POOKKOYA THANGAL Vs. VALSAN

JUDGEMENT

(1.) An interesting question of law of general importance has arisen in this original petition filed under Art.227 of the Constitution. Petitioner is the plaintiff in O.S. 60 of 1990 on the file of the 4th respondent Subordinate Judge (Additional), Vadakara. That is a suit for compensation filed as an indigent person on account of the tortures alleged to have been suffered at the hands of a Sub Inspector of Police. Petitioner's application to examine the Doctor who treated him was allowed by the 4th respondent. In spite of repeated process the presence of the Doctor could not be procured. Ultimately the request of the petitioner to examine the Doctor was turned down and the case was posted for arguments after closing evidence. Copy of the order was not given to him. He therefore filed this petition praying that as writ of mandamus or any other appropriate writer order or direction may be issued commanding the 4th respondent Subordinate Judge to summon the Doctor as a witness and give him sufficient opportunity to examine him and stay the proceedings till then. Thus even though the petition is purported to have been filed under Art.227, it is in effect one under Art.226. Probably the petitioner did so because he was aware of the fact that the Subordinate Judge was well within his bounds and if at all what is involved is only an error in the exercise of jurisdiction.

(2.) I am not at the question whether the impugned order is appealable or revisable. Code of Civil Procedure is a self contained code providing for all the necessary remedies in a civil litigation. Even if an order is not appealable or revisable, as S.105 of the Code indicates, when a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal: The appellate judge could rectify that error, defect or irregularity and make appropriate provision. I said so, inspite of the provision contained in S.115 of the Code I feel that the tendency in pursuit of new avenues for remedies in relation to a civil litigation under Art.226 or 227 of the Constitution may prove dangerous to the smooth functioning of the civil courts. It will lead us to very disastrous results. In saying so, I am not forgetful of what the Supreme Court said in Nataraja Chettair v. Sulekha Amma ( 1987 (1) KLT 829 ) in view of the Decision in Aundal Amma's case that a petition under Art.227 of the Constitution could be had against a revisional decision of the District Judge in an appropriate case in a rent control proceedings. That is against the final decision against which there is no other statutory remedy. It is an indisputed proposition of law that in situations like this, where there are other efficacious remedies available under the Statute, resort to Art.226 of 227 cannot be had. If each and every interlocutory order of a civil court is made the subject matter of review under Art.226 or 227 of the Constitution that will be against the mandate of the Code of Civil Procedure as well as Art.226 of the Constitution and the functioning of the civil courts will be in jeopardy. Litigants will have to bear this in mind when the jurisdiction of the High Court is invoked.

(3.) The power of superintendence conferred by Art.227 is to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and" not for correcting mere errors even though interference may be justified in exceptional cases in order to do justice when it is found that the Subordinate Courts or Tribunals arrived at perverse conclusions by misguiding themselves on questions of facts or law resulting in failure of justice. But it has to be remembered, as held in Waryam Singh v. Amarnath ( AIR 1954 SC 215 ) followed in Nalla Koya v. Admr. Lacadives ( 1967 KLT 395 ), that as pointed out in Dalmial Jain Airways v. Sukumar Mukherjee ( AIR 1951 Cal. 193 ), the power of superintendence under Art.227 with orders of judicial or quasi judicial nature are not greater than the powers under Art.226 of the Constitution. Under Art.226, the power of interference may extend to quashing an impugned order on the ground of mistake apparent on the face of the record. But under Art.227 of the Constitution, the power of interference is limited to see that the Tribunal functions within the limit of authority. Hence, interference by the High Court in these cases either under Art.226 or 227 of the Constitution is not justified. In Rajkamal Kalamandir v. I.M.P.E.Union (1965 S.C.W.R. 233), the conclusion was that under Art.227 only jurisdictional errors and not mere errors of law can be corrected. For the purpose of this case, it is not necessary to take note of any change of law by subsequent decisions as to what further extent this Court can go under Art.227.