RUGMANI Vs. ADDL SUB JUDGE

JUDGEMENT

(1.) The important question to be considered in this Original Petition is that whether an order passed by a civil court on a petition to set aside a commissioner's report filed under O.20 R.18 is revisable under S.115 of the Code of Civil Procedure or the only remedy available is under Art.227 of the Constitution of India. A Division Bench of this Court in Kanaran Nair v. Madhavan Nair ( 1996 (1) KLT 162 ) held that report of the Commissioner is not binding as such on the Court and it is only apiece of evidence. Therefore, it is not a final order and parties are free to adduce further evidence in the suit and it is not revisable under S.115 of the Code of Civil Procedure. In A. Narayani v. Kittan ( 1996 (2) KLJ 489 ) it was held that against such orders an original petition under Art.227 of the Constitution also will not lie unless it is passed without jurisdiction and caused miscarriage of justice. In this case, petitioners want to set aside Ext. P6 order of the Sub-Court, Palghat in IA No. 1095 of 1996 dismissing an application for remitting commissioner's report. It is contended that in view of the Division Bench decision in Kanaran Nair's case when revision petitions are filed registry is not allowing to number the revision petitions and hence this original petition. (No revision petition was filed in this case.)

(2.) As far as the facts of this case are concerned, second respondent filed OS No. 518 of 1981 for partition of the property. Petitioners were impleaded as legal representatives of the first defendant. The suit was dismissed. Three appeals were filed as AS Nos. 519, 535, 540 of 1983. The decretal portion of the judgment reads as follows:

(3.) The first question to be considered is whether Ext. P6 order can be challenged under Art.227 of the Constitution of India. It is clear from the decision of the Supreme Court reported in Bhutnath Chatterjee v. State of West Bengal and others ( 1969 (3) SCC 675 ) that jurisdiction of the High Court is limited and it is not intended to transgress the limits of jurisdiction by subordinate court or tribunal. The High Court's power under Art.226 and 227 of the Constitution is restricted to interfere only in cases of grave dereliction of duty and violation of law and will be exercised sparingly. It cannot be used as appellate or revisional power. It is true that under Art.227, the general superintendence, which the High Court has over all Courts and Tribunals, is a duty to keep them within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But as held by the Supreme Court in Waryam Singh v. Amarnath ( AIR 1954 SC 215 ) the power under the article is an extraordinary one and intended to be used only in exceptional cases and not as a substitute for ordinary revisional or appellate powers. The power is not to be exercised for the purpose of getting round provisions of law which may preclude an appeal or revision unless there is a very strong case for interference by the High Court. The High Court is not entitled under this Article to go into the merits of the dispute before the inferior Court in the absence of grounds such as want of jurisdiction, grave irregularity of procedure to the prejudice of one of the parties and so on. It was held in the decision in A. Narayani v. Kittan (1996 (2) KLJ 489) that the High Court cannot on the guise of exercising its jurisdiction under Art.227 convert itself into a court of appeal and made the decision of the subordinate court or tribunal final on facts. High Court also cannot while exercising jurisdiction under Art.227 interfere with the findings of fact recorded by the subordinate court or tribunal. Its function is limited to see that the subordinate court or tribunal functions within the limits of its authority. High Court may refuse to interfere under Art.227 unless there is grave miscarriage of justice. A mete wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Art.227. In exercising the jurisdiction under Art.227 High Court does not act as an appellate court or tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision.