The Judgment and decree dated 25.10.2006 passed in Original Suit No.70 of 1996 by the District Munsif - cum - Judicial Magistrate Court, Periyakulam are being challenged in the present Civil Revision Petition.
2. The revision petitioners as plaintiffs have instituted Original Suit No.70 of 1996 on the file of the Court below praying to declare that they are the cultivating tenants of the suit property and also to pass a decree of recovery of possession, wherein the present respondents have been shown as defendants.
3. In Original Suit No.70 of 1996 on the basis of the rival pleadings raised on either side the Court below has framed necessary issues and one of the issues is as to whether the trial Court is having jurisdiction to try the suit in view of the bar created under section 16-A of the Tamilnadu Agricultural Lands Record of Tenancy Rights Act, 1969.
4. On the basis of the divergent evidence adduced on either side, the Court below has dismissed the suit mainly on the ground that the Court below is not having jurisdiction in view of the bar created under section 16-A of the Tamilnadu Agricultural Lands Record of Tenancy Rights Act, 1969. Against the Judgment and decree passed by the Court below, the present Civil Revision Petition has been preferred at the instance of the plaintiffs as revision petitioners.
5. The learned counsel appearing for the revision petitioners has contended that Original Suit No.70 of 1996 has been instituted for the reliefs of declaration and recovery of possession, wherein a petition has been filed on the side of the defendants as petitioners in I.A.No.112 of 1998 so as to decide the jurisdiction of the Court below as a preliminary issue, in view of the bar created under section 16-A of the Tamilnadu Agricultural Lands Record of Tenancy Rights Act, 1969 and the Court below has allowed the same and against the order passed by the Court below, Civil Revision Petition No.3968 of 1999 has been preferred on the file of this Court and this Court after considering the rival contentions put forth on either side, has clinchingly decided to the effect that section 16-A of the Tamilnadu Agricultural Lands Record of Tenancy Rights Act, 1969 is not a bar to decide the present lis, instituted in Original Suit No.70 of 1996 and against the order passed in CRP No.3968 of 1999, SLP Nos.12582-12583 of 2000 have been preferred on the file of the Honourable Apex Court and the Honourable Apex Court has dismissed both the petitions and directed the Court below, without adhering the findings given by the High Court, with regard to merits of the case directed to decide the case independently and that too purely on merits and even though the High Court has clearly found that section 16-A of the said Act is not at all a bar to decide the present lis involved in Original Suit No.70 of 1996 and upheld by the Honourable Apex Court, the Court below without deleting the issue framed with regard to question of jurisdiction, has decided the same against the plaintiffs and ultimately dismissed Original Suit No.70 of 1996. Since the Court below has failed to follow the decision rendered in CRP No.3968 of 1999 and upheld in SLP Nos.12582-12583 of 2000 by the Honourable Apex Court, the present Civil Revision Petition has been filed so as to invoke the supervisory control of this Court and therefore, the Judgment and decree passed by the Court below in Original Suit No.70 of 1996 are liable to be set aside and the matter is liable to be remitted to the file of the Court below for deciding the suit filed in Original Suit No.70 of 1996 on merits.
6. In order to dispel the contention urged on the side of the revision petitioners, the learned counsel appearing for the respondents has also equally contended that Original Suit No.70 of 1996 has been instituted so as to declare that the plaintiffs are the cultivating tenants and also pass a decree in respect of recovery of possession, wherein on the side of the defendants a detailed written statement has been filed. In the written statement filed on the side of the defendants it has been contended to the effect that the present suit is not legally maintainable in view of the bar created under section 16-A of the Tamilnadu Agricultural Lands Record of Tenancy Rights Act, 1969. Under the said circumstances, the Court below has framed an issue with regard to question of jurisdiction amongst other issues and the Court below has dismissed Original Suit No.70 of 1996 on the ground of question of jurisdiction and even the Court below has dismissed the suit on the question of jurisdiction, the present Civil Revision Petition is not maintainable under Article 227 of the Constitution of India and the only remedy available to the revision petitioners/plaintiffs is to file regular appeal under section 96 of the Code of Civil Procedure, 1908 and therefore, the present Civil Revision Petition is not at all maintainable and the same deserves to be dismissed.
7. The learned counsel appearing for the revision petitioners has drawn the attention of the Court to the following decisions:
(a) The first and foremost decision is reported in AIR 1982 Madras 175 (Hazarimal Panaji V. Tilokchand Deepaji), wherein this Court has held that “once question of jurisdiction has already been decided and settled the same cannot be agitated again.”
(b) The second decision is reported in AIR 2005 Andhra Pradesh 521 (Kota Sreevalli and others v. Chinni Seetharamaiah and others), wherein at paragraph - 6 it is stated like thus:
When there exists a regular remedy of appeal, the High Court cannot examine the correctness of a decree, in the proceedings under Article 227 of the Constitution of India. However, it needs to be noticed that the very purpose of conferring supervisory jurisdiction under Article 227, is to arm the High Court with adequate power, to ensure that the subordinate Courts do not deviate from the settled principles of law, particularly, in the matter of procedure. A clear distinction needs to be maintained as to the adjudication of the findings recorded by the Courts, on the merits, on the one hand, and examination of deviations, if any, by the subordinate Court, from the settled procedure, on the other hand. While the former is in the exclusive province of remedy of appeal, the latter can certainly constitute the subject matter of the revision, under Article 227. It is in this context that the present matter needs to be examined.”
8. From a close reading of the decision reported in AIR 2005 Andhra Pradesh 521 (Kota Sreevalli and others v. Chinni Seetharamaiah and others) it is easily discernible that “under Article 227 of the Constitution of India, the High Court is empowered to exercise its supervisory jurisdiction in extraordinary case.”
9. The learned counsel appearing for the respondents has also equally drawn the attention of the Court to the following decisions:
(a) In 1999 (III) CTC 151 (A.Kesavan v. Madurai Kamaraj Universiry rep. By its Registrar, Madurai- 21 this Court has held by way of following the decision reported in AIR 1960 S.C. 137 (Sathyanarayanan v. Mallikarjun) as follows: “An error which is to be established by a long drawn process of reasoning on points where there may be conceivably two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self evidence and which can be established, it has to be established by length and complicated argument. Such an error cannot be cured by the writ of certiorari according to the rules governing the powers of certiorari.”
(b) In 1983 4 SC 566 (Mohd.Yunus v. Mohd. Mustaqim and others) the Honourable Apex Court has held that “in this case, there was, in our opinion, no error of law much less an error apparent on the face of the record and therefore, Article 227 cannot be invoked.”
(c) In 1969 (3) Supreme Court Cases 675 (Bhutnath Chatterjee v. State of West Bengal and others), the Honourable Apex Court has held that “determination of the question whether the first notification remained operative, therefore, depended upon proof of facts. The High Court could not entertain a petition under Article 227 of the Constitution against the order of the District Judge, and determine an important issue of fact on which the case of the appellant largely depended, on a presumption. Against the award of compensation by the District Court, an appeal lies to the High Court, and in that appeal the question would be fully considered in all its aspects on the evidence on the record. This was not a case in which the jurisdiction of the High Court under Article 227 of the Constitution could be invoked or exercised. (d) In 1998 (III) CTC 165 (Nesammal and another v. Edward and another) this Court has held that “the revision is also not maintainable since the order rejecting the plaint is a decree under the Code of Civil Procedure. Even if the plaint is rejected on some other grounds not covered by order 7 Rule 11 of the Code of Civil Procedure, the remedy is only an appeal under Section 96 of Code of Civil Procedure.”
(e) In (2006) 4 Supreme Court Cases 412 (S.Rajeswari v. S.N.Kulasekaran and others) the Honourable Apex Court has held that “if a petition is filed under section 151 of the Code of Civil Procedure, on the basis of averments it can be treated as a petition filed under Order 21 Rule 97 of the Code of Civil Procedure and if there is any order, only regular appeal would lie.” (f) In AIR 2003 Supreme Court 1561 (Sadhana Lodh v. National Insurance Co.Ltd and another), the Honourable Apex Court has held as follows: “6. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (seeNational Insurance Co. Ltd. v. Nicolletta Rohtagi1). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of illustration, where a trial court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 CPC, in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State Legislature has barred a remedy of filing a revision petition before the High Court under Section 115 CPC, no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of the High Court under Article 226 of the Constitution.
(g) In 1976 STPL (LE) 8191 SC (Miss Maneck Custodji Surjarji v. Sarafazali Nawabali Mirza),it is observed as follows:
It is very difficult to appreciate the reasoning behind the order made by the High Court. It is to say the least an extraordinary order which flies in the face of law and judicial procedure. The respondent had clearly a legal remedy available to him by way of an appeal against the decree of the City Civil Court and this remedy was not only adequate but more comprehensive than the one under Article 227 of the Constitution. Even so, for some inexplicable reason, the respondent chose to prefer a special civil application under Article 227 of the Constitution and Vaidya, J., entertained the special civil application and granted relief to the respondent, casting to the winds the well settled principle that the High Court does not ordinarily, in exercise of its discretion, entertain a special civil application under Article 227 of the Constitution where an adequate alternative legal remedy is available to the applicant. It is true that this principle is not rigid and inflexible and there can be extraordinary circumstances where, despite the existence of an alternative legal remedy, the High Court may interfere in favour of an applicant, but this was certainly not one of such extraordinary cases. It is indeed difficult to see how the learned Judge could entertain a special civil application against a decree passed by a subordinate court when the procedural law allows an appeal against it and that appeal lies to the High Court itself. It must be realised that the jurisdiction under Article 227 of the Constitution is an extraordinary jurisdiction which is to be exercised sparingly and in appropriate cases and it is not to be exercised as if it were an appellate jurisdiction or as if it gave unfettered and unrestricted power to the High Court to do whatever it liked. That apart, it is interesting to note that the order passed by the learned Judge was not an interlocutory order but a final order disposing of the special civil application and by that order the learned Judge did not set aside the decree passed by the City Civil Court, but merely directed stay of its execution pending the disposal of the Small Causes Court suit. It defies one's comprehension as to how such an order could be made by the learned Judge. It is also difficult to see how the learned Judge could give a direction that the decision of the City Civil Court on the issue whether the respondent was a paying guest would not bind the parties in the adjudication of the Small Causes Court suit. The question whether the parties in the Small Causes Court suit would be bound by the decision of the City Civil Court would be a question which would arise for determination in the Small Causes Court suit and the Small Causes Court would have to determine it in deciding the suit before it. If the decision of the Small Causes Court is erroneous, the aggrieved party would have a right to file an appeal against it and the appellate court would then consider this question and adjudicate upon it. But we fail to understand how the learned Judge could, without any decision having been given by the Small Causes Court and such decision having been brought up before him in appeal or revision, enter upon a consideration of this question and pronounce upon it. The order passed by the learned Judge was clearly erroneous and it must be quashed and set aside and the special civil application must be dismissed. We may make it clear that whenever the Small Causes Court hears the suit before it, it will not take into account any observations made by the learned Judge in the impugned judgment in regard to the question whether the decision of the City Civil Court is binding or not and it will proceed to decide the suit before it in the light of what it considers to be the correct legal position. (h) In (2006) 4 MLJ 926 (Kalaivasagam and another v. Kammavar Ilaignar Sangam, Sivakasi and others), this Court has held that “As a matter of fact, the State, which is not a party to the proceedings, does not have a right of appeal. The ordinary rule is that only a party to a suit adversely affected by the decree or any of his representatives-in-interest may file an appeal. Under such circumstances a person who is not a party may prefer an appeal with the leave of the appellate court.”
10. From the cumulative reading of the decisions referred to supra it is made clear that the High Court cannot invoke its power of superintendence under Article 227 of the Constitution of India ordinarily and at the same time the said power can be invoked if there is an error apparent on the face of the record.
11. Article 227 of the Constitution of India reads as follows:
“Power of superintendence over all courts by the High Court:-[(1)Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.] (2)Without prejudice to the generality of the foregoing provisions, the High Court may-
(a)call for returns from such courts;
(b)make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c)prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.
(3)The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4)Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.
12. Even a cursory look of the said Article it is made clear that the High Court is having unimpeded powers of supervisory control over its Subordinate Courts.
13. With the aforesaid legal backgrounds, the Court has to look into the present case. It is an admitted fact that the revision petitioners as plaintiffs have instituted Original Suit No.70 of 1996 on the file of the Court below for the reliefs of declaration and recovery of possession, wherein a vital issue has been raised on the side of the defendants to the effect that in view of the bar created under section 16-A of the Tamilnadu Agricultural Lands Record of Tenancy Rights Act, 1969, Original Suit No.70 of 1996 is not maintainable and to that effect for deciding the said issue as a preliminary issue, an application in I.A.No.112 of 1998 has been filed on the file of the Court below and the Court below has allowed the petition by holding that in view of the provision of section 16-A of the Tamilnadu Agricultural Lands Record of Tenancy Rights Act, 1969, the present suit is not legally maintainable. Against the order passed in I.A.No.112 of 1998, CRP No.3968 of 1999 has been preferred on the file of this Court and this Court has specifically observed that “the finding of the lower Court that suit is barred under section 16-A of the Act cannot therefore be sustained and the order will have to be set aside and CRP No.3968 of 1999 is to be allowed.” Against the order passed in CRP No.3968 of 1999, SLP Nos.12582- 12583 of 2000 have been preferred on the file of the Honourable Apex Court. The Honourable Apex Court without touching the finding given by this Court in CRP No.3968 of 1999 has dismissed both Special Leave Petitions by way of observing that the trial Court should dispose of the suit without giving much importance to the observations made by the High Court with regard to merits of the case. Therefore, after dismissal of SLP Nos.12582 - 12583 of 2000 question of bar under section 16-A of the Tamilnadu Agricultural Lands Record of Tenancy Rights Act, 1969 has become final and the same cannot be re-agitated.
14. In the instant case the Court below has framed so many issues and one of the issues is as to whether the present suit is legally maintainable in view of the inhibition created under section 16-A of the Tamilnadu Agricultural Lands Record of Tenancy Rights Act, 1969.
15. Even though this Court has specifically held in CRP No.3968 of 1999 to the effect that the finding of the Court below with regard to section 16-A of the said Act is incorrect and the present suit is maintainable in Civil Court and the finding of this Court has been upheld by the Honourable Apex Court, the Court below has not cared to delete the issue, which has been framed with regard to maintainability of the present suit. The Court below even without following the order passed in CRP No.3968 of 1999 which has been upheld by the Honourable Apex Court, has completely projected the present case only on the basis of maintainability of the suit on the basis of embargo created under section 16-A of the Tamilnadu Agricultural Lands Record of Tenancy Rights Act, 1969. Therefore, it is very clear that the Court below has not adopted even a desultory approach in following the order passed in CRP No.3968 of 1999 by this Court and upheld by the Honourable Apex Court. Since this Court has completely and finally decided the question of maintainability by way of passing the order in CRP No.3968 of 1999 and upheld by the Honourable Apex Court, the Court has no power to decide the same on the basis of one of the issues already framed in the suit with regard to maintainability. After seeing the order passed in CRP No.3968 of 1999 the Court below ought to have deleted the issue which has been framed with regard to jurisdiction. But the Court below has not even cared to abide the order passed in CRP No.3968 of 1999 by this Court. In fact the Court below, as animadverted to earlier, without deleting the issue which has become useless after passing order in CRP No.3968 of 1999, has completely proceeded on that basis and ultimately found that in view of section 16-A of the Tamilnadu Agricultural Lands Record of Tenancy Rights Act, 1969, the suit is not legally maintainable. Therefore, it goes without saying that the Court below has completely flouted the order passed in CRP No.3968 of 1999 by this Court and upheld by the Honourable Apex Court and the Court below has dismissed the suit simply on the ground of maintainability for the reason best known to it. Further it is a humdrum that Judgments or Orders of Superior Courts are not only binding upon parties, but also binding upon Subordinate Courts. The Superior Courts should not observe obmutescence when Justice is submerged in fathom down. Since the Court below has acted in subversive manner, this Court cannot not close its eyes. Since this Court cannot close its eyes with regard to subversive approach made by the Court below, this Court is having ample power to invoke Article 227 of the Constitution of India. Since this Court is having ample power to invoke Article 227 of the Constitution of India, the contention put forth on the side of the revision petitioners is perfectly correct, whereas the contention put forth on the side of the respondents does not hold good.
16. It has already been pointed out in many places that Original Suit No.70 of 1996 has been dismissed mainly on the basis of maintainability. Since question of maintainability has already been discussed and sealed by way of passing order in CRP No.3968 of 1999, the Court below is not at all having power to decide the present suit on the basis of maintainability and therefore, the Judgment and decree passed by the Court below are nothing but absurd and the same are liable to be set aside by invoking Article 227 of the Constitution of India and the matter is liable to be remitted to the file of the Court below.
17. In fine, this Civil Revision Petition is allowed without cost and the Judgment and decree passed in Original Suit No.70 of 1996 by the District Munsif - cum - Judicial Magistrate Court, Periyakulam are set aside and Original Suit No.70 of 1996 is remitted to the file of the Court below. The Court below is specifically directed to dispose of the suit purely on merit without touching question of maintainability. Connected Miscellaneous petitions are closed.