2022 Supreme(Ker) 46

IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
C.G. Thampi S/o Gopalan – Petitioner
Versus
Jyothis S/o Vijayan – Respondent
O.P. (C) No. 1927 of 2021
Decided On : 19-01-2022

Point of Law: Wherever the proceedings are under the Code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution.

Headnote:

Constitution of India,1950 – Article 227 – Limitation Act – Section 5 - Civil Procedure Codew,1908 – Order 9 Rule 13 - Failure to pay cost – Payment due - Order in I.A. on the file of additional Munsiff Court, Kochi is under challenge in this original petition filed under Article 227 of Constitution of India - Heard learned counsel for petitioner - Court have perused order impugned - As per order impugned, learned Munsiff considered an application filed under Order 9 Rule 13 CPC along with an application filed under section 5 of limitation Act - Finally, petition was allowed on payment of cost to be paid - Same order made it clear that if cost not paid as directed application would stand dismissed - Petitioner herein failed to pay cost and accordingly application filed under Order 9 Rule 13, along with delay petition were dismissed - Said orders are appealable under Order 43 Rule 1(d) - In cases where remedy by way of appeal is available under Code of Civil Procedure, whether remedy Article 227 of Constitution of India is available.

Finding of the Court:

While answering query, a decision of the Apex Court reported in Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Others vs. Tuticorin Educational Society and Others, 2019 KHC 7006 assumes significance - Going by the ratio in decision it is emphatically clear that wherever proceedings are under Code of Civil Procedure and forum is the Civil Court, availability of a remedy under CPC, will deter High Court, not merely as a measure of self -imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under Constitution - High Court ought not to have entertained Revision under Article 227 of Constitution of India, in a case where a specific remedy of appeal is provided under code of Civil Procedure - Further the availability of such a remedy under Code of Civil Procedure to be construed as near to total bar for remedy under Article 227 of the Constitution of India- In view of legal position, this OP is not maintainable before this court.

Result: OP is dismissed