Disputed wall and alleged passage obstruction: demolition order set aside; recall refusal quashed, case remitted under Article 227

The HC held that an interlocutory direction compelling demolition/removal of a wall could not stand where, on the plaint, amended plaint, and map, the disputed wall was not shown to obstruct the pleaded blue/red passages and the prayer clause did not seek removal of that construction; the direction was beyond the suit's subject-matter and contrary to an earlier interlocutory finding that the land was not a passage, so the demolition direction was set aside. The HC further held that refusal to recall/restore an order by relying on the applicant's past conduct was legally erroneous because the enquiry must be confined to sufficiency of cause for default on the relevant date; the recall-related orders were quashed. Exercising Article 227, the HC intervened to prevent gross failure of justice and remitted the matter to proceed on the limited pleaded passage dispute, subject to costs/directions.

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1. ISSUES PRESENTED AND CONSIDERED

(i) Whether the subordinate courts' orders directing removal of a wall/construction could stand when, on the plaint and map as examined by the Court, the disputed wall was not shown to obstruct the pleaded blue/red passages and did not relate to the reliefs actually sought in the suit, rendering the direction effectively beyond the suit's subject-matter and inconsistent with an earlier interlocutory determination.

(ii) Whether the courts below adopted an erroneous approach in refusing recall/restoration by relying on the applicant's past conduct, instead of confining the enquiry to the sufficiency of cause for default on the particular date.

(iii) Whether the High Court could, in exercise of supervisory jurisdiction under Article 227, set aside such orders to prevent gross failure of justice where the impugned direction appeared without jurisdiction/perverse, even if not properly challenged earlier.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (i): Direction to remove wall/construction vis-à-vis the suit's subject-matter and prior interlocutory finality

Legal framework (as discussed): The Court treated prior interlocutory findings as binding for interlocutory reliefs unless new material is shown or perversity is demonstrated, while remaining tentative for final adjudication at trial.

Interpretation and reasoning: On examining the plaint, amended plaint, and the map, the Court found the original suit claim was confined to two passages marked in blue and red, with prayers limited to removal of the specific obstructions identified on those passages. Although an amendment alleged subsequent construction towards the end of the red passage, the prayer clause was not correspondingly amended to seek demolition/removal of the new wall, and the map did not depict the disputed land as a passage or show that the relevant door opened onto that land. The Court noted the earlier interlocutory decision had already recorded that the land in question (treated as connected to the concerned property) was not a passage and that demolition of the wall could not be directed; this had reached finality for purposes of interlocutory orders. The Court held the courts below misread or overlooked the implication of that earlier order when later directing removal.

Conclusions: The direction to remove the disputed wall, in the circumstances found from the pleadings/map and in light of the earlier interlocutory determination, was treated as not referable to the pleaded passage dispute and as an order that should not have been allowed to continue; it was liable to be set aside to avert failure of justice.

Issue (ii): Relevance of past conduct in deciding recall/restoration applications

Legal framework (as discussed): The Court stated the established principle that, for adjournment/recall of an order, past conduct is immaterial; the court must assess whether sufficient ground is made out for the default on the very date concerned.

Interpretation and reasoning: While acknowledging the general restraint against interfering with concurrent factual findings, the Court identified a legal error in the approach of the revisional/subordinate court: it relied on the applicant's past conduct when deciding recall, which the Court characterised as an extraneous consideration. The proper enquiry should have been confined to the explanation for non-appearance on the particular date of default.

Conclusions: Consideration of past conduct, as the basis for refusing recall, was held to be an unfair and incorrect approach vitiating the recall adjudication.

Issue (iii): High Court's power under Article 227 to correct orders causing gross failure of justice / without jurisdiction

Legal framework (as discussed): The Court affirmed that supervisory jurisdiction under Article 227 empowers correction where an order is perverse, causes gross failure of justice, or is wholly without jurisdiction, and that such correction can be made when the jurisdictional defect goes to the root even if not urged earlier in the subordinate court.

Interpretation and reasoning: The Court held it should not "close its eyes" where an interlocutory direction, inconsistent with the suit's pleaded subject-matter and overlooking the earlier binding interlocutory position, results in gross injustice. It further held that supervisory power can be used to set aside such orders even though the impugned order may not have been challenged in the ordinary manner, because jurisdictional error and perversity warrant intervention.

Conclusions: The High Court invoked Article 227 to set aside the impugned subordinate court orders and allowed the matter to proceed, subject to payment of costs and filing directions, while leaving the parties' substantive passage claims to be pursued in accordance with the suit limited to the pleaded blue and red passages.

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