VIDYA RAM AND ORS Vs. MUNSIF AND ORS

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution of India and arises under the following circumstances. The Plaintiff Har Govind brought a suit for a declaration that he was the owner and the bhumidhar of certain agricultural plots; that the Defendants had no right, title or interest therein. He claimed a permanent injunction restraining the Defendants firm interfering with his possession of the disputed plots and in the alternative he claimed possession over these plots. The applicants pleaded that they were the asamis of the disputed 1and and that they had obtained lease of these plots from the Defendant No. 6 who on account of his physical infirmity was incapable of cultivating them. The trial court framed several issues in the case. The two relevant issues which are issues No. 4 and 5 are as follows. Issue No. 4: Whether Defendants Nos. 2 and 5 are the asamis of the land in suit. Issue No. 5: Whether the Defendant No. 6 was physically incapable to cultivate as alleged and was entitled to execute the alleged lease After the issues were framed an application was made on behalf of the applicants to remit the issues Nos. 4 and 5 to the Revenue Court for a finding in view of the provisions contained in Section 338B of the Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of 1951) The trial court did not agree to refer the issue No. 5 to the Revenue Court for a decision and preferred to decide itself. It. therefore, passed an order that the issue No. 5 would be decided by itself and if after the decision of issue No. a it was necessary to refer the issue No. 4 to the Revenue Court for a finding it would be done. It is against this order that the present application has been made before me. The relief which has been claimed by the applicants is that the aforesaid order of the learned Munsif dated 22-10-1955 might be modified or set aside and the learned Munsif be directed to refer both the aforesaid issues to the Revenue Court for decision. The application has been opposed on behalf of the Plaintiff.

(2.) The only question which arises for consideration is whether the application under Article 227 of the Constitution is maintainable in the circumstances of the present case. It is conceded on behalf of the applicants that the order of the learned Munsif does not amount to a case decided and therefore no revision lies against an order Under Section 115 Code of Civil Procedure. In my opinion Article 227 does not appear to abrogate the ordinary law. Where a remedy is provided under the ordinary law to a party he cannot invoke the provisions of Article 227 of the Constitution to set right a certain mistake which has been committed by a court. In my opinion this Article is applicable only to those cases where the ordinary law does not provide remedy to a party and if the order of a court is allowed to stand it is likely to cause grave injustice to the party against whom such an order has been made. There can be no doubt that in the present case it will be open to the applicants to challenge the decision of the learned Munsif in case it goes against them on any of the grounds open to them. If the learned Munsif wrongly assumes jurisdiction and decides the question of the tenancy rights himself it will be open to the applicants in appeal from the decree of the learned Munsif to agitate that question and to contend there that the learned Munsif had no right to decide the question of tenancy rights and, therefore, his finding on that issue was vitiated. It was held by a Bench of this Court in L. Har Saran Das and Ors. v. Mukandi Lal and Ors., 1951 AIR(All) 514 that the power given under Articles 226 and 227 of the Constitution should be restricted to interference in cases of grave dereliction of duty for which no other remedy is available and which would have serious consequences if not remedied. No such grave consequence would follow if a suit is tried at a particular place and not at some other place and even if such a consequence does follow, the court of appeal has right to correct the error Under Section 21, Code of Civil Procedure and as such, no interference is necessary under Articles 226 or 227.

(3.) In Narendra Nath Sashmal v. Binoda Behari Dey and Ors., 1951 AIR(Cal) 138 it was held by a Bench of the Calcutta High Court that Article 227 of the Constitution was meant to be applicable only in those cases where there was no other way of securing justice and where the order, if allowed to stand, would cause great hardship and injustice to the party against whom it had been made. It was also held in this case that this Article was to be applied rarely in correcting the mistakes of the lower courts where such mistakes could be corrected either in appeal or in revision.