ORIENTAL BANK OF COMMERCE Vs. LAJWANTI CHEMICALS

JUDGEMENT

(1.) Briefly, the facts are that the applicant instituted a suit for recovery of Rs.30,64,907-50 against the respondents in the Court of Subordinate Judge 1st Class, Faridabad which was decreed by him on 15-3-1985. It is alleged that the decretal amount was secured by mortgage of immoveable property, but while passing the decree the Court did not take notice of that fact and consequently did not pass a decree in terms of O.34 of the Civil P.C. but passed a simple decree for recovery of the decretal amount with interest. The applicant filed an appeal against the said decree in this Court on 8-7-1985. However, the office raised an objection that the appeal was maintainable in the Court of District Judge, Faridabad and not in this Court. The applicant consequently filed an application that the appeal be treated as petition under Art.227 of the Constitution, and in case it cannot be treated as such, the court-fee paid by the applicant on appeal be ordered to be refunded. It is further prayed that if either of the abovesaid reliefs cannot be given, the memorandum of appeal be returned for presentation to the Court having jurisdiction in the matter. As one of the prayers in the application was to the effect that the court-fee be refunded to the petitioner, I considered it proper to issue notice to the counsel for the Union Territory and Advocate General, Haryana

(2.) Mr. Bindra has argued that the suit has been decided in favour of the applicant, but through oversight the decree has not been passed by the trial Court in terms of O.34. The mistake is patent on the record and this Court can rectify such a mistake under Art.227. He further contends that in the said circumstances the appeal be treated as a petition under the said Article. In support of his contention he places reliance on Jodhey v. State, AIR 1952 All 788.

(3.) I have duly considered the argument but regret my inability to accept it Art.227 confers powers of superintendence on the High Court over all courts and tribunals which are situated within its jurisdiction. It is well settled that if alternative remedy is provided to a litigant this Court normally does not exercise jurisdiction under Art.227. It is not disputed that the right of appeal was available to the applicant. Consequently, it will not be feasible for this Court to treat the appeal as a petition under Art.227. In the above view, I get support from Jodhey's case supra) referred to by Mr. Bindra. It is, inter alia, observed therein that the High Court can be moved to act under this Article when there has been a flagrant abuse of the elementary principles of justice or a manifest error of law patent on the face of the record or an outrageous miscarriage of justice. But the High Court will not be justified in converting itself into a Court of appeal and subverting findings of fact by a minute scrutiny of evidence or interfering with the discretionary orders of Court. It is further held that this power should not be exercised if there is some other remedy open to the party. Consequently, this contention of the learned counsel cannot be accepted.