D.K. Seth, J.
1. Original Suit No. 548, of 1987, was filed by one Rama Ram Sonkar against one Mahendra Kumar and another, claiming a relief in respect of the accounting of the business from 1984 till the date of the suit and to pay profit payable to the plaintiff and that the defendant No. 2, shall not be permitted to stay with his family inside the godown.
2. In the suit, an application for appointment of receiver was filed by the plaintiff. By an order dated 28.5.1990, one Sri Sachidanand Singh was appointed as receiver. By an order dated 1.9.1990, the appointment of the said Sri Sachidanand Singh was recalled. Shri B.K. Varma. Assistant Manager, LPG, Indian Oil Corporation. Ghazipur, was appointed as receiver for ensuring distribution of Gas Cylinder in connection with the business of the plaintiff. On 7.9.1990, an application was filed by the said Shri B.K. Varma, Assistant Manager. LPG, Indian Oil Corporation, Ghazipur, praying that he should not be appointed as receiver. Despite such application by an order dated 7.9.1990, the order dated 1.9.1990, was confirmed. Subsequently by an order dated 21.12.1990, the plaintiff Rama Ram Sonkar was appointed as receiver on the basis of the application filed by him. In the said order dated 21.12.1990, after appointing Rama Ram Sonkar as receiver, further direction was given to the Indian Oil Corporation, (hereinafter referred to as 'IOC' in short), that it should ensure and supervise the distribution of LPG cylinder through the receiver. At the same time, the IOC was asked to show cause as to why it has not complied with the order dated 7.9.1990 and why it should not ensure distribution of LPG Cylinder. A copy of the order dated 21.12.1990 was sent to the District Magistrate for ensuring compliance. An applicationwas filed by the plaintiff before the Court for seeking compliance of the order by the IOC. But the same was dismissed by the learned trial court on the ground that the IOC was not a party to the proceeding, therefore. It could not be compelled to comply with the said order. Subsequently, the IOC was added as party defendant in the proceeding. Thereupon when the compliance was sought for by the IOC at the instance of the plaintiff, the IOC had filed its objection being 36 Ga 2. In the said objection. It was pointed out that the plaintiff owes a sum of Rs. 8.65 lakhs to IOC and that the plaintiff had to comply with the written agreement and conditions, on the other hand, it had flouted and violated the terms and conditions of the agreement and that distribution of LPG Cylinder is being made through some other agency and that the question relating to distribution of LPG Cylinder is not the subject of the suit which is related only to the accounting between the plaintiff and the defendant No. 1, therefore, there is no necessity of compliance of the order dated 21.12.1990 nor the plaintiff had any right to get it done. This objection was overruled by the Court by an order dated 11.5.1993 directing compliance of the order dated 21.12.1990.
3. The IOC had filed the instant FAFO No. 862 of 1993, challenging the said order dated 21.12.1990 and the order dated 11.5.1993. In this appeal, an interim order was passed on 19.7.1996, by this Court. In the said order, certain directions were given including a direction for appointing another person as receiver for the purpose of accounting the firm's account while the system of distribution of LPG Cylinder should be continued. In this situation, it was prayed on behalf of the appellant that the appeal be decided on merit.
4. Shri S.K. Verma, learned counsel for the respondents had agreed to hearing of the appeal. Both the learned counsel--Dr. R.G. Padia for the appellant IOC and Shri S.K. Verma for the plaintiff-respondent had addressed the Court on merit as well as of the question ofmaintainability of the appeal and all other points that had arisen between the parties concerning the present appeal.
5. Admittedly, one of the respondents being defendant No. 1 had died in 1995. The information whereof was given to the counsel for the appellant but the appellant filed an application under Order XXII. Rule 4, of the Code of Civil Procedure, (hereinafter called as the 'Code'), seeking deletion of respondent/ defendant No. 1 on the ground that on his death, his interest devolved upon the plaintiff who is already on record.
6. Mr. Varma learned counsel for the plaintiff-respondent took a preliminary objection about the maintainability of the appeal on account of death of defendant No. 1, respondent. According to him in his objection, the plaintiff respondent had pointed out that the deceased respondent No. 1 had left his heirs who had inherited the estate of the deceased and that the plaintiff-respondent did not inherit the estate of the deceased. Therefore, according to him, the appeal has abated.
7. Dr. R.G. Padia, learned counsel for the appellant, on the other hand, opposed the preliminary objection by contending that so far as IOC is concerned, it is related to the plaintiff and the defendant by reason of an agreement for distribution of LPG Cylinder between the parties. On the death of one of the parties to the agreement his heirs cannot acquire any interest in the agreement between the IOC and the Distributor who is represented by the remaining partner. Therefore, so far as IOC is concerned. It has relation with regard to the question involved in the present proceeding and as such though the heirs mentioned by Mr. Varma might represent the estate of the deceased, even in respect of the subject-matter in suit, but it has nothing to do with distribution of LPG Cylinder with regard to the business of the partnership firm that too related to the relationship between the IOC and the Distributor. In such circumstances IOC is not required toadd any one else in order to represent the interest involved between them.
8. Before proceeding with other submission of the learned counsel for the parties, we may first proceed to decide this question as raised by Mr. Varma.
9. Admittedly, the subject-matter of the suit involves accounting between the partners. With regard to the subject-matter of the suit, as is apparent from the plaint, it appears that IOC is not at all related. The distribution of LPG Cylinder is also not the subject-matter of the suit, which is pure and simple accounting between the partners. Distribution of LPG Cylinder is regulated by the agreement between IOC and the Distributor. Initially the IOC was not added as a party. Therefore, the question relating to distribution of LPG Cylinder pursuant to the agreement between IOC and the distributor is wholly outside the scope and ambit of the subject-matter involved in the suit. It appears from the pleading of the suit that there is nothing to indicate about any lis between IOC and the distributor. Even after IOC was added as a party, the plaint has not been amended to seek any relief as against the IOC. The only aim for which IOC was added was to ensure distribution of LPG Cylinder. This is related to the business of the firm with which IOC has no manner of concern, particularly when there is no lis between the IOC. The distribution of LPG was not involved in the suit. Thus whatever relation the IOC has in regard to the suit is between IOC and the distributor. Admittedly, unless the heirs of the deceased partners are admitted into the partnership and are allowed to enter into an agreement with the IOC for distribution, the heirs of the deceased cannot claim any contractual relation. Such contractual relation cannot be heritable. The distribution of LPG pursuant to the agreement between the IOC and the distributor is not stand heritable by the heirs of the deceased on account of the death of one of partner, though however, the heirs may inherit the estate of thedeceased in respect of the subject-matter in the suit. But then their being no its between IOC and the partners with regard to subject-matter in the suit. It is immaterial for IOC as to whether estate of the deceased is represented by the heirs or not. So far as IOC is concerned, its relation with the distributor is governed by the agreement. Such relationship exists between the parties to the agreement. It cannot extend to any one else. On account of death, the agreement requires to be substituted since on account of such death, the agreement became inoperative in absence of parties unless there are specific condition that on account of the death, the remaining partner would be entitled to continue with the agreement. This question is not at all involved in the suit and is wholly outside the scope and ambit of the subject-matter in the suit. Such question, therefore, need not be gone into. As such abatement cannot be said to have been set in on account of the death of the defendant No. 1 in the absence of heirs of the deceased so far as the relation between the IOC and the distributor is concerned. However, Mr. Varma, in his usual fairness conceded that he has no information as to whether heirs of the deceased have been substituted in the suit by the plaintiff or not. If such heirs are not substituted in that event, the suit itself has abated. In case the heirs are substituted in that event substitution in the suit can very' well make the appeal maintainable without being abated. But in view of discussion made above, the appeal cannot be treated to have been abated as between the IOC and the distributor.
10. Next contention of Mr. Varma is with regard to the maintainability of the appeal on two fold grounds. First ground is that in the appeal the order dated 21.12.1990 has since been challenged. The appeal was filed in 1993 and as such so far as the order dated 21.12.1990 is concerned, it is definitely barred by limitation. The second contention was that appeal against the order dated 11.5.1993 can also not be maintained since the said order is not an orderwithin the meaning of Order XL, Rule 3 or Rule 4 of the Code of Civil Procedure and as such it is not appealable under Order XL1, Rule 1 (5) of the Code. According to him, the order dated 11.5.1993, had neither appointed any receiver nor removed any receiver. It had only directed compliance of the order dated 21.12.1990 as such no appeal lies against the order dated 11.5.1993. If no appeal lies against the said order then there cannot be any appeal against the order dated 21.12.1990 without any application for condonation of delay and that this appeal does not accompany any application for condonation of delay. Neither any prayer has been made on behalf of the appellant for condonation of delay. On this ground according to him the appeal is not maintainable. He further contends that since the order dated 21.12.1990, has not been challenged earlier, therefore, the same have reached finality and the IOC having preferred to assail the order dated 11.5.1993, without challenging the order dated 21.12.1990, it is no more open to the appellant to assail the order dated 2l.12.199O.
11. Dr. Padia, on the other hand, had contended that when the order dated 21.12.1990 was passed, the IOC was not party to the proceeding and as such there was no scope for preferring an appeal against the said order. After IOC was added as party it had objected to the order dated 21.12.1990. Such objection having been decided in the order dated 11.5.1993, in effect the order dated 11.5.1993, is a confirmation of order dated 21.12.1990. According to him the order dated 21.12.1990, has since merged in the order dated 11.5.1993 and as such the order dated 11.5.1993 is the order affirming the order appointing receiver as such the appeal is very much maintainable. According to him after the order dated 11.5.1993 is passed affirming the order dated 21.12.1990 the said order has become part of the order dated 11.5.1993 by reason of doctrine of merger. The order dated 21.12.1990 has no independent and separate existence after the order dated11.5.1990 is passed. As such there cannot be any question of limitation so far as the order dated 21.12.1990, is concerned.
12. Before proceeding further with the other points raised by both the learned counsel, I would like to decide this preliminary objection.
13. The facts of the case as discussed hereinbefore shows that one Sri Sachidanand Singh was appointed as receiver who was removed by an order dated 1.9.1990 appointing B.K. Varma. Assistant Manager, LPG. IOC as receiver. By an order dated 7.9.1990 IOC was directed to ensure distribution of LPG Cylinder through the plaintiffs firm. Thereafter the said Shri Varma having expressed his unwillingness to act as receiver, the order dated 21.12.1990 was passed. In the order dated 21.12.1990 the plaintiff was appointed as receiver while the IOC was directed to ensure distribution of gases through the receiver. But the fact remains that at that point of lime IOC was not a party in the proceeding. Subsequently the IOC having been added as party in the suit. It has submitted an objection to the direction contained in the order dated 21.12.1990, which has since been dismissed by order dated 11.5.1993. Admittedly so far as the account of the firm is concerned, the IOC is no where related. Thus. IOC has no concern with the subject--matter involved in the suit. If one of the parties is appointed as receiver. IOC cannot be said to have been aggrieved party and as such it has no right to prefer an appeal against the appointment of the receiver in respect of the subject-matter with which it had no concern. Thus, even if it is assumed that the order dated 21.12.1990 is challenged still then the IOC has no right of appeal against the said order appointing the plaintiff as receiver since the IOC while unwilling to carry on as receiver and had indicated its objection to the continuance as receiver, therefore, the appointment of plaintiff as receiver and removal of IOC does not give rise to any grievance or cause of action so far as IOC is concerned.But IOC may be concerned with the direction contained in the said order by which it was directed to ensure distribution of LPG Cylinder through the receiver. But that part of the order will not give rise to any right to prefer an appeal since that part of the order is not an order within the meaning of Order XL. Rule 3 or Rule 4 of the Code so far as IOC is concerned and that too in respect of matter which is outside the scope and ambit of the subject-matter involved in the suit.
14. The fact remains that after the IOC was added as party defendant, it had raised objection which was decided by an order dated 11.5.1993 affirming the order dated 21.12.1990. As such after the IOC was added party, it was the order dated 11.5.1993 by which it is aggrieved. So far as the order dated 21.12.1990 having been passed before IOC was made party to the suit, it cannot be said that the said order is binding on the IOC. It was also held by the Court itself in the proceeding of the suit when the said order was sought to be enforced. The Court had rejected the prayer for compliance of the said order by IOC on the ground that IOC was not party to suit and as such the Court cannot compel the IOC to comply with the said order. For such reason IOC was made party to the suit. Therefore. In the peculiar facts and circumstances of the case so far as IOC is concerned, the order dated 21.12.1990 having been held by the Court itself to be not binding as against IOC, the only order that bound the IOC is the order after it was made party viz., 11.5.1993 and as such the question of limitation or otherwise in respect of the said order is concerned does not arise. Then again by reason of the confirmation of the said order in the order dated 11.5.1993 in fact it is the order dated 11.5.1993 which becomes operative and binding on the IOC. In the peculiar facts and circumstances of the case, the order dated 21.12.1990 loses its existence and merges with that of the order dated 11.5.1993 so far as IOC is concerned after it has been made party to the suit.
15. Though however limitation may not apply but then as I have found already that the appellant has no right of appeal against the order dated 21.12.1990. Inasmuch as the IOC was not aggrieved by its removal as receiver or appointment of plaintiff as receiver. It has no manner of concern in respect of the subject-matter in the suit. IOC is concerned with regard to that part of the order by which the IOC was directed to ensure distribution of LPG Cylinder--the matter which is outside the scope and ambit of the suit--as such only that part of the order could not be challenged under Order XL. Rule 3 or 4 of the Code as the case may be.
16. Similarly the order dated 11.5.1993 having affirmed the order dated 21.12.1990 it is not an order under Order XL. Rule (3) or (4) of the Code. As such the appeal cannot be maintained by the appellant since the order appealed against is not an appealable order.
17. During the course of the argument when this point was raised by Mr. Varma and was answered by Dr. Padia, Dr. Padia had made a prayer for leave to convert this application into one under Section 115 of the Code or under Article 227 of the Constitution. This prayer was opposed by Mr. Varma on various grounds.
18. First ground was that such relief cannot be asked for orally. Second ground was that in appeal from first order, the court fee required is Rs. 5, which has since, been paid. Whereas in revision prescribed fee is Rs. 10 and in petition under Article 227, the fee is Rs. 100. Therefore, unless the court fee is paid, there is no scope for converting the memorandum of appeal into one under Article 227 of the Constitution or under Section 115 of the Code. He next contends that the conversion cannot be allowed since in the meantime the period of 90 days as is prescribed in Article 131 of the Limitation Act has since expired.
19. However, Dr. R.G. Padia learned counsel for the appellant prayed for an adjournment, whichwas allowed. On the next day he filed an application for conversion of his memorandum of appeal into revision under Section 115 of the Code 227 of the Constitution and had paid the required court fee of Rs. 100. Mr. Varma, learned counsel for the respondent sought for time to file counter-affidavit to this application. Mr. Varma in his usual fairness had conceded that the objection that will be raised in the counter-affidavit would be questions of law. The facts being admitted as to the question of conversion it is not necessary to controvert the fact but he wanted to put his objection on record. In the circumstances. Mr. Varma was assured that all objections that he will be taking in course of his argument will be noted and dealt with and it is not necessary to file counter-affidavit with regard to the legal proposition unless denial of factual aspect is required. The facts being admitted Mr. Varma had proceeded with his argument with regard to the question of conversion. He had also put in his written submission with regard to such objection today, which is taken on record.
20. Dr. Padia, on the other hand, contends that by now it is a settled principle of law that memorandum of appeal can be converted into one of revision or vice versa. According to him it can be done by the Court suo motu or even on an oral prayer if situation so requires. Court fee if not deposited can be made good at any point of time subject to the leave of the Court.
21. Be that as it may, after having heard both the learned counsel on this question, it appears that the question of oral prayer is no more relevant since an application has been filed. Similarly question of payment of court fee has also become insignificant in view of the fact that the court fee has since been paid. However, conversion can well be made even on oral prayer. It can also be made by the Court suo motu if the circumstance demands and Court thinks fit to do so. In the present case for the reasons that would be discussed later on, it appears that thelearned court below had exceeded its limit or jurisdiction in giving direction to IOC in a suit with the subject-matter whereby IOC is wholly unconcerned. It is bounden duty of the Court to keep subordinate Judiciary within its bounds. For this purpose the framers of the Constitution had thought it fit to incorporate Article 227 providing power of superintendence on the High Court over the subordinate judiciary. Why it is necessary to invoke Article 227 of the Constitution may be discussed at later stage but the fact remains that it is one of the fittest case in which intervention of Court is required to keep subordinate judiciary within its bounds when it exceeds not only its Jurisdiction but also the limits of all Judicial norms and concerns as would be discussed later on. Therefore. It is a fit case for interference by this Court under Article 227 of the Constitution. That part the Court has every right to convert the petition into one under Section 115 of the Code if any of the conditions provided in Section 115 of the Code is attracted. In the present case since I have already found that the appeal is not maintainable, admittedly the order is revisable. But then a question might arise that the issue does not involve the subject-matter of the suit or in other words it is wholly unrelated to the subject-matter of the suit. As such whether Section 115 of the Code would be the appropriate provision under which the matter could be challenged?
22. Section 115 of the Codeconfers a revisional jurisdiction onthe High Court while Article 227 ofthe Constitution conferssuperintending jurisdiction on theHigh Court. Though these are twodistinct and separate provisions butthe Jurisdiction exercised under boththe provisions are revisionaljurisdiction. Though the scope ofArticle 227 is little more restrictedthan that of Section 115 of the Codeyet after all it is a revisionalJurisdiction. Whether the Court interferes under Section 115 of theCode or Article 227 of theConstitution is immaterial. So far aspetition under Article 227 of theConstitution is concerned. It is not governed by the law of limitation. However, a revision under Section 115 of the Code is governed by the law of limitation. So far as the question of limitation is concerned, by reason of conversion, the limitation has to be counted from the date when the memorandum of appeal was presented. It is the memorandum of appeal, which was presented within the period of limitation, is being converted into revision and as such the question of limitation is immaterial altogether. It cannot be said that by reason of conversion the revision shall be deemed to have presented on the date when the conversion is permitted.
23. The question of conversion is not an amendment and for the said purpose no amendment would be necessary in view of the rules of this Court. Inasmuch as Rules of this Court prescribes the form of memorandum of appeal as well as form of revision. In both the cases, the form prescribed are similar, inasmuch as it prescribes a preamble describing particulars of the order against which the party is aggrieved and then the grounds on which the orders referred to in preamble is challenged. The form is identical with regard to the revision and the appeal. As such there is no question of amendment. Then again the question of amendment is totally irrelevant when the Court permits conversion of memorandum of appeal into revision or revision into appeal. It is with the leave of the Court the memorandum of appeal is being treated as revision and vice versa. Therefore, there is no question with regard to the necessity--either of amendment or of limitation as discussed above.
24. Now it is necessary to give reasons as to why the conversion is permitted.
25. When it comes to its notice, that the process of the Court arc being abused or that the Courts are not keeping itself within its bounds and that, on facts. It is a case that a party is overriding the judicial process and the Courts are aiding and abetting in such abuse of processand have failed to maintain the Judicial dignity and proper judicial approach in that event, the High Court may invoke its power of superintendence under Article 227 of the Constitution of India. If it is apparent on the face of record that the Courts had failed to keep itself within its bound and had exceeded its Jurisdiction and indulged in proceeding in an unprecedented manner bringing in Judicial anarchy, procedural disaster in blatant disregard of the accepted principle of law, assuming Jurisdiction though it ought not to have assumed, exceeding its jurisdiction, in such cases. It is the duty of the High Court to see that the purity of justice, dignity of the judicial institution is restored and preserved.
26. It is an institution where the people repose faith. It is the Justice, which this institution dispenses. It is the confidence of people, who approach the Judiciary that it commands. It is the sanctity, which strengthens the justice-delivery-system. These are the foundations on which the entire system is founded. If this foundation is allowed to be eroded, then no sooner the edifice of justice will crumble down. People will lose faith. People will lose confidence. People will loose confidence. People will doubt the sanctity. The dignity of the institution will fall in the estimation of the people. Such a situation would hit at the root of the essentiality of the existence of the institution itself. It is the duty of the High Court to see that the institution survives with all its sanctity and dignity commanding faith and confidence of the people in it.
27. The instrumentality under Article 227 is an essential weapon, provided to the High Court through wisdom of the founding fathers of the Constitution, to be used whenever it is needed according to the need of the hour. It can be used and utilised to defend as a shield or offend as a sword. If necessary, even to the extent of examining orders, which are not even challenged before the High Court, whenever it comes to its notice that it is necessary so to do.
28. In the case of M/s. Pepsi Foods Ltd, and another v. Special Judicial Magistrate and others. JT 1997 (8) SC 705, it was held that the High Court in exercise of the power under Article 226/227 of the Constitution of India is empowered to quash the plaint in order to prevent abuse of the process of law and Courts.
29. In. State of Haryana and others v. Bhajan Lal and others, JT 1990 (4) SC 650 : 1992 Supp (I) SCC 335, this Court examined the extraordinary power under Article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
30. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of Judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of Justice remains clean and pure.
31. In Waryam Singh and another v. Amarnath and another. AIR 1954 SC 215 : 1954 SCR 565, this Court considered the scope of Article 227. It was held that the High Court has not only administrative superintendence over the subordinate courts and Tribunals but it has also the power of judicial superintendence. The Court approved the decision of the Calcutta High Court in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee. AIR 1951 Col 193 (SB), where the High Court said that the power of superintendence conferred by Article 227 was to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting their mere errors.
32. In Babhutmal Raichand Oswal v. Laxmibai R. Tarte and another, AIR 1975 SC 1297 : (1975) 1 SCC 858, this Court again reaffirmed that the powerof superintendence of High Court under Article 227 being extraordinary was to be exercised most sparingly and only in appropriate cases. It said that the High Court could not, while exercising Jurisdiction under Article 227, interfere with the findings of fact recorded by the subordinate Court or Tribunal and that its function was limited to seeing that the subordinate Court or Tribunal functioned within the limits of its authority and that it could not correct mere errors of fact by examining the evidence or reappreciating it.
33. In Nagendra Nath Bora v. Commissioner of Hills Division. 1958 SCR 1240, this Court observed as under:
'It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with order of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the Tribunal functions within the limits of its authority.'
34. Nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the Court finds that the appellants could not invoke its appellate or jurisdiction, the Court can certainly treat the memo of appeal as a petition under Article 227 or Section 115 of the Code. It may not however, be lost sight of that provisions exist in the Code for revision and appeal but sometime for immediate relief. Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate Courts. The present appeal filed in the HighCourt could well be treated under Article 227 of the Constitution.
35. In the cases of Municipal Corporation of Delhi a. Kamla Devi and another, AIR 1996 SC 1733, Natwar Textile Processors Private Ltd. and another v. Union of India and others, AIR 1995 SC 2256, Amitabh Bachchan and Corporation Ltd- v. Mahilajagran Manch and others. JT 1997 (10) SC 868 and in the case of Union of India and others v. Darshaha Devi. 1996 (2) SCC 681, it was also held that if there was an abuse of process of law, the Court may award exemplary penalty.
36. Article 227 may not require making of an application in order to enable the High Court to invoke such jurisdiction. It can even invoke such jurisdiction whenever it is of the opinion that the power of superintendence requires to be activated in a given situation that comes to its notice.
37. In the present case, appeal appears to have been not maintainable but at the same time when the Court's attention was drawn to the orders that have been passed, in exercise of superintending power under Article 227 the Court may take note of any irregularity that might have been committed in course of the Court proceeding, even though it has not been challenged or limitation had expired. It is superintending power, which empowers the Court to keep the subordinate judiciary within its limit and bounds. In the present case though the subject-matter of distribution of LPG Cylinder was not involved in the suit though the subject-matter of distribution of LPG Cylinder is altogether a different cause of action so far as IOC is concerned and which cause of action is not involved in the suit, yet having disregard to the relationship between the IOC and the distributor, the distribution of LPG Cylinder was sought to be ensured and that too through IOC itself which was not a party to the suit. Even if a receiver could carry on the business which was subject-matter in the suit but it had nothing to do with the distribution of LPG Cylinder vis-a-vis IOC and the distributor which isgoverned by an agreement between the IOC and the distributor. The agreement was not part of the subject-matter in the suit and the entire cause of action between the IOC and the distributor was related to the agreement which is being outside the scope and ambit of the subject-matter of the suit, and in no way IOC would be roped in. Then again it is also apparent from the relevant orders that the explosive licence which was required for running the business of LPG Cylinder had expired. Though renewal was prayed for but there was nothing to show that there was any renewal of the licence. It was also pointed out by the IOC that the condition contained in the agreement was violated and a sum of Rs. 8.65 lacs was due to IOC and that the licence for distribution of LPG Cylinder had also expired. In none of the orders there was any finding that in law that the distributor could carry on the business or not without there being any valid licence. Whether the distributor could carry on the business or not that was altogether a separate issue and it cannot be brought within the purview of the present suit and as such no order with regard to distribution of LPG Cylinder vis-a-vis IOC could be passed. Even though receiver might have been appointed, but he has to carry on the business according to the prevalent law. The Court has no Jurisdiction to compel the IOC to supply LPG Cylinder even though its dues are not paid or even though the conditions of the agreement were violated. Even then in the suit itself, these are not being subject-matter, the Court has no Jurisdiction to go into the said question. Thus, the Court below appears to have surpassed its limit. In a Judicial process the Court could, cannot, surpass its limit to an extent, beyond all perception of judicial thinking. Thus, it appears that it is high time for this Court to intervene so that the Courts are kept within its bounds. In that view of the matter, the leave is granted and the memorandum of appeal is permitted to be converted into one under revision under Article 227 of the Constitution subject topayment of court fee in course of today.
38. Now let us examine the merit of the case.
39. Admittedly, the IOC was not a party to the suit. Admittedly the suit was between the plaintiff and the defendant No. 1, who were partners of the firm. Admittedly the subject involved in the suit was accounting in respect of the business of the partnership firm since 1984 as between the parties. Admittedly, no relief was sought for against IOC who was stranger to the suit. Admittedly the distribution of LPG Cylinder by IOC was not involved in the subject-matter of the suit. Admittedly, there was no its between the parties to the suit on the one hand and the IOC on the other. Admittedly, the relation between IOC and the parties are governed by an agreement between the parties and the IOC. Admittedly, the agreement contains certain conditions and is dependent on the compliance of the conditions. Admittedly breach of such condition empowers the IOC to stop supply of LPG Cylinder. The IOC had no responsibility with regard to the carriage of the business as between the parties. The interest of the parties may be confined to the business in the suit. The suit was filed as between the parties to secure their own interest. It has nothing to do with the public interest. It is nothing to do with the failure of distribution of LPG Cylinder among public. If on account of difference between the partners if they cannot carry on the business in relation to IOC, and if on that account the public suffers, the partners had no concern. It is apparent from acts of the parties they had themselves in difficulty in running of the business to the detriment of the people. Therefore, the parties were least concerned with the interest of the public with regard to the distribution of LPG Cylinder. They were predominantly concerned with their own interest for accounting in order to ascertain their profit. Therefore, even if the receiver is appointed, there cannot be any direction to IOC to ensuredistribution and supply of LPG Cylinder. Even then the firm has not paid Rs. 8.63 lakhs to IOC and the supply is not based on requisite licence or in accordance with the agreement. Neither there can be any receiver appointed in order to ensure supply or distribution of LPG Cylinder which is outside the scope and ambit of the subject-matter of the suit.
40. From the order dated 1.9.1990 it appears that one Sachidanand who was appointed as receiver was removed and Shri V.K. Varma, Assistant Manager, IOC was appointed as receiver. The said appointment clearly indicates that said Shri Varma will perform the such function by which the parties would be benefited. Admittedly the said Shri Varma was at the pay-role of the IOC. Though he is being paid by the IOC for such duty that might have been assigned by the IOC, he was asked to perform the duty of receiver, which is detrimental to the duty relating to IOC. Then again IOC was not concerned with the business of the parties to the suit. Therefore, IOC cannot be involved in the carriage of the business in any manner whatsoever. But then such an order was passed which cannot be sustained and is wholly beyond the Jurisdiction of the Court itself and is an irregularity.
41. In the order dated 7.9.1990 it was mentioned that since the Cylinders could not be distributed through plaintiff firm, therefore, it was being distributed through another firm viz.. Vikram Gas Agency. Ballia. The Vikram Gas Agency was not a party to the proceeding yet by order dated 7.9.1990 the distribution of LPG Cylinder through Vikram Gas Agency was forbidden taking away the right of Vikram Agency though it was not a party to the suit. Thus. It appears that by reason of failure to distribute LPG Cylinder by the plaintiff firm, the people at large was not suffering. They were being distributed gas through some other agency. Therefore, no public interest had suffered.
42. On the other hand. It was the interest of the party that had sufferedfor which the concept of public interest was brought in. Only to secure the interest of the party to the suit, the Court had proceeded to cancel the distribution of LPG Cylinder through Vikram Agency. Ballia and had purported to appoint IOC as receiver despite the submission of IOC that it is not possible for them to carry on the function of the receiver. Such an order was passed even though' the IOC had pointed out that there is huge dues receivable by the IOC from the plaintiff firm. Thus, by appointing corporation the IOC as receiver and directing them to distribute gas without receiving their dues, the Court had compelled the Corporation to suffer further loss and had also prevented the IOC from resorting to the remedies available to it recover the said dues by reason of breach of condition by the plaintiff firm.
43. Admittedly, there cannot be any liability on the part of IOC to supply and distribute gas through the firm even though its dues are not paid. In the objection it was also pointed out by the IOC that the firm does not have licence to carry on the business of LPG Cylinder and the explosive licence has since been expired. Though it was mentioned in the objection that the licence has not been renewed still then the Court had directed distribution of gas since it was an order by the Court. I am afraid that the Court can pass such an order, which perpetuate illegality. If there is no licence in that event no one can be permitted to carry on a business, which is otherwise prohibited in the absence of licence. The Court cannot overlook such a situation and permit illegality to be perpetuated.
44. The Court has proceeded on the basis that if it is not done, in that event, the public would suffer. The offer must have been influenced by the Judicial activism. It must have gone to his head. The Judicial activism is permitted within the scope of Article 226 or Article 32 and not otherwise. The Courts are creatures of statute. It has to act within its jurisdiction. Civil court cannot gobeyond the jurisdiction conferred on it or the scope and limit that has been prescribed by law. It cannot permit illegality. Even then judicial activism also does not empower the Court to permit illegality to be perpetuated.
45. But then in the present case the public interest was not at all involved in the suit. The public interest was confined to the distribution of LPG Cylinder, which was being distributed through Vikram Gas Agency. Thus, public were interested in receiving supply of gas which was being received by them. As such their interest was not at all suffering. Whether the gas is being supplied through Vikram Agency or through plaintiff firm is immaterial to the public. After having prohibiting Vikram Agency from distributing gas the Court itself created the difficulty and thereby it says that it is in the public interest the gas should be distributed. In fact in order to cover up and secure the interest of the parties to the suit, the Court had raised a question of public interest. It is its own creation by reason of an illegal order directing perpetuation of illegality viz., distribution of gas without licence. Thus, this order dated 7.12.1990 is wholly outside the scope and ambit of the suit. The Court has exceeded its jurisdiction in passing of the said order. It is a legal anarchy by reason whereof the interest of one Vikram Gas Agency was affected though it was not a parry to the suit. On the other hand the IOC was also affected by the direction of distribution of LPG Cylinder illegally through the receiver. Even if the receiver has been appointed by the Court, he cannot carry on business without complying with legal formality.
46. So far as the order dated 21.12.1990 is concerned. It appears that the plaintiff had sought for removal of Sachidanand as receiver on the ground that he was unable to ensure gas supply since IOC had been distributing the gases through one Mukund Gas Service, who was not party to the suit. It is also noted in the said order that more than Rs. 8lakhs is due to IOC by the firm. It is also pointed that the plaintiff obtained explosive licence on 13.8.1990 but that was mentioned while recording the contention of plaintiff. But in the order there was no finding that the said licence was ever produced or shown to the Court or that any such licence was ever produced or shown to the Court or that any such licence was obtained by the plaintiff. At the same time, it appears that under the Gas Cylinder Rules. 1981, a licence is required to be obtained in view of Rule 15 in order to store the compressed Gas Cylinders. It is also not mentioned that as to whether plaintiff is in possession of such licence.
47. However, by order dated 21.12.1990, Rama Ram Sonkar plaintiff has since been appointed as receiver. Now he is supposed to carry on his business and the receiver has to act within the scope and ambit of the subject-matter of the suit and not beyond. Still then once again IOC was directed to distribute gas through the plaintiff firm despite reasons as has been discussed above which are detriment to the interest of the IOC. At the same time by the said order IOC was asked to explain why it had not complied with the order dated 7.9.1990 and copy of the said order was sent to the District Magistrate for ensuring compliance. Thus. It is apparent that it is wholly outside the scope of the subject-matter of the suit and beyond the Jurisdiction of the Court either to call for an explanation or to direct compliance of the order. Without ascertaining the fact that as to whether the plaintiff has any right under the said agreement to carry on the said business any further, the Court has no business to forward the copy of the order to the District Magistrate for ensuring compliance. Thus, the Court has travelled beyond its limit of Jurisdiction.
48. That apart it has to be kept in mind that IOC was not a party to the suit till then and that the agreement between IOC and the firm was not subject-matter of the suit.
49. So far as the order dated 11.5.1993 is concerned, it appearsthat the IOC was made party which had objected to the direction contained in the order dated 21.12.1990. In the said order it appears that apart from the IOC, the District Supply Officer was also made party to the proceeding despite such objection by the IOC to the extent that the firm owes Rs. 8.63 lakhs to the IOC and that the firm have breached the condition contained in the agreement and that the distribution of gas is not subject-matter of the suit which is related to accounting between the parties. In the said order it was mentioned by the Court that the order dated 21.12.1990, was passed after hearing both the parties. When order dated 21.12.1990, was passed the IOC was not party to the suit, though its objection was considered. Even then it cannot be said that the said order was passed after hearing both the parties when IOC was not party to the suit. That apart on an earlier occasion it was held in the same proceeding that compliance of the order dated 21.12.1990, could not be ensured since IOC was not party to the suit, for the reason whereof IOC was impleaded as party. The said reasoning is wholly perverse. It was also pointed out by the IOC that the agreement between the IOC and the firm was cancelled in September. 1991, after which the IOC has no responsibility or liability for supplying to the firm. The order was passed despite such stand that the agreement has not been renewed and that no agreement for renewal was entered into between the firm and the IOC, that nothing was shown to prove renewal except a photocopy of an application for renewal. It was also not mentioned that any renewal of the agreement was produced. Despite such objection, the Court had directed distribution of gas by IOC through the firm without any agreement subsisting between IOC and the firm. Such an order was passed on the ground since the business is being carried by the receiver under the orders of the Court, no licence or agreement is necessary and that the Court's orders are superior and are to be carried out.The Courts are creatures of statutes, it cannot violate the law, in fact by reason of the said order, the Court had thrown all judicial norms to the winds. This order is one of the greatest instance of Judicial despotism perpetuating judicial anarchy, which requires correction.
50. The order dated 11.5.1993 was passed by the then Additional District Judge, III Ghazipur. While the orders dated 1.9.1990. 7.9.1990 and 21.9.1990, were passed by the Munsif Ghazipur.
51. This matter may be placed before the Administrative Committee for their consideration about the conduct of the judicial officers in passing the aforesaid orders in the circumstances mentioned above. Thus, it appears that the orders that have been passed could not have been passed within the scope and ambit of the said suit and that the court has exceeded its limit and had gone out of its bounds and as such these orders cannot be sustained. At the same time. In the suit, neither the IOC nor the District Supply Officer could be added as parties. In the facts and circumstances that part of the order permitting IOC and District Supply Officer to implead them as party to the suit also cannot be sustained and their names are therefore expunged.
52. The orders dated 1.9.1990, 7.9.1990. 21.12.1990 and 11.5.1993, so far as it relates to distribution of LPG Cylinder vis-a-vis IOC is concerned are all set aside. However, for the supply made pursuant to the order of the Court. If any, the IOC would be entitled to recover its dues as well as the dues which were not being paid by the firm. Since the supply was made by reason of the Court's order, for recovering the said dues the IOC may approach the appropriate forum, which it may like to do and the question of limitation cannot be set up by the plaintiff or the defendant as the case may be because the IOC had suffered on account of their conduct as well as the conduct of the Court. If there is any mistake on the part of the Court, it is for the Court to correct the sameand no one would suffer on account of over activism of the Court itself.
53. The last but least point that was urged by Mr. Varma about the maintenance of the revision since according, to him the orders that have been passed are not a case decided within the meaning of Section 115 of the Code. So far as this contention is concerned. It appears that the revision is maintainable against the order where any case has been decided. According to Mr. Varma, by reason of securing compliance of the orders by the receiver, so long as the appointment of receiver remains, is not a case decided. He also referred to the second proviso to Section 115 as amended in U. P. and points out that no order could be revised in exercise of Section 115 of the Code unless the order if so varied or reversed, would finally dispose of the suit or other proceedings.
54. This contention of Mr. Varma does not appear to be sound for twofold reasons,
55. First that the clause (ii) of the second proviso of Section 115 of the Code provides that the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom U was made, then this order can be reversible in exercise of revisional Jurisdiction by the High Court, even if it does not finally dispose of the suit or other proceedings. In the present case if these orders are allowed to stand. In that event, it would occasion failure of Justice causing irreparable injury to the IOC since it was directed to do something to the detriment of its own interest despite not being party to the proceeding until the order dated 11.5.1993, was passed and that though its agreement between the firm and IOC was cancelled in 1991, compelling IOC to perform its liability arising out of the cancelled agreement and that too illegally in the absence of any licence in favour of the firm and it would definitely cause irreparable injury to IOC to the extent that it is not able to recover its dues amounting to Rs. 8.63 lakhs from the firm and that it is being compelled to incur further losswithout being paid by distributing LPG Cylinder through the firm to the detriment of its interest. The Court was helping the plain Off out of its way in amassing unlawful gain at the cost of IOC. Therefore, the second proviso of Section 115 of the Code cannot be attracted in the present case.
56. The second ground for which this proviso cannot be attracted is that in the present case the proceeding as between the IOC and the parties to the suit with regard to its liability of distribution of gas has been finally disposed of by reason of the said order. Therefore, the proceeding having been disposed of it is a case decided so far as the rights of the IOC is concerned and as such very much maintainable in view of the second proviso. But so far as the contention of Mr. Varma that unless the suit is decided no revision will He is wholly unsound. Inasmuch as in that event no revision would be maintainable if this proviso is to be interpreted in the manner Mr. Varma wants to be interpreted.
57. The issue that has been decided is very much a case decided so far as IOC is concerned. Inasmuch as it is being compelled to supply LPG Cylinder through the firm despite its cancellation of agreement and despite the firm owing a sum of Rs. 8.63 lakhs.
58. Therefore, I am unable to agree with the contention of Mr. Varma to that extent as well.
59. Mr. Varma had relied on the decision in the case of State of Madras v. Madurai Mills Company Ltd., 1967 SC 681 and Udai Bhan Singh alias Babban Singh and others v. Board of Revenue, U. P, and others, 1974 RD 197 (FB), with regard to the question of maintainability. In view of discussion above, the decision in the said case cannot be attracted since on facts the present case is distinguishable from the facts on which the proposition in the said decision was laid down.
60. Mr. Varma, learned counsel for the opposite party had also relied on the decision in the case of Baldevdas Shivlal and another v.Filmistan Distributors (India) Private Ltd. and others. AIR 197O SC 406, in support of his contention that it is the first order dated 21.12.1990, that was enforced by the second order dated 11.5.1993 and as such it is the first order on which the appellant was aggrieved and as such if he is not entitled to challenge the first order, then he cannot maintain the appeal or the revision. In view of discussion made above, this question does not require any repetition, which is already discussed in this order at an earlier stage. Therefore, no benefit could be derived from the said decision in the facts and circumstances of this case.
61. In view of the peculiar facts and circumstances of the case before parting with. I may make the following order :
62. Within the scope and ambit of the suit, the IOC could not be involved and neither it can be directed to supply and distribute gas through the plaintiff firm nor it has any liability to do the same. Nor it can be made party to the suit. By reason of the Courts order if IOC had incurred loss by reason of supplying gas through the firm and if it remains unpaid including the amount of Rs. 8.63 lakhs which was already not paid, in that event, it would be open to IOC despite cancellation of the agreement to recover the entire amount through appropriate forum, without being subjected to any limitation, from the firm. Whether the firm will continue or not. It is the headache of the parties. The IOC is in no way concerned with the business of the parties to the suit as soon it had cancelled its agreement and it is not bound to supply gas to the firm.
63. A copy of this order be placed before the learned Registrar General of this Court who may note the relevant portion of this order and place a report before the Administrative Committee with regard to the observation made here-In-before so as to appraise the Administrative Committee for proper steps as against the concerned Judicial officers who had passed such orders.
64. With these observations. In exercise of power under Article 227 of the Constitution, this revision is thus disposed of, However, there will be no order as to cost.