SANJIB BANERJEE,J. - (1.) THE primary similarity in these two references is in their posing the identical ultimate question: whether a petition under Article 227 of the Constitution of India ought to be entertained in either case.
(2.) BEFORE any discussion even on the circumstances in which these references came to be made, some ground rules need to be established by the reiteration of a few axiomatic principles. To begin with, every High Court exercises plenary powers of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This overwhelming prerogative - not necessarily to merely correct orders but to keep the subordinate fora within the bounds of their authority - is subject to a self-imposed restraint exercised by the High Courts in ordinarily not entertaining any matter for judicial review under Article 227 of the Constitution of India if there is an efficacious alternative remedy available to the person seeking to invoke the jurisdiction. It is fundamental that the existence of an efficacious alternative remedy does not make a petition otherwise amenable under Article 227 of the Constitution to be not maintainable; it is just that the High Court will not allow this extraordinary jurisdiction to be invoked if it recognises that there is another effective mode of redressing the perceived wrong complained of. Secondly, the right of appeal is a substantive right which is only created by a statute and such right does not inhere in any person. Unlike under Section 9 of the Code of Civil Procedure, 1908 which has room enough to accommodate all civil complaints by way of a suit unless expressly prohibited by law or barred by inescapable necessary implication, there is no implied right of appeal unless it is expressly conferred. Thirdly, if there is a specific provision in any law for a particular purpose, the general or residuary provision in the same body of law or elsewhere cannot be invoked for the same purpose. Finally, notwithstanding how a petition is intituled, or its nomenclature, and despite an erroneous reference to the source of authority in any petition or an order thereon, it is only the nature of the petition and the character of the order that have a telling impact on the purport thereof, particularly in determining whether the order is amenable to an appeal. Co No. 1862 of 2011 is a petition under Article 227 of the Constitution arising out of an interlocutory order passed in course of an appeal from a preliminary decree in a partition suit. The authority of the appellate court to make an interlocutory order of injunction was invoked by referring to Order XXXIX Rules 1 and 2 of the Code read with Section 151 thereof. Upon the petition under Article 227 of the Constitution being received on July 14, 2011, the Single Bench noticed that there were two recent Division Bench decisions of this court reported at (2007) 3 CHN 166 (Jamuna Chakraborty v. Sital Chakraborty) and at (2011) 2 Cal LT 144 (HC) (Shrimati Mamata Guha v. Pranab Kumar Das), which held that in similar situations no appeal would be available from an interlocutory order of injunction passed by an appellate court. It was also observed that a contrary view was taken in two other Division Bench judgments reported at (2004) 1 CHN 1 (Sushil Kumar De v. Chhaya De) and at AIR 2007 Cal 154 (Raj Kumar Rowla v. Manabendra Banerjee). The question formulated for the reference is as follows: "Whether, having regard to the facts and circumstances involved in this revisional application, an appeal is maintainable against the impugned order under Order 43 Rule 1(r) of the Civil Procedure Code or not?"
(3.) IN CO No. 2310 of 2011, in proceedings under Sections 73 and 74 of the Indian Trusts Act, 1882, an interlocutory application invoking Order XXXIX Rules 1 and 2 read with Section 151 of the Code was filed. From the order on such application, a petition under Article 227 of the Constitution has been carried to this court. Upon such petition being taken up, the reference made in CO No. 1862 of 2011 was noticed and it was observed that, "The question as to whether a revisional application would be maintainable against an order of injunction passed in a misc. case is unsettled in view of conflicting opinions expressed by two sets of Division Bench decisions of this Court. "... Having regard to the similarity of issue involved herein i.e. whether this revisional application is maintainable or not, this application may also be placed for consideration ..." ;