@JUDGMENTTAG-ORDER
S.S. Subramani, J.@mdashLandlord in R.C.O.P. No. 1530 of 1986, on the file of 14th Judge, Court of Small Cause, Madras, is the revision
petitioner.
2. The revision is filed under Article 227 of the Constitution of India, complaining to this Court the injustice done to the petitioner, and how the
lower Court passed the impugned Order in a callous manner.
3. Eviction petition was filed by petitioner herein as R.C.O.P. No. 1530 of 1986 on various grounds. It was hotly contested, and finally an order of
eviction was passed by this Court in C.R.P. No. 2759 of 1993 dated 28.10.1995. This Court, while passing the Order of eviction, directed the
respondent therein to file an affidavit of undertaking within four weeks from that date, agreeing to vacate the premises in question, and in case they
filed such an undertaking within the stipulated time, they will be given three months time to vacate and handover possession. Respondents therein
did not file such an undertaking. Naturally, the decree-holder had to file execution petition for getting possession of the Building. The Executing
Court ordered delivery of the building. It is said that on 5.1.1996, bailiff visited the premises along with the son of landlord, and at that time the
respondents in the eviction petition were also present. Bailiff informed them the purpose of his visit, and wanted to execute the Order. Tenants
refused to vacate, and they even pushed out the bailiff and landlord''s son out of the building. They also used most abusive words. Naturally, the
bailiff could not execute the warrant and he reported the matter to Court and sought police protection. After pushing out the bailiff and the son of
landlord, tenants also locked the doors so that the bailiff may not be in a position to handover delivery on that day. To implement the Order, a new
petition was filed before the executing Court, to break open the lock, and armed with that Order, along with police help, the bailiff again visited the
building. At that time, none of the respondents in the eviction petition was present, and in their place, one Murugayan who is the 7th respondent in
this revision came forward with an obstruction petition. Naturally the warrant of delivery could not be executed, and the same was returned.
Decree-holder filed an application for removal of obstruction, and after protracted trial, lower Court passed the impugned order, dismissing the
application of the petition, and upholding the obstruction. Consequently, the very decree has now become inexecutable.
4. When the revision petition came for admission, I ordered notice of motion, and private notice was also permitted, and, after service, 7th
respondent also entered appearance.
5. Before further going into the merits of the case, it has to be pointed out that learned Counsel for 7th Respondent submitted that this revision
petition is not maintainable under Article 227 of the Constitution of India since against an Order under Order 21, Rule 97, C.R.C. dismissing an
application to remove obstruction, a statutory appeal lies, and that is an effective remedy. In support of this contention, he relied on the decision
reported in Fathima Automobiles v. P.K.P. Nair and 2 Ors. (1985)2 M.L.J. 31 : 1984 T.L.N.J. 368. and Palaniappan v. Pandurangam (1990) 1
L.W. 128. Learned Counsel wanted this Court to dismiss the present revision petition on that sole ground.
6. It is better to consider this question of maintainability after entering a finding whether manifest injustice has been done to the petitioner, or
whether there are sufficient grounds for invoking powers under Article 227 of the Constitution of India.
7. The main grievance of the petitioner is that the lower Court has gone on a tangent without considering the legal principles. It is submitted by
learned Counsel that the burden of proof has been wrongly cast on the petitioner in a case where he wanted to get delivery of the building pursuant
to an order passed by Court. It is also contended by learned Counsel that material evidence was not considered and certain reasons are mentioned
in the Order to reject his application without looking into the record produced by him. It is also submitted that the tenants availed time to surrender
possession of the building on the representation that they will file an affidavit of undertaking and this Court believed that statement, and later,
instead of filing an affidavit of undertaking, the tenant has set up his own brother-in-law 7th respondent herein, as if he had been in possession of
the building even before the eviction petition was filed.
8. Learned counsel for petitioner/landlord submitted that for each and every finding that has been entered against him by the lower Court, he has let
in evidence and if that had been considered and a discussion had been made about it, a finding of this nature would not have been entered. It is
also submitted that the eviction petition was filed in 1986, which is of summary procedure, and law prescribes disposal of eviction petition within
four months, but he is agitating the matter to get possession of the building for the past more than 12 years, and if he is again asked to file another
suit or appeal, that will amount to denial of justice to him.
9. In this connection, it may be noted that learned Counsel for 7th respondent stated that he is not going to argue anything on merits, and he has no
argument to counter the statement made by learned Counsel for petitioner.
10. Regarding burden of proof, I find that the lower Court has taken the view that it is for the landlord to prove that there is no rental arrangement
with the 7th respondent. When the decree-holder files execution petition for getting possession, he is armed with a decree, and a person who
obstructs the same, is bound to prove that he is in possession of the building independent of the judgment- debtor and, therefore, not liable to be
dispossessed. So far as the execution petition is concerned, the decree itself is the title, to get possession. It is that title that is disputed by the
obstructor. Naturally, the burden is only on him to prove that the decree cannot be executed. Therefore, the finding of the lower Court that the
decree holder must prove the circumstance under which the 7th respondent came into possession of the building, is perverse.
11. On merits, it should be pointed out that the 7th respondent has not produced any document to show that there had been a rental arrangement
with the landlord and the first document that comes to the scene is only in the later half of 1995 at a time when the revision Was already heard by
this Court. Two money orders are the trump cards of the 7th respondent. According to lower Court, the landlord has received the money order
which the 7th respondent has sent towards rent. It is the case of the landlord that immediately he returned the same and did not accept the sums
sent by those money orders. The lower court assumed that the return by the landlord is about four months after the receipt of the money order. As
early as on 15.4.1996, petitioner has informed the 7th respondent that he has already returned the money order and that he is not accepting that
amount since he has no arrangement with him. It is the case of the 7th respondent that he is in absolute possession of the entire premises of Door
No. 36, North Mada Street, Mylapore, Madras, since 1968, and that he was inducted by one Velu Mudaliar, he having agreed to pay a rent of
Rs. 700. In evidence, he said that it is not Velu Mudaliar but one Saravanaswami Mudaliar who inducted him into the building. Both these
statements are belied by documentary evidence filed before the lower Court which shows that these persons were dead long before that date. The
landlord also filed Ex. P-21, a counter filed in H.R.C. No. 1407 of 1977 filed by L. Rathinam. In that statement, Rathirmm himself has admitted
that he is in possession of the entire building and along with him and under him other members are also residing, and the entire joint family is
occupying the building. The obstructor is one among them. So he was in Occupation of the building not as a tenant, nor was in his exclusive
possession. He was only a person claiming under the tenant as a member of his family. When this was brought to the notice of the Obstructor, he
even denied his relationship with the tenant. He pleaded ignorance about Rathinam, and also about the respondents in the eviction petition. He even
pleaded that he does not know whether his wife has got brothers and sisters. But unfortunately for him, his own witness has deposed that Rathinam
is none other than the obstructor''s brother-in-law. Lower Court has found that the petitioner has not adduced any evidence to show that the tenant
and the obstructor are relations. The first sentence in the cross-examination of the witness was omitted to be considered by the lower Court. These
are the only two reasons mentioned by the lower Court for coming to the conclusion that the petitioner herein is not entitled to have the obstruction
removed. If these two findings cannot be sustained, it is only to be held that the revision has to be allowed. It is at this juncture, I have to consider
whether the petitioner/landlord has to file a statutory appeal or whether I could invoke my powers under Article 227 of the Constitution of India.
12. From the evidence, it is clear that the tenants who were parties to the eviction proceedings, though sought time to surrender vacant possession
of the building, did not surrender the building, nor did they vacate it. At the instancy of the 7th respondent, they wanted to continue in the building,
and the 7th respondent has been asked to file the obstruction petition. The contention that they have vacated the building is false. It must also be
noted that even regarding the area in the alleged occupation of the obstructor there is inconsistency. When the obstructor is a member of the joint
family and claims to be in possession, it has to be presumed that the earlier tenants are also continuing in possession and they sought time to
surrender only to create evidence for filing obstruction petition and thus delay the execution.
13. In State of U.R. v. Mohammed Nooh AIR 1958 S.C. 86. Their Lordships considered the power of the High Court for issuing writ of
certoriari. In paragraphs 10 and 11, Their Lordships have held thus:
In the next place, it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is
no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has
been conferred by statute. (Halsbury''s Laws of England, 3rd Edn. Vol. 11 page 130 and the cases cited there). The fact that the aggrieved party
has another and adequate remedy may be taken into consideration by the Superior Court in arriving at the conclusion as to whether it should, in
exercise of its discretion, issue a writ of certiorarito quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the
Superior Court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the
exhaustion of statutory remedy before the writ will be granted is a rule of; policy, convenience and discretion rather than a rule of law and instances
are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. In the King
v. Postmaster-General Ex parte Carmichale (1926)1 KB. 29] a certiorari was issued although the aggrieved party had an alternative remedy by
way of appeal. It has been held that the Superior Court will readily issue a certiorari in a case where there has been a denial of natural justice
before a court of summary jurisdiction. The case of Rex v. Wardsworth Justices Ex parte Read (1942)I K.B. 281 is an authority in point. In that
case a man had been convicted in a court of summary jurisdiction without giving him an opportunity of being heard. It was held that his remedy was
not by a case stated or by an'' appeal before the quarter sessions but by application to the High Court for an order of certiorari to remove and
quash the conviction. At page 284 Discount Caldecote, C.J. observed:
It remains to consider the argument that the remedy of certiorari is not open to the applicant because others were available. It would be ludicrous
in such a case as the presenter the convicted person to ask for a case to be stated. It would mean asking this Court to consider as a question of
law whether justices were right in convicting a man without hearing his evidence. That is so extravagant an argument as not to merit a moment''s
consideration. As to the right of appeal to quarter sessions, it may be that the applicant could have had his remedy if he had pursued that course,
but I am not aware of any reason why, if in such circumstances as these, he preferred to apply for an order of certiorari to quash his conviction, the
court should be debarred from granting his application.
Likewise, in Khurshed Mody Vs. Rent Controller, it was held that the High Court would not refuse to issue a writ of certiorari merely because
there was a right of appeal. It was recognized that ordinarily the High Court would require the petitioner to have recourse to his ordinary remedies,
but if it found that there had been a breach of fundamental principles of justice, the High Court would certainly not hesitate to issue the writ of
certiorari. To the same effect are the following observations of Harries, C.J. in 56 Cal.W.N.453.
There can, I think, be no doubt that court can refuse to issue a certiorari if the petitioner has other remedies equally convenient and effective. But it
appears to me that there can be cases where the court can and should issue a certiorari even where such alternative remedies are available, where
a court or tribunal, which is called upon to exercise judicial or quasi-judicial functions discards all rules of natural justice and arrives at a decision
contrary to all accepted principles of justice then it appears to me that the court can and must interfere.
It has also been held that a litigate who has lost his right of appeal or has failed to perfect an appeal by no fault of his own in a proper case obtain a
review by certiorari. (See corpus juris secundum Vol. 14, Article 40 P. 189). If, therefore, the existence of other adequate legal remedies is not
per se a bar to the issue of certiorari and if in a proper case if may be the duty of the superior court to issue a writ of certiorari to correct the errors
of an inferior court, of Tribunal called upon to exercise judicial or quasi-Judicial functions and not to relegate the petitioner to other legal remedies
available to him and if the superior court can in a proper case exercise its jurisdiction in favour of a petitioner who has allowed the time to appeal to
expire or has not perfected his appeal e.g. by furnishing security required by the statute, should it then be laid down as an inflexible rule of law that
the superior court must deny the writ when an inferior court or tribunal by discarding all principles of natural justice and all accepted rules of
procedure arrived at a conclusion which shocks the sense of justice and fair play merely because such decision has been upheld by another inferior
court Or tribunal on appeal of revision. The case of 1889 22 QBB 345 referred to in Janardan Reddy and Others Vs. The State of Hyderabad
and Others, , furnished the answer. There the manager of a club was convicted under a certain statute for selling beer by retail without an excise
retail licence. Subsequently, he was convicted of selling intoxicating liquor, namely/ without a licence under another statute. Upon hearing of the
later charge, the Magistrate treated it as a second offence and imposeda full penalty authorised in the case of a second offence by the latter statute.
His appeal to the quarter sessions having been dismissed, he applied for a writ of habeas corpus and it was granted by the King''s Bench Division
on the ground that the Magistrate could not treat the later Offence as a second offence, because it was not a second offence under the Act under
which he was convicted for the second time. Evidently the point was taken that if there had been any error, irregularity or illegality committed by
the Magistrate, the quarter sessions could have, On appeal, corrected the same and that the quarter sessions having dismissed the appeal, the court
of Queen''s Bench Division could not issue the writ of habeas corpus. This was repelled by the following observation of Hawkins, J. This is true as
a fact, but it puts the prosecution in no better position, for if the Magistrate had no power to give himself jurisdiction by finding that there had been
a first offence where there had been none; the justices could not give it to them.
On the authorities referred to above, it appears to us that there may conceivably be cases - and in the instant case is in point where the error,
irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obtrusive
that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured by an appeal or revision. If an inferior court
or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the; proceedings before it in a
manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court''s sense of fair play
the superior court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the court of
Tribunal of first instance even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had
to it, it confirmed what ex facie was a nullity for reasons aforementioned.
14. The principle enunciated in State of U.P. v. Mohamed Noch AIR 1958 S.C. 86 was reiterated in the decision reported in Ram and Shyam
Company Vs. State of Haryana and Others, and Their Lordships hold in paragraph 9 thus:
Before we deal with the larger issue, let me put out of the contention that found favour with the High Court in rejecting the writ petition. The
learned single Judge as well as the Division Bench recalling the observations of this Court in Assistant Collector of Central Excise v. Jainson
Hosiery Industries rejected by the writ petition, observing that ""the petitioner who invokes the extraordinary jurisdiction of the court under Article
226 of the Constitution must have exhausted the normal statutory remedies available to him."" We remain unimpressed. Ordinarily it is true that the
court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Article 226 where the party invoking the jurisdiction as an
effective, adequate alternative remedy. More often, it has been expressly stated that the rule which requires the exhaustion of alternative remedies
is a rule of convenience and discretion rather than rule of law. At any rate it does not oust the jurisdiction of the court. In fact in the very decision
relied upon by the High Court in State of U.P. v. Mohammed Nook AIR 1958 S.C. 86 it is observed ""that there is no rule, with regard to
certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy."" It should be made specifically clear that
where the order complained against is alleged to be illegal or invalid as being contrary to law, a petition at the instance of person adversely affected
by it, would lie to the High Court under Article 226 and such a petition cannot be rejected on the ground that an appeal lies to the higher officer of
the State Government. An appeal in all cases cannot be said to provide in all situations an alternative effective remedy keeping aside the nice
distinction between jurisdiction and merits.
15. Regarding exercise of jurisdiction under Article 227 of the Constitution, the Honorable Supreme Court has held in Miss Maneck Gustedji
Burjarji Vs. Sarafazali Nawabali Mirza, . Their Lordships of the Supreme Court, in paragraph, 6 have held thus;
It is very difficult to appreciate the reasoning behind the order made by the High Court. It is to say the least an extraordinary order which files in
the face of law and judicial procedure. The respondent had clearly a legal remedy available to him by way of an appeal against the decree of the
City Civil Court and this remedy was not only adequate but more comprehensive that the one under Article 227 of the Constitution. Even so, for
some inexplicable reasons, the respondent chose to prefer a special leave application under Article 227 of the Constitution and Vaidya, J
entertained the special civil application and granted relief to the respondent casting to the winds, the 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.
16. Even in an old decision, the circumstances under which Article 227 of the Constitution of India can be exercised came for consideration in a
decision of our High Court in In Re: Annamalai Mudaliar, . In Paragraphs 11 and 12 it has been held thus:
The substance of all these decisions can be summed up in three, propositions viz. it does not involve a responsibility of the Superintending Tribunal
for the correctness of the decisions of the inferior courts, either in fact or law. If the inferior court, after hearing the parties comes to an erroneous
decision on a matter within its jurisdiction the court having power of superintendence never interferes. The only mode of questioning the propriety
of such a decision is by appeal. Nor can this power be invoked to get round any express provision of the Code of Criminal Procedure or any other
law. Secondly the general superintendence conferred by this constitutional provisions over all jurisdiction subject to appeal involves duty to keep
them within the bounds of their authority, to see that they do what their duty requires and that they do it in a legal manner. Therefore, the
interference under Article 227 would naturally be in cases where there is a grave dereliction of duty: Shitab Singh v. Suraj Bali, 1952 All.L.J. 283
or there is a flagrant abuse of fundamental principles of law of natural justice or there is in existence no other remedy for remedying the wrong
Madhusudhan Vs. Shyam Dass, ; Basant Lal v. Arjun Das AIR 1951 VP 4 or prevent miscarriage of justice Jaganath v. Mt. Puniya AIR 1952
M.P 51; Mani Ram and Others Vs. Jhamru and Another, ; Mitra v. Datta Gupta, 54 Cal.W.N.: Union of Workmen of R.S.N. & I.G.N. &Rly Co.
Ltd. v. R.S.N Co. Ltd. AIR. 1951 gua 97; Abdul Rahim Naskar Vs. Abdul Jabbar Naskar and Others, : Nor is Article 227 meant for correcting
slight errors - Dhirendra Nath Das Vs. Hrishikesh Mukherjee and Others, State of West Bengal v. Durga Devi AIR 1951 Cal.100, or to interfere
in case of mere failure to appreciate evidence the part of a final tribunal - Bhavalal v. Jivanlal AIR 1951 Sau.43; Israil Khan v. The States AIR
1951 Ass 106
In short superintendent inpludes power to guide, advise and encourage Judges of the subordinate Courts, to direct subordinate Courts and
tribunals to carry out its orders; and to direct enquiry with a view to take disciplinary action for flagrant maladministration of justice: see Emperor v.
P.C. Tampore AIR 1940 Sind 239; Firm Sant Lal-Mahadeo Prasad Vs. Kedar Nath, and AIR 1932 69 (Privy Council) . If we bear these
propositions in mind and apply those well-established principles to the facts of the case on hand, the extra ordinary powers conferred on the High
Court under Article 227 would enable the High Court to ensure that the tribunals are kept within the bounds of their authority and that they do
what their duty requires and that they do it in a legal manner.
17. This decision was followed by the Calcutta High Court an Abanindra Kumar Maity Vs. A.K. Biswas, , their Lordships have held thus:
We have now to deal with the question Whether we can and should exercise our powers under Article 227, Constitution of India. That Article
authorises this Court to exercise powers of superintendence over all courts and tribunals throughout the territories in relation to which it exercises
jurisdiction. The Certificate Officer is a court according to the definition given in the Public Demands Recovery Act. Therefore, there can be no
doubt that we have jurisdiction to exercise our power of superintendent over that Court. But the learned Senior Government Pleader has argued
that it was open to the petitioner to file an appeal u/s 51, Public Demands Recovery Act and that he could have obtained his relief under that
section. But it is very difficult to find out any order from the order sheet of the Certificate Officer against which the petitioner could have appealed
to obtain the relief which he is asking for from us. The order by which the warrant of arrest was issued against him on 21.10.1952, as I have
already pointed out, was passed without any notice to him. On 25.11.1952, he filed his objection showing cause why the warrant of arrest should
not be issued against him. But that objection was never heard and decided by the Certificate Officer. On 7.12.1952, he forwarded the objection to
the Income Tax Officer for a report, but there is nothing in the order sheet to show that he at any time received that report from the Income Tax
Officer or that he applied his mind to the question whether the warrant of arrest should be issued against the Certificate debtor. It is also true that
the certificate debtor might institute a suit u/s 34, Public Demands Recovery Act for cancellation of the certificate but the existence of an alternative
remedy like a suit does not, in our opinion, preclude us from exercising our powers under Article 227, Constitution of India, provided that
alternative remedy is not as speedy or effective as an application under Article 227, in the case of Re. In Re: Annamalai Mudaliar, , Ramaswami;
J., of the-Madras High Court madean exhaustive review of all the decided cases as to the scope of Article 227 and the jurisdiction of the High
Court Under the Act. We respectfully agree: with that decision. In that case it has been held that the extraordinary power conferred on the High
Court under Article 227 enables the High Court to ensure that tribunals are kept Within the bounds of their authority and that they do their duty
according to law.
In the case of the Calcutta High Court referred to supra, their Lordships further Went on and said that if alternative remedy is not speedier remedy,
Article 227 could be invoked.
18. The Gujarat High Court had occasion to consider the scope of Article 227 of the Constitution in the decision reported in Chatrasinh Mansinh
Mahida Vs. Indravadan Ratilal Patel and Others, , a learned Judge of the Gujarat High Court followed Uttar Pradesh State v. Mohd. Mooh. AIR
1958 S.C. 86 and Ram and Shyam Company Vs. State of Haryana and Others, and held that it is only for convenience, the Court restricts its
power & But, once an injustice is shown to have been done, it is the duty of the Court to rectify the same, and it should not shut out its
responsibilities oh the ground that there is an alternative remedy; If manifest injustice is shown to exist it is the duty of the Court to rectify me
Saime. In paragraphs 9 and 10, the learned Judge held thus;
It is next contended that the petitioner has alternative remedy and therefore, the petition should not be enchained. This contention has also no merit.
After all, the bar of entertaining a matter on the ground of alternative remedy is a rule of convenience. It does hot create any absolute bar of
jurisdiction to be exercised by the High Court. Ordinarily, as a matter or convenience, the superior court would not exercise its jurisdiction when
there is an altenative and efficacious remedy. But this rule of convenience cannot be set up against the courts for hot exercising its power where the
exercise of such power is called for.
In this respect reference may be made to the decision of the Supreme Court in the case of U.P. State v. Mohd. Mooh AIR 1958 S.C. 86. At page
94 of the judgment, the Supreme Court has clearly held that in case errors, irregularities or illegalities touching jurisdiction or procedure committed
by an inferior court or tribunal of first instance is so patent and loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice
which cannot be obliterated or cured by an appeal or revision, then the same can be dealt with by High Court in exercise of its certiorari
jurisdiction. The Supreme Court has held that there is no rule with regard to certiorari as there is with mandamus, that it will lie only where there is
no other equally effective remedy. It is well settled provided the requisite grounds exist that certiorari will lie although a right of appeal has been
conferred by statute. The Supreme Court has further stated that this rule requiring the exhaustion of statutory remedies before the writ will be
granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been
issued in spite of the fact that the aggrieved party had other adequate legal remedies. The aforesaid principle has again been reiterated by the
Supreme Court in the case of Ram and Shyam Company Vs. State of Haryana and Others, . In the instant case, as stated herein above, the trial
court has prima facie acted without jurisdiction and has entertained a suit which is not maintainable. Moreover, it has granted ad interim relief which
is not in consonance with the basic democratic principles and which affects the democratic rights of innumerable citizens and yet such an order is
passed without giving an opportunity of being heard to any of them or even to the defendants who were parties. By granting such ad interim relief is
ex facie illegal and hence it has become necessary for this Court of exercise its powers under Article 227 of the Constitution.
19. From the legal position as, laid down in various decisions referred to supra, it is clear that the power under Article 227 of the Constitution of
India can be invoked by this Court and the same should also be invoked in cases, where there is grave dereliction of duty and where there is
flagrant abuse of process, and violation of principles of natural justice, and this power will have to be exercised to, ensure, that the Tribunals are
kept within their bounds and that they do their duty according to law. If there is a miscarriage, of justice by the lower court by not looking into the
evidence and it has disposed of the matter in the most superficial manner, that will be an injustice done to the party. In the instant case, the lower
Court has done such injustice and naturally, it is the duty of this Court to see that the injustice is undone. When the Court below fails to consider a
material piece of evidence, which would have changed the very order itself, it could only be presumed that it has not done its duty in accordance
with law and naturally this Court is bound to see that the duty required to be done by the lower court is done in a legal manner. According to me,
that is the scope of Article 227 of the Constitution of India.
20. Can 7th respondent himself come to this Court with a plea that this Court should not invoke Article 227 of the Constitution when manifest
injustice is shown to have been done to the petitioner. In my opinion, he cannot. His own brother in law agrees to vacate the premises, and takes
time before court to file an affidavit of undertaking. Thereafter instead of filing such an affidavit, he sets up his own brother in law, the 7th
respondent herein, to move a obstruction petition, when the 7th respondent is residing together with him as a member of his family, The order of
eviction itself was obtained by petitioner/landlord after nine years of fight, and in such circumstances, asking the petitioner to prefer a statutory
appeal will amount to doing another injustice to him. After knowing the facts of the case, if the order of the lower court results in a manifest
injustice, and the court below is also responsible for causing that injustice, can this Court simply close its eyes and ask the petitioner that he should
file a statutory appeal? I do not think that I should close my eyes and perpetuate the injustice. The appeal remedy is also hot a speedy remedy as
held in the Calcutta decision, referred to supra, the relevant portion of which I have extracted. When injustice is patent, and miscarriage of justice is
also there, technical objection raised by 7th respondent cannot be considered at all. It must also be stated that in most of the cases where technical
objects are raised, the Court can also assume that he has no merits. In this case, learned Counsel for 7th respondent also did not dispute the merits
of the petitioner''s case as put forward by petitioner''s counsel.
21. In the result, the impugned order is quashed, and the Civil revision petition is allowed. I direct the executing Court to restore the Execution
Petition and see that possession of the building is delivered to the decree-holder, petitioner herein, within 48 hours from now. Petitioner may
produce a copy of this Order before the executing Court and see that the building is delivered to him forthwith. No further notice is required to be
given to any of the persons. I also direct the Executing Court below that while implementing this Order, it should also issue necessary direction to
the local police without waiting for any further application from the decree-holder or from the bailiff and it should see that the occupants of that
building are evicted. If the building remains locked, necessary directions also may be given to the bailiff to break open the lock. Since I find that
grave injustice has been done by the order of executing Court, it is duty bound to see that the building is handed over to the landlord without any
further delay. The executing court is also directed to report complaints of this direction on 9.10.1998. Petitioner herein is also entitled to the costs
of this revision from the 7th respondent. Advocate''s fee Rs. 3,000 (Rupees Three thousand only). C.M.P. No. 9445 of 1998 for interim direction
is closed.
