JUDGMENT
Sunil Kumar Garg, J.
1. This writ petition under Articles 226 and 227 of the Constitution of India has been filed by the petitioners-defendants on 6.12.2003 against the respondents with the prayer that by an appropriate writ, order or direction, the impugned order dated 16.10.2003 (Annex.5) passed by the learned District Judge, Bikaner in Civil Appeal (Decree) No. 33/2002 by which the appeal of the petitioners-defendants was dismissed as being time barred, be quashed and set aside and the appeal of the petitioner-defendants be allowed and the judgment and decree dated 3.10.2001 (Annex. 1) passed by the learned Civil Judge, Bikaner in original civil suit No. 684/93 by which the suit of the respondent No. 1-plaintiff for possession of the disputed property was decreed, be quashed and set aside.
(2). The case of the petitioners-defendants as put forward by them in this writ petition is as follows:-
The respondent No. 1-plaintiff Ram Gopal Singh filed a suit for recovery of possession and means profit against one Bhanwar Singh (hereinafter referred to as deceased), who was husband of the present petitioner-defendant No. 1 and father of the present petitioner-defendant No. 2 on 6.5.1988 in the Court of District Judge, Bikaner and thereafter, it was transferred to the Court of Civil Judge, Bikaner where it was received on 16.5.1993 and registered as Civil Original Suit No. 684/93.
During the pendency of that suit, the deceased died and the present petitioners-defendants were taken on record as LRs of the deceased.
The said suit was contested by the petitioners-defendants by filing written statement and evidence was led by both the parties and thereafter, after hearing both the parties, the learned Civil Judge, Bikaner through judgment and decree dated 3.10.2001 (Annex. 1) decreed the suit of the respondent No. 1-plaintiff for possession and the present petitioners-defendants were directed to hand over the possession of the disputed property to the respondent No. 1 plaintiff.
The further case of the petitioner-defendants is that aggrieved from the said judgment and decree dated 3.10.2001 (Annex.1) passed by the learned Civil Judge, Bikaner, they preferred first appeal under Section 96 and Order 41 Rule 1 CPC before the learned District Judge, Bikaner through Annex.2 and in that first appeal, an application under Section 5 of the Limitation Act for condonation of delay was also filed through Annex.3. The plaintiff-respondent No. 1 also filed a reply (Annex.4) to the application under Section 5 of the Limitation Act.
Thereafter, after hearing both the parties, the learned District Judge, Bikaner through impugned order dated 16.10.2003 (Annex.5) rejected the application of the present petitioners-defendants filed under Section 5 of the Limitation Act and thus, the first appeal of the present petitioners-defendants was treated as time barred.
The further case of the petitioner-defendants is that the impugned order Annex.5 dated 16.10.2003 rejecting the application of the petitioners-defendants filed under Section 5 of the Limitation Act is wholly perverse, illegal and unjustified and thus, it was prayed that it should be quashed and set aside and the first appeal of the petitioners-defendants be allowed and consequently, the judgment and decree dated 3.10.2001 (Annex.1) passed by the learned Civil Judge, Bikaner be quashed and set aside.
On behalf of the plaintiff respondent No. 1 and for respondent No. 2, Mr. B.K. Vyas has given his appearance and during the course of arguments, he has submitted that against the impugned order dated 16.10.2003 (Annex.5) passed by the learned District Judge, Bikaner, the present petitioners-defendants preferred second appeal before this Court being S.B. Civil Second Appeal No. 282/2003 and in that second appeal, an objection was taken by the learned counsel appearing for the plaintiff-respondent No. 1 that the said second appeal was not maintainable and that objection prevailed and on the request of the learned counsel for the petitioners-defendants, that second appeal was converted into civil revision through order dated 18.11.2003 passed by this Court and that revision was registered as S.B. Civil Revision No. 1318/2003.
It was further submitted by the learned counsel for the respondents No. 1 and 2 that after conversion of the second appeal into revision, the learned counsel for the petitioners- defendants withdrew that revision with liberty to avail appropriate remedy and thus, this Court through order dated 5.12.2003 dismissed that revision as withdrawn and when this being the position, the present writ petition is not maintainable at all as the remedy which was available to the present petitioners-defendants had already been exhausted by them.
(3). I have heard the learned counsel appearing for the petitioners-defendants and the learned counsel appearing for the respondents No. 1 and 2 and gone through the materials available on record.
(4). There is no dispute on the point that through judgment and decree dated 3.10.2001 (Annex.1) passed by the learned Civil Judge, Bikaner, the suit for possession filed by the plaintiff respondent No. 1 against the petitioners-defendants was decreed and the present petitioners-defendants were directed to hand over the possession of the disputed property to the plaintiff respondent No. 1.
(5). There is also no dispute on the point that against the said judgment and
decree Annex.1 dated 3.10.2001, the present petitioners-defendants preferred first
appeal in the Court of District Judge, Bikaner and since it was time barred, an
application under Section 5 of the Limitation Act for condonation of delay was also
filed by the petitioners-defendants and that application under Section 5 of the Limitation Act was rejected by the learned District Judge, Bikaner through impugned order
dated 16.10.2003 (Annex.5) and consequently, the first appeal of the petitioners-defendants was dismissed as time barred.
(6). There is also no dispute on the point that the first appeal of the petitioners-defendants was not decided on merits and it was dismissed because it was found to be barred by time.
(7). There is also no dispute on the point that against the rejection of the application under Section 5 of the Limitation Act by the learned District Judge, Bikaner through impugned order Annex.5 dated 16.10.2003, the present petitioners-defendants preferred second appeal before this Court being S.B. Civil Second Appeal No. 282/2003 and when that second appeal was being heard, it was submitted by the plaintiff-respondent No. 1 that since the first appeal of the petitioners-defendants was dismissed as being time barred through impugned order Annex.5 dated 16.10.2003, that order cannot partake the character of a decree and therefore, a preliminary objection was raised on behalf of the plaintiff-respondent No. 1 that the said second appeal was not maintainable. It was contended that the impugned order does not satisfy the requirement of Section 2(2) of the CPC as the order has not conferred any statutory status affecting the right of the parties and therefore, it cannot be called a decree. Attention of the Court was invited to Sub-rule 3A of Rule 41 CPC which erects a positive bar to pass any order in appeal filed without first deciding the question of limitation. That objection was prevailed on the ground that the order dismissing an appeal as time barred does not amount to decree and when it does not amount to decree, the second appeal does not lie. For that, reliance can be placed on two decisions in Bal Krishan v. Tulsa Bai (1), and Mamuda Khateen v. Beniyan Bibi (2). This Court also took the similar view in Chhelaram v. Manak (3), and observed that the order which only decides the point of limitation does not amount to decree.
(8). There is also no dispute on the point that when this Court came to the conclusion that the second appeal was not maintainable, it was prayed by the learned counsel for the petitioners-defendants that the second appeal be converted into revision and at the request of the learned counsel for the petitioners-defendants, this Court vide order dated 18.11.2003 converted that second appeal into revision.
(9). There is also no dispute on the point that after conversion of the second appeal into revision, the learned counsel for the petitioners-defendants sought permission to withdraw that revision and thus, this Court through order dated 5.12.2003 dismissed that revision as withdrawn and it was not decided on merits.
(10). Thus, the question for consideration is whether in the facts and circumstances just narrated above, the present writ petition is maintainable or not or whether in the above facts and circumstances, the impugned order Annex.5 dated 16.10.2003 can be set aside by this Court invoking jurisdiction under Articles 226 and 227 of the Constitution of India or not.
(11). In my considered opinion, this writ petition is not maintainable and deserves to be dismissed on the following two grounds:-
(i) Availing of alternative remedy
Before proceeding further, what the word “remedy” means has to be seen.
The “remedy” means by which a right is enforced or the violation of a right is prevented, redressed or compensated. Remedies are of four kinds; (1) By act of the party injured, the principal of which are defense, recaption, distress, entry, abatement, and seizure; (2) by operation of law, as in the case of retainer and remitter; (3) by agreement between the parties, e.g., by accord and satisfaction and arbitration; and (4) by judicial remedy e.g., action or suit.
The “remedy” as a legal term means to recover a debt or enforce a right; a mode prescribed by law to enforce a duty or redress a wrong; that which gives relief to the party aggrieved; the means by which the obligation is effectuated; the means employed to enforce a right or redress an injury; the mode of procedure by which the liability of property to the satisfaction of a debt is enforced; the particular result to obtain which an action is brought; the action or means given by law for the recovery of a right and it is a maxim of Law that whenever the Law given any thing, it gives a remedy for the same.
Thus, the above definitions clearly make the position clear that a person can enforce his right through appropriate remedy.
In the present case, when the second appeal was not found maintainable, the appropriate remedy for the petitioners defendants was to file revision, which they had already availed by converting the second appeal into revision.
It may be stated here that under Article 226 of the Constitution of India, the High Court does not sit or act as an appellate authority over the actions of the subordinate authorities or tribunals and the jurisdiction is supervisory in nature and the High Court should not act as courts of appeal or revision to correct mere errors of law or of fact, because that jurisdiction is merely supervisory.
It may further be stated here that the remedy under Article 226 of the Constitution of India being, in general, discretionary, the High Court may refuse to grant it where there exists an alternative remedy equally efficient and adequate. Where an alternative and equally efficacious remedy is available to a litigant, he should pursue that remedy and may not invoke extraordinary writ jurisdiction of the High Court under Article 226 of the Constitution of India. If an aggrieved person has a right to file appeal or revision application, the High Court may refuse to entertain a petition under Article 226 of the Constitution of India.
Since in the present case, the petitioners defendants had already availed the alternative remedy by converting the second appeal into revision, therefore, the present writ petition could not be entertained on the same question. Merely because the revision was dismissed by this Court as being withdrawn, that would not confer any further right on the petitioners-defendants to seek further remedy under Article 226 of the Constitution of India.
So far as the argument that in view of the amendment made in Section 115 CPC by the Amendment Act, 1999, now revisions against the interlocutory orders are not permissible under Section 115 CPC and, therefore, taking this aspect into consideration, the present writ petition should be treated as maintainable is concerned in my considered opinion, it does not carry any weight because in the present case, application filed under Section 5 of the Limitation Act by the petitioners-defendants was rejected by the learned District Judge, Bikaner through impugned order Annex.5 dated 16.10.2003 in first appeal preferred by the petitioners-defendants and the application under Section 5 of the Limitation Act was not rejected during the pendency of the suit and therefore, in these circumstances, the amendment made in Section 115 CPC would not confer any benefit to the petitioners- defendants. The present case stands distinguished from an ordinary case where interlocutory orders are passed during the pendency of the suit.
It may be clarified here that revisional jurisdiction is to be exercised by the High Court in a case only where no appeal lies to it from the decision of the subordinate court and in the present case, since the second appeal was not maintainable, therefore revision was maintainable and the petitioners- defendants converted that second appeal into revision and what grievance they had against the impugned order Annex.5, they should have agitated before this Court under revisional jurisdiction and they failed to do so and now they could not be permitted to agitate and challenge the impugned order Annex.5 before this Court under Articles 226 and 227 of the Constitution of India.
Thus, this writ petition is not maintainable and deservers to be dismissed on the ground that the petitioners-defendants had already availed of the alternative remedy by converting the second appeal into revision.
(ii) Suppression of material facts
In the present writ petition, it is no where mentioned by the petitioners-defendants that after the rejection of the application under Section 5 of the Limitation Act by the learned District Judge, Bikaner through impugned order Annex.5 dated 16.10.2003, they preferred second appeal before this Court and thereafter, that second appeal was converted into revision and thereafter, that revision was withdrawn by the petitioners- defendants and thus, it was dismissed as withdrawn and suppressing all these facts, a simple prayer has been made by the petitioners-defendants that the impugned order Annex.5 dated 16.10.2003 be quashed and set aside as by that order, the application under Section 5 of the Limitation Act was wrongly decided by the learned District Judge, Bikaner.
The above facts that against the impugned order Annex.5 dated 16.10.2003, the present petitioners-defendants preferred second appeal before this Court and on the request of the learned counsel for the petitioners-defendants, that second appeal was converted into revision and thereafter, that revision was withdrawn by the learned counsel for the petitioners defendants and thus, it was dismissed as withdrawn have been brought to the notice of this Court by the learned counsel for the respondents No. 1 and 2 and he has also filed certified copies of the orders passed by this Court in the second appeal and revision preferred by the petitioners-defendants.
It may be stated here that it is a fundamental principle of law that a person invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India must come with clean hands and should make a full and candid disclosure of all material facts and refrain from deliberately keeping back material facts and circumstances from the Court even if they are against him.
It may further be stated here that if the applicant, who seeks an extraordinary remedy of a writ is found guilty of suppression of material facts and attempts to mislead the court thereby, his petition can be rejected on that ground alone without entering into the merits of the case.
In the present case, from the facts and circumstances just narrated above, it can easily be concluded that the petitioners- defendants are guilty of suppression of material facts. They have made a deliberate concealment of material facts, with a view to mislead the court. From this point of view also, the petitioners- defendants are not entitled to any relief under Articles 226 and 227 of the Constitution of India.
Thus, this writ petition also deserves to be dismissed on the ground of deliberate concealment or suppression of material facts by the petitioners-defendants.
(12). For the reasons stated above, it is held that this writ petition is not maintainable and liable to be dismissed on the above-mentioned two grounds (i) availing of the alternative remedy of revision and (ii) suppression of material facts by the petitioners-defendants.
(13). Apart from this, in view of the facts and circumstances just mentioned above, now this Court under Articles 226 and 227 of the Constitution of India would not go into the question of propriety and legality of the impugned order Annex.5 dated 16.10.2003 as that could have been done by this Court under revisional jurisdiction. Therefore, the authorities relied upon by the learned counsel for the petitioners-defendants in this respect are not helpful to them.
Accordingly, this writ petition filed by the petitioners- defendants is dismissed being not maintainable. No order as to costs.