Alternative Remedy And Supervisory Jurisdiction Of High Courts Under Article 227 Of Constitution

Recently, a two judge bench of the Supreme Court delivered a significant judgment in which it observed that the availability of an appellate remedy in terms of the provisions of Code of Civil Procedure can be construed as a 'near total bar' for the exercise of supervisory jurisdiction under Article 227 of the Constitution of India by High Courts.

The principle 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 was settled by the five judges bench of the Supreme  Court in Waryam Singh vs. Amarnath. [AIR 1954 SC 215].

Perhaps, this is for the first time, that the Supreme Court has gone to the extent of using the phrase 'near total bar'. According to the Court in Virudhunagar Hindu Nadargal Dharma Paribalana Sabai vs. Tuticorin Educational Society, the availability of a remedy under the 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.'

"But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before Civil Courts in terms of the provisions of Code of Civil procedure and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which the respondents 1 and 2 invoked the jurisdiction of the High court."

The bench placed reliance of another two judge bench judgment delivered two decades ago in A. Venkatasubbiah Naidu vs. S. Chellappan [(2000) 7 SCC 695]. In the said case, the question cursorily examined by the Apex court was whether the High Court should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies. That was a case where defendants approached the High Court invoking its supervisory jurisdiction against an ex-parte interim order of injunction against them in the suit filed by the plaintiff. Taking note of the two alternative remedies the defendant had in such a situation, the bench opined:

Though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned single judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High Court had chosen to entertain the revision petition. 

It is important to note that in the said case, the High Court did not set aside the order passed by the High Court on the ground of maintainability. The principle that there cannot be an absolute bar is made clear in the same judgment by observing that 'no hurdle can be put against the exercise of the constitutional powers of the High Court'.

In Virudhunagar, the Supreme Court has gone a step ahead from Venkatasubbiah, when it said that there is a 'near total bar' on High Court to exercise its supervisory jurisdiction when alternate remedy under CPC exists.

Surya Deva Rai on Article 227 and alternate remedy

The Court in Virudhunagar has also referred to the judgment in Radhey Shyam vs. Chhabi Nath [(2015) 5 SCC 423] apparently to support its 'near total bar' logic.

It is pertinent to mention that in Radhey Shyam, the Supreme Court had held only as follows. (1) Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution; (2) (ii) Jurisdiction under Article 227 is distinct from jurisdiction from jurisdiction under Article 226. The contrary view in Surya Dev Rai was overruled by the bench.In fact, para 24 of the judgment makes it clear that the observations made in Surya Dev Rai vs Ram Chander Rai [(2003) 6 SCC 675]about scope of power under Article 227 was not considered or overruled by the bench.

So what has been said in Surya Deva Rai is relevant even now. It was thus observed:

In order to safeguard against a mere appellate or revisional jurisdiction being exercised in the garb of exercise of supervisory jurisdiction under Article 227 of the Constitution, the courts have devised self-imposed rules of discipline on their power. Supervisory jurisdiction may be refused to be exercised when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved. The High Court may have regard to legislative policy formulated on experience and expressed by enactments where the Legislature in exercise of its wisdom has deliberately chosen certain orders and proceedings to be kept away from exercise of appellate and revisional jurisdiction in the hope of accelerating the conclusion of the proceedings and avoiding delay and procrastination which is occasioned by subjecting every order at every stage of proceedings to judicial review by way of appeal or revision. So long as an error is capable of being corrected by a superior court in exercise of appellate or revisional jurisdiction though available to be exercised only at the conclusion of the proceedings, it would be sound exercise of discretion on the part of the High Court to refuse to exercise power of superintendence during the pendency of the proceedings. However, there may be cases where but for invoking the supervisory jurisdiction, the jurisdictional error committed by the inferior court or tribunal would be incapable of being remedied once the proceedings have concluded.

As one of its conclusion, the Court in Surya Deva Rai also had held:

Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being 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.

It was further held that, in exercise of supervisory jurisdiction, the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case. Concluding thus, it was so observed:

"Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self-restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where 'a stitch in time would save nine'. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge.

Can be exercised in extraordinary circumstances

A three judge bench in Maneck Gustedji Burjarji vs. Sarafazali Nawabali Mirza AIR 1976 SC 244,  had held that there can be extraordinary circumstances where despite the existence of an alternative legal remedy, the High court can interfere under Article 227 of the Constitution. However, in the said case, it was held that a legal remedy available to petitioner by way of an appeal against the decree of the City Civil Court and this remedy was not only adequate but more comprehensive than the one under Article 227.

It is well-settled principle that the High Court does not ordinarily, in exercise of its discretion, entertain a special civil application under Article 227 of the Constitution where an adequate alternative legal remedy is available to the applicant. It is true that this principle is not rigid and inflexible and there can be extraordinary circumstances where despite the existence of an alternative legal remedy, the High Court may interfere in favour of an applicant, but this was certainly not one of such extraordinary cases.

The impact of the recent judgment on the High Court's exercise of its constitutional power under Article 227 will be significant. Does the new Doctrine of 'Near Total Bar' tantamount to placing hurdle on the exercise of constitutional power by the High Courts? This is a question which might be answered in future in appropriate cases.