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A. BADHARUDEEN
Joshy, S/o. Immanikkal Thomas – Appellant
Versus
Pradeep, S/O. Ramesadath Krishnan – Respondent
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
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.
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 imp....
The availability of an appellate remedy under the CPC prevents the maintainability of petitions under Article 227 of the Constitution.
The High Court's jurisdiction under Article 227 is limited; parties must appeal under Order 43 Rule 1(c) against dismissal of applications under Order 9 Rule 9 CPC.
Whenever there is remedy under Code, constitutional provision are not liable to be invoked.
The main legal point established in the judgment is that the availability of an appeal remedy under the CPC operates as a near total bar to the exercise of jurisdiction by the court under article 227....
The High Court should refrain from exercising Article 227 jurisdiction in civil matters where an alternative remedy of appeal is available under the CPC.
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