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Dilip Kumar Singhania Vs. Basant Kumar Singhania - (High Court of Meghalaya) (11 Nov 2019)

Exercise of powers under Article 227 of Constitution is not affected in any manner by presence of alternate remedy but the power is to be exercised sparingly



The brief facts as noted, is that the Petitioner herein had filed a suit for permanent injunction against the Respondent in 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 8th April, 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 and the trial court by order passed an order of ad interim injunction.

The Petitioner thereafter filed an application under Section 10 of the Code of Civil Procedure, 1908 (CPC) for stay of the suit of the Respondent pending in the Court of the Assistant District Judge, 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. Learned Court of the Assistant District Judge, however, by order 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, 1950.

It is submitted that, Section 115 CPC after its amendment with effect from 1st July, 2002, under the proviso to sub-section 1 of Section 115 of CPC 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, as, no regular revision under Section 115 CPC would lie against the said order dated 4th November, 2016, as it is only an interim order passed during the course of the suit and not a final order. The issue that necessarily needs consideration is whether the instant petition is maintainable under Article 227 of the Constitution of India.

The impugned order is an order revisable under Section 115 of 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 of 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.

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. There is no further necessity to dwell on the other grounds, merits and contentions that has been raised in the petition. Revision application dismissed.


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