NARAYAN CHANDRA LAHA Vs. SUNIL KUMAR AUDDY

JUDGEMENT

(1.) This Rule is directed against order No. 59 dated 11th April, 1973, and order No. 65 dated 7th Nov., 1973, passed by the learned Munsif, 5th Court, Alipore, in Title Suit No. 323 of 1969.

(2.) By the first order, namely, order No. 59 dated 11th April, 1973, an application under Sec. 17(2) of the West Bengal Premises Tenancy Act made by the defendant in the ejectment suit was rejected. Against the said order of rejection, an application under Sec. 151 of the Code of Civil Procedure was made by the defendant-petitioner and by his order No. 65 dated 7th Nov., 1973 the learned Munsif also rejected the said application under Sec. 151 of the Code of Civil Procedure. It may be pointed out that both the aforesaid orders have been challenged in the instant application under Art. 227 of the Constitution of India. In my view, in the facts and circumstances of this case, an application under Art. 227 of the Constitution should not have been invoked for challenging the impugned orders passed in the title suit by the learned Munsif. It is obvious that a High Court exercises an overall superintending power under Art. 227 of the Constitution of India over the subordinate courts but this constitutional remedy under Art. 227 should not be exercised in matters where specific relief can be obtained under the Code of Civil Procedure or under any specific Act. It is quite obvious in the instant case that the aforesaid orders could have been challenged under Sec. 115 of the Code of Civil Procedure before this Court and as such it will not be proper for this Court to exercise jurisdiction under Art. 227 of the Constitution of India in respect of orders which can be challenged under the Code of Civil Procedure. There is further difficulty in this case. So far as the first order No. 59 dated 11th April, 1973 is concerned, the said order could not have been challenged under Sec. 115 of the Code of Civil Procedure on the 18th Dec., 1973, when the instant application under Art. 227 of the Constitution was moved. Even assuming that jurisdiction under Art. 227 of the Constitution may also be invoked in the present case, such jurisdiction should not be exercised because in my view it will result in circumventing the law of limitation prescribed for moving this court in revision under Sec. 115 of the Code of Civil Procedure. So far as the second order, namely, Order No. 65 dated 7th Nov., 1973, is concerned, the trial court is quite justified in dismissing the said application under Sec. 151 of the Code of Civil Procedure.

(3.) Mr. Mitter, the learned Advocate appearing for the petitioner contended that in passing the said order, namely, the Order No. 65 dated 7th Nov., 1973, the learned Munsif has not applied his judicial mind and it appears that he was indignant against the conduct of the defendant which very much weighed with him. Mr. Mitter further contended that 11th April, 1973, was not fixed for hearing of the application under Sec. 17(2) of the West Bengal Premises Tenancy Act made by the defendant-petitioner but the court on its own motion heard the said application without giving the defendant any opportunity of being heard and on that score alone the said order is liable to be set aside and the matter should have been heard afresh and the application under Sec. 151 of the Code of Civil Procedure should have been allowed by the learned Munsif.