding the suit."
42. All these case laws dealt with the contract of option of exercise of jurisdiction in Courts at a particular country were not opposed to Sections 23 or 28 of the Indian Contract Act. Suppose the option was agreed for a private tribunal or that option was exercised in favour of a Court, which originally did not have any jurisdiction, then, it was held as opposed to public policy.
43. In the case of Serajuddin and Co. Vs. Michael Golodetz (AIR 1960 Calcutta 47), the Court was called upon to consider the arbitration agreement, which contained a clause to the effect that any dispute arising out of the contract was to be settled by arbitration in New York according to the laws of American Arbitration Association. It was held that to compel a party to seek his remedy in America would practically amount to denial of justice. It was so held upon the principle that we cannot allow the parties to exercise their option to resort to verdict in private tribunals. This was on the following cherished principle of Cheshire and Fifoot :
"It has long been established that a contact which purports to destroy the right of one or both of the parties to submit questions of law to the Court is contrary to public policy and is void protanto."
44. Lastly, in the case of Modi Entertainment Network Vs. W.S.G. Cricket PTE Ltd. (2003 I CTC 429), the impugned clause is as follows :
"This agreement shall be governed by and construed in accordance with English law and the parties hereby submit to non-exclusive jurisdiction of the English Courts (without reference to English conflict of law rules)."
It was held that unless good and sufficient reasons are shown by the appellants, the intention of the parties as evidenced by their contract must be given effect to.
45. Hence, from the above catena of cases, it is learnt that any bi-lateral agreement in which exercise of option of jurisdiction of Courts in a particular country can be effectively made is not opposed to public policy and will not be hit under Sections 23 or 28 of the Indian Contract Act. In fact, what was opposed to public policy was indicated as option to exercise the jurisdiction of a particular Court, which originally lacks jurisdiction for the parties concerned or that resort to a private tribunal.
46. In this case, the option was to exclude Indian Courts. The parties lived in Connecticut, United States of America. They are very much having jurisdiction there and it is not as if the petitioner and the respondent herein are going to permanently reside in India. It was also manifestly shown that their inclination and intention was only to reside in United States of America. Hence, there is nothing wrong in the contract to have chosen except the Courts in India; thereby including the Courts in United States of America.
47. Learned Senior Counsel for the respondent husband next raised a question that despite all these contentions raised, whether it is proper to have directly preferred this revision under Article 227 of The Constitution of India ? His further argument was that unless it was shown that the Court below is guilty of grave dereliction of duty and flagrant abuse of power whereby grave injustice was caused, Article 227 of The Constitution of India would not come into play.
48. In this connection, learned Senior Counsel for the respondent - husband relied upon the decisions in the cases of :
"i. State Through Special Cell, New Delhi Vs. Navjot Sandhu (a) Afshan Guru and Others (2003 IV Supreme 133);
ii. Essen Deinki Vs. Rajiv Kumar (2002 VIII SCC 400); and iii. Ouseph Mathai and others Vs. M.Abdul Khadir (2002 I SCC 319)."
49. In the judgment reported in 2002 I SCC 319 (supra), originally the landlords filed an eviction petition under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act both on the ground of wilful default and bona fide need for reconstruction of the building. There was an order of eviction only on the latter ground and eviction was negatived on the former ground. Therefore, appeals were preferred by both parties in which eviction was ordered on both the grounds. The tenants filed a revision petition in the District Court and it was dismissed with a direction to the tenants to pay the arrears of rent within two months. They did not deposit the amount. Instead, they moved the High Court by way of revision and it was dismissed. Thereafter, they preferred a civil revision petition under Article 227 of The Constitution of India and simultaneously, approached the District Court for extension of time in depositing the rent, which application was dismissed. Again, on dismissal of the civil revision petition under Article 227 of The Constitution of India, they deposited the amount in the District Court and applied to vacate the eviction order and that was dismissed. Against which, they preferred an appeal and upon dismissal of the same, they approached the High Court where they got an order of extension of time. This was held in the Supreme Court as wrong exercise of jurisdiction. It is in these circumstances observed as follows :
"In fact power under this article casts a duty upon the High Court to keep the inferior courts and tribunals within the limits of their authority and that they do not cross the limits, ensuring the performance of duties by such courts and tribunals in accordance with law conferring powers within the ambit of the enactments creating such courts and tribunals. Only wrong decisions may not be a ground for the exercise of jurisdiction under this article unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate courts and tribunals resulting in grave injustice to any party."
50. The judgment reported in 2002 VIII SCC 400 (supra) dealt with a reference under the Industrial Disputes Act. The tribunal dismissed the reference after finding that the employee did not complete the service of 240 days and what he had completed was one day short even after taking into account all the saturdays and sundays. The High Court admitted the application of the employee and passed a verdict in his favour and it is in these circumstances the Supreme Court held that it was a patent error of exercise of power under Article 227 of The Constitution of India when the facts do show emphatically that there was no completion of 240 days of service and that there was also an admission on the part of the employee to that effect. In that circumstances, it was further held that the illegality cannot be countenanced under any circumstances. It was also held as follows :
"Exercise of jurisdiction under Article 227 of the Constitution is limited and restrictive in nature.It is so exercised in normal circumstances for want of jurisdiction, errors of law, perverse findings and gross violation of natural justice, to name a few. It is merely a revisional jurisdiction and does not confer an unlimited authority or prerogative to correct all orders or even wrong decisions made within the limits of the jurisdiction of the courts below. The finding of fact being within the domain of the inferior tribunal, except where it is a perverse recording thereof or not based on any material whatsoever resulting in manifest injustice, interference under the article is not called for.
It is clear that error must be that of law and patently on record committed by the inferior tribunal so as to warrant intervention it ought not to act as a court of appeal."
51. The judgment reported in 2003 IV Supreme 133 (supra) involves a case under the Prevention of Terrorism Act. The correctness of the interlocutory order passed by the Court below was said to have been challenged only in the appeal proceedings and interference under Article 227 of The Constitution of India was viewed as incorrect. The finding was as follows :
"Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all the Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction...It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Further where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised 'as the cloak of an appeal in disguise'."
52. After citing all these case laws, learned Senior Counsel for the respondent husband contended that as there is no grave injustice caused, this revision petition preferred under Article 227 of The Constitution of India is not maintainable.
53. In this connection, learned Senior Counsel for the petitioner wife relied upon the following case laws :
"i. Estralla Rubber Vs. Dass Estate (P) Ltd. (2001 VIII SCC 97); ii. S.Viswanathan Vs. M/s.Sri Muruga Agencies & Another (2002 I TLNJ
13); and iii. Seeni (a) Sundarammal Vs. Ramasamy Poosari & two others (2000 III CTC 74)."
54. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of The Constitution of India was examined and explained in all these case laws. In the judgment reported in 2001 VIII SCC 97 (supra), the finding is as follows :
"The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals...It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
55. In the judgment reported in 2000 III CTC 74 (supra), the following observation was made :
"Process of Court must be used bona fide and properly and must not be misused or abused. It is the duty of the Court to prevent improper use of its machinery. The Court has to see that it is not used as a means of oppression and the process of litigation is free from vexatiousness. The categories of conduct rendering a claim frivolous, vexatious or an abuse of process would depend upon the relevant circumstances. But, it has to be judged from the angle of interest of justice and public policy."
56. In the judgment reported in 2002 I TLNJ 13 (supra), the tenants originally allowed the landlord to file a rent control petition against the original partners of the firm and in the meantime, there was an induction of new partners by removal of the erst-while partners. The partners, who were newly inducted, knew pretty well about the proceedings of the rent control petition and coolly allowed it to be taken against the erst-while partners against whom the rent control petition was continued. This was made with mala fide intention of reserving the right to make out a second round of litigation and it is in that circumstances the following observations were made :
"I feel that if this Court declines to interfere even in a case of this type, the very administration of justice would be rendered a mockery. If parties are allowed to play hide and seek and hood-wink the process of law, people will lose faith in the Courts...Section 9 CPC does not give liberty to parties who do not act bona fide and if the High Court does not interfere on the ground that the suit should go through its normal course, it will not be possible to execute any decree."
57. From the case laws discussed above, it is clear that Article 227 of The Constitution of India is available only when there is miscarriage of justice. This Court already found that Clause 11.2 of the bi-lateral agreement in this case is not opposed to public policy and its proviso can clearly be given effect to in law. This Court need not direct the petitioner wife to appear before the Court below and argue the case of maintainability as a preliminary point and till she avails that opportunity, this Court cannot prevent her from coming under Article 227 of The Constitution of India, because, in this case, there is a grave dereliction of duty on the part of the Court below, which, even after having been put to know the existence of the agreement ousting the jurisdiction of the Courts in India, in defiance thereof, had taken on file the original petition and issued summons to the petitioner and in law, it is not permissible. Therefore, this Court, on facts, accepts the view of the petitioner wife.
58. Learned Senior Counsel for the respondent husband may argue that if Clause 11.2 of the said agreement is precluding the husband respondent to seek any remedy in Indian Courts, naturally, it will also apply to the other party to the said agreement, namely the petitioner - wife and so, this revision is devoid of any merits.
59. In this connection, this Court may have to say that what Clause 11.2 of the said agreement precludes is only filing of an application for dissolution of marriage and not with respect to anything else. The revision petitioner has not come forward with an application for dissolution of marriage and therefore, for this revision, there is no lack of jurisdiction.
60. The revision petition is accordingly allowed setting aside the order passed by the Court below in taking on file the application of the respondent and issuing summons to the petitioner. No costs. Consequently, the above CMP is dismissed.
Index : Yes Internet : Yes To The Family Court, Coimbatore.
RS