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Judgment
Plaintiffs in O.S.No.3 of 1989 on the file of the District Munsif''s Court at Periyakulam are the revision petitioners. The revision is filed under
Article 227 of the Constitution of India.
Suit filed by the plaintiffs was one for permanent prohibitory injunction restraining the defendants from interfering with their right over the
pathway, demarcated as ''EFGH'' in the plaint attached to the Plan, and also for a mandatory injunction to remove the obstruction caused in the
pathway.
The suit was seriously contested by the defendants. As per the judgment dated 29.10.90, the lower Court dismissed the suit mainly on the
ground that the plaintiffs have not prayed for a declaratory relief. The trial Court was of the view that the suit for injunction simplicitor is not
maintainable when the right over the property, of pathway is denied by the defendants.
Against the dismissal of the suit, plaintiffs preferred A.S.No. 29 of 1991 on the file of the Subordinate Judge, Periyakulam. Before the appellate
Court, additional evidence also let in. The appellate Court found that better opportunity should have been given to the petitioners to prove their
case and in case any correction or amendment is required, an opportunity should also be given and in regard to the relief of mandatory injunction
also certain directions were given. Finally, in the decretal portion, the entire judgment and decree of the trial court was set aside and the trial Court
was directed to dispose of the suit on the basis of the directions stated therein.
On remand, the petitioner filed an amendment application seeking to incorporate the relief of declaration. The same was seriously opposed by
the respondents and the case was posted for orders. In the meanwhile, respondents filed four applications. One to reopen the amendment
application, to advance the posting, to receive the additional counter and to condone the delay in not filing the counter in time. All these
applications were dismissed by the trial Court and thereafter, I.A.No. 339 of 1996, the amendment application filed by the plaintiffs is also
dismissed taking into consideration the contents in the additional counter.
Thereafter, the petitioners filed a Review Application in R.A.No. 555 of 1998 seeking to review the order of dismissal of amendment
application on the ground that the lower Court went wrong in taking into consideration the additional counter when the same has already been
dismissed, and they wanted to re-hear the amendment application I.A. No.339 of 1996. The same was also seriously opposed by the
respondents. In the impugned order, the lower Court allowed the review application and held that it was due to inadvertence, the additional
counter was also mentioned in the order rejecting the amendment application and the lower Court also declared that they should not have taken
into consideration the contentions raised therein. After allowing the Review Application, simultaneously, the lower Court also passed an order
again rejecting the amendment application I.A.No. 339 of 1996.
The order of the trial Court is challenged in the revision under Article 227 of the Constitution of India. In the various grounds, it is alleged that
when a review petition is allowed, the main application should have been restored and the matter has to be re-heard. That opportunity has not
been given since the lower Court has again dismissed the amendment application simultaneously. It is also contended that interpretation given to the
order of remand is not correct. The contention is that it is an open remand and that the powers of the trial Court is not restricted.
I ordered notice of motion and the further proceedings were also stayed. After the respondents entered appearance, I heard the entire revision
in detail.
I.A.No. 339 of 1996 was filed by the petitioner seeking to incorporate an amendment to the plaint. The same was rejected by the lower Court.
One of the reasons for rejecting the application is that the remand order does not empower the trial Court to allow an application and enlarge the
scope of the suit. While dismissing the application, the trial Court also took note of the additional counter filed by the respondents. In fact, that
additional counter was refused to be accepted by the trial Court. It is when the amendment application was dismissed, review petition was filed by
these petitioners on the ground that the lower Court should not have been taken into consideration the contentions in the additional counter. The
lower Court accepted the contention and the review is also allowed.
Under normal circumstances, when the review is allowed, the main order will have to be set aside and restored to file. But, in this case, there
was a procedural illegality committed by the lower Court by simultaneously allowing the review in para, 8 of the order, as follows:
the lower Court also be permitted to appoint a commission and get the plan and a revised decision has to be taken. From the earlier portion of the
judgment also it is clear that there is no limitation on the powers of the trial Court and the order of remand is an open one and not restricted one.
Since the lower Court has even now dismissed the amendment application only for the reason that the order of remand do not empower the trial
Court to allow the amendment, I feel that I will be justified in interfering in that order.
At this juncture, learned counsel for the respondent submitted that the remedy of the petitioners is u/s 115 of CPC and not under Article 227
of the Constitution. Whether Section 115 or Article 227, the revision lies only to this Court.
If a manifest injustice has been done, the Court will be justified in invoking Article 227 of the Constitution of India. The remedy u/s 115 of
C.P.C. cannot be said an effective alternative remedy. As it was held in Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram, , the Court can
exercise its power under Article 227 of the Constitution of India, only if the order of the lower Court is perverse or it has resulted in manifest
injustice.
It was also held in the recent decision of the Calcutta High Court, reported in Amzad Ali v. Marfat Ali Biswas & Two others, 1998 (II) C.L.T.
462 . In that case, His Lordship held as follows:
It is settled law that the power under Article 227 of the Constitution involves a duty on the part of the High Court to keep all courts within the
bounds of their authorities and to see that they do what their duty requires. This power under Article 227 can also be exercised by the High Court
suo motu and is not governed by any technical rules as applicable in cases of exercise of power under Article 226."" (Italics supplied)
His Lordship further went on and said that the powers of the High Court under Article 227 cannot be taken away or barred by any legislation short
of constitutional amendment nor can it be barred by providing that the decision of an inferior tribunal shall be final. It was further held as follows:
...When the High Court finds that the inferior court, Civil or Criminal, has not acted according to the mandate of law resulting in gross abuse of the
process of the Court, the extraordinary power of the High Court under Article 227 of the Constitution can always be exercised.
Since I feel there is a manifest injustice done to the petitioners due to the misreading of the order of remand, I feel it is a proper case to
exercise a judicial supervisory revision under Article 227 of the Constitution of India.
In the result, Civil Revision Petition is allowed. I.A.No. 339 of 1996 in O.S.No. 3 of 1989 on the file of the District Munsif''s Court,
Periyakulam stands allowed. The petitioners are directed to incorporate the amendment within a period of four weeks on receipt of a copy of this
Order by the lower Court. The lower Court shall permit the petitioners to incorporate the amendment and thereafter, post the case for additional
written statement of the respondents and proceed the case in accordance with law and also in accordance with the order of remand in A.S.No. 29
of 1991. No costs. Consequently, CMP.Nos.17180 and 17181 of 1998 are dismissed.