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2005 DIGILAW 791 (RAJ)

Shree Gopal v. Additional Civil Judge (JD) No. 8, Jodhpur

2005-03-14

GOVIND MATHUR

body2005
Judgment Govind Mathur, J.-These two writ petitions are arising out of the order dated 19.04.2004 passed by Additional Civil Judge (JD) No. 8, Jodhpur. By order impugned learned Additional Civil Judge decided two issues in original civil suits No. 14/02 and 38/02 with regard to admissibility of a document in evidence. 2. In a suit for permanent injunction bearing No. 14/02 an issue was framed by the trial Court as under:-"Whether "Kabuliat being unstamped is inadmissible in evidence as also it being unregistered is also inadmissbile in evidence?" 3. The issue was framed by the Court as the petitioner defendant alongwith written statement submitted a document to prove his ownership and possession over the property in question. The petitioner defendant termed the said document as "Kabuliat" executed by Shri Hijulal, father of plaintiff respondent No. 2 Shri Dwarkalal. .4. In a suit for redemption of mortgage bearing No. 38/02 the same document was filed by the plaintiff petitioner to substantiate the contention that in samvat year 1989 Shri Mohanlal, father of the petitioner, borrowed a sum of Rs. 125/-as loan from Shri Hijulal. Shri Hijulal made an endorsement at the bottom of "Kabuliat" that patta and possession of property shall remain with him till the amount of Rs. 125/-is repaid by aforesaid Mohanlal, father of the plaintiff . The suit bearing No. 38/02 is filed by the plaintiff petitioner being son of Late Shri Mohanlal against heirs and Legal Representatives of deceased Hijulal on 112.1990 for redemption of mortgage and in alternative for possession on the ground of heirs being in possession. The trial Court framed an issue in suit for redemption of mortgage as under:- ."Whether document executed in samvat year 1989 being unstamped and unregistered is inadmissible as a mortgage or as a rent note?" 5. The trial Court by order impugned dated 19.04.2004 ordered that "Kabuliat" as well as the mortgage being unstamped and unregistered is inadmissible in evidence and also cannot be used for colateral purposes. The trial Court also held that the document termed as "Kabuliat" is an agreement, therefore, the same is inadmissible in evidence as per the provisions of Section 7(7) of the Marwar Registration Act. 6. The trial Court also held that the document termed as "Kabuliat" is an agreement, therefore, the same is inadmissible in evidence as per the provisions of Section 7(7) of the Marwar Registration Act. 6. Counsel for the petitioner while assailing validity and propriety of the order dated 19.04.2004 has contended that the trial Court acted illegally in exercise of its jurisdiction while interpreting the document and also misinterpreted the provisions of law which resulted into grave injustice and an irreparable loss and injury is caused to the petitioner in as much as he shall be deprived of his valuable right pertaining to the property in question in absence of document which proves his title over the said property. Counsel for the petitioner emphasized that the document in question is a unilateral document executed by Shri Hijulal, therefore, it could not be an agreement which is essentially required to be a bilateral document. It is also contended by the Counsel for the petitioner that the Court below failed to take note of the provisions of Marwar Stamps Act which provides that such a document can be received in evidence on payment of penalty. .7. Per contra, Counsel appearing on behalf of respondents while defending the order passed by the trial Court on merits also urged that supervisory jurisdiction conferred with the High Court under Article 227 of the Constitution of India, is having quite limited jurisdiction and the High Court while exercising powers under Article 227 of the Constitution of India does not act as a Court of appellate jurisdiction. According to the Counsel for the respondents the petitioner may challenge validity and propriety of the order while challenging the final Judgment and decree. .8. I have heard Counsel for the parties. 9. Before adjudicating the dispute on merits the prime question before the Court to decide is as to whether it shall be appropriate to interfere with the order impugned while exercising powers under Article 227 of the Constitution of India? 10. Honble Supreme Court in the case of Mohd. Yunus vs. Mohd. Mustaqim & Ors., reported in AIR 1984 SC 38 , held that supervisory jurisdiction conferred on the High Court under Article 227 of the Constitution is limited to seeing that an inferior Court or Tribunal functions within the limits of its authority. In the case of Mohd. 10. Honble Supreme Court in the case of Mohd. Yunus vs. Mohd. Mustaqim & Ors., reported in AIR 1984 SC 38 , held that supervisory jurisdiction conferred on the High Court under Article 227 of the Constitution is limited to seeing that an inferior Court or Tribunal functions within the limits of its authority. In the case of Mohd. Yunus (Supra) Honble Supreme Court with regard to powers of the High Court under Article 227 of the Constitution held as under:- "A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority", and not to correct an error apparent on the face of the record, much less an error of law. In this case there was in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunal purports to be based or to correct errors of law in the decision." 11. Honble Supreme Court in the case of Surya Dev Rai vs. Ram Chander Rai & Ors., reported in 2003 (6) SCC 675 , has thrown sufficient light with regard to amplitude of the powers of High Court while exercising jurisdiction under Article 227 of the Constitution. Honble Supreme Court in the case of Surya Dev Rai vs. Ram Chander Rai & Ors., reported in 2003 (6) SCC 675 , has thrown sufficient light with regard to amplitude of the powers of High Court while exercising jurisdiction under Article 227 of the Constitution. In aforesaid case Honble Supreme Court while emphasizing that powers under Article 227 are intended to be used sparingly, held as under:- Para-24.-" The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the Court or Tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does not have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction. Para-26.-In order to safeguard against a mere appellate or revisional jurisdiction being exercised in the garb of exercise of supervisory jurisdiction under Article 227 of the Constitution, the Courts have devised self-imposed rules of discipline on their power. Supervisory jurisdiction may be refused to be exercised when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved. The High Court may have regard to legislative policy formulated on experience and expressed by enactments where the legislature in exercise of its wisdom has deliberately chosen certain orders and proceedings to be kept away from exercise of appellate and revisional jurisdiction in the hope of accelerating the conclusion of the proceedings and avoiding delay and procrastination which is occasioned by subjecting every order at every stage of proceedings to judicial review by way of appeal or revision. So long as an error is capable of being corrected by a superior Court in exercise of appellate or revisional jurisdiction, though available to be exercised only at the conclusion of the proceedings, it would be sound exercise of discretion on the part of the High Court to refuse to exercise the power of superintendence during the pendency of the proceedings. However, there may be cases where but for invoking the supervisory jurisdiction, the jurisdictional error committed by the inferior Court or Tribunal would be incapable of being remedied once the proceedings have concluded." 12. A Division Bench of this Court while adjudicating the same question in the case of Kailash Narain & Ors. However, there may be cases where but for invoking the supervisory jurisdiction, the jurisdictional error committed by the inferior Court or Tribunal would be incapable of being remedied once the proceedings have concluded." 12. A Division Bench of this Court while adjudicating the same question in the case of Kailash Narain & Ors. vs. Bhairoon Dutta, AIR 1983 Rajasthan 27, held as under:-Para-9. "It is clear from the discussion made hereinabove that the order dated November 12, 1980 of the Civil Judge, Jodhpur holding the four receipts to be inadmissible in evidence can be challenged in an appeal that may be preferred against the final decree by setting forth a ground of objection in the memorandum of appeal. Further, it would not be proper to this Court to interfere in its writ jurisdiction with the question relating to admissibility of a document, which does not relate to the jurisdiction of that Court." 13. The powers of High Court under Article 227 of the Constitution thus, can be summarized as under:- "1. By Article 227 of the Constitution the power of superintendence is conferred on the High Court with paramount consideration for paving the path of justice and removing any obstacles therein. 2. The power of superintendence conferred by Article 227 is to be exercised sparingly and only in appropriate cases, in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors. Meaning thereby that the power under Article 227 of the Constitution can be exercised in such cases where the Court subordinate.- .(i) acted with erroneous assumption or acting beyond jurisdiction, .(ii) refused to exercise jurisdiction vested with it, (iii) exercised its powers, authority or discretion capriciously and arbitrarily, (iv) committed a patent error in procedure and there is a perverse finding which is based on no evidence or material or resulting in manifest injustice. 3. The High Court may feel inclined to intervene where the error is such, as if not corrected at that very moment, may become incapable of correction at a later stage. 4. TheHigh Court cannot, in exercise of its jurisdiction under Article 227 of the Constitution, convert itself into a Court of appeal. Accordingly the power is not available to be exercised to correct mere errors whether on the facts or laws. 4. TheHigh Court cannot, in exercise of its jurisdiction under Article 227 of the Constitution, convert itself into a Court of appeal. Accordingly the power is not available to be exercised to correct mere errors whether on the facts or laws. The mere misconception on a point of law or a wrong decision on facts which can be corrected in appeal are in normal course not required to be adjudicated under Article 227. 14. In the present case this Court is required to examine as to whether within the parameters above, interference of this Court with order impugned is warranted under Article 227 of the Constitution? The trial Court by order impugned held that the document termed as "Kabuliat " as well as mortgage being unstamped and unregistered is inadmissible in evidence and also cannot be used for colateral purposes also. The trial Court also held that the document is an agreement and , therefore, as per Section 7(7) of the Marwar Registration Act, 1899 it was in force at the relevant time is inadmissible in evidence. The same also cannot be used for any colateral purpose. The trial Court while holding so has neither assumed a jurisdiction which it does not have. The trial Court also not failed to exercise jurisdiction which it does have and further the trial Court has also not exercised its powers in a manner which tantamounts to overstepping the limits of jurisdiction. The proceedings of the suits giving rise to the order dated 19.04.2004 have not been concluded and the final Judgment and decree in the suits bearing No. 14/02 and 38/02 can be very well challenged by the petitioner by way of filing a regular appeal. As such if any error is committed by the trial Court under the order dated 19.04.2004 the same may be corrected by appellate Court. The facts and circumstances of the case does not warrant interference by this Court at this stage. 15. The writ petitions, therefore, deserve to be dismissed. The same are, therefore, dismissed. 16. No order as to costs.