Availability of alternate remedy before the Civil Court under the Code of Civil Procedure, 1908 be construed as near total bar for invocation of supervisory jurisdiction of the High Court under Article 227.

In a recent case, the Hon'ble Supreme Court was hearing a Special Leave Petition against the order of the Madras High Court passed under the provisions of Article 227 of the Constitution of India.

The facts of the case are as under: -

The Applicant/ Plaintiff had filed a Suit before the trial court for declaration and permanent injunction. In the said suit, an interim application was filed praying for temporary injunction against the Defendants. The Trial Court was pleased to pass an order of temporary injunction after considering the material on record.

Being aggrieved by the order of the Trial Court, the Defendant filed a Revision Application under the provisions of Article 227 of the Constitution of India before the Madras High Court. The High Court allowed the Revision Application thereby reversing the judgement passed by the trial court of temporary injunction. This was done despite an objection being taken by the Original Plaintiff before the High Court as to the maintainability of the Revision Application in light of the statutory remedy available to the defendant under the provisions of Section 104 (1) (i) r/w Order 43, Rule (1) (r) of the Code of Civil Procedure, 1908.

While deciding the Special Leave Petition challenging the order of the High Court, the Hon'ble Supreme Court relied upon A. Venkatasubbiah Naidu V/s S. Chellappan and Ors. (2000) 7 SCC 695 where the Hon'ble Supreme Court had held that though no hurdle can be put against the exercise of 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 alternate remedies before he resorts to a constitutional remedy.

The Hon'ble Supreme Court also relied upon the judgement of the Hon'ble Supreme Court in Surya Dev Rai V/s. Ram Chander Rai [ 2003] 6 SCC 675 where the Hon'ble Supreme Court had held thus: - "orders of Civil Court stand on different footing from orders of authorities or tribunals or courts other than judicial/ civil courts."

In light of the judgments referred to, the Hon'ble Supreme Court set aside the order of the Madras High Court under challenge and held that wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under the Code of Civil Procedure, will deter the High Court, not nearly as a measure of self imposed restriction, but as a matter of discipline and prudence from exercising its power of superintendence under the constitution. The Supreme Court further held that High Court ought not to have entertained the Revision under Article 227 especially in a case where a specific remedy of Appeal is provided under the Code of Civil Procedure itself1.

1. 2020 All SCR 288 Vidhurnagar Hindu Nadargal Dharma Paribalana Sabai Vs. Truticorin Educational Society.

By - Chaitanyaa Bhandarkar