JAGAN Vs. DANI RAM

JUDGEMENT

(1.) This is a petition under Article 227 of the Constition against an order of the learned Subordinate Judge 1st Class, Delhi, dated 17th March 1970 in suit No. 320 of 1969 where by he dismissed the application made by the petitioner and another (asplaintiffs) under Order 39 Rr. 1 and 2 Civil Procedure Code rest-aining the defendants in the suit from interfering with their possession of the property described in the plaint. The learned Subordinate Judge held on the materials before him that the plaintiffs were not primafacie in possession and found no case to issue an ad-interim injuntion in their favour. Admittedly an appeal lies against that order and an appeal has not yet been preferred. This Court was moved under Article 227 of the Constitution, without filing an appeal against the said order, which fact was over looked when this petition was admitted and interim stay ordered Shri R. K. Sharma along with Mr. H. S. Yadav entered apperance on behalf of the defendants and filed CM 476 of 1970 to vacate the order of interim stay of dispossession which had been passed in the petitioners' favour on 30th March 1970 in CM No 407 of 1970. Having regard to the fact that the objection regarding maintainability of this petition without filing an appeal against the said order of the learned Subordinate Judge, was raised the CM (M) itself was directed to be posted for hearing along with the petition for stay as well as the petition for revoking the order of interim stay granted.

(2.) I have heard Shri C. P. Wig., counsel for the petitioners and Shri R K.. Sharma for the respondents. Shri Wig has drawn my attention to a decision of Allahabad High Court in Abdul Aziz and another v. A. Raj Chhabra where the High Court interfered in an application under Article 227 of the Constitution to set aside an ex-parte decree following an order which had been made under Order 11 Rule 21 Civil Procedure Code being without jurisdiction although neither an appeal under Order 43 rulel(f) nor a revision under section 115 Civil Procedure Code had been filed. That case is clearly distinguishable because it was found that the impugned order was one passed without jurisdiction. The Division Bench of the Allahabad High Court referred to the prior decision reported in S. Borrow v. State of U. P. where the the land Acquisition Officer had passed, on 19th May, 1955, an order under section 11 of the U. P. Act 26 of 1948 awarding compensation in contravention of the provisions of the Constitution as it stood amended after the coming into force of the Constitution (Fourth Amendment) Act 1955. The State Government made an application for review cf the order as soon as it became aware of the constitutional amendment and then followed it up by making an application for referring the matter to the Court. There was undoubted delay in making the two applications. The land Acquisition officer in spite of his having no jurisdiction to review his previous order, set aside his previous order by yet another order dated 19th October, 1955, the later order was sought to be quashed by invoking the writ jurisdiction of the High Court Both the orders were quashed by the High Court and the Land Acquisition Officer was directed to proceed to determine compensation according to law. In this context it was observed that Article 226 of the Constitution was wide enough to authorise the High Court to quash an order even Suo motu and that such a power could be exercised under Article 227. That such a power exists under Article 227 can hardly admit of any doubt, but the question is whether the High Court would, especially where there is no question of any jurisdiction or patent illegality involved, seek to interfere with the order of the subordinate court under Article 227 without the person aggrieved filling an appeal. which is permissible. Any attempt on the part of the suitor to by' pass the normal procedure of an appeal is one that cannot be en-couraged. Courts have always insisted that the parties must pursue the remedies according to law and if an appeal is peirmissible against an order of one subordinate court to another (superior) court subordinate to the High Court, the party concerned must invoke; the jurisdiction of the appellate forum. The fact that the High; Court will exercise its jurisdiction under Article 226 in cases where the want of jurisdiction is clear but the appellate remedy had become barred is not the same as merely substituting a jurisdiction under Article 227 for the ordinary right of appeal which is available to the suitor. I respectfully concur with the view of V. S. Deshpande J. in Deota v. Phagu" which has been relied upon by the learned counsel for the petitioners. That was a case where Deshpande J. pointed out that superintendence and control can be exercised to keep a tribunal within its jurisdiction even though the appeal to the learned District Judge which was permitted was barred by time ; such a period of limitation fixed for preferring of an appeal did not apply to on application under Article 227 of the Constitution. This is not a case where an order passed by the learned Subordinate Judge is said to be one without jurisdiction. All that is attacked is the correctness and illegality of the order, which itself is open to debale.

(3.) I, therefore, hold that the petitioners are not entitled to the present remedy under Article 227 of the Constitution. The application is dismissed and the order of interim stay is revoked. In the circumstances I make no order as to costs of this application.