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A. Kesavan vs Madurai-Kamaraj University, … on 27 July, 1999

Madras High Court
A. Kesavan vs Madurai-Kamaraj University, … on 27 July, 1999
Equivalent citations: 1999 (3) CTC 151
Bench: P Shanmugam


ORDER

1. Petitioner was plaintiff in O.S.No. 1233 of 1993 on the file of the Sub-court, Madurai. The suit was for a direction to the University to pay a sum of Rs. 1,51,500 with interest at 12% p.a. by way of compensation and damages. As many as five issues were framed by the Sub-court. They are:

(1) Because of the postponement of examination from April to October, 1985 and consequent delayed publication of results, whether the plaintiff has suffered damages?

(2) Whether there was any irregularity in the correction of answer papers?

(3) Whether there was delay in publication of result and the plaintiff was put to mental suffering?

(4) Did the plain tiff suffer damages consequent to the delay and irregularities?

(5) The quantum of compensation payable. After contested trial, where as many as 21 documents were filed on the side of the plaintiff, the suit was dismissed.

2. Without resorting to file an appeal as provided under Section 96 read with Order 41, C.P.C., petitioner has chosen to file this revision under Article 227 of the Constitution of India, praying for an order to set aside the judgment and decree.

3. The Registry has raised an objection on its maintainability on the ground that O.S.No.1233 of 1993 was filed under Order 7, Rule 1, C.P.C. praying to recover money of Rs. 1,51,500 together with 12% interest and therefore, there is a doubt regarding the maintainability and hence the matter is posted for maintainability.

4. Learned counsel for the petitioner made two submissions, namely:

(1) The learned Subordinate Judge has not applied the legal provisions, and therefore, there is an error apparent on the face of the order.

(2) The lower Court has failed to refer to the various decisions cited by the petitioner, which was given in the form of list of authorities.

5. In support of his contention, learned counsel referred to the decision in Annapoorni v. Janaki, 1995 (1) L.W. 141, wherein this Court in a revision under Section 115 against an order passed in E.P., set aside the decree passed in a suit. Justice Srinivasan (as he then was) held that if on the facts of the case there is miscarriage of justice, it should be rectified the moment it comes to the notice of the court. It is only for that reason the power under Section 115 of C.P.C. and Article 227 of the Constitution was invoked. Learned Judge further went on to say that when this Court finds that a decree suffers from an error of law apparent on the face of the record owing to non -application of mind by the court, to the relevant principles of law, this court cannot keep silent and allow the decree to be in force, particularly when it cause grave injustice. There can be no doubt whatever that under the Hindu Succession Act, certain persons are designated as Class I heirs and all of them are entitled to succeed to the estate of a deceased Hindu, There is no earthly reason for depriving the mother of the deceased, of her legitimate share in the estate which in this case happens to be a moiety. Therefore, in the facts of the case where there was a total non application of law namely Hindu Succession Act, the court came to the conclusion that the only decree which could have been legally passed by the court is to declare the one half share since the mother was a Class-I heir. The learned Judge also held as follows:

“No doubt mere errors of law cannot be corrected under Section 115 of the C.P.C. unless they relate to the jurisdiction of the court. But when the errors are apparent on record, in utter disregard of a substantive provision of law, and there is flagrant violation of justice, this court is entitled to interfere and bound to interfere under Section 115. C.P.C.

When I requested the counsel to point out which is the substantive provision of law that has been disregarded, the counsel was not in a position to point out any substantive provision of law except stating that the University is bound to carry out its statutory duty of conducting the examination within the time schedule and if it has not done its duty, consequently petitioner is entitled to compensation. I am unable to countenance such an argument. Assuming for the sake of argument that the University is statutorily bound to conduct examination on a particular day as per the schedule of timing, the petitioner has to make out a case of damages and compensation for the resultant delay. That is a matter for evidence. Therefore, the parameters laid down by Justice Srinivasan (as he then was) are totally lacking in this case.

6. The next case referred to by the learned counsel for the petitioner in Kattabettu Industrial Co-operative Tea Factory v. Radhakrishnan, 1999 (1) M.L.J. 262. It was a case of revision under Article 227 of the Constitution against the order of the Co-operative Tribunal under the Tamil Nadu Co-operative Societies Act. As against the order of the Tribunals, the remedy lies only by way of revision. Therefore, this judgment will not apply to the facts of this case.

7. The third reference cited by the learned counsel for the petitioner is Janakiraman v. Umadevi, 1999 (1) M.L.J. 276 wherein a learned Judge of this court has taken the view that it is well settled that a certiorari will lie provided requisite grounds exist, although a right of appeal has been conferred by the statute. When injustice is patent and there is miscarriage of justice, technical objections cannot be considered at all. The revision arose out of an order upholding the obstruction making the decree inexecutable. The learned Judge held that an appeal is available under Order 27, Rule 97 of C.P.C. The learned judge found that the order of eviction was obtained after nine years. Asking the petitioner to prefer a statutory appeal will amount to doing another injustice that where there is a grave dereliction of duty and where there is flagrant abuse of process, and violation of principles of natural justice, the power under Article 227 can be exercised. Here again, I find the judgment will not be of assistance to the petitioner. This is not a case where at the execution stage the decree is made inexecutable and that there is a miscarriage of justice and where there is a grave dereliction of duty by abuse of process of court. On the contracy, there are a series of pronouncements by the Supreme Court as well as other High Courts on the applicability of Article 226 when there is an appeal remedy. Managing Director, Nadippisai Pulavar K.R. Ramasamy sugar mills v. Farred Banoo, is a case where it was held that no appeal lies against the order of State Consumer Forum and hence,

revision under Article 227 was maintained. In Manek Custodji v. Sarfaz Ali, , the Supreme Court held that when the respondent had clearly a legal remedy available to him by way of an appeal against the decree of a city civil court and that remedy was not only adequate, but was more comprehensive than the one under Article 227 of the Constitution. It is true that despite the existence of an alternative remedy, the High Court may interfere in favour of an application under Article 227 of the Constitution, but can be only in extraordinary cases. It is not proper for the High Court to entertain an application under Article 227 against the decree passed by a Subordinate court when the procedure under laws allows an appeal against it. The jurisdiction under Article 227 of the Constitution is an extraordinary jurisdiction, which is to be exercised sparingly and in appropriate cases, and it is not to be exercised as if it were as appellate jurisdiction or as if it gave unfettered and unrestricted power to the High Court to do whatever it liked.

8. In Sathyanarayanan v. Mallikarjun, , while explaining the phrase “error apparent on the face of the record” the Supreme Court held as follows:-

An error which is to be established by a long drawn process of reasoning on points where there may be conceivably two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self evidence and which can be established, it has to be established by length and complicated argument. Such an error cannot be cured by the writ of certiorari according to the rules governing the powers of certiorari.”

In the same judgment, it was held that the High Court cannot assume appellate powers to correct every mistake of law. In the case on hand, it cannot be stated that the learned Sub Judge has no jurisdiction nor it can be alleged that he has assumed excessive jurisdiction on refused to exercise jurisdiction. There is nothing that has been pointed out to state that there is an error apparent on the face of the record. Learned counsel was submitting that the Sub Judge failed to apply the substantive law as to the conduct of examination. The question whether examinations ought to have been conducted on a particular day and whether there are reasons for the postponement of examination and whether the answer papers were correctly valued and whether are any damages incurred by the plaintiff because of the violation of the alleged statutory rules are matters of evidence and long drawn process of reasoning. Therefore, this is not a case where this court cannot, under Article 227 of the Constitution, decide that there is an error apparent on the face of the record.

9. In Bhutnath Chatterjee v. State of West Bengal and others, , the Supreme Court held that the jurisdiction of the High Court under Article 227 of the Constitution is limited to transgression of limits of jurisdiction for subordinate courts and not appellate courts to correct merely an error of law and fact. It was further held that the High Court cannot entertain a petition under Article 227 of the Constitution against the order of a District Judge and determine an important issue of fact on which the case of the appellant largely depended on a presumption. Again, against the award of

compensation by the District Judge, an appeal lies to the High Court and in that appeal, the question would fully be considered and all aspects on evidence on record. This is not a case where the jurisdiction of High Court under Article 227 of the Constitution can be exercised.

10. Applying the above said principles, it has to be held in the facts of this case that the High Court cannot, under Article 227, decide the question as if it is an appellate court.

11. The next point raised by the learned counsel for the petitioner is that he has filed applications dated 3.12.1997 and 15.6.1998 for the production of certain documents as set out in those applications under Order 12, Rule 8 of C.P.C. According to the learned counsel, the learned Judge ought to have drawn adverse inference for the non production of documents which were directed to be produced. Assuming for the same of argument that notices were properly served and no counter was filed and no adverse inference in reference to those documents was drawn, are all matters that can be raised before the appellate court and the failure to infer in favour of the petitioner cannot be a ground for interference under Article 227 of the Constitution when the petitioner has got an effective remedy of an appeal under the C.P.C.

12. The prayer of the petitioner in this C.R.P. is as follows:

“The petitioner prayed that the judgment and decree of the court below dated 21.1.1999 made in O.S.No. 1233 of 1993 be set aside and allow this
revision with costs.”

By setting aside the judgment and decree which has dismissed the claim of the petitioner, the petitioner cannot get any remedy. In other words, petitioner seeks for a remanding of the matter for fresh consideration. As such, the prayer cannot be granted, since the petitioner has got an appeal remedy under Section 96 of C.P.C.

13. For all these reasons, no grounds are made out to grant the relief sought for in this revisions. Hence, this C.R.P.S.R. is dismissed as not maintainable.

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