Point of Law: Availability of such a remedy under the Code of Civil Procedure to be construed as near to total bar for the remedy under Article 227 of the Constitution of India.

JUDGMENT :

Common order in I.A.Nos.1258/2019 and 1259/2019 in O.S.No.795/2012 passed by the Principal Sub Court, Irinjalakkuda is under challenge in this Original Petition filed under Article 227 of the Constitution of India.

2. Heard the learned counsel for the petitioner.

3. I have perused the order impugned. As per the order impugned, the learned Munsiff considered an application filed under Order IX Rule 13 of Civil Procedure Code along with an application filed under Section 5 of the Limitation Act. Finally, both petitions were allowed on condition to deposit Rs.7,000/-, within 15 days as cost. In the above order, it is made clear that if the cost not paid as directed, the applications would stand dismissed.

4. The petitioner herein failed to pay the said cost and accordingly, application filed under Order IX Rule 13 CPC, along with delay petition stood dismissed. The said order is appealable under Order 43 Rule 1(d). Now comes the significance of power of this Court under Article 227 of the Constitution of India. In cases where remedy by way of appeal is available under the Code of Civil Procedure.

5. While answering the query, a decision of the Apex Court reported in Virudhunagar Hindu Nadargal Dharma Paribalana Sabhai and Others Vs Tuiticorin Educational Society & Others (2019 KHC 7006) assumes significance. Going by the ratio in the above decision, it is emphatically clear that 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. Hence, the High Court ought not to have entertained the revision under Article 227 of the Constitution of India, in a case where a specific remedy of appeal is provided under the Code of Civil Procedure. Further the availability of such a remedy under the Code of Civil Procedure to be construed as near to total bar for the remedy under Article 227 of the Constitution of India.

In view of the above legal position, this Original Petition is not maintainable before this Court. Therefore, this Original Petition stands dismissed with liberty to the petitioner to approach the Appellate Court as per law.