- (1.)Order in I.A 425/2018 in O.S 71/2014 on the file of the additional Munsiff Court, Kochi is under challenge in this original petition filed under Article 227 of the Constitution of India.
(2.)Heard the learned counsel for the petitioner. I have perused the order impugned. As per the order impugned, the learned Munsiff considered an application filed under Order 9 rule 13 CPC along with an application filed under sec. 5 of the limitation Act. Finally, petition was allowed on payment of cost of Rs.10000.00, to be paid on or before 3/1/2020. The same order made it clear that if the cost not paid as directed the application would stand dismissed. The petitioner herein failed to pay the cost and accordingly application filed under Order 9 Rule 13, along with delay petition were dismissed. The said orders are 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, whether the remedy Article 227 of the Constitution of India is available ?
(3.)While answering the query, a decision of the Apex Court reported in 2019 KHC 7006 Virudhunagar Hindu Nadargal Dharma paribalana Sabai and Others Vs Tuticorin Educational Society and Others, 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 OP is not maintainable before this court.
Therefore, the OP is dismissed with liberty to the petitioner to approach the Appellate Court as per law.