P.N. Mookerjee, J.@mdashThis appeal at the instance of the Plaintiff and it arises out of a suit for recovery of money under three heads: (i) on account of certain alleged outstanding mils for work done by the Plaintiff under an alleged contract between him and the Defendant; (ii) on account of certain security deposits made by the Plaintiff with the Defendant in accordance with the said contract between them; and (iii) on account of interest on the alleged outstanding bills of the Plaintiff. The claim in the suit was to the tune of Rs. 41,995-14-6 pies. The suit was filed on December 12, 1952; and, immediately thereafter, i.e., on December 13, 1952, the Plaintiff filed an application praying for relief against the Defendant under Order XXXVIII, Rule 5, of the Code of Civil Procedure. This application was eventually dismissed by the learned Subordinate Judge and the said order of dismissal was affirmed by this Court in appeal.
2. After the dismissal of the appeal on February 13, 1953, the case proceeded for some time in the trial court and then the Plaintiff made a second application for attachment before judgment of certain bills of the Defendant, alleged to have been outstanding from the Government. This application was made an April 1, 1953, and upon it the learned Subordinate Judge issued a notice upon the Defendant to show cause why the prayer, made by the Plaintiff, should not be granted. The Plaintiff''s, application was eventually heard by the learned Subordinate Judge on April 18, 1953, and, by his order of that date, the learned Subordinate Judge was pleased to dismiss the Plaintiff''s application. Against this order of dismissal the present appeal has been filed by the Plaintiff.
3. At the hearing of this appeal, a preliminary objection was taken by the Defendant Respondent''s Learned Counsel Mr. Niren De. The preliminary objection was founded on the fact that there was, in the present case, no conditional order of attachment, as contemplated by Order XXXVIII, Rule 5, of the CPC Code, and that, accordingly, the order of the learned Subordinate Judge, dismissing the Plaintiff''s application under Order XXXVIII, Rule 5, could not be regarded as an order under Order XXXVIII, Rule 6(2). It was also quite clear, so submitted Mr. De, that the said order, being an order refusing the Plaintiff''s prayer under Order XXXVIII, Rule 5, could not come within Sub-rule (1) of Rule 6, Order XXXVIII. In, these circumstances. De contended that this was not an order under Order XXXVIII Rule 6, and was accordingly not appealable, an order, not coming under Order XXXVlII, Rule 6, though passed on an application under Order XXXVIII, Rule 5 not being appealable under the relevant provision, namely, Order XLIII, Rule 1(g), of the Code.
4. In my opinion, Mr. De''s contention is well founded. It is quite clear from a reading of the relevant provisions of the Code that, under the scheme adopted by it in relation to the appealability of orders, in certain cases all orders under particular provision are appealable. This is quite plain from the different provisions, incorporated in Order XLIII, Rule 1, of the Code. In the case of an order, passed on an application under Order XXXVIII, Rule 5, the relevant provision of the Code makes it appealable only when it can come under Order XXXVIII, Rule 6. Order XXXVIII, Rule 6, is divided into two sub-rules. Sub-rule (1) may well cover all cases, where the application is eventually granted. Sub-rule (2), however, which deals with cases where the application is dismissed, does not cover all such cases, but only those cases where a conditional order of attachment has been made under Order XXXVIII, Rule 5, of the Code. This appears plain from the words used in Order XXXVIII, Rule 6(2), where the relevant words are "and the property specified "or any portion of it has been attached". That shows that only where a conditional order of attachment has been passed under Order XXXVIII, Rule 5 of the Code, but eventually the application is dismissed, the final order dismissing the application can be brought under Order XXXVIII, Rule 6(2). It is also quite obvious that, in such a case, Order XXXVIII, Rule 6(1), can have no application. An order, therefore, dismissing any application under Order XXXVIII, Rule 5, where there was no conditional order of attachment under that rule, cannot be said to be an order, passed under Order XXXVIII, Rule 6, and, accordingly, it is not appealable under the relevant part of Order XLIII, Rule 1(g). The preliminary objection of Mr. De to the maintainability of the appeal must, therefore, succeed and the appeal must be dismissed on that ground.
5. The view I have expressed above finds support from and is well in conformity with the view taken by this Court in the case of Mahendra Narain Saha v. Gurudas Bairagi (1916) 23 C.L.J. 392. The subsequent case of this Court, reported in Sourendra Nath Mitra v. Sreemati Tarubala Dasi (1927) 31 C.W.N. 432 also supports this construction of the relevant statutory provision relating to the appealability of an order, passed on an application under Order XXXVIII, Rule 5, of the Code, and contains nothing to the contrary. It must be taken, therefore, that view is well established in this Court and, as I have already shown, that is clearly supported by reason and principle and also by the scheme of the Code itself, and I would, therefore, give effect to Mr. De''s contention on the preliminary objection.
6. The dismissal of the appeal, however, does not necessarily put an end to the matter before us. There is in the present lease an application in the alternative u/s 115 of the CPC and there is also our power of superintendence under Article 227 of the Constitution of India which may be invoked in proper cases even though no appeal may lie under the law, or no interference u/s 115 of the Code may also be possible.
7. So far as Section 115 of the CPC is concerned, it has hardly any application to the present case. There is clearly no case of error of jurisdiction and no case of any error affecting, even remotely, the exercise of jurisdiction by the court below. The matter was really one of discretion. In such circumstances, it is idle to contend that Section 115 of the CPC would have any application to the present case. The application u/s 115 of the Code, accordingly, fails and it is dismissed.
8. Under Article 227 of the Constitution of India, this Court can even suo motu interfere in a proper case where a grave injustice has been done, or there has been a gross miscarriage of Justice. Speaking for myself, I am not inclined to limit the power of this Court under Article 227 or discourage its use where an error has been made by the court below or a subordinate tribunal and by reason of such error a grave injustice or a gross miscarriage of justice has occurred and no other remedy is available for redress. This was the view which I expressed in the case of
9. It is seldom unwise and certainly not uncommon to vest the superior courts of the land with the widest possible powers and to leave the exercise thereof to their tradition and discretion. Under the Constitution the High Courts have undoubtedly been treated as superior Courts and I believe that I shall be doing no violence either to the language or to the spirit of the Constitution, if I refuse to put any further restriction on the exercise of their power under Article 227 than what I have indicated above or in Haripada Dutta v. Ananta Mandal Supra. When the Constitution has set no express limits to the power, conferred by that Article, but has obviously chosen to leave the matter to the discretion of the superior Courts concerned, why should we - I have often wondered�be anxious to curtail our own power and cripple ourselves by Baking narrow and inexorable limits to its exercise?
10. I may usefully recall here the pregnant words of Woodroffe, J., in the case of Lekhraj Ram v. Debi Pershad (1908) 12 C.W.N. 678, 680, where, in dealing with the corresponding Section 15 of the Charter Act, that learned Judge whom later generations have always held in great esteem and for whose opinion they have always entertained very high respects, expressed himself as follows:
For my part, I am of opinion that there is no form of judicial injustice which this Court, if need be, cannot reach (vide page 680 of the Report.)
11. As, in my opinion, the position of this Court under Article 227 of the Constitution is in no way worse than u/s 15 of the Charter Act, I can find no justification for imposing any larger barriers on its powers under that Article and I have little hesitation in adhering to the view I expressed in Haripada Datta v. Ananta Mandal Supra and in reaffirming, it once again. I shall now proceed to examine the present case under Article 227 of the Constitution of India in the light of the observations which I have made above.
12. Coming to the merits of this case, it appears clear that the Plaintiff Appellant has not been able to place before the Court any materials on which either an order under Order XXXVIII, Rule 5, of the CPC in his favour can be justified, or it can be shown that any grave injustice has been none or any gross miscarriage of justice has been caused in the present case by the refusal of his application under the said provision. The Plaintiff may have some just claim against the Defendant,�I am not expressing any opinion on the merits of the case,�but that alone will not entitle him either in law or in justice to have an order of attachment before judgment^ or to convert his unsecured debt into a secured debt. It has already been stated that before the present application there was another application made by the Plaintiff for similar reliefs under Order XXXVIII, Rule 5, of the Code. That application was dismissed by the learned Subordinate Judge and that decision was affirmed by this Court on appeal. Only two new facts were alleged by the Plaintiff in his present, that is, the. second application under Order XXXVIII, Rule 5, of the Code, namely, (1) that the Defendant, company had since closed down their office within the jurisdiction of the Court of the learned Subordinate Judge, and (2) that, on one particular occasion, the, Defendant company issued cheques which exhausted all their balance in a particular, bank.
13. As to the first ground, it is enough to state that, on the materials before us, there was ample justification for the step taken by the Defendant firm, that is, for closing down their office in question. That office was necessary for the purpose of their contract with the Government of India. That contract had since come to an end. It is idle to contend that the Defendant company must, although the contract is at an end, continue to maintain their said office. The fact that their Learned Counsel during the hearing of the first application for attachment before judgment gave an assurance to the Court that the Defendant company would not remove or close down their said office during the pendency of the suit, is not, in my opinion, of much consequence in view of the altered circumstances. At the time the said assurance was given, the Defendant''s contract with the Government of India was still subsisting and it was, therefore, quite bona fide on the part of the Defendant to have given the above assurance through their counsel. Since then, however, circumstances have changed and the necessity for the office has obviously disappeared. In such circumstances, therefore, merely because there was an assurance given by the Defendant''s Learned Counsel on the earlier occasion, the Defendant cannot be compelled to continue to maintain the said office. I am unable to find any mala fide on the part of the Defendant in this closure of their office and, in my opinion, it is hardly a circumstance which will be relevant for the purpose of the present case.
14. As to the second allegation, namely, that, on a particular day or on a particular occasion, the Defendant company issued cheques in excess of their balance in a particular bank, I might at once say that, on the materials placed before us, the explanation given by the Defendant company in that behalf is quite reasonable and clearly acceptable and the failure of the Plaintiff to maintain his specific allegation, made in that behalf in his original application, in his affidavit-in-reply also shows that there is not much substance in the allegation of mala fide, made against the Defendant company on the basis of this part of the Plaintiff''s statement in their original application. I have examined the materials with as much care as possible and I am unable to say that the circumstances of this case justify an order under Order XXXVIII, Rule 5, or 6, of the CPC against the Defendant company. In my opinion, the learned Subordinate Judge took a proper view in the matter and exercised his discretion properly and no injustice�at any rate, no grave injustice or gross miscarriage of justice,�has been done in this case by reason of the order, passed by the learned Subordinate Judge refusing the Plaintiff''s application under Order XXXVIII, Rule 5, of the Code. I, accordingly, hold that there is no case also for any interference under Article 227 of the Constitution of India.
15. In the result, therefore, the appeal fails, the application u/s 115 of the CPC also fails, and no case has also been made out for interference under Article 227 of the Constitution of India. The order of tie learned Subordinate Judge, dismissing the Plaintiff''s application under Order XXXVIII, Rule 5, of the Code of Civil Procedure, is, accordingly, maintained.
16. In the circumstances of this case, however, and having regard to the materials on record, I am not inclined to make any order for costs in these proceedings and, so far as the present proceedings are concerned, both in this Court and in the court below, the parties will bear their own costs.
17. Although I have affirmed the dismissal of the Plaintiff''s application under Order XXXVIII, Rule 5, of the Code of Civil Procedure, I would like to impress upon the learned Subordinate Judge the desirability of disposing of the suit as quickly as possible. The learned Subordinate Judge will make every endeavour to decide the suit pending before him within a month from the date of his receipt of the records from this Court, or, even earlier, if there be no difficulty from his point of view, having regard to the business in his court, or any real inconvenience to the parties concerned.
18. Let the records go down as early as possible.
Sen, J.
19. I agree with the order passed by my learned brother and I agree generally also with the reasons given by him. In respect of Article 227 of the Constitution of India, however, I would like to reserve my opinion.
20. In this case there is no application under Article 227 of the Constitution of India and in my opinion, therefore, it was not necessary to deal with the question whether under Article 227 the Petitioner can get any relief. As found by my learned brother, there is nothing in the evidence of this case to show that any gross failure of justice occurred by the order of the learned Subordinate Judge. Therefore, it is wholly unnecessary, in my opinion, to consider whether this Court can interfere under its power of superintendence under Article 227 of the Constitution of India when there is a gross failure of justice. In the Special Bench case of Dalmia Jain Airways, Ltd. v. Sukumar Mukherjee Supra, it was generally laid down that the Court has power under Article 227 of the Constitution of India to see that the subordinate courts do their duty and do it. in a legal, manner. It is no doubt true that there was a finding in that case that there was no gross failure of justice in the order of the lower court. The Special Bench did not, however, expressly make the finding that the High Court could interfere if there was gross failure of justice. In my opinion, however, this question does not arise in the present case and, therefore, I would like to reserve my opinion on this question.
