Specific Remedy Under CPC Often A Total Bar To Claim Remedy Under Article 227 Of Constitution: Kerala High Court

The Kerala High Court recently held that it cannot entertain a revision petition under Article 227 of the Constitution when a specific remedy of appeal is available under the Code of Civil Procedure (CPC).

As such, Justice A. Badharudeen dismissed a petition and directed the petitioner to approach the appropriate appellate court as per law.

"...the availability of such a remedy under the Code of Civil Procedure to be construed as near to total bar for the remedy under Article 227 of the Constitution of India."

The petitioner moved the Court through Advocate K.P. Unni challenging the order of the additional Munsiff Court.

Justice Badharudeen noticed that the Munsiff has considered an application under Order 9 Rule 13 along with an application under section 5 of the Limitation Act. The petition was allowed on payment of Rs. 10,000/- on or before 3.1.2020. It was clarified that if the cost was not paid, the application would stand dismissed.

The petitioner herein failed to pay the cost and accordingly applications filed under Order 9 Rule 13, along with the delay petition were dismissed.

The Court noted that these orders were appealable under Order 43 Rule 1(d) of CPC. 

Therefore, the question before the bench was whether the remedy under Article 227 of the Constitution is available in cases where remedy by way of appeal is available under CPC.

The Judge referred to the Apex Court's ratio in Virudhunagar Hindu Nadargal Dharma Paribalana Sabai & Ors v. Tuticorin Educational Society & Ors [2019 KHC 7006] where it was held that wherever the proceedings are under the CPC and the forum is the Civil Court, the availability of a remedy under CPC will deter the High Court, not merely as a measure of self-imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. 

Therefore, the High Court ought not to have entertained the Revision under Article 227 of the Constitution of India, in a case where a specific remedy of appeal is provided under the code of Civil Procedure. 

As such, the petition was dismissed. 

Case Title: C.G. Thampi v. Jyothis & Ors. 

Citation: 2022 LiveLaw (Ker) 105

Click Here To Read/Download The Order