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2011 DIGILAW 1275 (ALL)

Shyam Lal v. 2Nd Additional Civil Judge (Jd), Faizabad

2011-05-19

ANIL KUMAR

body2011
Hon’ble Anil Kumar,J.—Factual matrix of present case as submitted by Sri Rajeiu Kumar Tripathi, learned counsel for petitioner are to the effect that Sri Shyam Lal (petitioner) and Sri Raj Bahadur (respondent no. 2) are real brother and Smt. Geeta Devi (respondent no. 3) is the wife of Sri Raj Bahadur. 2. Smt. Geeta Devi filed a Suit (registered as Regular Suit No. 499 of 2000) for cancellation of sale deed and permanent injunction in the court of Civil Judge (Junior Division), Haveli, Faizabad. On coming to know the said fact, petitioner who is arrayed as defendant filed written statement on 13.03.2007. 3. It is further submitted on behalf of petitioner that another Suit for permanent injunction has been filed by Raj Bahadur (Regular Suit No. 34 of 2001, Raj Bahadur v. Shyamlal and others) in the court of Civil Judge, Haveli, Faizabad. 4. On 09.08.2005 (Annexure no. 5) in the said Suit, petitioner moved an application that a direction may be issued to plaintiff to give the copy of amended plaint etc. to him. 5. Learned counsel for petitioner further submits that thereafter Regular Suit no. 34 of 2001 transferred to the court of respondent no. 1/Second Additional Civil Judge (Junior Division), Faizabad whereas the Regular Suit No. 449 of 2000 remain pending in the court of Civil Judge (Junior Division), Haveli, Faizabad. 6. In view of the above said facts, on behalf of petitioner, an application moved before the District Judge, Faizabad to transfer the Regular Suit No. 449 of 2000 to the court of respondent no. 1 and the same was transferred. 7. Accordingly, before respondent no. 1 on 10.05.2011 an application has been moved by petitioner to get the joint trial of both the cases, when no heed has been paid, the petitioner approached this Court by filing present writ petition under Article 227 of the Constitution of India with the following main prayer :- “issue a writ, order or direction in the nature of mandamus, commanding the opp-party no. 1 to carry-out the joint trial of Regular Suit No. 449 of 2000 and Regular Suit No. 34 of 2001 pending before him by fixing the same date in both the cases.” 8. I have heard Sri Rajeiu Kumar Tripathi, learned counsel for petitioner, Sri Manish Kumar, Advocate appearing on behalf of respondent no. 1 and perused the record. 9. 1 to carry-out the joint trial of Regular Suit No. 449 of 2000 and Regular Suit No. 34 of 2001 pending before him by fixing the same date in both the cases.” 8. I have heard Sri Rajeiu Kumar Tripathi, learned counsel for petitioner, Sri Manish Kumar, Advocate appearing on behalf of respondent no. 1 and perused the record. 9. Needless to mention herein that Sri Rajeiu Kumar Tripathi, learned counsel for petitioner very fairly admits that provisions as provided under Order IV(A) (sic-IV-A) C.P.C. are not applicable in the instant case. 10. He further submits that keeping in view the facts and circumstances of the case, the respondent no. 1 may be directed to conduct joint trial of both the cases. 11. In view of the above said facts, once it is admitted by learned counsel for petitioner that provisions as provided under Order IV(A) (sic-IV-A) Code of Civil Procedure are not applicable in present case, which provides the consolidation of two Suits pending in same court, then whether the prayer made by learned counsel for petitioner by filing present writ petition under Article 227 of the Constitution of India may be granted or not. 12. The power of superintendence conferred on the High Court under Article 227 over all the courts and tribunals throughout the territory of the State is both of administrative and judicial nature and it could be exercised suo motu also. However, such power of superintendence does not imply that the High Courts can influence the subordinate judiciary to pass any order or judgment in a particular manner. 13. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions. It is the members of the subordinate judiciary who directly interact with the parties in the course of proceedings of the case and therefore, it is no less important that their independence should be protected effectively to the satisfaction of the litigants. 14. While invoking the provisions of Article 227 of the Constitution of India, it is provided that High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. 15. 14. While invoking the provisions of Article 227 of the Constitution of India, it is provided that High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. 15. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. 16. The independence of the judiciary has been considered as a part of the basic structure of the Constitution and such independence is postulated not only from the Executive, but also from all other sources of pressure. 17. In the case of Kishor Kumar Khetan v. Pravin Kumar Singh, (2006) 3 SCC 312 the Apex Court held as under:- “The jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction.” 18. In the case of Securities and Exchange Board of India, 2005(13) SCC 498 , the Apex Court had held that the power of High Court under Article 227 of the Constitution of India is expressed when it is found that the Sub-ordinate Court have acted without justification or in exercising of jurisdiction and for the purpose of keeping the Sub-ordinate Courts within bounds when the Sub-ordinate court has assume jurisdiction which it did not have or has failed to exercise jurisdiction which it does have. 19. From the material on record, the instant case does not fall under any of the enumerated criteria as laid down by the Apex Court as stated hereinabove for interference of the exercise of power by the High Court under Article 227 of the Constitution of India, as such the relief claimed by the petitioner cannot be granted. 20. For the foregoing reasons, present writ petition filed by petitioner lacks merit and is dismissed. 21. 20. For the foregoing reasons, present writ petition filed by petitioner lacks merit and is dismissed. 21. No order as to costs. (Petition dismissed) _____________