J.N. Sarma, J.
1. This application under Article 227 of the Constitution of India has been filed challenging the decree dated 5-7-94 passed by the Munsift No. 2, Guwahati in Title Suit No. 176/94. Some other order dated 12-7-94 was also passed by the Asstt. District Judge No. 1 in Misc. Case No. 29/94 and 30/94 are challenged but I am not deciding the legality and validity of those orders I shall keep myself confined in this petition only with regard to the legality and validity of the decree dated 5-7-94 decreeing the suit of the plaintiff on admission.
2. The brief facts of the case are as follows:
The Opp. Party No. I brought a suit being T.S. No. 176/94 before the Sadar Munsiff No. 1, Guwahati. The suit was subsequently transferred to the court of the Munsiff No. 2. The following were the defendants in that suit:
i) All Assam Lawyers' Association,
ii) Sri Lakheswar Hazarika, Advocate,
iii) Sri Satyandra Prasad Deka, Advocate, General Secretary, All Assam Lawyers' Association, Guwahati,
iv) Shri Paramananda Choudhury, Advocate Vice-President, All Assam Lawyers' Association, Guwahati.
3. The suit was for declaration of the proceedings and the Election of the 6th Bi-Annual Conference of the All Assam Lawyers Association held at Bongaigaon on the 9th and 10th April, 1994, as illegal, void ab inilio void and inoperative. The suit was filed on 27-5-94. A notice under Order 1, Rule 8 was issued and the same was published in the Assam Tribune in June, 1994. Thereafter, it appears from the record that Shri Satyandra Prasad Deka, defendant No. 3 appeared in the suit by filing a Vokalatnama, The Vokalatnama which was filed on 7th June, 1994 does not show that this was filed for and on behalf of the defendants as Vokalatnama itself will show that it was filed only on behalf of Shri Satyandra Prasad Deka. Be that as it may, a written statement was filed on 27-6-94 and in this written statement it is stated that it was filed on behalf of the defendants and the verification as signed by Shri Satyandra Prasad Deka in his capacity as General Secretary of All Assam Lawyers' Association. It appears that the verification was also signed by the defendant No. 4 Shri Paramananda Choudhury as admitted by the counsel of both the sides.
4. On 7-6-94 the following order was recorded by the learned Munsiff:
'Defendant No. 2 is absent. S.R. not returned.'
5. Thereafter, there is nothing to show that notice was served on defendant No. 2. There is no order also to show that the notice was served on defendant No. 1. A bare reading of Order 1, Rule 8 and Order 5 will show that with regard to the defendants, the summons of the suit must be served on them. Issue of a notice under Order 1, Rule 8 shall not be deemed to be service of the summons on the defendants arrayed in the suit but that was not considered in this particular case. Be that as it may, the learned Munsiff, Guwahati on the basis of the written statement filed by them passed the impugned decree by exercising the power under Order 12, Rule 6 and the prayer made in the plaint was allowed and the suit was decreed. It is this decree which is challenged by the present petitioners who were not parties/defendants in the suit on the ground that this decree shall affect their right and interest and they would be prejudicially affected by the judgment and that may be binding on them as res judicata under Explanation 6 to Section 11 of the C.P.C.
6. No doubt as held by the Apex Court in AIR 1971 SC 374 (Smt. Jatan Kanwar Golcha v. Golcha Properties Pvt. Ltd.), a person who is not a party of the suit may prefer an appeal with the leave of the appellate Court and as such leave should be, granted if a person would be prejudicially affected by the judgment. The same is the law laid down by the Apex Court in State of Assam v. A. Sing, reported in AIR 1974 SC 994 at para 29 where the Apex Court pointed out that the ordinary rule is that only a party to a suit adversely affected by the decree or any of his representatives-in-interest may file an appeal. Under such circumstances a person who is not a party may prefer an appeal with the leave of the appellate Court if he would be prejudicially affected by the judgment. So, the petitioners in the present case/application have a right to prefer an appeal as pointed out by the Apex Court but that is a precarious right depending on the leave of the appellate Court but that difficulty would not be there when an application is filed under Article 227 of the Constitution inasmuch as an application under Article 227 of the Constitution can be filed not only by the parties but also by other person whose right is prejudicially affected and in such a case leave of the court is not necessary. So, the question of having alternative remedy in this case shall not arise.
7. At this stage S.P. Rai, Learned Advocate for the plaintiff/Opp. Party No. 1 draws my attention to the record and placed before me that the summons of the suit was served on defendant No. 2 and it was received by him on 3-6-1994. The preliminary objection which is taken by Shri Bhattacharjee, Learned Advocate appearing for the respondent No. 3 Shri Satyandra Prasad Deka and by Shri S.P. Rai, Learned Advocate appearing for the respondent No. 1 Sri A.K. Bora is that this court is not competent to exercise the jurisdiction under Article 227 of the Constitution of India and in this connection Shri Bhattacharjee, Learned Advocate appearing for the respondent No. 3 places before me the following decisions :
8. AIR 1975 SC 1297 (Babhutmai Rai-chand Oswal v. Laxmibai R, Tarte) where the Surpeme Court in paragraph 7, laid down the laws as follows:
(a) 'Its function is limited to seeking that the subordinate court or tribunal functions within the limits of its authority.'
(b) The limited power of interference which High Court possessed under Article 227 was to see that the District Court functions within the limits of its authority.'
(ii) AIR 1984 SC 38 (Mohd. Yunus v. Mohd. Mustaqim wherein paragraph 7, the Supreme Court pointed out as follows:
'The supervisory jurisdiction conferred on the High Court under Article 227 of the Constitution is limited 'to seeking that an inferior Court or Tribunal functions within the limits of its authority,' and not to correct an error apparent on the face of the record, much less the error of law.'
(iii) AIR 1976 SC 2446 (Miss Maneck Custodji Surjarji v. Sarafazali Nawabali Mirza) wherein the Supreme Court in paragraph 6, pointed out as follows :
'The respondent had clearly a legal remedy available to him by way of an appeal against the decree, of the City Civil Court and this remedy was not only adequate but more comprehensive than the one under Article 227 of the Constitution. Even so, for some inexplicable reasons, the respondent chose to prefer a Special Civil Application under Article 227 of the Constitution and Vaidya, J. entertained the Special Civil Application and granted relief to the respondent casting to the the winds the well-settled principle that the High Court does not ordinarily in exercise of its discretion, entertaina special civil application under Article 227 of the Constitution where an adequate alternative legal remdey is available to the applicant. It is true that this principle is not rigid and inflexible and there can be extraordinary circumstances where despite the existence of an alternative legal remedy, the High Court may interfere in favour of an applicant, but this was certainly not one of such extraordinary cases. It is indeed difficult to see how the learned Judge could entertain a Special Civil Application against a decree passed by a subordinate court when the procedural law allows an appeal against it and that appeal lies to the High Court itself. It must be realised that the jurisdiction under Article 227 of the Constitution is an extraordinary jurisdiction which it to be exercised sparingly and in appropriate cases and it is not to be exercised as if it were an appellate jurisdiction or as if it gave unfettered and unrestricted power to the High Court to do whatever it liked.'
9. (iv) 1979 (1) SCC 560 : (AIR 1979 SC 381) (Jagir Singh v. Ranbir Singh) wherein paragraph 6 the Supreme Court laid down the law as follows:
'In the second place the power of judicial superintendence under Article 227 could only be exercised sparingly, to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Where the statute banned the exercise of revisional powers by the High Court, it would indeed require very exceptional circumstances to warrant interference under Article 227 of the Constitution since the power of superintendence was not meant to circumvent statutory law.'
10. On the other hand, Shri Goswami, Learned Advocate appearing for the petitioner places before me the following two decisions of this court, and one of Apex Court.
(i) 1993 (1) Gauhati LR 92 (Md. Isha Haque v. Md. Azadur Rahman Hazarika) wherein this court after considering the case in paragraph 10, has laid down as follows:
'It is a settled law that the power of superintendence conferred upon the High Court under Article 227 of the Constitution is not confined to administrative superintendence only, but includes the power of judicial revision also even where no appeal or revision lies to the High Court under ordinary laws. However, this power does not vest the High Court with unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of the fundamental principles of law or justice, where any authority passes order which is manifestly wrong and without jurisdiction the High Court definitely has a power under Article 227 to interfere with the order. In short, the jurisdiction under Article 227 is limited to only examining whether the subordinate Court kept itself within the bounds of its authority in reaching the finding. Therefore, it is now well settled that High Court in an appropriate case where the Subordinate Court or authority has committed manifest error of law or passed any order without any jurisdiction definitely can interfere.'
The Court in exercise of power under Article 227 quashed the decree passed ex parte.
11. The other judgment regarding the power of this court under Article 227 of the Constitution is placed by Shri Goswami, Learned Advocate for the petitioner is 1993 (1) Gauhati LR 66 (Jyotish Chandra Borbora v. Bura Gohain Tea Co. Pvt. Ltd.) wherein this Court pointed out that even when an appeal lies against an order, this court can entertain an application under Article 227 in an exceptional case. Existence of alternative remedy is no bar entertaining an application under Article 227 of the Constitution if the situation so demands.
12. In (177) 2 SCC 437: (AIR 1977 SC 1222) (Trimbak Gangadhar Telang v. Ram-chandra Ganesh Bhide) where the Supreme Court pointed out as follows:
'It is only when an order of a Tribunal is violative of the fundamental basic principles of justice and fair play or where a patent or flagrant error in procedure or law has crept in or where the order passed results in manifest injustice, that a court can justifiably intervene under Article 227 of the Constitution.'
13. This being the settled position of law on considering the nature of the decree and after being satisfied that the procedure adopted by the court below was violative of the fundamental basic principles of justice and fair play and there was a flagrant, patent error in procedure and having found that the order has caused menifestly injustice to the petitioner, I decide to entertain this application under Article 227 of the Constitution of India.
14. The next question is that whether the decree could have been passed by the trial court in exercise of the power under Order 12, Rule 6 of the C.P.C. Before going to discuss that aspect of the matter, let us have a look at the Order 12, Rule 6. Order 12, Rule 6 is quoted below:
'6. Judgment on admission -- (1) Where admission of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.'
15. Here is a case where a written statement was filed on behalf of two defendants i.e. defendant Nos. 3 and 4 and there was no written statement on behalf of the defendants Nos. 1 and 2, I have perused the written statement which is Annexure 15 to this revision application, and I could not satisfy myself that there was an admission as required under Order 12, Rule 6. I put this question to Shri Bhatacharjee, Learned Advocate for the respondents. He drew my attention to paragraphs 1, 4, 5, 6, 7 and 8 of the written statement and submitted that paragraph are admission on the part of the defendants and this admission shall give jurisdiction to the court below to pass the judgment in exercise of its power under Order 12, Rule 6. The basic position which emerged from the facts stated above is this there was a written statement only on behalf of the defendants Nos. 3 and 4 and how the suit can be decreed in its entirety on the face of alleged admission of these two defendants, i.e. defendants Nos. 3 and 4. There was a decree as against the defendant Nos. 1 and 2 also but there can be, no decree as against the defendants Nos. 1 and 2 as they have not filed their written statement. The next question is whether at all this decree could have been passed in exercise of power under Order 12, Rule 6 is required to be considered.
16. This aspect of the matter is not res integra Order 12, Rule 6 came up for consideration before different High Court in a number of cases. I shall only consider following three cases:
(i) AIR 1924 Cal 190 (J. C. Galstaun v. E. D. Sasoon & Co., Ltd.) wherein a Division Bench of Calcutta High Court pointed out as follows:
'An admission to entitle plaintiff to have a judgment must be clear one and in the face of which it is impossible for the party making it to succeed. It must further be remembered that the power of the Court under the Rule is discretionary and its exercise cannot be claimed as a matter of right.'
17. The Calcutta High Court after considering a number of judgments quoted a judgment of Chancery Division where there was such a provision and that quotation is as follows:
'The object of the rule was to enable a party to obtain speedy judgment where the other party has made a plain admission entitling the former to succeed. This applies wherever there is a clear admission of facts in the face of which it is impossible for the party making it to succeed.'
(ii) AIR 1977 Him Pra 29 ( Simla wholesale Mart v. Baishnodas Kishori Lal Bhalla) where the law has been laid down as follows:
'Judgments upon admission under Order 12, Rule 6 are matters of discretion and not of right. Where the case involves questions which cannot be conveniently disposed of on a motion under Rule 6, the Court should, in exercise of its discretion, refuse the motion. Before a Court can act under Rule 6 admission must be clear and unambiguous and the amount due and recoverable must be due and recoverable in action in which admission is made.'
(iii) AIR 1988 Delhi 153 (State Bank of India v. Midland Industries) where the law has been laid down as follows :
'Undoubtedly Rule 6, Order 12 has been couched in a very wide language. However, before a Court can act under Rule 6 admission must be clear, unambiguous, unconditional and unequivocal. Furthermore a judgment on admission by the defendant under Order 12, Rule 6 is not a matter of right and rather is a matter of discretion of the Court, no doubt such discretion has to be judicially exercised. If a case involves questions which cannot be conveniently disposed of an a motion under this rule the Court is free to refuse exercising discretion in favour of the party invoking it. Where the defendants have raised objections which go to the very root of the case, it would not be proper to exercise this discretion and pass a decree in favour of the plaintiff. The rule is not intended to apply where there are serious questions of law to be asked and determined.'
18. Here was a case where serious allegations were made regarding the election of a body and that was challenged on various grounds being illegal void ab initio and inoperative and curiously enough the persons who will be vitally affected. The members of new Body including the petitioners herein were not made party in the suit and as I have indicated above, the written statement was filed only by 2 defendants, there was no clear admission as required under Order 12, Rule 6 of the C.P.C. and in spite of that on the basis of an application filed on 5-7-1994 by the plaintiff, the decree was passed. That application inter alia states as follows:
In paragraph 2 it has been stated that the defendants have already filed a written statement with some annexures (but as indicated above only 2 defendants have filed the written statement) and in paragraph 3 of that application states that there is admission of the plaintiffs claims but as will be evident from paragraph 1 of the written statement it is stated as follows:
'That the averments made in almost all the paragraphs of the plaint are true and the answering defendants has no comment on the same.'
19. So, what are the admission of facts are not known and in this case not only the factual aspect of the matter was involved, the question of law also was involved and that aspect of the matter was not at all considered by the Learned Munsiff. In the application filed for a decree of admission in paragraph 4 it is stated that in last part of the paras 5,6,7,8 and 9 all the facts of the plaint have been clearly admitted but this statement is also not correct inasmuch as on perusal of the statement made in these paragraphs, it will be evident that there was no such admission as contended by the plaintiff.
20. It is trite saying that justice not only be done but must appeared to be done. Justice hurried is justice buried. Here is a case where a decree was passed without impleading the persons who were elected to the new body. Their rights were vitally affected but they were not made parties in the suit and that appears to be a deliberate attempt on the part of the plaintiff. The whole suit as revealed from the plaint and the written statement smacks of collusion on the part of the plaintiff and the defendants. It appears to be a desparate attempt on the part of some persons to cling to the office to which they were earlier elected. It is settled law that in a suit at different stages different decrees may be passed by the court but in the present case that cannot be done inasmuch the decree in this case is an indivisible decree. In that view of the matter, the decree on admission even if it can be passed against the defedndants Nos. 3 and, 4, it cannot be as against defendants Nos. 1 and 2 as there was no admission on their part. So, on this point also, the decree passed on admission is bad in law. I am not expressing any definite opinion on this matter but these are my cursory observations for deciding the fate of this application.
21. This being the factual position of law, the Learned Munsiff had no jurisdiction to pass the decree dated 5-7-1994 in Title Suit No. 176/94 by exercising power under Order 12, Rule 6 and accordingly, that decree stands quashed. Before I part with the record, I give the following directions to the trial court:
(i) A fresh notice is to be issued under Order 1, Rule 8 of C.P.C. by the plaintiffs as the earlier notice issued cannot be deemed to be valid after the decree was passed by the trial court on admission.
(ii) The Court shall frame a preliminary issue on the question of non-joinder which is patent on the face of the plaint and shall decide whether the suit can proceed in absence of the members of the newly elected body.
(iii) The court shall take up afresh the matter of injunction after issuing necessary notice to the parties and after issuing notice under Order 1, Rule 8 of the C.P.C.
22. The matter shall now go back to the Learned Munisiff, No. 2 Guwahati and the Learned Munsiff shall decide the case in accordance with law.
23. The earlier orders passed by this court regarding functioning of this new body shall stand. The order dated 15-9-1994, passed by this court on the basis of the order dated 22-7-1994 passed by this Court shall stand.
24. The Civil Revision application is partially allowed quashing the decree passed by the Learned Munsiff.