JUDGMENT
M.S. Ratnaparkhi, J.
1. The petitioners who were the defendants before the Civil Judge, (Junior Division), Jalna, in Regular Civil Suit No. 358 of 1982 are invoking the extra-ordinary jurisdiction of this Court under Article 227 of the Constitution of India as they feel aggrieved due to the failure on the part of the trial Court to frame an issue about the jurisdiction of the trial Court.
2. The facts giving rise to this litigation may be briefly stated as follows:-
The respondent was the landlord of the tenements which admittedly were let out to the present petitioners Nos. 1 and 2 (Original defendants Nos. 1 and 2). It is the case of respondent that though the petitioners Nos. 1 and 2 were his tenants, their tenancy was validly terminated by the quit notice, as a result of which their possession over the tenements assumed the characteristic of the trespassers. They, therefore, claimed Rs. 4,500/- by way of mesne profits. Petitioner No. 3 has been joined on the ground that he has been illegally inducted in the suit tenements subsequently.
3. Apart from other defences raised (with which we are not concerned for the present) it was the contention of the present petitioners that the suit was one between the landlord and the tenants and as such, there could be no question of defendants being trespassers and plaintiff acquiring a right to claim any damages for occupation from them. It was their contention that the point involved in the suit was regarding the tenancy and hence, it was exclusively the Court of Rent Controller which had the jurisdiction to entertain and decide the controversy. It was also alleged that the Civil Court had no jurisdiction and the suit as framed was not maintainable.
4. It appears that the learned Judge framed three issues of the general nature. The first issue was whether the possession of defendant No. 1 over the suit tenement was unlawful, the second issue was whether plaintiff was entitled to claim damages for use and occupation of the suit tenements and the third issue was of general nature, as to what decree should follow. It appears that the defendants filed an application requesting the Court to frame the issue regarding the maintainability and to try it as preliminary issue. For the reasons best known, this application came to be rejected by the trial Court long back. But that order was never challenged before the appropriate forum.
5. Subsequently on 6-9-85 the defendants again filed another application requesting the Court to frame an additional issue. Though in the body of application the defendants have put their grievance regarding the non-framing of issue of maintainability, still in the prayer clause of this application what the defendants sought from the trial Court is quite interesting. The prayer was that an issue whether the claim for Rs. 250/- per month by the plaintiff towards damage is maintainable under law was only there. The issue about maintainability did not find a particular mention in the prayer clause. Though the defendants prayed to frame an issue as to whether the claim for Rs. 250/- per month towards damage is maintainable according to law, similar issue has already been framed by the trial Court and it is at Issue No. 1. The wordings may differ but the gist remains the same.
6. The application has been rejected by the trial Court on 6-9-85. The trial Court held that similar application was already rejected by his predecessor. The trial Court also observed that the insistence of framing additional issue as to whether the claim for damages at Rs. 250/- per month is maintainable is bound to be decided after the parties lead the evidence. Though the expression has not been specific and vocal, it can be said with some rational basis that the issue has already been framed as issue No. 1 which the Court was bound to decide.
7. Failure on the part of the Court to frame additional issue has been challenged before this Court. It is clear that what has been agitated in this petition is that the procedural defect or infirmity which, according to the learned Counsel for the petitioners, is very fundamental as far as the decision of the case is concerned. It is, no doubt, true that framing of issues is a very important stage, of all the interlocutory stage till the decision of the suit. Order 14 of the Civil Procedure Code makes exhaustive provisions on the subject. All these provisions taken together show that attempts have been made to make the procedural law as complete and effective as possible so that the real controversy can be decided with least difficulties.
8. The learned Counsel for the respondent urged before me that the procedural defect or infirmity cannot be a ground for interference while exercising the extra-ordinary jurisdiction. What was urged before me is that the Civil Procedural Code itself makes exhaustive provisions for different remedies before different forum. Though Mr. Bora, learned Counsel for the respondent, agreed that the stage of framing of the issues is very material while disposing of the suit, what he had to say was that failure to frame issues would not in itself invite the exercise of extra-ordinary jurisdiction contemplated under Article 227 of the Constitution of India. His simple argument was that the trial Court was to investigate the claim of plaintiffs and to find out whether a decree could be passed or not. The process of investigation has started and it is yet incomplete, inasmuch as, so far the Court has not been able to decide the real controversy. It was the grievance of Mr. Bora that at different stages, the defendants have come before the Court with different applications for adjournment of some ground or the other and according to him, the present application, though under the garb of failure to frame the issue, has come to be presented before the Court when the plaintiff has already entered into the witness-box and his cross-examination was complete. The suit is instituted in 1982 and still it is undecided. Apart from entering into the merits of the contentions of Mr. Bora as far as this particular aspect is concerned. The point urged by him requires some considerations at this stage. A controversy is going on before the Civil Court and exhaustive law, substantive as well as procedural, has been there to govern the litigation. Exhaustive remedies have been created in different forms on different topics. In the present case also when the trial Court failed or refused to frame an issue the remedy of revision under section 115 of the Civil Procedure Code was available to the defendants. But instead of exhausting that remedy, the defendants has invoked the extra-ordinary jurisdiction of this Court. The learned Counsel for the respondent has invited my attention to some observations of the Supreme Court in Mohd. Yunus v. Mohd. Mustaqim and others, wherein the order passed by the Executing Court was taken up before the High Court under its extraordinary jurisdiction under Article 227 of the Constitution and the Supreme Court observed :
“The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited” to seeing that an inferior Court or Tribunal functions within the limits of its authority, “and not to correct an error apparent on the face of the record, much less, an error of law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will now 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.”
This should be the guiding principle before the High Court which is called upon to exercise its extra-ordinary jurisdiction. It is not the grievance of the petitioner that their contention has been negatived by the trial Court. Their mere contention is that when they called upon the trial Court to frame an additional issue, that issue was not framed. Thus, even taking the case of defendants at it’s face value, what has been impeached before this Court is the procedural error committed by the trial Court in not framing the issue. The real question for decision at this stage is whether this Court acting within the scope of its extraordinary jurisdiction under Article 227 can be the forum to agitate this. It is not disputed that this order was revisable under section 115 of the Civil Procedure Code. This remedy has not been perused by the defendants for reasons best known to them. While exercising the revisional jurisdiction the courts has the powers to examine not only the jurisdictional error but also whether there was jurisdictional illegality or material irregularity. These points could be better dealt with by the Court having revisional jurisdiction.
9. This Court while sitting within the scope of Article 227 of the Constitution is neither the Appellate Court nor the Revisional Court. Its jurisdiction is simply supervisory. It can only see and scrutinize whether the subordinate courts have acted within their limits. But it could not have a whipping hand whenever any procedural error is apparent even on the face of the record. What ultimately has to be seen is whether the matter has been decided by the competent Court properly. In the present case, the Court has yet come to that stage. The stage which is agitated before this Court is only an interim stage where the matter has not been finally decided. In these circumstances it would not be possible for this Court to interfere with interim order passed by the trial Court.
10. It was urged by Mr. Deshpande that this Court has vast powers as compared with the appellate or revisional powers. Though we need not necessarily comment on the proposition and propriety thereof, it is well-known principle so far that whenever any alternate remedy is prescribed by law and when that remedy is not followed, the Court acting under Article 227 of the Constitution would be very slow to interfere with such orders. Another accepted principle is that this Court while exercising the powers under Article 227 should not necessarily be concerned with the interim orders or interim steps that have been taken by the trial Court unless it results in injustice.
11. In these circumstances, I think that the order passed by the trial Court in refusing to frame the issue cannot be interfered with by this Court in its extra-ordinary jurisdiction. The petition deserves to be dismissed. Rule is discharged. The petitioners shall bear the costs of the respondent in addition to their own.