H.S. Thangkhiew DECISION
H.S. Thangkhiew, Actg. C.J.
1. The brief facts as noted, is that the petitioner herein had filed a suit for permanent injunction against the respondent in the Court of Munsiff, Shillong being T.S. No. 37(H) 2005, claiming right title and interest over a passage in which fell in the portion of land allotted to the petitioner under a Family Settlement dated 08.04.1969, and also for restraining the respondent from using the passage as an approach to the hotel of the respondent, namely 'Hotel Nataraj' which had a separate independent entry from the Quinton Road side. An application for interim injunction was also filed therein being Misc. Case No. 44(H) 2005, and the trial court by order dated 07.11.2005 passed an order of ad interim injunction.
2. The respondent subsequently, also filed a suit in the Court of the Assistant District Judge, Shillong being T.S. No. 22(H) of 2005(now renumbered as 39/2013) against the petitioner claiming his right to use the said passage as an approach to his land and hotel. The respondent also filed Misc. Case No. 34(H) 2005 for interim injunction and the said Court vide order dated 06.12.2005 passed an injunction order against the petitioner.
3. The respondent initially contested the suit filed by the petitioner but later it seems on the failure on the part of the respondent to take steps, the suit proceeded ex-parte. The suit of the petitioner however, came to be dismissed on 21.11.2014 for reasons as recorded in the judgment of the Munsiff, and a review of the order thereof being Review Pet. No. 26(H) 2014 filed by the petitioner was also dismissed. The petitioner then preferred an appeal before the Court of the District Judge, Shillong being RFA No. 1(H) 2015, and the same is pending disposal. The petitioner thereafter filed an application u/s. under Section 10 of the CPC for stay of the suit of the respondent i.e., 22(H) of 2005 (new 39/2013) pending in the Court of the Assistant District Judge, Shillong on the ground that a subject matter of both the suits were the same and also that any decision in one suit would operate as res-judicata in the other suit.
4. Learned Court of the Assistant District Judge, Shillong however, by order dated 04.11.2015 dismissed the said application. The petitioner being aggrieved is before this court by way of this application under Article 227 of the Constitution of India.
5. Heard Mrs. P.D. Bujarbarua, learned Sr. counsel assisted by Ms. B. Ghosh, on behalf of the petitioner and Mr. B. Bhattacharjee, learned counsel for the respondent.
6. Mrs. P.D. Bujarbarua, learned Sr. counsel for the petitioner, while opening her submissions has at the outset, articulated the issues that have arisen for adjudication. The same as given in her written argument are as follows:
(i) Whether the present petition is maintainable under Article 227 of Constitution of India.
(ii) Whether a regular revision under section 115 of CPC is maintainable against the impugned order dated 04.11.2016
(iii) Whether the impugned order is an interlocutory order or a final order.
(iv) Whether a petition under section 10 CPC can be treated as "other proceedings" in the context of Section 115 CPC.
(v) Whether the impugned order dated 04.11.2016 is bad in law and deserves to be set aside.
7. The learned Sr. counsel submits that Section 115 CPC after its amendment with effect from 01.07.2002, under the proviso to sub-section 1 of Section 115 has provided that the High Court shall not vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding. She submits that there is no bar against challenging the impugned order under Article 227 of the Constitution of India, inasmuch as, no regular revision under Section 115 CPC would lie against the said order dated 04.11.2016, as it is only an interim order passed during the course of the suit and not a final order. She further submits that an application under Section 10 of the CPC is an application in a matter arising out of the suit and in the course of the suit and is not an independent or other proceedings and as such, the petition under Section 10 CPC cannot be considered as final disposal of other proceedings. She further reiterates her submissions and contends that the impugned order dated 04.11.2016 rejecting the petition under Section 10 CPC cannot be treated as a final order as it is the matter arising out of the suit and the order passed therein did not finally dispose of the suit. Learned counsel also asserts that the present petition under 227 has not been filed to avoid the limitation period but because a regular revision application is not maintainable under Section 115 CPC.
8. With regard to the other aspects of the case on merits, learned counsel submits that a perusal of the plaint of both the suits would reveal that the parties as also the subject matter are one and the same. She submits that any order passed in one suit would operate as res-judicata in the other suit and vice-versa as the matter in suit concerns the strip of land or the passage going through the land of the petitioner over which the petitioner is claiming his right, title and interest and the respondent is claiming his right of use and enjoyment. She submits that what is required under Section 10 is to determine whether the matter issue in the earlier suit is directly and substantially in issue in the subsequent suit. Learned counsel submits that the Court below erred in law in holding that the suits were not identical and therefore, Section 10 was not applicable. She further submits that as long as the subject matter remains the same, the language of the pleadings does not matter as long as the applicability of Section 10 is concerned.
9. The learned counsel submits that Section 11 CPC deals with res-judicata and explanation IV of Section 11 provides that any matter which might and ought to which have been made a ground of defence are attack in such formal suit shall be deemed to have been a matter directly and substantially in issue in such suit. She submits that the plaint and the suit filed subsequently by the respondent is same as the defence in the earlier suit, and as such, the matter being identical and the requirements of Section 10 CPC having been met, the subsequent suit filed by the respondent is liable to be stayed. Learned counsel then, submits that the learned trial court seriously erred in law by failing to apply the provisions and Section 10 CPC in its correct perspective and led to an error which is apparent on the face of the order itself. And unless corrected would also lead to multiplicity of proceedings.
10. The learned Sr. counsel then, reverts back to the earlier points with regard to the maintainability of the petition under Article 227 of the Constitution of India, and submits that the availability of alternate remedy cannot bar the jurisdiction of the High Court in its exercise of powers under Articles 226 and 227, even assuming that remedy under Section 115 CPC may be available. She further submits that even if an order under Section 10 CPC be treated as a final order finally disposing of other proceedings and a regular revision under Section 115 would be available, this also would not operate as a bar in the exercise of jurisdiction under Article 227 in appropriate cases. Learned counsel in support of her submissions has placed reliance on the following judgments:
(i) Surya Devi Rai vs. Ram Chander Rai & Ors. reported in MANU/SC/0559/2003 : (2003) 6 SCC 675.
(ii) Shiv Shakti Coop. Housing Society vs. Swaraj Developers & Ors. reported in MANU/SC/0335/2003 : (2003) 6 SCC 659.
(iii) Aspi Jal vs. Khushroo reported in MANU/SC/0307/2013 : AIR 2013 SC 1712.
(iv) Judgment dated 12.12.2014. passed in CRP No. 1014 of 2014 (Mr. A. Shameen Ahmed vs. Mr. A. Mohmmed Hashim.) Madras High Court.
(v) Maneck Gustedji Burjarji vs. Sarafaz Ali Nawab Ali Mirza reported in MANU/SC/0484/1976 : (1977) 1 SCC 227.
(vi) Judgment dated 09.03.2017 passed in Writ Petition (227) No. 190 of 2017. (Smt. Hirman Bai vs. Divisional Forest Officer Koriya Forest Division Baikunthpur, District Koriya (Chhattisgarh) & Ors.) High Court of Chhattisgarh.
11. Mr. B. Bhattacharjee, learned counsel for the respondent in his reply to the submissions of the petitioner has at the outset, strongly questioned the maintainability of the petition under Article 227 of the Constitution of India. Learned counsel submits that the order impugned, is revisable under Section 115 of the CPC and that the filing of the application under Article 227 is a gross abuse of the process of law and made with the ill intention of escaping the period of limitation prescribed under Article 131 of the Limitation Act, 1963. He submits that the impugned order was passed on 04.11.2016, whereas the present revision application has been filed only in the month of December, 2017 i.e., after over a period of 1 (one) year has lapsed much beyond the period of 90 (Ninety) days as prescribed by the Limitation Act. He further submits that the Hon'ble Apex Court has consistently held that when a specific statutory remedy is provided in the Act, constitutional remedy should not be invoked. To support the above contentions, the learned counsel for the respondent has placed reliance on the following judgments:
(i) Shalini Shyam Shetty & Anr. vs. Rajendra Shankar Patil reported in MANU/SC/0508/2010 : (2010) 8 SCC 329.
(ii) Bandaru Satyanarayana vs. Imandi Anasuya & Ors. reported in MANU/SC/0770/2011 : (2011) 12 SCC 650.
(iii) Radhey Shyam & Anr. vs. Chhabi Nath & Ors. reported in MANU/SC/0200/2015 : (2015) 5 SCC 423.
(iv) Virudhunagar Hindu Nadargal Dharma Paribalana Sabai & Ors. vs. Tuticorin Educational Society & Ors. reported in MANU/SC/1365/2019.
(v) Ramrichpal Singh vs. Dayanand Sarup reported in MANU/UP/0090/1955 : AIR (1955) Allahabad 309.
12. The learned counsel on merit submits that the learned trial court i.e., the Court of the Assistant District Judge, Shillong after hearing both the parties vide order dated 04.11.2016, had rejected the application of the petitioner filed under Section 10 CPC by a reasoned order holding that firstly, the title suit No. 37(H) of 2005 filed by the petitioner had been dismissed vide judgment order dated 21.11.2014. He submits that the learned trial court below came to a positive finding that the relief claimed in T.S. No. 37(H) of 2005 is not identical to that of made in T.S. No. 22(H) of 2005. He submits that the expression 'matter in issue' denotes the entire subject matter in controversy and Section 10 CPC is not applicable when there is only one matter common in issue to both the suits. He further asserts that while the prayer made by the petitioner in T.S. No. 37(H) of 2005 is confined to a passage leading to the 'Natraj Hotel', the prayer made by the respondent in T.S. No. 22(H) of 2005 is with regard to a plot of land measuring about 2396 sq. ft. in terms of the deed of family settlement dated 08.04.1969. Learned counsel in this regard, has placed reliance on the judgment of National Institute of Mental Health & Neuro Sciences vs. C. Parameshwara reported in MANU/SC/1063/2004 : 2005 (2) SCC 256 on the point of 'matter in issue'. He lastly, submits that there is no infirmity or illegality in the findings of the learned court below and that the same was based on a proper appreciation of the materials on record, and as such, no interference is warranted, far less in exercise of powers under Article 227 of the Constitution of India.
13. I have heard learned counsels for the parties.
14. The first issue that necessarily needs consideration is whether the instant petition is maintainable under Article 227 of the Constitution of India. In this context, this Court has to examine as to whether the impugned order is one that would fall under the scope of the proviso to Section 115 CPC. This would entail the finality of the order so passed in favour of the party applying for revision would have finally disposed of the suit or other proceedings. It would be expedient to quote the provision which is as follows:
"115. Revision. - [(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:
[Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.]"
15. As reported, in the case of Shiv Shakti Coop. Housing Society vs. Swaraj Developers & Ors. reported in MANU/SC/0335/2003 : (2003) 6 SCC 659. The Hon'ble Supreme Court observed that a plain reading of Section 115 makes it clear that the stress is on the question as to whether the order in favour with the party applying for revision would have given finality to a suit or other proceedings and that if the answer is in the affirmative then the revision is maintainable but if it is not so, then the revision is not maintainable. Arguments has been advanced by the learned counsel for the petitioner even if the petition is held to be not maintainable under 227 and should have been preferred under Section 115 CPC, it is only a matter of nomenclature as the jurisdictional court to take up proceedings under both the provisions is the same. Nonetheless, it is necessary to examine the nature of the order for which revision has been sought under Article 227 of the Constitution of India. The order impugned has been passed in a proceeding under Section 10 CPC. This provision is a matter separate from the trial of a suit inasmuch as, it relates to the question of determining as to whether the matter in issue is common to both the suits. A proceeding in Section 10 will therefore necessarily come within the meaning of 'other proceedings' and a decision rendered therein, will result in the finality of the said proceeding. This finding finds support in the full bench decision of the Allahabad High Court in the case of Ramrichpal Singh vs. Dayanand Sarup reported in MANU/UP/0090/1955 : AIR (1955) Allahabad 309. The relevant paragraph i.e., 26 and 32 are quoted herein below:
"Para 26-In my opinion, therefore an order under S. 10, Civil P.C. is a case decided and the fact that the learned Judge had framed an issue on the point and decided the point as an issue in the case would make no difference.
Para 32-If the plea under S. 10, Civil P.C. is contained in the written statement, the Court very often frames an issue upon it. There is nothing improper in the Court adopting this course. But as already observed an issue raised for a plea under S. 10, Civil P.C. is not really a defence to the suit itself, and therefore, it is a matter which is separate from the trial of the suit and hence a case by itself, even though an issue has been framed by the Court relating to it."
16. The inescapable conclusion therefore, is that the impugned order is an order revisable under Section 115 CPC and as such, there was no necessity to take the recourse to Article 227 of the Constitution of India. Further, it is not a case where exercise of jurisdiction by this Court under Article 227 is warranted to keep the subordinate courts within the bounds of their jurisdiction or that the subordinate courts have exercised their powers in a manner not permitted by law or have caused grave injustice. Though, exercise of powers under Article 227 is no doubt wider than the power conferred under Section 115 CPC and is not affected in any manner by the presence of alternate remedy, this power is to be exercised sparingly according to the facts and circumstances of the case at hand.
17. The jurisdiction of this Court under both the provisions is not in dispute and it can be said that only the provision of law quoted, has made the revision not maintainable, and that the revision application can be converted into one under Section 115 CPC by this Court itself. This proposition though attractive, notwithstanding the fact, that there is a delay of over 1(one) year, cannot be resorted to in view of recent developments in this branch of law. The Hon'ble Supreme Court in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai & Ors. vs. Tuticorin Educational Society & Ors. reported in MANU/SC/1365/2019. Para 13 and 14 of this judgment which has a direct bearing on the instant case is reproduced herein below:
"13. But the courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before Civil Courts in terms of the provisions of Code of Civil procedure and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which the respondents 1 and 2 invoked the jurisdiction of the High court. This is why, a 3 member Bench of this court, while overruling the decision in Surya Dev Rai v. Ram Chander Rai, pointed out in Radhey Shyam v. Chhabi Nath that "orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts.
14. Therefore wherever the proceedings are under the code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself."
18. The above noted judgment as can be seen has in a definite manner drawn the metes and bounds of the power of superintendence under the Constitution when alternative remedy is available before civil courts in terms of the provisions of the Code of Civil Procedure. The position of law being situated such and the exercise of jurisdiction under Article 227 being a matter concerning discipline and prudence, the instant case thus being not maintainable under Article 227 of the Constitution of India is therefore dismissed.
19. In view of the findings noted above, there is no further necessity to dwell on the other grounds, merits and contentions that has been raised in the petition.
20. Accordingly, this revision application as held above is dismissed, however, with no order as to costs.
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