ORDER
U.B. Saha, J.
1. By this application under Article 227 of the Constitution of India, the petitioner made a prayer for the quashing/setting aside the order dated 24-8-2005 passed by the learned civil Judge, Junior Division, Court No. 2, Agartala, West Tripura in Title Suit No. 45 of 2001 whereby and whereunder the instant suit filed by the petitioner as a plaintiff for a decree of mandatory injunction directing the defendants, respondents herein, to remove the fencing illegally erected by them in the suit land and also allow the plaintiff and her family members to reconstruct the said latrine and kitchen and to use them and also to use well standing on the suit land as well as for perpetual injunction restraining the defendant from interfering with the peaceful possession of the plaintiff over the suit land under threat for using the kitchen, latrine, well in the suit land, disposed of on contest being not maintainable in its present form and nature.
2. Heard Mr. K.N. Bhattacharjee, learned senior counsel assisted by Mr. S. Acherjee, learned Counsel for the petitioner and Mr. R. Chakraborty, learned Counsel for the respondents.
3. The brief facts of the case are that the plaintiff petitioner by a registered sale deed dated 24-9-1980 purchased a plot of land measuring 4 gandas from one Nayan Ranjan Majumder for a consideration of Rs. 15,000/-which has been described as Schedule-B land. The said Sri Nayan Ranjan Majumder purchased the aforesaid B Scheduled land from one Smt. Swapna Dam wife of Sukesh Ch. Dam, the original owner of the Schedule-A land measuring 1 kani 2 gandas 2 kranta and 4 dhurs which has been described as A-Scheduled land. There was another plot of land measuring four and half ganda of the said Smt. Dam, the original owner adjacent to the Schedule-B land which has been described as Schedule-C land. When the original owner Smt. Swapna Dam wanted to sell the aforesaid C-scheduled land, the plaintiff petitioner along with her husband wished to purchase the said land and the price was also settled at Rs. 20,000/- and as agreed upon, a sum of Rs. 3001/- has also been paid by the plaintiff petitioner to the original owner on 17-3-1978. Thereafter, the husband of the plaintiff again paid a sum of Rs. 10,000/- on 12-10-1978 and another amount of Rs. 3000/-on 10-12-1978. As there was friendly relation between two families i.e. the original owner and the plaintiff petitioner, receipts for all payments were not obtained except for the first installment from the original owner. Then on repeated demand for execution of 'Kabala', the original owner Smt. Swapna Dam denied to execute the sale deed and had filed the title Suit No. TS 52 of 1981 in the Court of the Subordinate Judge, West Tripura, Agartala for declaration of title and recovery of possession of perpetual injunction.
4. It is also pleaded that in performance of agreement of sale, the husband of the original owner Swapna Dam on behalf of his wife had delivered the possession of the suit land to the plaintiff petitioner on 17-8-1978 while the first instalment of Rs. 3001/- was paid to them. However, the aforesaid suit was contested by the plaintiff petitioner as defendant No. 2 and she lost the suit up to the High Court. On the other hand, during pendency of the case before the High Court, the original owner, the plaintiff in TS 52 of 1981, Smt. Swapna Dam sold the suit land to the defendant, respondent No. 1 herein Consequent thereupon, though the suit was decreed in favour of the original owner, it was executed by the defendant respondent No. 1 by filing the execution case No. 27 (EX)T)/97 and recovered the possession of the Schedule-C land on 10-8-2001. The plaintiff petitioner also alleged in his plaint that when the defendant respondent No. 1 took the possession of the Scheduled-C land, he also demolished the latrine of the house of the plaintiff petitioner, damaged the pucca well, sanitary tank, kitchen room etc. standing on the Schedule-C land which is a part of the residence of the plaintiff petitioner within the boundary of the Schedule-B land. Not only that the defendant respondent No. 1 also erected the fencing on the suit land creating obstruction to the plaintiff petitioner and her family members to use the well, latrine etc. which caused the plaintiff petitioner to file the aforesaid T.S. No. 45 of 2001 in the Court of Civil Judge, junior division, Agartala, West Tripura.
5. In response, the respondent No. 1 herein as defendant in the suit has submitted his written statement denying all the allegations made in the plaint. It has also been stated in the said defence statement that he got delivery of possession of the decretal land of Title Suit No. 52 of 1981 by execution of the decree and he never trespassed into any portion of land beyond the decretal land of that suit and as the defendant did not encroach upon any land of the plaintiff, she has no cause of action against him and the suit filed by the present petitioner plaintiff is accordingly liable to be dismissed.
6. The respondent No. 2 Smt. Shipra Das filed a petition on 15-7-2005 in the suit in question under Order 1, Rule 10(2) of the CPC for adding her as defendant in the instant suit No. T.S. No. 45 of 2001. The learned trial Court upon hearing the parties added her as defendant No. 2 by an order dated 8-8-2005. Thereafter, the defendant respondent No. 2 in the said suit submitted a written statement wherein she also denied all the allegations made by the plaintiff petitioner. The defendant respondent No. 2 in her written statement also pleaded that she purchased the decretal land of Title Suit No. 52 of 1981 from the defendant respondent No. 1 by a registered sale deed dated 30-8-2004 on payment of due consideration money and she got delivery of possession of the said decretal land of Title suit No. 52 of 1981 without any resistance and objection from the plaintiff petitioner or any person. Hence, the plaintiff petitioner has no cause of action against her and thus the suit filed by the plaintiff petitioner is liable to be dismissed against her.
7. When the respondent No. 1 told the husband of the plaintiff petitioner that he sold the decretal land to the respondent No. 2 and they should not use the suit land anymore and thereafter, in the first week of January, 2005, the respondent No. 2 forcibly dispossessed the plaintiff from the suit land, the plaintiff petitioner filed an application for amendment of the plaint on 12-7-2005 for amending the prayer portion of her plaint for declaration of title over the C-scheduled land and recovery of possession of C-Scheduled land as the defendant respondent No. 1 dispossessed the plaintiff during pendency of the suit.
8. On receipt of the amendment petition, filed by the plaintiff petitioner the learned Trial Court on 27-7-2005 took up the amendment petition for hearing and heard the learned lawyer of the defendant respondents on amendment in absence of the petitioner plaintiff's lawyer though hazira was filed and fixed the case for order on 19-8-2005. On 19-8-2005, the learned trial Court did not pass any order either accepting or rejecting the amendment petition, but passed an order suo motu on perusal of record and framed the preliminary issue on maintainability of the suit keeping the amendment petition pending. Not only that the preliminary issue was framed in absence of plaintiffs lawyer but the learned trial Court also fixed for hearing on the said preliminary issue on maintainability of the suit only three days after i.e. on 22-8-2005. Therefore, neither the plaintiff petitioner nor his lawyer did know about the date of hearing of preliminary issue and as a result, could not appear on the date of hearing on 22-8-2005 on preliminary issue relating to maintainability of the suit. On 22-8-2005, the learned trial Court in absence of lawyer of the plaintiff petitioner, heard the defendant respondent's lawyer who was present on that date on the question of maintainability and fixed the case for order on 24-8-2005. On 24-8-2005, the plaintiff petitioner filed an application seeking adjournment on the ground that the plaintiff petitioner will withdraw the suit as the matter was going to be settled amicably. The learned trial Court rejected the prayer of the plaintiff petitioner and passed the impugned order wherein it was held that the suit is not maintainable in its present form and nature and disposed of the same on contest. For better appreciation the orders dated 27-7-2008, 22-8-2005 and 24-8-2005 as impugned are quoted hereunder:
27-7-2008 plaintiff is present by filing memo of appearance of his Ld. Advocate.
Defendant is present by filing memo of appearance of his Ld. Advocate.
Today is fixed for hearing of the amendment petition dated 30-7-2005.
At the time of hearing Ld. Advocate for the plaintiff is not available on repeated call before the Court. As a result I heard Ld. Advocate for the defendants in respect of amendment petition.
To 19-8-2005 for order.
22-8-2005 Plaintiff is absent without any step.
Defendant is present by filing memo of appearance of their Ld. Advocate.
Today was fixed for hearing on maintainability.
At the time of hearing plaintiff as well as Ld. Advocate for the plaintiff is not available.
I heard Ld. Advocate or the defendants in respect of maintainability.
To 24-8-2005 for order.
24-8-2005. On behalf of the plaintiff an adjournment petition is filed stating the ground that the present, suit is going to be withdrawn by the plaintiff's the matter is going to be settled amicably outside the Court,
Defendant is present by filing memo of appearance of his Ld. Advocate.
At the time of hearing Ld. Advocate on behalf of the defendant opposed the contents of the adjournment petition as because the facts as stated in the petition is not within the knowledge of the defendant.
After hearing of both the parties the ground of the adjournment petition did not appeal to the mind of the Court. Moreover, in the earlier occasion the plaintiff was absent before the Court. As a result I heard only the Ld. Advocate for the defendant on the maintainability of the suit. It is further appeared that the petition filed on today is not verified one. hence it is rejected.
Today was fixed for passing of order.
The fact of the plaintiffs suit in a nutshell is that on 10-8-2001 by using force defendant had demolished the latrine of the plaintiffs and damaged the pucca well, sanitary tank, kitchen etc. standing in the schedule 'C' of the plaint which is a part of the residence of the plaintiffs within the boundary of schedule 'B' of the plaint and defendant has erected fencing on the suit land and disturbing the plaintiffs and her family members for using the said well. Therefore, plaintiff prays before the Court for mandatory injunction directing the defendant to remove the fencing which has been done by the defendants, to allow the plaintiff and her family members to reconstruct the said latrine and kitchen and also to use the well standing on the suit land.
If it is fact that prayers of the plaintiff's then I found that, plaintiff is not entitled to get any civil relief. From the facts of the suit it appeared that defendant did not possess the suit land by evicting the plaintiff and defendant also not threatened that he would evict the plaintiff from the suit land, rather by submitting written statement defendant denied that he never possess the suit land apart from his land. Now it is assuming that defendant had demolished the said latrine, and damaged the pucca well, Sanitary tank and kitchen. But it is fact that defendant never dispossessed the plaintiff from the suit land or tried to dispossess the plaintiff, if it is so that defendant demolished the relevant latrine and damaged the pucca well, sanitary tank and kitchen in that case plaintiff might have filed a damage suit before the Civil Court and in alternative or both plaintiffs could have also filed a criminal case against the defendant, so far the plaintiff prayed for the decree of mandatory and perpetual injunction which are not applicable in the present suit. So civil Court has no jurisdiction to pass a decree as prayed for on the basis of cause of action of the present suit which arose on 10-8-2001. As there is no scope to this Court to pass a decree as prayed for it appears that the suit is not maintainable in the present form and nature.
Hence the suit is not maintainable in its present form and nature.
The case is thus disposed of on contest.
9. Aggrieved by the order dated 24-8-2005, the plaintiff, petitioner herein filed this instant writ petition under Article 227 of the Constitution of India for quashing and setting aside the impugned order of disposal of the suit after hearing the defendant respondents lawyer in absence of plaintiff's lawyer on the ground of maintainability. The grounds taken for revision are that the learned trial Court ought to have decided the amendment petition before passing the impugned order on the question of maintainability of the suit and the learned trial Court ought to have granted adjournment of the case on the prayer of the petitioner that he would file a petition for withdrawal of the suit as the withdrawal of the suit is a right of the petitioner as well as the learned trial Court has wrongly denied to exercise its jurisdiction vested in it on a wrong conception that on the cause of action stated in the plaint, the suit does not lie in the civil Court.
10. The present respondents have filed their counter-affidavit denying the contention of the petitioner stating inter alia that the learned trial Court framed the preliminary issue as required to decide the maintainability of the suit and after hearing the respondents dismissed the suit as not maintainable. Therefore, the said decision of the learned trial court was not an order but a decree within the meaning of Sub-section (2) of Section 2 of the CPC against which only appeal can be preferred and no revision lies, whether it is under Section 115 of the CPC or under Article 227 of the Constitution of India. It is also contended that it is an established principle of law that no writ petition under Article 227 of the Constitution of India lies against an appealable order and decree. Hence, the instant writ petition is liable to be rejected.
11. Mr. K.N. Bhattacharjee, learned senior counsel assailing the impugned judgment would contend that the learned trial Court failed to exercise its jurisdiction vested on it as the trial Court left amendment petition filed by the petitioner unheard and keeping pending the same and without disposal of the amendment petition framed the preliminary issues before completion of the pleadings of the parties. He also contended that on the date of hearing on maintainability of the suit, the plaintiff petitioner was absent without any step and the defendant respondents were present by filing memo of appearance of their learned Advocate. In that situation, the Court below ought to have dismissed the suit for default as per provision of Rule 8 of Order IX of the CPC read with Order XLI of the Code which provides that the appeal shall lie from every decree and Section 104 of the Code provides for orders from which appeal shall lie. Order XLIII of the Code prescribes the list of appealable orders. But order under Order XIV of the code is not in the said list. Hence, the order under Order XIV of the Code is not appealable. He also contended that Order XLIII Rule 1(a) provides that an appeal may be filed if after the order/judgment is pronounced and the decree is drawn up. But in this case, no judgment has been passed and no decree has been drawn up. Therefore, the contention of the respondents that the impugned order is a decree and appealable is not sustainable.
12. He further contended that before framing any preliminary issue, the Court is to frame issues in terms of Order XIV, Rule 1 on all issues and thereafter can take up the matter on preliminary issue under Order XIV, Rule 2 of the Code and the Court has to provide opportunity to the parties as prescribed under Order XI, XII and XIII of the Code, but in the instant case, the learned trial Court skipped over all the procedure prescribed in the aforesaid provisions and took up the question of maintainability of the suit in absence of the petitioner plaintiffs lawyer and passed the impugned order only after hearing the lawyer of the defendant respondents. Therefore, the said order is to be treated as dismissed for default and order of dismissal in default is not a decree. Being not a decree, the same is also not appealable. He also relied upon the judgment of the Apex Court in the case of R. Rathinavel Chettiar v. V. Sivaraman : (1999) 4 SCC 89 : 1999 AIR SCW 1206 wherein their lordships discussed what should be the essential elements to be a decree, For ready reference, the paras 10, 11 and 12 of the said judgment are quoted hereunder:
10. Thus a 'decree' has to have the following essential elements, namely:
(i) There must have been adjudication in a suit.
(ii) The adjudication must have determined the rights of the parties in respect of, or any of the matters in controversy.
(iii) Such determination must be a conclusive determination resulting in a formal expression of the adjudication.
11. Once the matter in controversy has received judicial determination, the suit results in a decree either in favour of the plaintiff or in favour of the defendant.
12. What is essential is that the matter must have been finally decided so that it becomes conclusive as between the parties to the suit in respect of the subject-matter of the suit with reference to which relief is sought. It is at this stage that the rights of the parties are crystallized and unless the decree is reversed, recalled, modified or set aside, the parties cannot be divested of their rights under the decree. Now, the decree can be recalled, reversed or set aside either by the Court which had passed in it as in review, or by the appellate or revisional Court. Since withdrawal of suit at the appellate stage, if allowed, would have, the effect of destroying or nullifying the decree affecting thereby rights of the parties which came to be vested under the decree, it cannot be allowed as a matter of course but has to be allowed rarely only when a strong case is made out. It is for this reason that the proceedings either in appeal or in revision have to be allowed to have a full trial on merits.
13. According to Mr. Bhattacharjee none of those elements are there in the impugned order as the learned Trial Court did not decide and determine any of the rights of the parties involved in the controversy of the suit. He also contended that the Apex Court in the case of R. Rathinavel Chettiar (supra) noted that the decree can be recalled, reversed or set aside either by the Court which had passed it as in review or by the appellate or revisional Court and the Court in that case set aside the judgment of the High Court whereby the application for withdrawal of the suit was allowed on the ground that the application for withdrawal of the suit was filed at the appellate stage for destroying or nullifying the decree affecting thereby the rights of the parties which came to be vested under that decree. In the instant case, the plaintiff petitioner filed the application for adjournment of the case on the ground that he will withdraw the suit which was before passing the impugned order is a vested right of the plaintiff petitioner. Learned senior Counsel finally referred to paragraphs 32, 33, 34 of the case of Sarya Dev Rai v. Ram Chander Rai : (2003) 6 SCC 675 : AIR 2003 SC 3044 wherein the Apex Court held that the power under Article 227 of the Constitution is untrammelled by the amendment in Section 115 of the CPC. He also placed reliance to show that even alternative remedy is no bar to avail the benefit of the provisions of Article 227 of the Constitution of India. Paras 32, 33 and 34 of Surya Deb Rai (supra) are reproduced hereunder:
32. The principles deducible, well-settled as they are, have been well summed up and stated by a two-Judge Bench of this Court recently in State v. Navjot Sandhu : (2003) 6 SCC 641, SCC pp. 656-57, para 28, This Court held:
(i) the jurisdiction under Article 227 cannot be limited or fettered by any Act of the State Legislature;
(ii) the supervisory jurisdiction is wide and can be used to meet the ends of justice, also to interfere even with an interlocutory order,
(iii) the power must be exercised sparingly, only to keep subordinate Courts and tribunals within the bounds of their authority to see that they obey the law. The power is not available to be exercised to correct mere errors (whether on the facts or laws) and also cannot be exercised 'as the cloak of an appeal in disguise.
33. In Shiv Shakti Co-op. Housing Society v. Swaraj Developers : (2003) 6 SCC 659 : AIR 2003 SC 2434, another two-Judge Bench of this Court dealt with Section 115, CPC. The Court at the end of its judgment noted the submission of the learned Counsel for a party that even if the revisional applications are held to be not maintainable, there should not be a bar on a challenge being made under Article 227 of the Constitution for which an opportunity was prayed to be allowed. The Court observed : SCC p. 674, para 36. If any remedy is available to a party...no liberty is necessary to be granted for availing the same.
34. We are of the opinion that the curtailment of revisional jurisdiction of the High Court does not take away and could not have taken away the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil Court nor is the power of superintendence conferred on the High Court under Article 227 of the Constitution taken away or whittled down. The power exists, untrammelled by the amendment in Section 115, CPC, and is available to be exercised subject to rales of self-discipline and practice which are well settled.
14. He also referred to the case of Dhampur Sugar Mills Ltd. v. State of U.P. : (2007) 8 SCC 338 : AIR 2008 SC 48, particularly para 23 of the said judgment which is quoted hereunder:
23. As to alternative remedy available to the writ petitioner, a finding has been recorded by the High Court in favour of the writ petitioner and the same has not been challenged by the State before us. Even otherwise, from the record, it is clear that the decision has been taken by the Government. Obviously in such cases, remedy of appeal cannot be termed as 'alternative', or 'equally efficacious'. Once a policy decision has been taken by the Government, filing of appeal is virtually from 'Caesar to Caesar's wife', an 'empty formality' or 'futile attempt'. The High Court was, therefore, right in overruling the preliminary objection raised by the respondents.
15. Per contra, Mr. R. Chakraborty, learned Counsel for the respondents submits that the impugned order is a decree as it is a settled law that the disposal includes dismissal. Therefore, the 'disposed of means the suit was dismissed on the ground of maintainability. In support of the aforesaid contention, he referred to a decision of the Calcutta High Court in the case of Kalyan Kumar Basak v. Salil Kumar Basak : AIR 1986 Cal 298 and particularly placed reliance on para 26 of the judgment. Para 26 of the aforesaid report is reproduced hereunder:
26. From the above it is clear that 'Disposal' in the said Rules does not mean only 'dismissal'. 'Disposal' includes 'dismissal' but is not confined thereto. Where power is given to the Court only to dismiss a suit, proceeding or appeal it is specifically provided so in the said Rules and the Civil Procedure Code.
16. Hence, according to him, against the impugned order, available remedy to the petitioner is an appeal not a writ or revision which has been admittedly filed by the petitioner under Article 227 of the Constitution. He also referred to Sub-section (2) of Section 2 of the Code to show what means a decree. According to him, adjudication is nothing but a judicial pronouncement/a decision upon a claim/petition etc. and in the instant case, impugned order is undisputedly judicial pronouncement and at the same time, a decision upon the claim of the plaintiff petitioner. He also contended that the plaintiff petitioner never filed an application for withdrawal of the suit before the trial Court. She only preferred an application for adjournment for withdrawal of the suit on later date and the said prayer was rejected by the impugned order dated 24-8-2005, the date which was fixed for order on maintainability of the suit; According to him, the dismissal of the suit is a decree and in support of his aforesaid contention, he placed reliance on two decisions of this Court in the case of Sri. Atindra Chandra Bhattacharjee v. Smt. Dipali, Bhattacharjee (CRP 28 of 2000) reported in : AIR 2007 Gauhati 17 and the case of Smt. Chanda Dasgupta v. Smt. Ila Das gupta CRP 28 of 2006.
17. Before proceeding with the discussion, it would be profitable for the Court to refer the provisions of Sub-section (2) of Section 2 and Rules 8 and 9 of Order IX of the Code of Civil Procedure which are reproduced herein below:
Sub-section (2) of Section 2:
'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include--
(a) Any adjudication from which an appeal lies an appeal from an order, or
(b) Any order of dismissal for default Rule 8. Procedure where defendant only appears.
Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an Order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.
Rule 9. Decree against plaintiff by default bars fresh suit--
(1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an Order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his nonappearance when the suit was called on for hearing the Court shall make an Order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
(2) No Order shall be made under this rule unless Notice of the application has been served on the opposite party.
18. It is an admitted position that the trial Court without disposing of the amendment petition filed by the plaintiff petitioner proceeded for deciding the suit on preliminary question of maintainability and heard the defendant respondents on the question of maintainability of the suit in absence of the plaintiff and fixed the matter for order on 24-8-2005 on which date the plaintiff petitioner prayed for adjournment of the ease to withdraw the suit and the Court did not allow the prayer for adjournment and decided the suit on the question of maintainability, meaning thereby the trial Court heard the suit on preliminary issue in absence of the plaintiff petitioner which is not permissible in law. Instead, the learned trial Court should have dismissed the suit for default without deciding the matter on preliminary issue as the same has barred the petitioner to approach the Court by way of filing the subsequent suit on the same cause of action and also file an application under Rule 9 of Order IX for an order to set the order of dismissal aside. Therefore, according to this Court, the impugned order of disposal of the suit is not maintainable and has to be treated as not a dismissal simplifier, but a dismissal in default for which a party can take recourse to the provisions of Order IX, Rule 9 of the CPC. Mere an existence of a specific provision for an order to set the order of dismissal aside does not mean that a plaintiff is totally precluded from approaching the Court by way of filing a petition under Article 227 of the Constitution of India. When in the face of the order, it appears that the Court which passed order failed to exercise the jurisdiction vested on it and committed an error due to such failure, the exercise of jurisdiction caused miscarriage of justice, obviously a revisional Court has the power to set such an order at naught. Not only that, the trial Court while disposing of the suit also stated, inter alia, that the Civil Court has no jurisdiction to pass a decree as prayed for on the basis of cause of action of the present suit which arose on 10-8-2001 and there is no scope to pass a decree as prayed for and as the suit is not maintainable in the present form and nature, meaning thereby, according to the trial Court, it has no jurisdiction to pass a decree as prayed for on the basis of the cause of action of the suit in question and it is also an admitted position that no decree has been drawn up on the basis of impugned order of disposal of suit.
19. When a Court by an order has decided the question of maintainability hearing only the defendant in absence of the plaintiff, such a decision is to be treated as a dismissal in default as stated supra and an order of dismissal in default is not a decree, therefore, not appealable. In the instant case, the trial Court decided the question of maintainability of the suit without formal expression of an adjudication finally determining the rights of the parties in regard to all or any of the matter in controversy, meaning thereby that all the rights of the parties are nothing but subject-matter of the suit and the trial Court herein did not decide the subject-matter involved in the suit. Therefore, the same cannot be treated as a decree, as contended by Mr. Chakraborty, learned Counsel for the defendant respondents.
20. When Legislature in their wisdom specifically enumerated the provisions in the Code what has to be done when the plaintiff of the suit is absent and the defendant is present, the Court cannot pass any order in contravention of the said provisions like Order 9, Rule 8 of the Code what in the instant case, the trial Court did. There are two parts in Civil Procedure Code one consists of Sections and other of Rules under various Orders. Sections create the jurisdiction of the Courts and the Rules under the Orders prescribe procedure and manners for exercising the jurisdiction vested on it. Hence, procedure prescribed in the Code by the Legislature is not an empty formality. The same has to be followed by the Court while discharging its duties cast on it. Therefore, according to this Court, the order of the trial Court is in contravention of the statutory provision, thereby the same is to be treated as nullity and when an order is a nullity, that cannot be treated as also a decree, therefore not appealable, but revisable and when it is revisable, this Court has the power to exercise its jurisdiction under Article 227 of the Constitution of India to keep Court below within its limits.
21. It is curious to note that the Court below while passing order dated 27-7-2005 even fails to consider the fact on which date the plaintiff petitioner filed the application for amendment. In his order he stated that 'today is fixed for hearing of the amendment petition dated 30-7-2005' whereas it appears from the record that the amendment petition was filed on 12-7-2005, meaning thereby there was total non-application of mind. It is the duty of the Court to examine the record properly before passing an order which is going to be affected the valuable rights of either of the parties, the trial Court fails to exercise its duty cast on it which resulted miscarriage of justice.
22. Though this Court is unable to accept the contention of Mr. Chakrabarty, inter alia, that the impugned order is a decree and appealable, even for the argument sake, if his contention is accepted, then also the same can be interfered with by this Court exercising its jurisdiction under Article 227 of the Constitution. The aforesaid views of this Court gets support from the decision rendered in the case of Jyotish Chandra Borbora v. The Bura Gohain Tea Co. Pvt. Ltd. : (1993) 1 GLR 66 : AIR 1993 Gau 89, wherein this Court pointed out that even when the appeal lies against an order, this Court can entertain an application under Article 227 of the Constitution in an exceptional case. Existence of alternative remedy has no bar for entertaining an application under Article 227 of the Constitution if the situation so demands.
23. In the case of Munikrishna Reddy v. S.K. Ramaswami : AIR 1969 Madras 389, the learned single Judge of the High Court of Madras noted that 'assuming that there was a question under Section 47, the difficulty in the way of petitioner is that Section 2(2) CPC excludes from the definition of decree any order of dismissal for default, and the order dated 14-7-1965 was an order of dismissal for default. Hence, there can be no doubt that no second appeal will lie to this Court. However, in the interests of justice, I have decided to convert the appeal into a revision petition.'
24. This Court has also gone through the decision in the case of Atindra Chandra Bhattacharjee : AIR 2007 Gau 17 (supra) and Smt. Chhanda Das Gupta (supra) respectively and the facts of those cases are totally different than the case in hand. In the case of Atindra Chandra Bhattacharjee (supra), the Title Suit (divorce) No. 67 of 1998 filed by the petitioner of that case was dismissed as not maintainable on the question of res judicata and this Court rightly held that the dismissal of the suit being a decree, the proper course was to file an appeal against the impugned judgment and in the case of Smt. Chhanda Das gupta (supra), the suit was filed by the respondent No. 2 of that case which was dismissed for default and thereafter the prayer for restoration of the same was also rejected and second suit was filed claiming that a fresh cause of action which was a transaction of gift by the respondent therein in favour of his wife in respect of the same property had arisen and the question which was decided by the impugned order dated 23-3-2006 was whether the second suit was maintainable in view of the fact that the first suit was instituted on the same cause of action including the transaction of gift. Therefore, those cases will not in any way help the case of the respondents. More so, every case has to be decided keeping in mind the facts of that, in the instant case, the Court while deciding the preliminary issue hearing only the defendant's lawyer kept pending the amendment petition, meaning thereby the Court decided preliminary issue before completion of pleadings of the parties which is not permissible.
25. In the case of All Assam Layers' Association v. Ashok Kumar Borah, Advocate (1995) 2 GLR 361 : AIR l995 Gau 95, this Court taking note of the case of Babhutmal Rai chand Oswal v. Laxmibai R. Taste : AIR 1975 SC 1297 discussed layout the provisions of Article 227 of the Constitution and laid down the laws, inter alia, that (a) its function is limited to seeing that the subordinate Court or tribunal functions within the limits of its authority. This Court also took note of the decision in the case of Mohd. Unus v. Mohd. Mustaq : AIR 1984 SC 38, wherein the Apex Court stated, inter alia, that the supervisory jurisdiction conferred on the High Court under Article 227 of the Constitution is limited to seeing 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 an error of law. In All Assam Lawyers' Association (supra), this Court also noted the observation of the Apex Court in the case of Trimbak Gangadhar Telang v. Ramchandra Ganesh Bhide : (1977) 2 SCC 437 : AIR 1977 SC 1222 wherein the Apex Court stated that 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.
26. Considering the aforesaid cases, this Court in All Assam Lawyers Association : AIR 1995 Gau 95 (supra) noted that 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 manifestly injustice to the petitioner, it was decided to entertain the application under Article 227 of the Constitution of India.
27. In view of the aforesaid views of this Court in All Assam Lawyers' Association (supra), this Court has no hesitation to hold that a decree passed bypassing the procedure prescribed without jurisdiction and being nullity and when' caused injustice to a justice seeker can be interfered with to provide justice exercising its jurisdiction under Article 227 of the Constitution of India. Accordingly, this Court decides to entertain the instant application under Article 227 of the Constitution.
28. As this Court has already expressed that the impugned order is not a decree and even if a decree is a decree of nullity and the Court below adopted procedure which was violative of fundamental basic principles of justice and revisable considering the factual position as stated supra and law as discussed, the impugned order of disposal dated 24-8-2005 passed by the learned trial court in Title Suit No. 45 of 2005 is hereby quashed. The case shall be sent back to the Trial Court for deciding the application for amendment first and thereafter hearing the question of maintainability of the suit as raised by the defendant-respondents. It is needless to say that the suit be decided as expeditiously as possible as the same was filed before five years.
29. Writ petition stands disposed of. No order as to costs.