High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Civil Revision No. : 168 of 2016

Reserved on : 04.10.2018

Date of Decision : November 5, 2018

Sarwan Singh & others ...Petitioners.

Versus

Mohar Singh ...Respondent.

Coram:

The Hon’ble Mr. Justice Sanjay Karol, Judge.

The Hon’ble Mr. Justice Ajay Mohan Goel, Judge.

Whether approved for reporting? Yes.

For the Petitioners : Mr.Dinesh Kumar Sharma and

Mr.Y. Paul, Advocates, for the

petitioners.

For the Respondents : Mr.N.S. Chandel, Advocate, for

the respondent.

Sanjay Karol, Judge

As to whether an order against which no

appeal lies, by virtue of Section 102 of the Code of Civil

Procedure (hereinafter referred to as the Code), can be

assailed in a petition filed under Section 115 of the Code

or Article 227 of the Constitution of India or not, is the

issue which this Court is called upon to answer.

2. While passing judgment dated 24

th

November,

2016 in Civil Revision No. 168 of 2016, titled as Sarwan

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Singh and others Vs. Mohar Singh, the learned Single

Judge has referred the matter to a larger Bench on the

question of maintainability of a petition under Article 227

of the Constitution of India in cases where second appeal

against the judgment and decree is specifically ba rred

under Section 102 of the Code and the necessity being

conflicting views taken by the two learned Single Judges

of this Court in passing judgments in Civil Revision No. 58

of 2009, titled as Managing Director, H.P. State

Cooperative Marketing & Consumer Federatio n Ltd. (Him

Fed), District Shimla Vs. Sh. Rajinder Singh ; Civil Revision

No. 59 of 2009, titled as Managing Director, H.P. State

Cooperative Marketing & Consumer Federation Ltd. (Him

Fed), District Shimla Vs. Sh. Sita Ram , decided on

30.03.2016; and CMPMO No. 439 of 2010, titled as

Subhadra Devi Vs. Kishori Lal, decided on 14.12.2010.

3. In CMPMO No. 439 of 2010, titled as Subhadra

Devi Vs. Kishori Lal, decided on 14.12.2010, learned

Single Judge held that provisions of Sections 100 and 102

of the Code cannot be circumvented by filing a petition

under Article 227 of the Constitution of India. Para -3

thereof reads as under:

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“3. Under Section 100, CPC, a second appeal

lies to the High Court only on a substantial

question of law. Section 102, Code of Civil

Procedure specifically provides that no second

appeal is maintainable in a suit, value whereof is

less than Rs.25,000/-. The provisions of Section

100 and 102, Code of Civil Procedure cannot be

circumvented by filing a petition under Article 227

of the Constitution of India. An appeal is the

creation of a statute and the legislature in its

wisdom has decided that a second appeal will not

lie in a suit valuation of which is less than 25,000/-

There is no occasion to entertain a CMPMO unless

it is shown that there is some illegality involved or

there is some perversity in the finding of the

learned Trial Court. In the present case, I have

gone through the judgments of both the Courts

below. I find that both the judgments are based on

appreciation of evidence and, therefore do not call

for any interference in this petition.”

(Emphasis supplied)

4. The very same learned Judge restricted the

parties in CMPMO NO. 235 of 2006, titled as Mohan Lal

Vs. Bahader Singh , decided on 16.12.2010, in the

following terms:

“2. Under Section 100, CPC, a second appeal

lies to the High Court only on a substantial

question of law. Section 102, Code of Civil

Procedure specifically provides that no second

appeal is maintainable in a suit, valuation of which

is Rs.25,000/- or less. This Court has repeatedly

held that the provisions of Article 227 of the

Constitution of India cannot be used as a means

to circumvent the bar to filing of an appeal. An

appeal is only a creation of the statute and if the

statute prohibits the filing of an appeal, t he

provisions of Article 227 of the Constitution of

India cannot be invoked in normal course.

3. Having held so, this Court would be failing in

its duty if it does not exercise its supervisory

jurisdiction under Article 227 of the Constitution of

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India, where the judgment or order challenged is

totally illegal or perverse.”

5. When similar issue came up for consideration

before another learned Judge in Civil Revision No. 58 of

2009 and Civil Revision No. 59 of 2009 [Him Fed (supra)],

the Court held that this Court in exercise of its revisional

jurisdiction can look into the correctness, legality or

propriety of any decision or order impugned, relevant

portion of the judgment is quoted hereinbelow:

“16. In the exercise of revisional jurisdiction, this

Court can look into the question as to the

correctness, legality or propriety of any decision

or order impugned.”

6. It is in this background that now while

deciding Civil Revision No. 168 of 2016, the third learned

Single Judge has referred the matter for cons ideration

before a Larger Bench, in the following terms:

33. Accordingly, with all humility at my

command, I regret my inability to concur with the

view expressed by a Co -ordinate Bench of this

Court in Managing Director’s case (supra). In view

of this difference, it is necessary for me to refer

the matter to a larger Bench. Even otherwise, the

issue is of great importance and the views

expressed by the different High Courts on the

question are otherwise not consistent and it is

desirable that an authoritative pronouncement be

made by a larger Bench.

34. At this stage, I may observe that though I

have concurred with the exposition of law as

propounded by a Co-ordinate Bench of this Court

in Subhadra Devi, Mohan Lal’s cases (supra),

however, since the matter is being referred to a

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larger Bench, it may also consider the desirability

of going into the question of maintainability of the

petition under Article 227 of the Constitution in

cases where the second appeal against the

judgment and decree is specifically barred under

Section 102 of the Code.”

7. We have heard the learned counsel for the

parties and have also perused the records of the cases

decided by the learned Single Judge, i.e., Subhadra Devi

(supra) , Mohan Lal (supra) , as also Rajinder Singh (supra)

and Sita Ram (supra) .

8. Relevant provisions of law are reproduced as

under:

Sections 100, 102, 115 of the Code of Civil Procedure

“100. Second appeal— (1) Save as otherwise

expressly provided in the body of this Code or by

any other law for the time being in force, an

appeal shall lie to the High Court from every

decree passed in appeal by any Court subordinate

to the High Court, if the High Court is satisfied

that the case involves a substantial question of

law.

(2) An appeal may lie under this section from an

appellate decree passed ex parte.

(3) In an appeal under this section, the

memorandum of appeal shall precisely state the

substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a

substantial question of law is involved in any case,

it shall formulate that question.

(5) The appeal shall be heard on the question so

formulated and the respondent shall, at the

hearing of the appeal, be allowed to argue that

the case does not involve such question:

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Provided that nothing in this sub-section

shall be deemed to take away or abridge the

power of the Court to hear, for reasons to be

recorded, the appeal on any other substantial

question of law, not formulated by it, if it is

satisfied that the case involves such question.”

“102. No second appeal in certain cases .-No

second appeal shall lie from any decree, when the

subject matter of the original suit is for recovery

of money not exceeding twenty -five thousand

rupees.”

“115. Revision — (1) The High Court may call for

the record of an case which has been decided by

any Court subordinate to such High Court and in

which no appeal lies thereto, and if such

subordinate Court appears—

(a) to have exercised a jurisdiction not vested in it

by law, or

(b) to have failed to exercise a jurisdiction so

vested, or

(c) to have acted in the exercise of its jurisdiction

illegally or with material irregularity,

the High Court may make such order in the case

as it thinks fit:

Provided that the High Court shall no t,

under this section, vary or reverse any order

made, or any order deciding an issue, in the

course of a suit or other proceeding, except where

the order, if it had been made in favour of the

party applying for revision, would have finally

disposed of the suit or other proceedings.

(2) The High Court shall not, under this section,

vary or reverse any decree or order against which

an appeal lies either to the High Court or to any

Court subordinate thereto.

(3) A revision shall not operate as a stay of suit

or other proceedings before the Court except

where such suit or other proceedings is stayed by

the High Court.”

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Article 227 of the Constitution of India:

“227. Power of superintendence over all

courts by the High Court :- 196[(1) Every High

Court shall have superintendence over all

Courts and tribunals throughout the territories

in relation to which it exercises jurisdiction.]

(2) Without prejudice to the generality of the

foregoing provision, the High Court may- (a)

call for returns from such Courts: (b) make

and issue general rules and prescribe forms

for regulating the practice and proceedings of

such Courts; and (c) prescribe forms in which

books, entries and accounts shall be kept by

the officers of any such Courts. (3) The High

Court may also settle tables of fees to be

allowed to the sheriff and all clerks and

officers of such Courts and to attorneys,

advocates and pleaders practising therein :

Provided that any rules made, forms

prescribed or tables settled under Cl. (2) or Cl.

(3) shall not be inconsistent with the provision

of any law for the time being in force, and

shall require the previous approval of the

Governor. (4) Nothing in this article shall be

deemed to confer on a High Court powers of

superintendence over any Court or Tribunal

constituted by or under any law relating to the

Armed Forces. 197 [ * * * * *] Clause (1) has

been successively subs. by the Constitution

(Forty-second Amendment) Act 1976, Sec. 40

(w.e.f. 1st February. 1977) and the

Constitution (Forty-fourth Amendment Act,

1978, Sec. 31 to read as above (w.e.f. 20th

June, 1979). Clause (5) was ins. by the

Constitution (Forty-second Amendment) Act,

1976, Sec. 40 (w.e.f 1st February, 1977) and

omitted by the Constitution (Forty -fourth

Amendment) Act, 1978 Sec. 31 (w.e.f. 20th

June, 1979).”

9. In our considered view, provisions of Section

102 of the Code are unambiguous ly clear. No second

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appeal shall lie from a decree when the subject matter of

the original suit for recovery of money is not exceeding

rupees twenty five thousand.

10. The issue stands settled, with the Apex court

delivering its judgment in Nagar Palika Thakurdwara v.

Khalil Ahmed & others, (2016) 9 SCC 397 (2 -Judges),

holding that the purpose behind the enactment of the

said Section is to reduce the quantum of litigation, so

that the Courts are not to waste their time, where the

stakes are meager and are not of much significance.

11. It is a settled principle of law that right to

appeal is a statutory right and second appeal, by virtue

of Section 100 of the Code, lies to the High Court against

the judgment and decree, passed in an appeal by the

Subordinate Court, involving a substantial question of

law. However, such right is restricted by virtue of Section

102 of the Code, which provides that no second appeal

shall lie from any decree, when the subject matter of the

original suit is for recovery of money not exceeding

twenty five thousand rupees.

12. In the absence of any statutory right of

appeal, what needs to be examined is as to whether the

order, which cannot be assailed by virtue of appeal, can

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be assailed by virtue of Section 115 of the Code or Article

227 of the Constitution.

13. Let us examine the scope of Section 115 of

the Code.

14. The Apex Court in Keshardeo Chamria v.

Radha Kissen Chamria and others, AIR 1953 SC 23,

observed as under:

“17. .. … … It seems to us that in this matter

really the High Court entertained an appeal in the

guise of a revision. The revisional jurisdiction of

the High Court is set out in s. 115 Civil P. C. in

these terms:

"The High Court may call for the record of

any case which has been decided by any

Court subordinate to such High Court and in

which no appeal lies thereto, and if such

subordinate Court appears –

(a) to have exercised a jurisdiction not

vested in it by law, or

(b) to have failed to exercise a jurisdiction

so vested, or

(c) to have acted in the exercise of its

jurisdiction illegally or with material

irregularity, the High Court may make such

order in the case as it thinks fit."

A large number of cases have been

collected in Edn. 4 of Chitaley and Rao's Code of

Civil procedure (vol. I), which only serve to show

that the High Courts have not always appreciated

the limits of the jurisdiction conferred by this

section. In Mohunt Bhagwan Ramanuj Das v.

Khetter Moni Dassi, 1 Cal. W. N. 617, the High

Court of Calcutta expressed the opinion that sub-

cl. (c) of s. 115, Civil P. C., was intended to

authorise the High Courts to interfere and correct

gross and palpable errors of subordinate Courts,

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so as to prevent grave injustice in non, appealable

cases. This decision was, however, dissented from

by the same High Court in Enat Mondul v. Baloram

Dey, 3 Cal. W. N. 581, but was cited with approval

by Lord-Williams J. in Gulabchand Bangur v.

Kabiruddin Ahmed, 58 Cal. -111. In these

circumstances, it is worth-while recalling again to

mind the decisions of the Privy Council on this

subject and the limits stated therein for the

exercise of jurisdiction conferred by this section

on the High Courts.”

18. As long ago as 1894, in Rajah Amir Hassan

Khan v. Sheo Baksh Singh, 11 Ind. App. 237, the

Privy Council made the following observations on

s. 622 of the former Code of Civil Procedure,

which was replaced by s.115 of the Code of 1908:

"The question then is, did the Judges of the

lower Courts in this case, in the exercise of

their jurisdiction, act illegally or with

material irregularity. It appears that they

had perfect jurisdiction to decide the case,

and even if they decided wrongly, they did

not exercise their jurisdiction illegally or

with material irregularity."

In 1917 again in Balakrishna Udayar v. Vasudeva

Aiyar , 44 Ind. App. 261, the Board observed:

"It will be observed that the section

applies to jurisdiction alone, the irregular

exercise or non-exercise of it or the illegal

assumption of it. The section is not directed

against conclusions of law or fact in which

the question of jurisdiction is not involved."

In 1949, in Venkatagiri Ayyangar v. Hindu

Religious Endowments Board, Madras, 76 Ind.

App. 67, the Privy Council again examined the

scope of s. 115 and observed that they could see

no justification for the view that the section was

intended to authorise the High Court to interfere

and correct gross and palpable errors of

subordinate Courts so as to prevent grave

injustice in non-appealable cases and that it would

be difficult to formulate any standard by which the

degree of error of subordinate Courts could be

measured. It was said:

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"Section 115 applies only to cases in which

no appeal lies, and, where the Legislature

has provided no right o f appeal, the

manifest intention is that the order of the

trial Court, right or wrong, shall be final. The

section empowers the High Court to satisfy

itself on three matters, (a) that the order of

the subordinate Court is within its

jurisdiction; (b) that the case is one in which

the Court ought to exercise jurisdiction: and

(c) that in exercising jurisdiction the Court

has not acted illegally, that is, in breach of

some provision of law, or with material

irregularity, that is, by committing same

error of procedure in the course of the trial

which is material in that it may have

affected the ultimate decision. If the High

Court is satisfied on those three matters, it

has no power to interfere because it differs,

however profoundly, from the conclusions of

the subordinate Court on questions of fact

or law."”

“20. Reference may also be made to the

observations of Bose J. in his order of reference in

Narayan Sonaji v. Sheshrao Vithoba, A. I. R. 1948

Nag. 258 wherein it was said that the words

"illegally" and "material irregularity" do not cover

either errors of fact or law. They do not refer to

the decision arrived at but to the manner in which

it is reached. The errors contemplated relate to

material defects of procedure and not to errors of

either law or fact after the formalities which the

law prescribes have been complied with.”

(Emphasis supplied)

The view stands reiterated by the Apex Court in Manindra

Land and Building Corporation Ltd. v. Bhutnath Banerjee

& others, AIR 1964 SC 1336 (3-Judges).

15. Subsequently, a Constitution Bench of the

Apex Court in Pandurang Dhondi Chougule & others v.

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Maruti Hari Jadhav & others, AIR 1966 SC 153 (5-Judges),

observed:

“11. The history of recent legislation in India

shows that when Legislatures pass Acts deali ng

with socio-economic matters, or make provisions

for the levy of sales-tax, it is realized that the

operative provisions of such legislation present

difficult problems of construction; and so,

sometimes, the Act in question provides for a

revisional application to the High Court in respect

of such matters or authorises a reference to be

made to it. In such cases, the High Court will

undoubtedly deal with the problems raised by the

construction of the relevant provisions in

accordance with the extent of th e jurisdiction

conferred on it by the material provisions

contained in the statute itself. Sometimes

however, no such specific provision is made, and

the questions raised in regard to the construction

of the provisions of such a statute reach the High

Court under its general revisional jurisdiction

under S. 115of the Code. In this class of cases the

revisional jurisdiction of the High Court has to be

exercised in accordance with the limits prescribed

by the said section. It is true that in order to afford

guidance to subordinate Courts and to avoid

confusion in the administration of the specific law

in question, important questions relating to the

construction of the operative provisions contained

in such an Act must be finally determined by the

High Court but in doing so the High Court must

enquire whether a complaint made against the

decision of the subordinate Court on the ground

that it has misconstrued the relevant provisions of

the statute, attracts the provisions of S. 115. Does

the alleged misconstruction of the statutory

provision have relation to the erroneous

assumption of jurisdiction, or the erroneous failure

to exercise jurisdiction, or the exercise of

jurisdiction illegally or with material irregularity by

the subordinate Court? These are the te sts laid

down by S. 115 of the Code and they have to be

borne in mind before the High Court decides to

exercise its revisional jurisdiction under it.

12. The question has been recently considered

by this Court in Manindra Land and Building

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Corporation Ltd. Bhutnath Banerjee , AIR 1964 SC

1336 and Abbasbhai Alimahomed v. Gulamnabi ,

AIR 1964 SC 1341. The effect of these two

decisions clearly is that a distinction must be

drawn between the errors committed by

subordinate Courts in deciding questions of law

which have relation to, or are concerned with,

questions of jurisdiction of the said Court, and

errors of law which have no such relation or

connection. It is, we think, undesirable and

inexpedient to lay down any general rule in regard

to this position. An attempt to define this position

with precision or to deal with it exhaustively may

create unnecessary difficulties. It is clear that in

actual practice, it would not be difficult to

distinguish between cases where errors of law

affect, or have relation to, the jurisdiction of the

Court concerned, and where they do not have

such a relation.

13. Considering the point raised by Mr. Sinha in

the light of this position, it seems to us that the

High Court was in error in assuming jurisdiction to

correct what it thought to be the misconstruction

of the decree passed in civil suit No. 102 of 1932-

33. As we have already seen, in the present debt

adjustment proceedings, one of the points which

arose for decision was whether the mortgage debt

was subsisting at the time when the respondents

made their application, and the District Court had

found that the respondents' equity of redemption

had been extinguished. This finding was based on

the construction of the said decree. It is difficult to

see how the High Court was justified in reversing

this finding under S. 115 of the Code. The

construction of a decree like the construction of a

document of title is no doubt a point of law. Even

so, it cannot be held to justify the exercise of the

High Court's revisional jurisdiction under S. 115 of

the Code because it has no relation to the

jurisdiction of the Court. Like other matters which

are relevant and material in determining the

question of the adjustment of debts, the question

about the existence of the debt has been left to

the determination of the Courts which are

authorised to administer the provisions of the Act;

and even if in dealing with such questions, the

trial Court or the District Court commits an error

of law, it cannot be said that such an error of law

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would necessarily involve the question of the said

Courts' jurisdiction within the meaning of S. 115 of

the Code. We are, therefore, satisfied that on the

facts of this case, the High Court exceeded its

jurisdiction in interfering with the conclusion of

the District Court that the decree in question had

extinguished the respondents' equity of

redemption.”

16. Recently, in Rishabh Chand Jain & another v.

Ginesh Chandra Jain, (2016) 6 SCC 675 (2-Judges), the

Apex Court observed as under:

“14. The impugned order dismissing the suit on

the ground of Res Judicata does not cease to be a

decree on account of a procedural irregularity of

non-framing an issue. The court ought to treat the

decree as if the same has been passed after

framing the issue and on adjudication thereof, in

such circumstances. What is to be seen is the

effect and not the process. Even if there is a

procedural irregularity in the process of passing

such order, if the order passed is a decree under

law, no revision lies under Section 115 of the Code

in view of the specific bar under sub-Section (2)

thereof. It is only appealable under Section 96

read with Order XLI of the Code.”

17. In M.L. Sethi v. R.P. Kapur, (1972) 2 SCC 427,

the Apex Court observed:

“12. ………… The word "jurisdiction" is a verbal

cast of many colours. Jurisdiction originally seems

to have had the meaning which Lord Baid

ascribed to it in Anisminic Ltd. v. Foreign

Compensation Commission, (1969) 2 AC 147,

namely, the entitlement "to enter upon the

enquiry in question". If there was an entitlement

to enter upon an inquiry into the question, then

any subsequent error could only be regarded as

an error within the jurisdiction. The best known

formulation of this theory is that made by Lord

Denman in R. v. Bolton (1841) 1 QB 66. He said

that the question of jurisdiction is determinable at

the commencement, not at the conclusion of the

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enquiry. In Anisminde Ltd., (1969) 2 AC 147 Lord

Reid said:

"But there are many cases where,

although the tribunal had jurisdiction to

enter on the enquiry, it has done or failed to

do something in the course of the enquiry

which is of such a nature that its decision is

a nullity. It may have given its decision in

bad faith. It may have made a decision

which it had no power to make. It may have

failed in the course of the enquiry to comply

with the requirements of natural justice. It

may in perfect good faith have

misconstrued the provisions giving it power

to act so that it failed to deal with the

question remitted to it and decided some

question which was not remitted t o it. It

may have refused to take into account

something which it was required to take into

account. Or it may have based its decision

on some matter which, under the provisions

setting it up, it had no right to take into

account. I do not intend this list to be

exhaustive".

In the same case, Lord Pearce said:

"Lack of jurisdiction may arise in

various ways. There may be an absence of

those formalities or things which are

conditions precedent to the tribunal having

any jurisdiction to embark on an enquiry. Or

the tribunal may at the end make an order

that it has no jurisdiction to make. Or in the

intervening stage while engaged on a

proper enquiry, the tribunal may depart

from the rules of natural justice; or it may

ask itself the wrong questions; or it may

take into account matters which it was not

directed to take into account. Thereby it

would step outside its jurisdiction. It would

turn its inquiry into something not directed

by Parliament and fall to make the inquiry

which the Parliament did direct. Any of

these things would cause its purp orted

decision to be a nullity.”

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The dicta of the majority of the House of

Lords, in the above case would show the extent to

which 'lack' and 'excess' of jurisdiction have been

assimilated or, in other words, the extent to which

we have moved away from the traditional concept

of "jurisdiction". The effect of the dicta in that

case is to reduce the difference between

jurisdictional error and error of law within

jurisdiction almost to vanishing point. The

practical effect of the decision is that any error of

law can be reckoned as jurisdictional. They comes

perilously close to saying that there is a

jurisdiction if the decision is right in law but none

if it is wrong. Almost any misconstruction of a

statute can be represented as "basing their

decision on a matter with which they have no

right to deal", "imposing an unwarranted

condition" or "addressing themselves to a wrong

question". The majority opinion in the case leaves

a Court or Tribunal with virtually no margin o f

legal error. Whether there is excess of jurisdiction

or merely error within jurisdiction can be

determined only construing the empowering

statute which will give little guidance. It is really a

question of how much latitude the Court is

prepared to allow in the end it can only be a value

judgment (See H.W.R. Wade, "Constitutional and

Administrative Aspects of the Anismenic case",

Law Quarterly Review, Vol. 85, 1969, P.198). Why

is it that a wrong decision on a question of

limitation or res judicata was tr eated as a

jurisdictional error an liable to be interfered with

in revision? It is a bit difficult to understand how

an erroneous decision on a question of limitation

or res judicata would oust the jurisdiction of the

Court in the primitive sense of the te rm and

render the decision or a decree embodying the

decision a nullity liable to collateral attack. The

reason can only be that the error of law was

considered as vital by the Court. And there is no

yardstick to determine the magnitude of the error

other than the opinion of the Court.”

18. The Reference Court, on the issue, has

observed as under:

“27. A Second Appeal is maintainable only on a

substantial question of law as provided under

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Section 100 of the Code of Civil Procedure. A

Revision under Section 115 of the Code of Civil

Procedure lies where the subordinate court

appears to have exercised jurisdiction not vested

in it by law; or to have failed to exercise

jurisdiction so vested; or to have acted in the

exercise of its jurisdiction illegally or with material

irregularity. The question is whether the High

Court would be entitled to entertain a Civil

Revision Petition, in a case where a Second

Appeal is barred under section 102 of the Code of

Civil Procedure, on any ground which is less

rigorous than that provided in Section 100 of the

Code of Civil Procedure.

28. Even in matters where the valuation exceed

`25,000/-, a second appeal could be entertained

only on a substantial question of law. When

Section 102 provides that no second appeal would

lie in respect of a suit where the subject matter is

for recovery of money not exceeding `25,000/-, it

cannot be assumed the Parliament thought it fit to

take such category of cases out of the rigour of

Section 100 and to provide a less rigorous remedy

in such cases. If so, it is to be taken that a revision

under Section 115 cannot be entertained on a

ground which is less rigorous than that provided in

Section 100 of the Code of Civil Procedure.

29. The purpose of substituting Section 102

C.P.C. was to restrict entertaining Second Appeals

in cases where the subject matter of the suit is for

recovery of money not exceeding `25,000/-. The

purpose sought to be achieved cannot be

defeated by entertaining a revision under section

115 of the Code of Civil Procedure on a l ess

rigorous test than that provided in Section 100

C.P.C.”

“31. In addition to the aforesaid, it would be

noticed that Section 115 of the Code does not

refer to a decree and further provides that

revision can be invoked where no appeal lies

against the impugned order/judgment. There is a

marked difference as regards an order or

judgment against which no appeal lies and the

judgment or order against which an appeal is

prohibited or restricted by the Code.

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32. Under Section 115 CPC, the legality and

propriety as well as perversity can be seen, so

also, while exercising jurisdiction of second

appeal, appeal can be admitted only on

substantial questions of law. The scope of both

these provisions is quite similar and, therefore,

the petitioners cannot invoke jurisdiction of this

Court under Section 115 CPC because such

invocation of revisional jurisdiction will render the

specific provision of Section 102 of the Code to be

otiose which is not permissible.”

19. Keeping in view the principles enunciated by

the Hon’ble Supreme Court of India, noticed supra, on

the ambit, scope and power and exercise of revisional

jurisdiction by the High Court, we are in agreement with

the aforesaid observations.

20. We may also add that so far as assailing such

an order under Section 115 of the Code is concerned, in

our considered view, the intent behind incorporation of

Section 102 in the Code is that finality has to be put to

such like litigation, wherein in an original suit for

recovery, the subject matter does not exceed `25,000/-.

That being so, this finality cannot be permitted to be

taken away by allowing a party to agitate the judgment

passed by the first Appellate Authority under Section 115

of the Code. Section 102 of the Code precedes Section

115 thereof and in our considered view, something which

is prohibited under Section 102 of the Code, cannot be

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permitted to be done by filing an application under

Section 115 of the Code.

21. In view of a categorical statutory bar

envisaged in the Code, prohibiting second appeal against

a decree when the subject matter of the original suit is

for recovery of money not exceeding rupees twenty five

thousand, in our considered view, this statutory provision

cannot be permitted to be circumvented in the guise of

invoking supervisory jurisdiction of this Court under

Article 227 of the Constitution of India, except under

exceptional circumstances.

22. By virtue of Article 227 of the Constitution of

India, this Court exercises supervisory jurisdiction over

the Courts within its jurisdiction. The scope and ambit of

the exercise of supervisory jurisdiction under the said

Article clearly stands spelled out in various judicial

pronouncements rendered by Hon’ble the Supreme Court

of India.

23. It is settled law that power of superintendence

conferred upon the High Court under Article 227 of the

Constitution of India has to be exercised most sparingly

and with circumspection, that too, in appropriate cases in

order to keep the Subordinate Courts within the bounds

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of their authority. In other words, such power of

superintendence is not conferred for correcting mere

errors.

24. In Waryam Singh and another Vs. Amarnath

and another, AIR 1954 SC 215, a Constitution Bench of

the Hon’ble Supreme Court, after examining the scope of

Article 227 of the Constitution, observed as under:-

“This power of superintendence conferred

by Article 227 is, as pointed out by Harries, C.J. in

Dalmia Jain Airways Ltd. V. Sukumar Mukherjee,

1951 AIR (Cal) 193 to be exercised most sparingly

and only in appropriate cases in order to keep the

Subordinate Courts within the bounds of their

authority and not for correcting mere errors.”

25. In Hari Vishnu Kamath v. Ahmad Ishaque &

others, AIR 1955 SC 233, the Apex Court, in the context

of the scope, power and jurisdiction exercised by the

High Court, under Articles 226 & 227 of the Constitution

of India, observed as under:

“20. We are also of opinion that the Election

Tribunals are subject to the superintendence of

the High Courts under Article 227 of the

Constitution, and that that superintendence is

both judicial and administrative. That was held by

this Court in 'Waryam Singh v. Amarnath', AIR

1954 SC 215 (K), where it was observed that in

this respect Article 227 went further than section

224 of the Government of India Act, 1935, under

which the superintendence was purely

administrative, and that it restored the position

under section 107 of the Government of India Act,

1915. It may also be noted that while in a

'certiorari' under Article 226 the High Court can

only annul the decision of the Tribunal, it can,

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under Article 227, do that, and also issue further

directions in the matter. We must accordingly hold

that the application of the appellant for a writ of

'certiorari' and for other reliefs was maintainable

under Articles 226 and 227 of the Constitution.

21. Then the question is whether there are

proper grounds for the issue of 'certiorari' in the

present case. There was considerable argument

before us as to the character and scope of the writ

of 'certiorari' and the conditions under which it

could be issued. The question has been

considered by this Court in 'Parry and Co. v.

Commercial Employees' Association, Madras', AIR

1952 SC 179 (L): -'Veerappa Pillai v. Raman and

Raman Ltd.'. AIR 1952 SC 192 (M); - 'Ebrahim

Aboobaker v. Custodian General of Evacuee

Property New Delhi', AIR 1952 SC 319 (N), and

quite recently in AIR 1954 SC 440(C). On these

authorities, the following propositions may be

taken as established: (1) 'Certiorari' will be issued

for correcting errors of jurisdiction, as when an

inferior Court or Tribunal acts without jurisdiction

or in excess of it, or fails to exercise it. (2)

'Certiorari' will also be issued when the Court or

Tribunal acts illegally in the exercise of its

undoubted jurisdiction, as when it decides without

giving an opportunity to the parties to be heard,

or violates the principles of natural justice. (3) The

Court issuing a writ of 'certiorari' acts in exercise

of a supervisory and not appellate jurisdiction.

One consequence of this is that the Court will not

review findings or fact reached by the inferior

Court or Tribunal, even if they be erroneous. This

is on the principle that a Court which has

jurisdiction over a subject-matter has jurisdiction

to decide wrong as well as right, and when the

Legislature does not choose to confer a right of

appeal against that decision, it would be defeating

its purpose and policy if a superior Court were to

re-hear the case on the evidence, and substitute

its own findings in 'certiorari." These propositions

are well settled and are not in dispute.”

26. The Apex Court in Madras Bar Association v.

Union of India & another, (2014) 10 SCC 1, while dealing

with the constitutional validity of the National Tax

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Tribunal Act, 2005, held Judicial Review, under Articles

226 & 227 of the Constitution of India, to be part of the

Basic Structure of the Constitution. Even earlier, in Kartar

Singh v. State of Punjab, (1994) 3 SCC 569, the Court had

observed as such.

27. After elaborately discussing its ea rlier

decisions on the scope of power under Articles 226 & 227

of the Constitution of India, the Apex Court in Shalini

Shyam Shetty & another v. Rajendra Shankar Patil,

(2010) 8 SCC 329, culled out the following principles:

“(a) A petition under Article 226 of the

Constitution is different from a petition under

Article 227. The mode of exercise of power by

High Court under these two Articles is also

different.

(b) In any event, a petition under Article 227

cannot be called a writ petition. The history of

the conferment of writ jurisdiction on High

Courts is substantially different from the

history of conferment of the power of

Superintendence on the High Courts under

Article 227 and have been discussed above.

(c) High Courts cannot, on the drop of a hat, in

exercise of its power of superintendence

under Article 227 of the Constitution, interfere

with the orders of tribunals or Courts inferior

to it. Nor can it, in exercise of this power, act

as a Court of appeal over the orders of Court

or tribunal subordinate to it. In cases where an

alternative statutory mode of redressal has

been provided, that would also operate as a

restrain on the exercise of this power by the

High Court.

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(d) The parameters of interference by High

Courts in exercise of its power of

superintendence have been repeatedly laid

down by this Court. In this regard the High

Court must be guided by the principles laid

down by the Constitution Bench of this Court

in Waryam Singh (supra) and the principles in

Waryam Singh (supra) have been repeatedly

followed by subsequent Constitution Benches

and various other decisions of this Court.

(e) According to the ratio in Waryam Singh

(supra), followed in subsequent cases, the

High Court in exercise of its jurisdiction of

superintendence can interfere in order only to

keep the tribunals and Courts subordinate to

it, 'within the bounds of their authority'.

(f) In order to ensure that law is followed by

such tribunals and Courts by exercising

jurisdiction which is vested in them and by not

declining to exercise the jurisdiction which is

vested in them.

(g) Apart from the situations pointed in (e)

and (f), High Court can interfere in exercise of

its power of superintendence when there has

been a patent perversity in the orders of

tribunals and Courts subordinate to it or

where there has been a gross and manifest

failure of justice or the basic principles of

natural justice have been flouted.

(h) In exercise of its power of superintendence

High Court cannot interfere to correct mere

errors of law or fact or just because another

view than the one taken by the tribunals or

Courts subordinate to it, is a possible view. In

other words the jurisdiction has to be very

sparingly exercised.

(i) High Court's power of superintendence

under Article 227 cannot be curtailed by any

statute. It has been declared a part of the

basic structure of the Constitution by the

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Constitution Bench of this Court in the case of

L. Chandra Kumar vs. Union of India & others,

1997 3 SCC 261 and therefore abridgement

by a Constitutional amendment is also very

doubtful.

(j) It may be true that a statutory amendment

of a rather cognate provision, like Section 115

of the Civil Procedure Code by the Civil

Procedure Code (Amendment) Act, 1999 does

not and cannot cut down the ambit of High

Court's power under Article 227. At the same

time, it must be remembered that such

statutory amendment does not

correspondingly expand the High Court's

jurisdiction of superintendence under Article

227.

(k) The power is discretionary and has to be

exercised on equitable principle. In an

appropriate case, the power can be exercised

suo motu.

(l) On a proper appreciation of the wide and

unfettered power of the High Court under

Article 227, it transpires that the main object

of this Article is to keep strict administrative

and judicial control by the High Court on the

administration of justice within its territory.

(m) The object of superintendence, both

administrative and judicial, is to maintain

efficiency, smooth and orderly functioning of

the entire machinery of justice in such a way

as it does not bring it into any disrepute. The

power of interference under this Article is to

be kept to the minimum to ensure that the

wheel of justice does not come to a halt and

the fountain of justice remains pure and

unpolluted in order to maintain public

confidence in the functioning of the tribunals

and Courts subordinate to High Court.

(n) This reserve and exceptional power of

judicial intervention is not to be exercised just

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for grant of relief in individual cases but

should be directed for promotion of public

confidence in the administration of justice in

the larger public interest whereas Article 226

is meant for protection of individual grievance.

Therefore, the power under Article 227 may

be unfettered but its exercise is subject to

high degree of judicial discipline pointed out

above.

(o) An improper and a frequent exercise of

this power will be counter-productive and will

divest this extraordinary power of its strength

and vitality.”

(Emphasis supplied)

The aforesaid principles stand reiterated by the Apex

Court in Ram Kishan Fauji v. State of Haryana & others,

(2017) 5 SCC 533.

28. Earlier in Radhey Shyam and another Vs.

Chhabi Nath and others , (2015) 5 SCC 423 while holding

that orders of Civil Courts are not amenable to writ

jurisdiction under Article 226 of the Constitution of India,

it further held that jurisdiction under Article 227 of the

Constitution of India was distinct from the jurisdiction

under Article 226 of the Constitution of India. To this

extent, it also overruled its contrary view in Surya Dev

Rai Vs. Ram Chander Rai, (2003) 6 SCC 675. In para 28 of

the judgment in Radhey Shyam’s case, Hon’ble Supreme

Court observed that:

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“28. We may also deal with the submission

made on behalf of the respondent that the view in

Surya Dev Rai stands approved by larger Benches

in Shail, Mahendra Saree Emporium and Salem

Advocate Bar Assn and on that ground

correctness of the said view cannot be gone into

by this Bench. In Shail, though reference has been

made to Surya Dev Rai, the same is only for the

purpose of scope of power under Article 227 as is

clear from para 3 of the said judgment. There is

no discussion on the issue of maintainability of a

petition under Article 226. In Mahendra Saree

Emporium, reference to Surya Dev Rai is made in

para 9 of the judgment only for the proposition

that no subordinate legislation can whittle down

the jurisdiction conferred by the Constitution.

Similarly, in Salem Bar Assn. in para 40, reference

to Surya Dev Rai is for the same purpose. We are,

thus, unable to accept the submission of learned

counsel for the respondent.”

29. In Mohd. Yunus Vs. Mohd. Mustaquim and

others , (1983) 4 SCC 566, Hon’ble Supreme Court held

that High Court has very limited scope under Article 227

of the Constitution and even errors of law cannot be

corrected in exercise of power of judicial review while

exercising such power. The powers can be used sparingly

only when High Court comes to the conclusi on that the

Authority/Tribunal has exceeded its jurisdiction or

proceeded under erroneous presumption of jurisdiction. It

further held that the High Court cannot assume unlimited

prerogative to correct all species of hardship or wrong

decision. For interference, there must be a case of

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flagrant abuse of fundamental principles of law or where

order of Tribunal etc. has resulted in grave injustice.

30. In Chandrasekhar Singh and others Vs. Siya

Ram Singh and others, (1979) 3 SCC 118, Hon’ble

Supreme Court observed that:

“11. The only other question that remains

to be considered is whether an order

under Section 146 (1B) can be interfered with by

the High Court in the exercise of its powers

under Article 227 of the Constitution. It is

admitted that the powers conferred on the High

Court under Art. 227 of the Constitution cannot in

any way be curtailed by the provisions of the

Criminal Procedure Code. Therefore, the powers of

the High Court under Art. 227 of the Constitution

can be invoked in spite of the restrictions placed

under Section 146(1D) of the Criminal Procedure

Code. But the scope of interference by the High

Court under Art. 227 is restricted. This Court has

repeatedly held that " the power of

superintendence conferred by Article 227 is to be

exercised most sparingly and only in appropriate

cases in order to keep the subordinate courts

within the bounds of their authority and not for

correcting mere errors vide 1954 S.C.R. 565

(Waryam Singh v. Amar Nath). In a later decision,

(Nagendra Nath Bora and another v. The

Commissioner of Hills Division, and Appeals,

Assam and Others(1), the view was reiterated and

it was held that the power of judicial interference

under Article 227 of the Constitution are not

greater than the power under Article 226 of the

Constitution, and that under Art. 227 of the

Constitution, the power of interference is limited

to seeing that the tribunal functions within the

limits of its authority. In a recent decision,

(Babhutmal Raichand Oswal v. Laxmibai R.

Tarts(2) this Court reiterated the view stated in

the earlier decisions referred to and held that the

power of superintendence under Article 227 of the

Constitution cannot be invoked to correct an error

of fact which only a superior court can do in

exercise of its statutory power as the Court of

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appeal and that the High Court cannot in exercise

of its jurisdiction under Art. 227 convert itself into

a court of appeal.”

(Emphasis supplied)

31. In Rena Drego Vs. Lalchand Soni and others ,

(1998) 3 SCC 341, the Hon’ble Supreme Court has

categorically held that the power under Article 227 of the

Constitution is of the judicial superintendence which

cannot be used to up -set the conclusions of facts,

howsoever erroneous those may be, unless such

conclusions are so perverse or so unreasonable that no

Court could have ever reached them.

32. In Baby v Travancore Devaswom Board and

others, (1998) 8 SCC 310, the Hon’ble Supreme Court

has held that even if revisional jurisdiction was not

available to the High Court, it still have powers under

Article 227 of the Constitution of India to set aside the

orders so passed by the Tribunal if the finding of fact

arrived at was perverse.

33. In Ajaib Singh Vs. Sirhind Co-operative

Marketing cum Processing Service Society Ltd., (1999) 6

SCC 82, the Hon’ble Supreme Court held that High Court

is not to substitute its view for the opinion of Authorities/

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Courts below as the same is not permissible in

proceedings under Articles 226/227 of the Constitution.

34. Thus, it can conveniently be held that the

supervisory jurisdiction under Article 227 of the

Constitution of India is exercised for keeping the

Subordinate Courts within the bound of the jurisdiction,

when such Court has assumed jurisdiction which it does

not has or has failed to exercise jurisdiction which it does

has or jurisdiction though available is exercised by the

Court in a manner not permitted by law and failure of

justice or grave injustice has occasioned thereby the

High Court may step -in to exercise its supervisory

jurisdiction. The supervisory jurisdiction is not available

to correct mere errors of fact or law unless the following

requirement is satisfied:-

(i) The error is manifest and apparent on the

face of the proceedings such as when it is based

on ignorance or utter disregard to the provisions

of law, and to grave injustice or gross failure of

justice has occasioned thereby.

(ii) The power to issue a writ of certiorari and

the supervisory jurisdiction are to be exercised

sparingly and only in appropriate cases where the

judicial conscious of the High Court dictates which

too act lest gross failure of justice or grave

injustice has occasioned.

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35. Having set out the legal parameters for

exercise of jurisdiction, it would be necessary to advert to

the facts of the case.

36. As we have already held above, in view of the

specific provisions so contained in Section 102 of the

Code of Civil Procedure, the order passed by the first

Appellate Authority cannot be ordinarily permitted to be

assailed by invoking the supervisory jurisdiction of this

Court under Article 227 of the Constitution of India. This

we say so for the reason that in our considered view,

what cannot be done directly cannot be permitted to be

done indirectly.

37. Coming to the scope of interference under

Article 227 of the Constitution of India, in our considered

view, taking into consideration the specific bar created

under Section 102 of the Code, in routine, judgment

passed by the learned first Appellate Court cannot be

assailed under Article 227 of the Constitution of India on

merit. We are not oblivious to the fact that whereas the

right to file appeal, revision etc. is a statutory right, the

right of supervision conferred upon this Court under

Article 227 of the Constitution of India is constitutional

right. However, in the guise of exercise of its right of

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supervision, this Court cannot be called upon to re -

appreciate the evidence on record in matters in which

second appeal is prohibited under Section 102 of the

Code of Civil Procedure.

38. The limited scope of interference under Article

227 of the Constitution of India, in such like matters

would be where there is perversity on the face of the

impugned judgment, for which there is no need to re -

appreciate the evidence on record and permitting which

perversity to remain on record would result in travesty of

justice.

We decide the Reference accordingly.

(Sanjay Karol)

Judge

(Ajay Mohan Goel)

Judge

November 5, 2018(sd)

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