(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decreetal order dated 10.10.2005 passed in I.A.No.399 of 2005 & 400 of 2005 in O.S.No.89 of 2003 by the learned Subordinate Judge, Kanchipuram.

Sixth defendant in the suit is the revision petitioner in both the revisions, which are filed under Article 227 of the Constitution of India. The respondents 1 and 2 have filed the suit in O.S.No.89 of 2003 for partition in respect of D Schedule property into 36 shares and to allot 5 shares to each of the plaintiffs, for mesne profits and injunction from alienating the D Schedule property to any person including the 6th defendant. The D Schedule property is the building and sight measuring East West 10 fts, North to South 40 fts. to the extent of 400 sq.ft. The business was started by the great grandfather of the family of plaintiffs in the name of Sri Krishna Stores, is one of joint family business even though it is called as partnership. The plaintiff s father the first defendant has been doing business till the second defendant stopped going to school. The second defendant was only assisting the business and was married to the third defendant Mrs.Sonal, who ailed from a poor family. The 4th and 5th defendants are paternal aunts of the plaintiffs. The plaintiffs father when demanded partition, the grandfather of the plaintiffs has sent him away, who has started a business in his own name as Kalpana Stores and thereafter he filed a suit for partition, that was in O.S.No.142 of 1988. The said suit was decreed except in respect of item No.4 in the A Schedule property and item No.10 in B Schedule property. The grandfather of the plaintiff has entered an agreement of sale to purchase the shop No.346 Kanchipuram, which is mentioned in the D Schedule. The said fact was omitted, to be included in the suit filed in O.S.No.142 of 1988. The third defendant has no independent means to purchase the said property. The property was purchased in the name of third defendant, who is the second daughter-in-law of the family. She was only a student and poverty stricken. Therefore, according to the plaintiff even though the said Schedule D property was purchased in the name of the 3rd defendant it remains to be the property of the joint family. Even though the plaintiffs father obtained a decree in the said partition suit and the second defendant has preferred an appeal, due to the reason that the first defendant is inactive, the second and third defendants are trying to alienate the suit properties.

2. It is also stated that the said O.S.No.142 of 1988 is pending on the appeal in the High Court in A.S.No.987 of 1991 and the suit claim is restricted in the present suit only in respect of D Scheduled property. The 6th defendant has also filed a written statement in the suit. According to him he has purchased the D Schedule property from the 3rd defendant Mrs.Sonal under a registered sale deed dated 03.02.2003 at Kancheepuram Sub-Registrar Officer in document No.243 of 2003. The said property was purchased by the 3rd defendant in the year 1988 out of her own funds in her name and under a registered sale deed dated 31.10.1988. According to him, the very fact that in the earlier suit in O.S.No.142 of 1988 the said property was not included knowing that it is an individual property of the 3rd respondent Mrs.Sonal. The claim of the plaintiff in so far as it states that the said property was purchased in the name of the 3rd defendant benami is made invalid by the benami transaction (Prohibition) Act, 1988. The 6th defendant filed I.A.No.399 of 2005 in O.S.No.89 of 2003 to set aside the exparte order passed against him in O.S.No.89 of 2003 dated 05.04.2005 and also another I.A. in I.A.No.400 of 2005 to exclude the D Schedule property from the schedule of the suit.

3. According to the 6th defendant, he purchased the vacant site of the C Schedule property from the 3rd defendant Mrs.Sonal and thereafter, he has modified the building to his convenience in which he is running Sree Ragavendra Readymade center and the purchase was in February 2003, while the suit in O.S.No.89 of 2003 was filed only in August 2003 along with an application for interim injunction.

4. On 05.04.2005 the 6th defendant has filed a petition in I.A.S.R.No.2834 of 2005 to exclude D Schedule property and it was filed at 2.45 p.m. When the matter was taken up at 4.45 p.m., the Trail Court has directed the counsel for the 6th defendant to cross-examine P.W.1 immediately. When it was represented that an I.A. to exclude D Schedule property was filed and therefore requested for pass over which was refused. However, the Trial Court has passed the order on 05.04.2005 stating as if the case was called at 11.45 a.m. and thereafter at 4.45 p.m. and the plaintiff s counsel was present and defendant and his counsel was absent and again when it was taken up, the 6th defendant s counsel was present and not interested to the cross examination of P.W.1 and the counsel for the defendants 2, 3 and 6 have personally refused to cross examine the P.W.1 and therefore, the defendants 2, 3 and 6 was set exparte and the suit was decreed as prayed for, apart from returning I.A.S.R.No.2834 of 2005. It is against the said two orders the 6th defendant filed C.R.P.No.1807 and 1808 of 2005 under Article 227 of the Constitution of India.

5. The learned counsel for the petitioner would submit that on 05.04.2005 as it is seen in the order, learned Trial Judge himself stated that at 4.45 p.m. when the matter was called, it was represented by the counsel for the 6th defendant that another I.A. in I.A.S.R.No.2834 of 2005 for the purpose of removal of D Schedule property from the suit properties was filed and therefore, that application should be taken up first. However, the learned Trial Judge has wrongly stated as if the counsel for the 6th defendant has refused to cross-examine P.W.1. The main contention of the learned counsel for the petitioner is that when admittedly the counsel for the 6th defendant was present at 4.45 p.m. even as per the order of the court, there was no reason for the learned judge to pass an exparte decree especially when another application is pending.

6. She would also contend that when the very suit itself is hit by the benami (Prohibition Act) under Section 4 and therefore, the same is not maintainable, especially in the circumstance that the plaint itself states with clear averment that the purchase in favour of the 3rd defendant was benami and she would also submit that when admittedly and originally a suit was filed for partition by the first defendant in O.S.No.142 of 1988 and the same is pending on appeal in A.S.No.987 of 1991, the present suit for partition is not maintainable. She would also further contend that in fact in the first appeal pending before this Court a petition was filed by the appellant who is the first respondent herein to implead the 3rd defendant Mrs.Sonal who is the vendor of the revision petitioner and the same was dismissed. She would also state that the court should not have set the 6th defendant exparte, especially in the circumstances that the counsel was present admittedly and for the reason stated above.

7. On the other hand, Mr.Vimalanathan learned counsel appearing for the respondents 1 and 2 who are the plaintiffs in the suit would submit that it is not true as if the petition filed for impleading the 3rd defendant as a party in the first appeal, is dismissed. On the other hand, C.M.P.No.6343 of 2003 and 6344 of 2003 for the purpose of impleading in A.S.No.987 of 1991 was directed to be posted along with the first appeal. He would also submit that the 3rd respondent who is the 1st defendant in the suit had no knowledge about the purchase of the C Schedule property in the name of the 3rd defendant by the grandfather and therefore, it was not included. Since the 4th and 5th respondents who were 2nd and 3rd defendants in the suit attempted to alienate the D Schedule property, the present suit for partition was filed. Thereafter the 1st and 2nd respondents have also filed O.S.No.135 of 2003 restraining the 4th and 5th respondents from demolishing the building and handing over the same to the revision petitioner and the said suit was decreed holding that the D Schedule property is a joint family property and that has become final.

8. Therefore, according to the learned counsel for the respondents 1 and 2, the 4th and 5th respondents are estopped, with the result the revision petitioner who is only an alienee of the 5th respondent cannot raise the plea. It is also his case that the respondents 4 and 5 were set exparte and a decree was passed on 04.11.2005 and when I.A.No.441 of 2004 was filed on their behalf, the 1st and 2nd respondents who are the plaintiffs, had endorsement of no objection on by understanding that the trial will be completed. He would also submit that the petitioners have also filed I.A.No.478 of 2004 under order 7 Rule 11 C.P.C. to reject the suit and the same was dismissed on 24.11.2004 and in such circumstances there was no question of any petition for the purpose of excluding D Schedule property from the purview of the suit, since the petitioner/6th defendant is estopped, by virtue of the above said order in I.A.No.478 of 2004, which has become final.

9. He would also state that thereafter from November 2004 onwards the matter was posted on many occasions and on 05.04.2005, the 4th and 5th respondents were absent even at 11.45 a.m. and it was passed over and again when the matter was called at 4.45 p.m. the counsel for the petitioner and the 4th and 5th respondents were absent but the counsel appearing for them have refused for cross examination. According to the learned counsel there was a exparte decree against the 4th and 5th respondents dated 06.06.2005 and their application to set aside the exparte decree in I.A.No.398 of 2005 and I.A.No.484 of 2005 was dismissed for default. When once there is an exparte decree against the vendors of the petitioner, the petition filed to set aside the exparte by the 6th defendant/petitioner who is the purchasers from the 4th and 5th defendants, is not maintainable.

10. He would also submit that the revision under Article 227 itself is not maintainable, since as against the order of dismissal of the petition to set aside the exparte decree, an appeal lies under order 43 of C.P.C. He would also rely upon the judgment reported in 2005 (2) CTC 365 to substantiate his contention.

11. I have heard the learned counsel for the petitioner as also the learned counsel for the respondents.

12. The revision filed under Article 227 of the Constitution of India is against the order passed by the Trial Court in dismissing an application filed by the 6th defendant to set aside the exparte decree passed against him by the Trial Court on 05.04.2005. Even though the learned counsel for the petitioner would vehemently argue that when the counsel for the 6th defendant was present at 4.45 p.m. as it is seen in the order of the Trial Court itself, there was no reason for setting the 6th defendant exparte and the decree passed, the point to be decided in this case is that while this Court is called upon to exercise its jurisdiction of supervisory control on subordinate courts under Article 227 of the Constitution of India, an extraordinary circumstances is in existence, since it is not as a matter of routine. When once alternative remedy under law is available there was absolutely no question of invoking the powers of this Court under Article 227 of the Constitution of India. As it is pointed out by the learned counsel for the respondents, this Court has held in the judgment Electrol (Indian Ltd.,) Mumbai Vs. J.T.Michel Anjalo and others reported 2005(2) CTC 365 that when there is an alternative remedy of appeal available the powers of this Court under Article 227 cannot be invoked. In that judgment this Court has also held that Article 227 can be invoked if there is abuse of process of law, which appears on the face of it.

13. In Miss Meneck Custodji Surjarji Vs. Sarafazali Nawabali Mirza reported in AIR 1976 SC 2446, while deciding about the powers of the High Court under Article 227 of the Constitution of India, the Hon ble Supreme Court has held that when a party has got a legal remedy available, which is adequate and more comprehensive, the question of invoking the High Court s jurisdiction under Article 227 of the Constitution of India does not arise. The High Court should exercise the jurisdiction under Article 227 sparingly and only in appropriate cases in the following words:

"6. 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 flies 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 than the one under Art.227 of the Constitution. Even so, for some inexplicable reasons, the respondent chose to prefer a Special Civil Application under Art.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 Art.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. It is indeed difficult to see how the learned Judge could entertain a Special Civil Application against a decree passed by a subordinate court when the procedural law allows an appeal against it and that appeal lies to the High Court itself. It must be realised that the jurisdiction under Art.227 of the Constitution is an extraordinary jurisdiction which is to be exercised sparingly and in appropriate cases and it is not to be exercised as if it were an appellate jurisdiction or as if it gave unfettered and unrestricted power to the High Court to do whatever it liked."

14. By applying the said formula laid down by the Hon ble Supreme Court and followed by this Court as I have stated above, it is relevant to consider as to whether any alternative remedy is available to the petitioners Order 43 Rule 1 (d) of the C.P.C. states that as against the said order dismissing an application to set aside the exparte decree filed under Order 9 Rule 13 of C.P.C. an appeal lies. The said sub clause makes it clear in the following terms:

"(d) an order under Rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;"

15. Therefore, it is clear that legally the petitioner has an adequate alternative remedy available under the C.P.C. by filing appeal. In such circumstances without going into the controversies raised by the petitioner about the nature of the order passed by the Trial Court and leaving it open to the petitioner to resort to the remedy available under the Code of Civil Procedure, I am of the considered view that this is not an extraordinary circumstance wherein, this Court can be insisted to exercise its jurisdiction under Article 227 of the Constitution of India. The mere fact that it is the case of the petitioner/6th defendant that the suit for partition itself is not maintainable on the basis that the plaint itself makes it clear that the purchase effected in the name of the 3rd defendant Mrs.Sonal in respect of D Schedule property was only due to the reason that she happen to be the second daughter-in-law of the family and therefore, it is a benami and in such circumstances by benami (Prohibition) Act 1988 especially by virtue of Section 4 of the said Act such plea of benami transaction is hit, cannot itself be a ground for the purpose of invoking the extraordinary jurisdiction of this Court. That issue is to be decided on merit of the case.

16. In any event even assuming that by refusing to set aside the exparte decree the plea of the petitioners to raise such a valid legal point is prohibited by itself cannot again be a ground for the purpose of invoking the jurisdiction under Article 227 of the Constitution of India, especially as I have stated, order 41 rule 1(d) of the Code of Civil Procedure provides an effective alternative remedy and appeal is available to the petitioners. In view of the same the C.R.Ps. stand dismissed on the ground that there is no extraordinary circumstances in existence warranting this Court to interfere under Article 227 of the Constitution of India, leaving it open to the petitioners to work out his remedy available under the Code of Civil Procedure. Making it clear that in the event of the petitioner resorting to such remedy, the period of pendency of the Revision before this Court shall be excluded while deciding the period of limitation.

No Costs. Consequently, the connected C.M.P. is closed.