Babu Kottayil & Ors. v. Kerala Vyapari Vyavasayi Ekopana Samithi

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 13[TH] DAY OF JANUARY 2022 / 23RD POUSHA, 1943** **OP(C) NO. 1757 OF 2021** **AGAINST THE ORDER/JUDGMENT DATED 27-09-2021 IN O.S** **NO.511/2021 OF II ADDITIONAL MUNSIFF COURT, THRISSUR PETITIONERS:** 1 BABU KOTTAYIL AGED 48 YEARS S/O. KRISHNANKUTTY, PRESIDENT, KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY, PALAKKAD DISTRICT COMMITTEE AND MEMBER OF PATTAMBI UNIT VYAPARA BHAVAN, MANJAKULAM ROAD, PALAKKAD-678 001 2 K.A.HAMEED, AGED 47 YEARS S/O. ALIKUTTY, GENERAL SECRETARY, KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY, PALAKKAD DISTRICT COMMITTEE AND MEMBER OF CHERUPULASSERY UNIT, VYAPARA BHAVAN, MANJAKKULAM ROAD, PALAKKAD-678 001 3 K.K.HARIDASAN, AGED 53 YEARS S/O. LATE K.R.KRISHNANKUTTY, TREASURER,M/S. KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY, PALAKKAD DISTRICT COMMITTEE AND MEMBER OF VALLANGI UNIT, VYAPARA BHAVAN, MANJAKKULAM ROAD, PALAKKAD NO.I VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT-678 001 4 K.LIYAKATH ALI S/O. LATE MUHAMMEDUPPA, VICE PRESIDENT, M/S. KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY, PALAKKAD DISTRICT COMMITTEE AND MEMBER OF ALANELLUR UNIT, VYAPARA BHAVAN, MANJAKULAM ROAD, PALAKKAD NO.I VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT-678 001 5 CHANDRAN AGED 60 YEARS S/O. KUNCHAN, M/S. KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY, PALAKKAD DISTRICT COMMITTEE AND MEMBER OF KOZHINJAMPARA FARKA UNIT, VYAPARA BHAVAN, MANJAKKULAM ROAD, PALAKKAD NO.I VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT-678 001. O.P(C).No.1757/2021 2 6 ZAKKARIA S/O. P.C.ALI, PRESIDENT, M/S. KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY, PALAKKAD DISTRICT COMMITTEE AND MEMBER OF PTRMA UNIT, VYAPARA BHAVAN, MANJAKKULAM ROAD, PALAKKAD NO.1 VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT-678 001 7 JAMES S/O LATE VARGHESE, AGED 61 YEARS VICE PRESIDENT, M/S. KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY, PALAKKAD DISTRICT COMMITTEE AND MEMBER OF AKDA UNIT, VYAPARA BHAVAN, MANJAKKULAM ROAD, PALAKKAD NO.1 VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT-678 001 8 SHAKEER HUSSAIN S/O SULAIMAN, AGED 40 YEARS VICE PRESIDENT, M/S. KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY, PALAKKAD DISTRICT COMMITTEE AND MEMBER OF KOTTANAD UNIT, VYAPARA BHAVAN, MANJAKKULAM ROAD, PALAKKAD NO.1 VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT-678 001 9 BASITH MUSLIM S/O A.Q.MUSLIM, AGED 52 YEARS SECRETARY,M/S. KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY, PALAKKAD DISTRICT COMMITTEE AND MEMBER OF MANARKAD UNIT, VYAPARA BHAVAN, MANJAKKULAM ROAD, PALAKKAD NO.1 VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT-678 001 10 KOCHUKUTTAN AGED 53 YEARS S/O. LATE SANKUNNI, SECRETARY, M/S. KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY, PALAKKAD DISTRICT COMMITTEE AND MEMBER OF THIRUVAZHIYODU UNIT, VYAPARA BHAVAN, MANJAKKULAM ROAD, PALAKKAD NO.1 VILLAGE, PALAKKAD TALUK, ALAKKAD DISTRICT678 001 O.P(C).No.1757/2021 3 11 ULLAS AGED 44 YEARS S/O. K.A SYED MUTHU, SECRETARY, M/S. KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY, PALAKKAD DISTRICT COMMITTEE AND MEMBER OF KODUVAYOOR UNIT, VYAPARA BHAVAN, MANJAKKULAM ROAD, PALAKKAD NO.1 VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT-678 001 12 SHAIK CHINNAVA AGED 48 YEARS S/O. CHINNAVAROWTHER, SECRETARY, M/S. KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY, PALAKKAD DISTRICT COMMITTEE AND MEMBER OF ALATHUR UNIT, VYAPARA BHAVAN, MANJAKKULAM ROAD, PALAKKAD NO.1 VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT-678 001 13 PRAJITH AGED 34 YEARS S/O. LATE VISWWANATHAN, SECRETARY, M/S. KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY, PALAKKAD DISTRICT COMMITTEE AND MEMBER OF PATTAMBI UNIT, VYAPARA BHAVAN, MANJAKKULAM ROAD, PALAKKAD NO.1 VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT-678 001 14 MUHAMMED SHAMEER, AGED 40 YEARS S/O P.K.MUHAMMED, M/S. KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY, PALAKKAD DISTRICT COMMITTEE AND MEMBER OF MANNARKKAD UNIT, VYAPARA BHAVAN, VINAYAKA NAGAR, TIPPUSULTHAN ROAD, MANNARKKAD NO.I VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT-678 001 15 N.RAMESH AGED 51 YEARS S/O. UNNIKRISHNAN NAIR, GENERAL SECRETARY, KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY, MANNARKAT UNIT COMMITTEE AND MEMBER OF MANNARKAD UNIT, VYAPARA BHAVAN, VINAYAKA NAGAR, TIPPUSULTHAN ROAD, MANNARKKAD NO.I VILLAGE, MANNARKKAD THALUK, PALAKKAD DISTRICT-678 001 O.P(C).No.1757/2021 4 16 ILLIYAS AGED 42 YEARS S/O. HAMSA, M/S. KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY, EDATHANATTUKARA UNIT COMMITTEE MEMBER OF EDATHANATTUKARA UNIT, VYAPARA BHAVAN, KARUVALLY SHOPPING CENTRE, KOTTAPALLA, VATTAMANNAPURAM POST ALANALLUR NO.III VILLAGE, MANNARKKAD THALUK, PALAKKAD DISTRICT-678 001 17 SHAMEEM AGED 37 YEARS S/O. MUHAMMED, PRESIDENT, KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY, EDATHANATTUKARA UNIT COMMITTEE VYAPARA BHAVAN, KARUVALLY SHOPPING CENTRE, KOTTAPALLA, VATTAMANNAPURAM POST, ALANALLUR NO.III VILLAGE MANNARKKAD THALUK, PALAKKAD DISTRICT-678 001 18 M.S.SIRAJ AGED 50 YEARS S/O. A.M.HANEEFA, GENERAL SECRETARY, KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY, PTRMA UNIT COMMITTEE NO.II,AND MEMBER OF ALL KERALA TEXTILE GARMENTS ASSN UNIT, PALAKKAD, VYAPARA BHAVAN, MANJAKKULAM ROAD, PALAKKAD NO.1 VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT-678 001 BY ADVS. BINOY VASUDEVAN T.KRISHNANUNNI (SR.) ## **RESPONDENTS:** 1 KERALA VYAPARI VYAVASAYI EKOPANA SAMITHI REGISTERED NO.262/1981, VYPARA BHAVAN, CHAMBER OF COMMERCE BUILDING, PALACE ROAD, THRISSUR-680 001, REPRESENTED BY ITS GENERAL SECRETARY RAJU APSARA 2 RAJU APSARA, AGED 53 YEARS S/O. LATE KOCHUKUNJU, APSARA JEWELLERS, CHARUMMODE.P.O, ALAPUZHA DISTRICT-690 505, GENERAL SECRETARY, KERALA VYAPARI VYAVASAYI EKOPANA SAMITHI, (STATE COMMITTEE), REGD NO.262/1981, VYAPARA BHAVAN, BANK ROAD, CALICUT-673 003 O.P(C).No.1757/2021 5 3 T.NAZIRUDHEEN AGED 76 YEARS S/O.T.K.MOHAMMED, KERALA VYAPARI VYAVASAYI EKOPANA SAMITHI, (STATE COMMITTEE), REGD NO.262/1981, VYAPARA BHAVAN, BANK ROAD, CALICUT-673 003 4 DEVASYA MECHERI AGED ABOUT 65 YEARS S/O.MATHAI, TREASURER, KERALA VYAPARI VYAVASAYI EKOPANA SAMITHI, (STATE COMMITTEE), REGD NO.262/1981, VYAPARA BHAVAN, BANK ROAD, CALICUT3 DOING BUSINESS AT MECHERIYIL STORES,PAYYANNUR P.O., KANNUR DISTRICT-670 633 5 K.AHAMMED SHEREEF, AGED 54 YEARS STATE VICE PRESIDENT AND DISTRICT PRESIDENT, KASARAGOD, BISMILLAH ENTERPRISES, KOTTYKKOOL, CHANGAD, KASARAGOD,-671 534 6 N.K.THOMASKUTTY AGED 58 YEARS STATE VICE PRESIDENT, AND DISTRICT PRESIDENT, KOTTAYAM, MUTHUPUNNACKAL AGENCIES, ERATTUPETTAH, KOTTAYAM-686 121 7 K.V.ABDUL HAMEED AGED 52 YEARS STATE VICE PRESIDENT AND DISTRICT PRESIDENT, THRISSUR, GOLDEN AGENCIES, CHETTUVA ROAD, CHAVAKKAD P.O., THRISSUR DISTRICT-680 506 8 P.KUNHAVU HAJI, AGED 64 YEARS STATE VICE PRESIDENT AND DISTRICT PRESIDENT, MALAPPURAM, ALANKAR GOLD PALACE, KUTTIPPURAM, MALAPPURAM-679 571 9 PERINGAMALA RAMACHANDRAN, STATE VICE PRESIDENT AND DISTRICT PRESIDENT TRIVANDRUM, 'PRIYA', PERINGAMALA P.O., PACHA (VIA) TRIVANDRUM-695 563 O.P(C).No.1757/2021 6 10 K.K.VASUDEVAN, AGED 54 YEARS STATE VICE PRESIDENT AND DISTRICT PRESIDENT, WAYANAD, ANJALI TRADERS, KEERTHI TOWER, SULTHAN BATHERI, WAYANAD-673 592 11 P.C.JACOB, AGED 64 YEARS STATE SECRETARY AND DISTRICT PRESIDENT, ERNAKULAM BRIGHT EQUIPMENT, S.R.M ROAD, PACHALAM P.O., ERNAKULAM-682 012 12 K.N.DIVAKARAN, AGED 69 YEARS STATE SECRETARY AND DISTRICT PRESIDENT, IDUKKI, KALARICKAL STORES, ADIMALI P.O., IDUKKI-685 561 13 A.J.SHAJAHAN, AGED 52 YEARS STATE SECRETARY AND DISTRICT PRESIDENT, PATHANAMTHITTA, KVVES VYAPARA BHAVAN, PANDALAM P.O., PATHANAMTHITTA-689 501 14 DEVARAJAN, AGED 58 YEARS STATE SECRETARY AND DISTRICT PRESIDENT, KOLLAM, RAGAM COLLECTIONS, ANCHAL P.O., KOLLAM-691 306 15 K.SETHUMADHAVAN, AGED 52 YEARS STATE SECRETARY AND DISTRICT GENERAL SECRETARY, KOZHIKODE K4 GARMENTS, SM STREET, CALICUT - 673 001 BY ADVS. B.PREMNATH SARATH M.S. JYOTHI C.R. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06.01.2022, THE COURT ON 13.01.2022 DELIVERED THE FOLLOWING: O.P(C).No.1757/2021 7 ## _**A. BADHARUDEEN, J.**_ ================================ _O.P(C).No.1757 of 2021_ ================================ _Dated this the 13[th] day of January, 2022_ ## _**J U D G M E N T**_ This Original Petition (Civil) has been filed under Article 227 of the Constitution of India challenging Ext.P3 judgment dated 27.9.2011 in O.S.No.511/2021 on the file of the Second Additional Munsiff Court, Thrissur. 2. Heard both sides. 3. It is submitted by the learned counsel for the petitioners that the learned Munsiff as per Ext.P3, impugned order, found that the Munsiff Court lacks territorial jurisdiction to deal with the issue raised in the above Suit. 4. Refuting this contention, it is submitted by the learned counsel for the contesting respondents that this Original Petition O.P(C).No.1757/2021 8 is not maintainable since an order returning the plaint under Order 7 Rule 10 is an appealable order as provided under Order 43 Rule 1(a) of the Code of Civil Procedure. It is submitted further that availability of appellate remedy can be near to total bar for exercising supervisory jurisdiction. In this connection the learned counsel for the respondents placed decision reported in [2019 (9) SCC 538 : 2019 KHC 7006], _**Virudhunagar Hindu Nadargal Dharma Paribalana Sabai & Ors. v. Tuticorin Educational Society & Ors.**_ 5. However, the learned counsel appearing for the petitioners would submit that availability of alternative remedy is not a bar to exercise the supervisory jurisdiction available to the High Court under Article 227 of the Constitution of India to address patent illegality. The learned counsel placed decision of this Court reported in [2011 KHC 2935 : 2011 (4) KLT SN 35], _**ING Vysya Bank Ltd. v. M.V.Mathew & anr.**_ Therefore, the vital question to be decided in this case is as to whether availability of appellate remedy can be treated as near to total bar for exercising O.P(C).No.1757/2021 9 supervisory jurisdiction. 6. I have perused the decision in _**Virudhunagar**_ 's case ( _supra_ ), wherein in para.11, 12 and 13, the Honourable Apex Court discussed the scope of supervisory jurisdiction under Article 227 of the Constitution of India. The Apex Court observed in para.13 and 14 as under: _“13. 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 Art.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. This is why, a 3member Bench of this court, while overruling the decision in Surya Dev Rai v. Ram Chander Rai, 2003 (6) SCC 675 pointed out in Radhey Shyam v. Chhabi Nath, 2015 (5) SCC 423 that “orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts._ _14. Therefore wherever the proceedings are under the code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under the CPC, will deter the High Court,_ O.P(C).No.1757/2021 10 _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. Hence, the High Court ought not to have entertained the revision under Art.227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.”_ Thus it has to be held that though in the earlier decisions the Apex Court as well as this Court upheld the view that supervisory jurisdiction may be refused to be exercised, in law an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved, it was held further that, so long as an error capable of being corrected by a superior court, in exercise of appellate or revisional jurisdiction though available, to be exercised at the conclusion of the proceedings, it would be not sound exercise of discretion on the part of the High Court refusing to exercise power of superintendence. Further, when the subordinate court has assumed 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 O.P(C).No.1757/2021 11 injustice has occasioned thereby, the High Court may step into exercise its supervisory jurisdiction. However, in _**Virudhunagar**_ 's case ( _supra_ ), the Hon'ble Supreme Court in categorical terms held that availability of an appellate remedy in terms of provisions of the Code of Civil Procedure may have to be construed as a near to total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227 of the Constitution of India, even a decree passed in a Suit, on the same grounds on which the jurisdiction of the High Court under Article 227 of the Constitution of India was sought for. 7. In this connection, it is worthwhile to mention that statutory remedy by way of appeal, in fact, provides reappreciation of evidence by the appellate court and to take appropriate decision on the basis of such re-appreciation. Thus a party, who has such a statutory remedy, shall have to opt the more efficacious remedy by way of appeal, instead of invoking the supervisory jurisdiction under Article 227 of the Constitution of India, which permits to look into the arbitrariness or perversity of O.P(C).No.1757/2021 12 an order. 8. Following the ratio in _**Virudhunagar**_ 's case ( _supra_ ), I have no hesitation to hold that availability of an appellate remedy in terms of provisions of the Code of Civil Procedure to be construed as a near total bar in seeking remedy under Article 227 of the Constitution of India. In view of the matter, this Original Petition filed under Article 227 of the Constitution of India, challenging an appealable order to be construed as one as near to total bar in view of specific provision for appeal. In view of the matter, this Original Petition is found not maintainable. 8. Therefore, I am not inclined to address the legality of Ext.P3 order. Consequently, the Original Petition stands dismissed. It is ordered that the petitioners can move before the appellate court and redress their grievances. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ O.P(C).No.1757/2021 13 ## **APPENDIX OF OP(C) 1757/2021** PETITIONERS' EXHIBITS Exhibit P1 TRUE COPY OF THE PLAINT DATED 05.03.2021 IN O.S 511/2021 ON THE FILE OF THE COURT OF THE SECOND ADDITIONAL MUNSIFF OF THRISSUR Exhibit P2 TRUE COPY OF THE BYELAWS OF THE 1ST RESPONDENT SAMITHI Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 27.09.2021 IN O.S NO.511/2021 ON THE FILE OF THE COURT OF THE SECOND ADDITIONAL MUNSIFF OF THRISSUR