Article 227- Availability Of Appellate Remedy Under CPC Can Be 'Near Total Bar' For Exercising Supervisory Jurisdiction: SC [Read Judgment]

The Supreme Court has observed that the availability of an appellate remedy in terms of the provisions of Code of Civil Procedure can be construed as a 'near total bar' for the exercise of supervisory jurisdiction under Article 227 of the Constitution of India. In Virudhunagar Hindu Nadargal Dharma Paribalana Sabai vs. Tuticorin Educational Society, the bench comprising of Justice Rohinton Fali Nariman and Justice V. Ramasubramanian was considering an appeal against an order of the High Court passed under Article 227 of the Constitution, vacating an interim order of injunction granted by the trial Court, the plaintiffs have come up with this appeal. In this case, rejecting the objections to the maintainability of the revision under Article 227 on the ground of availability of an appellate remedy under the Code, the High Court had allowed the Civil Revision Petition and set aside the order of injunction granted by the trial Court. The Apex Court bench said that the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself. It added:Wherever the proceedings are under the code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under the 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. The Apex Court bench noted that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. But, referring to A. Venkatasubbiah Naidu Vs. S. Chellappan and Radhey Shyam Vs. Chhabi Nath, the bench said: " But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before Civil Courts in terms of the provisions of Code of Civil procedure and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which the respondents 1 and 2 invoked the jurisdiction of the High court." One of the ground which prompted the High Court in this case to exercise supervisory jurisdiction was the contention that the trial Court proceeded in great haste. Even if the High Court was convinced that the trial Court had proceeded hastily, the High Court could have only remanded the matter back, the bench said. It added:Order XXXIX Rule 3A of the Code of Civil Procedure itself mandates the disposal of an application for injunction within 30 days, whenever an injunction was granted without notice to the opposite party. In this case, the trial Court, without granting an ex-parte order of injunction, chose to allow the opposite parties to file counter affidavit(s) along with documents and then heard the opposite parties before allowing the application for injunction. Finding the line of demarcation between speedy disposal and hurried dispatch, with mathematical precision, is not possible. In any case, even if the High Court was convinced that the trial Court had proceeded hastily, the High Court could have only remanded the matter back. But the High Court allowed the application for injunction without recording any finding on merits. In fact the order of the Trial Court deals with the rival contentions and is one passed on merits after due consideration of the pleadings and documents. The High Court unfortunately did not even deal with the matter on merits to over turn the decision of the Trial Court. Therefore, the order of the High Court is liable to be set aside and the order of the Trial Court is liable to be restored. Click here to Read/Download Judgment

Article 227- Availability Of Appellate Remedy Under CPC Can Be 'Near Total Bar' For Exercising Supervisory Jurisdiction: SC [Read Judgment]

Ashok Kini

'The availability of a remedy under the 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.'

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