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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
ARUN DEV CHOUDHURY, J.
Mihir Kr. Sen, S/o- Late Sachindra Ch Sen 6 Ors. – Appellant
Versus
Tezpur Bangali Aboitanik Natya Samaj And 2 Ors – Respondents
CRP 23 of 2020, CRP(IO) 151 of 2021
Decided on : 19-12-2022
Constitution of India, 1950 – Article 227 - Civil Procedure Code, 1908 - Section 151, 115, Order 39 Rule 4, Order 43 Rule 1(r), Order 39 Rule 1 and 2 – Revision - Saving of Inherent powers of court - Whether under Article 227 of Constitution of India or Section 115 CPC is not to correct erroneous orders of sub ordinates courts but to interfere in such orders which involve jurisdictional error or material irregularity in exercise of revisional jurisdiction – Held, Court assumed jurisdiction, which it does not have or jurisdiction though available is being exercised by Court in a manner not permitted by law and failure of justice or grave injustice has occasion -This Court as discussed on given facts of present case came to a finding that appellate Court has exercised its appellate jurisdiction in a manner not permitted by law and resulted in grave injustice to respondents/present petitioners - Accordingly, judgment of India Pipe Fitting and Hindustan Aeronautics is not applicable to given facts of present case - Court on merit of injunction petition and availability of golden principles including protection of right of a member of a club cannot be entertained inasmuch as concurrent findings on this count cannot be adjudicated in absence of any challenge to such findings.
Key Points: - The Court discusses the scope of Article 227 and when it may be invoked to correct jurisdictional errors or grave irregularities in revisional jurisdiction (!) (!) . - It analyzes the interplay between interim injunctions under Order 39 CPC and appellate directions, including whether an appellate order can create further restraints or ambiguities (!) (!) (!) . - It addresses maintainability issues, deciding that the petition can be treated under Article 227 even if initially filed under Section 115 CPC, to correct improper exercise of jurisdiction (!) (!) . - The Court finds that the appellate Court's directions restricting participation in internal activities, while retaining general membership, were improper and warranted interference under Article 227 (!) (!) (!) . - It concludes by allowing the revision petition and reversing the appellate court’s restrictive directions against the petitioners (!) .
JUDGMENT :
Heard Mr. S.K. Singh, learned Senior Counsel for the petitioners. Also heard Mr. A. Ganguly, learned counsel for the respondents.
2. This two revision petitions i.e. CRP/23/2020 and CRP(IO)/151/2021 were taken up for final disposal together.
3. CRP/23/2020 was filed under Section 115 of the Code of Civil Procedure assailing the order dated 30.09.2019 passed in Misc. Appeal No. 06/2019 by the learned Civil Judge, Sonitpur at Tezpur, by which the judgment and order dated 31.08.2019, passed in Misc. (J) Case No. 38/2019 by the learned Munsiff No. 1, at Tezpur, was uphold. The present petitioners were the respondents in the said appeal. Their grievance is that though the appeal was dismissed, upholding the judgment impugned, however, certain additional directions were issued in the appeal, thereby infringing certain right of the petitioners which will be dealt, in detailed at later part of this judgment.
4. CRP(IO)/151/2021 was filed under Article 227 of the Constitution of India read with Section 151 of the Code of Civil Procedure, assailing the order dated 16.03.2021 passed in Misc(J) Case No. 109/2019 by the learned Civil Judge, Sonitpur at Tezpur. The aforesaid Misc(J) Case No. 109/2019 was preferred under the provision of Order 39 Rule 4 read with Section 151 of the Code of Civil Procedure, seeking medication/clarification of the order dated 30.09.2019 passed in Misc. Appeal No. 6/2019, whereby the learned appellate Court below declined to entertain such petition.
5. In the aforesaid backdrop and on the prayer of the learned counsels for the respondents, this Court under its order dated 27.06.2022, passed in CRP(IO)/151/2021, directed both the revision petitions to be listed together.
6. Before coming into merit of the CRP/23/2020, let this Court deal with the objections raised by the learned counsel for the respondents regarding the maintainability of the said revision petition under provision of Section 115 of the Code of Civil Procedure.
7. Mr. Ganguly, learned counsel for the respondents, while raising such objection as to the maintainability argues the following:-
II. Mr. Ganguly, learned counsel further contends that other proceeding is to be construed ejusdem generis, which is not the case in the present proceeding and the subject matter was a suit. In support of such contention, he relies on a decision of the Hon’ble Apex Court in the case of Vishnu Awater –Vs-Shiv Autar & Ors reported in (1980) 4 SCC 81.
8. Countering such argument, Mr. S. K. Singh, learned Senior Counsel contends that even if the present application is not maintainable under Section 115 of the Code of Civil Procedure, this Court can very well convert the present petition into a petition under Article 227 of the Constitution of India inasmuch as the right of the petitioner under Article 227 of the Constitution of India is a valuable right and if such conversion is made, the respondent shall not be prejudiced. He further contends that the CRP/23/2020 is filed under Section 115 of the Code of Civil Procedure for the reason that though the appeal was dismissed by the learned appellate Court below, however, learned Court below gone beyond its jurisdiction by making further observations, and by issuing direction and in the aforesaid backdrop, this Court should not non suit the petitioners and this Court is having ample power under Article 227 of the Constitution of India to convert the present petition into a petition under Article 227 of the Constitution of India. In support of his contention Mr. Sing, learned Senior Counsel relies on a decision of the Hon’ble Apex Court in the case of Civil Appeal No. 7266/2022 dated 03.10.2022.
9. Having held thus,
Judicial orders must maintain consistency; once signed by a judge, an order cannot be rescinded without legitimate reasons, ensuring lawful procedural conduct in civil matters.
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