BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23/07/2010
CORAM
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
C.R.P.(PD)(MD)No.1620 of 2009
and
M.P.(MD)No.1 of 2009
1.Rev.R.V.S.S.Vethanayagam
2.Rev.M.G.Manickam
3.Rev.Peter Devadoss,
4.Rev.Samuel
5.Rev.Stephen Lionel
6.Rt.Rev.Jayapaul David
... Petitioners/D3,6,8,10,12 & 1
vs
1.A.D.J.C.Manohar
2.Dharmaselan
3.Jayam Ponniah
4.Rev.D.Ebenezer
5.REv.A.H.L.Billy
6.Rev.Packiyanathan
7.Rev.Vedatanagam
8.Rev.Appadurai Gnanaraj
... Respondents/D2,4,5,7,9 & 11
Prayer
Civil Revision Petitions filed under Article 227 of Constitution
of India, to strike off the plaint in O.S.No.650 of 2007, on the file of the
Principal District Munsif Court, Tirunelveli.
!For Petitioners ... Mr.S.Meenakshi Sundaram
^For 1st Respondent ... Mr.M.Vallinanagam
:ORDER
Heard both sides
2.The defendants 1,3,6,8,10,12 in O.S.No.650 of 2007, on the file of the
Principal District Munsif, Tirunelveli, are the revision petitioners herein.
3.This civil revision is filed under Article 227 of Constitution of India,
to strike off the plaint in O.S.650 of 2007. O.S.No.650 of 2007 was filed by
the respondents 1 and 2 in the representative capacity, representing for the
Tirunelveli Diocese for declaring that the election alleged to have been held to
the 6th Church Councils of the Diocese of Tirunelveli on 04.12.2007 is null and
void and not binding upon the members of the Tirunelveli Diocese and for
consequential permanent injunction.
4.The learned Counsel appearing for the revision petitioners,
Mr.S.Meenakshi Sundaram contended that the suit is a abuse of process of law as
the 2nd plaintiff along with 57 persons filed a suit in O.S.No.2898 of 2008, on
the file of the 2nd Assistant City Civil Court, Chennai, against the Church of
South India, represented by its moderator and the Diocese of Tirunelveli(CSI),
represented by its Bishop, for declaration that the plaintiffs in that suit have
been duly elected as office bearers of the Church Council and Diocesan Council
of the 2nd defendant Diocese, in their respective posts as detailed in the
annexure below and for consequential permanent injunction restraining the 2nd
defendant in that suit from interfering in any way the plaintiffs discharging
their duties and performing their duties.
5.It is submitted by the learned counsel appearing for the revision
petitioners that the in suit filed before the 2nd Assistant Civil Civil Court,
Chennai, in O.S.No.2898 of 2008, the plaintiffs contended that on the third
phase of the election conducted on 04.12.2007. Mr.A.D.J.C.Thinakar, won in the
election and also was declared as such on 04.12.2007 and thereafter, the fourth
and final phase of election was held on 21.12.2007 for the post of Lay
Secretary, Vice Chairman and Clergy Secretary and the results were published and
office bearers are discharging their functions. In that suit O.S.No.2898 of
2008, the 2nd plaintiff in O.S.No.650 of 2007 was the 55th plaintiff and he has
taken the stand that election was validly held on 04.12.2007 and thereafter, the
fourth and final phase of election were held on 21.12.2007 and the office
bearers were elected and having taken such plea in O.S.No.2898 of 2008, the plea
taken in O.S.No.650 of 2007 that the election held on 04.12.2007 is null and
void, amounts to abuse of process of law. Therefore, the plaint is to be struck
off.
6.On the other hand, Mr.M.Vallinayagam, the learned counsel appearing for
the 1st respondent submitted that the present revision invoking Article 227 of
Constitution of India is not maintainable. The suit has been filed by two
persons, in the representative capacity and even assuming that the 2nd
plaintiff, Dharmaselan is the 55th plaintiff in the other suit, the suit filed
in O.S.650 of 2007 cannot be struck off, on that ground, as the said suit is
filed in the representative capacity and in the suit in O.S.No.2898 of 2008 a
declaration is sought for to declare the election held on 04.12.2007 a valid one
and the present suit is for declaration that the election held on 04.12.2007 is
not valid. Therefore, ut the the most, both the cases can be tried together and
that cannot a ground to strike off the plaint in O.S.No.650 of 2007 and no
reasons for striking off the plaint in O.S.No.650 of 2007 as laid down by this
Honourable Court and the Honourable Supreme Court have been made out and
therefore, the application is maintainable.
7.I have given my anxious consideration to the submission made by both
parties.
8.Before going into the merits of the case, I want to emphasis the power
of this Court, while exercising the extraordinary jurisdiction under Article 227
of the Constitution of India. The circumstances under which, the Honourable High
Court can exercise the extraordinary jurisdiction under Article 227 of the
Constitution of India, has been elaborately discussed in the judgement reported
in (2003)6 SCC 675, in the case of Surya Devi Rai vs. Ram Chander Rai and
others, and in that case it has been held as follows: “Supervisory jurisdiction
under Article 227 of the Constitution is exercised for keeping the subordinate
courts within the bounds of their jurisdiction. When a subordinate court has
assumed a jurisdiction which it does not have or has failed to exercise a
jurisdiction which it does have or the jurisdiction though available is being
exercised by the court in a manner not permitted by law and failure of justice
or grave injustice has occasioned thereby, the High Court may step in to
exercise its supervisory jurisdiction.
Supervisory jurisdiction may be refused to be exercised when an
alternative efficacious remedy by way of appeal or revision is available to the
person aggrieved. The High Court may have regard to legislative policy
formulated on experience and expressed by enactments where the legislature in
exercise of its wisdom has deliberately chosen certain orders and proceedings to
be kept away from exercise of appellate and revisional jurisdiction in the hope
of accelerating the conclusion of the proceedings and avoiding delay and
procrastination which is occasioned by subjecting every order at every stage of
proceedings to judicial review by way of appeal or revision.
The power to issue a writ of certiorari and the supervisory jurisdiction
are to be exercised sparingly and only in appropriate cases where the judicial
conscience of the High Court dictates it to act lest a gross failure of justice
or grave injustice should occasion.”
09.The Honourable Supreme Court in that judgement also sum up their
conclusions and held that “Supervisory jurisdiction under Article 227 of the
Constitution is exercised for keeping the subordinate courts within the bounds
of their jurisdiction. When a subordinate court has assumed a jurisdiction
which it does not have or has failed to exercise a jurisdiction which it does
have or the jurisdiction though available is being exercised by the court in a
manner not permitted by law and failure of justice or grave injustice has
occasioned thereby, the High Court may step in to exercise its supervisory
jurisdiction.
Be it a writ of certiorari or the exercise of supervisory jurisdiction,
none is available to correct mere errors of fact or of law unless the following
requirements are satisfied: (i) the error is manifest and apparent on the face
of the proceedings such as when it is based on clear ignorance or utter
disregard of the provisions of law, and (ii) a grave injustice or gross failure
of justice has occasioned thereby.
The power to issue a writ of certiorari and the supervisory jurisdiction
are to be exercised sparingly and only in appropriate cases where the judicial
conscience of the High Court dictates it to act lest a gross failure of justice
or grave injustice should occasion. Care, caution and circumspection need to be
exercised, when any of the abovesaid two jurisdictions is sought to be invoked
during the pendency of any suit or proceedings in a subordinate court and the
error though calling for correction is yet capable of being corrected at the
conclusion of the proceedings in an appeal or revision preferred there-against
and entertaining a petition invoking certiorari or supervisory jurisdiction of
the High Court would obstruct the smooth flow and/or early disposal of the suit
or proceedings. The High Court may feel inclined to intervene where the error
is such, as, if not corrected at that very moment, may become incapable of
correction at a later stage and refusal to intervene would result in travesty of
justice or where such refusal itself would result prolonging of the lis.
The High Court in exercise of certiorari or supervisory jurisdiction will
not convert itself into a court of appeal and indulge in re-appreciation or
evaluation of evidence or correct errors in drawing inferences or correct errors
of mere formal or technical character.”
10.In the judgement reported in AIR 1984 SC 38, in the case of Mohd. Yunus
vs. Mohd. Mustaqim, the Honourable Supreme Court has held as follows “A mere
wrong decision without anything more is not enough to attract the jurisdiction
of the High Court under Art. 227. The supervisory jurisdiction conferred on the
High Courts under Art. 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 Art. 227, the High Court does not
act as an Appellate Court or Tribunal. It will not 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.”
11.It has been held in the judgment reported in 2009(4) CTC 750, in the
case of B.Shyamkumar vs. Francies George that “there is no second opinion that
the jurisdiction under Article 227 is not for the purpose of correcting a mere
question of fact. The jurisdiction cannot be exercised as an appellate
jurisdiction to set right all kinds of errors committed by the Subordinate
Courts. However when the Trial Court misconstrued a document and arrived at a
perverse conclusion, it would be open to this Court to correct such errors, as
it would amount to jurisdictional error.”
Therefore, from the principles laid down by the Honourable Supreme Court in the
aforesaid judgements, we will have to see whether invoking of extraordinary
jurisdiction against the order passed under Order 39 R 1 is justified or not in
this case.
12.In the judgment reported in (2003)6 SCC 675 in the case of Surya Devi
Rai vs. Ram Chander Rai and others, referred to above, it has been held that
“the power to issue a writ of certiorari and the supervisory jurisdiction are to
be exercised sparingly and only in appropriate cases where the judicial
conscience of the High Court dictates it to act lest a gross failure of justice
or grave injustice should occasion.”
13.Further, the Honourable Supreme Court has held in the reported judgment
AIR 2000 SC 3032 in the case of A.Venkatasubbiah Naidu vs.S.Chellappan that “Now
what remains is the question whether the High Court should have entertained the
petition under Article 227 of the Constitution of when the party had two other
alternative remedies. Though no hurdle can be put against the exercise of the
constitutional powers of the High Court it is a well recognised principle which
gained judicial recognition that the High Court should direct the party to avail
himself of such remedies one or the other before he resorts to a constitutional
remedy. Learned Single judge need not have entertained the revision petition at
all and the party affected by the interim ex-parte order should have been
directed to resort to one of the other remedies. Be that as it may,now it is
idle to embark on that aspect as the High Court had chosen to entertain the
revision petition.”
14.In the judgement reported in 2007(3) CTC 604, in the case of Ajay
Bansal vs. Anup Mehta and others, it has been held as follows:- “Ordinarily, an
Application under Article 227 of the Constitution of India would not be
maintainable where an Appeal lies. An Appeal lay from the decree under Section
96 of the Code. When an Appeal could be filed, ordinarily, an Application under
Article 227 of the Constitution of India would not be entertained.”
15.In another judgement reported in 2007(3) LW 515, in the case of
Ganapathy Subramanian vs.S.Ramalingam & 23 others, it has been held that
“Article 227 of the Constitution of India confers on every High Court the power
of superintendence over all Courts and Tribunals through out the territory in
relation to which it exercises jurisdiction excepting any Court or Tribunal
constituted by or under any law relating to the armed forces. Without prejudice
to the generality of such power, the High Court has been conferred with certain
specific powers under clauses (2) and (3) of Article 227 of the Constitution. It
could be seen that the power of the superintendence so conferred on the High
Court is administrative as well as judicial and is capable of being invoked at
the instance of any person aggrieved. The paramount consideration behind
vesting such wide power of superintendence in the High Court is to clear that
path of justice. Such a power of superintendence is not subject to
technicalities of procedure or traditional fetters. That power so conferred
cannot also be regarded as appeal or revisional jurisdiction and should not be
exercised in the garb or exercise of supervisory jurisdiction under Article 227
of the Constitution and hence, the Court has devised a self imposed rule and
discipline on this power. The supervisory jurisdiction can be refused to be
exercised when an alternative efficacious remedy by way of defending the suit or
filing an appeal or revision is available to the person aggrieved. The Court
shall have regard to the legislative policy formulated on experience and
expressed by enactments where the legislature in exercise of its wisdom has
deliberately chosen certain orders and proceedings to be kept away from the
appellate or revisional jurisdiction in the hope of accelerating conclusion of
the proceedings and avoiding delay and procrastination which is occasioned by
subjecting every order at every stage of proceedings to judicial review by way
of appeal or revision.
It is not denied that the powers conferred upon the High Court under
Article 227 of the Constitution of India are extraordinary and discretionary
power as distinguished from ordinary statutory power. No doubt, Article 227 of
the Constitution conferred a right of superintendence over all Courts and
Tribunals throughout the territories in relation to which it exercised
jurisdiction, but no corresponding right is conferred upon the litigant to
invoke the jurisdiction as a matter of right. In fact, the power under Article
227 of the Constitution of India casts a duty upon the High Court to keep the
inferior Courts and tribunals within the limits of its authority and that they
do not cross the limit ensuring the performance of their duties in accordance
with law conferring power within the ambit of the enactment treating such Court
and Tribunals. Only wrong decisions may not be a ground for the exercise of
jurisdiction under this article unless the wrong is referable to grave
dereliction of duty and flagrant abuse of power by the subordinate courts and
tribunals resulting in grave injustice to any party.”
Therefore, it is seen from the afore-said judgments, when an effective and
efficacious appeal remedy is available to the parties, invocation of the
extraordinary jurisdiction under Art.227 is not maintainable. Therefore, when a
finding has been given by the trial Court on the basis of the evidence that
finding can be challenged only by invoking appeal remedy and the same cannot be
challenged under Art.227 of Constitution of India.
16.In this case, except the fact that the 2nd plaintiff in O.S.No.650 of
2007 is also the 55th plaintiff in O.S.No.2898 of 2008, no point has been made
by the learned counsel appearing for the revision petitioners that the suit is
an abuse of process of law. As rightly pointed out by the learned counsel
appearing for the respondents, the suit O.S.No.650 of 2007 is filed in a
representative capacity and therefore, even deleting from the 2nd plaintiff from
the suit in O.S.No.650 of 2007, the suit is maintainable, representing the
members of the Tirunelveli Diocese and therefore, on that ground, the suit
cannot be struck off. Further, in one suit O.S.No.2898 of 2008, the validity of
the election, dated 04.12.2007 was sought to be declared as legal and also the
validity of the subsequent elections held thereafter and in the present suit
O.S.No.650 of 2007, the declaration is sought for is to declare the election
dated 04.02.2007 is illegal. Therefore, the issue in both the suits are one
and the same viz., the validity of the election held on 04.12.2007. Therefore,
it cannot be stated that as the same issue is involved in O.S.No.650 of 2007,
the suit is to be struck off.
17.Further, it is seen from the typed set of papers that O.S.No.2898 of
2008 was not filed in the representative capacity and 58 individuals filed the
suit, who were elected as office bearers, according to the allegation made in
the plaint. Further, O.S.No.2829 of 2008 was filed in later point time and
O.S.No.650 of 2007 was filed earlier and therefore, it cannot be stated that as
the 2nd plaintiff in O.S.No.650 of 2007 also happens to be one of the plaintiffs
in O.S.No.2898 of 2008, O.S.No.650 of 2008 is to be struck off for the simple
reason that O.S.No.650 of 2007 was filed in earlier point of time.
18.Considering the principles of law laid down by the Honourable Supreme
Court referred to above, I do not find any merit in the submission of the
learned counsel appearing for the revision petitioners to strike of the plaint.
19.In the result, the civil revision petition is dismissed. Consequently,
connected Miscellaneous Petition is closed. No costs.
er
To
The Principal District Munsif,
Tirunelveli.