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2012 DIGILAW 41 (RAJ)

Babu Bhai Kashyap v. Praful Chand Contractor

2012-01-03

DINESH MAHESHWARI

body2012
Hon'ble MAHESHWARI, J.—Heard the learned counsel for the petitioner and perused the material placed on record. 2. By way of this writ petition, the defendant-petitioner seeks to question the order dated 29.04.2011 as passed in Civil Suit No.8/2010 whereby the learned Civil Judge (Sr.Div.), Mount Abu, while dealing with the suit for eviction filed with reference to Sections 105 and 106 of the Transfer of Property Act, has allowed the prayer made by the plaintiff-respondent per Order VIII Rule 9 of the Code of Civil Procedure; and has permitted filing of the replication by the plaintiff. 3. Assailing the order aforesaid, the learned counsel for the petitioner submitted that the learned Trial Court has acted wholly illegally, has approached the entire case from an altogether wrong angle, and has committed serious errors of law leading to failure of justice where it has permitted the plaintiff to place on record the parawise reply to the written statement in the name of replication, though such a course remains impermissible in law. The learned counsel also submitted that the objections as taken by the defendant-petitioner in relation to the prayer of the plaintiff have not been dealt with and the learned Trial Court has allowed the replication without considering the record of the case. On being posed the question about the scope of interference by this Court in such a matter in its supervisory jurisdiction under Article 227 of the Constitution of India, the learned counsel for the petitioner has referred to paragraph-13 in the decision of the Hon'ble Supreme Court in Kishore Kumar Khaitan & Anr. vs. Praveen Kumar Singh : (2006) 3 SCC 312 = RLW 2006(2) SC 938 and to paragraph-49 (f) and (g) in the decision of the Hon'ble Supreme Court in Shalini Shyam Shetty & Anr. vs. Rajendra Shankar Patil : (2010) 8 SCC 329 . The learned counsel also referred to the decisions of this Court in Gurjant Singh vs. Krishan Chander & Ors.: 2000(4) WLC 266 = RLW 2001(1) Raj. 37, Ishwar Lal & Anr. vs. Ashok & Anr.: 1998(3) WLC 223 = RLW 1998(2) Raj. 730 and State of Rajasthan & Anr. vs. Mohammed Ikbal & Ors.: 1998(2) WLC 649 = RLW 1999(1) Raj. 20 and submitted that the order as passed by the learned Trial Court is beyond the scope of Order VIII Rule 9 CPC. 4. 37, Ishwar Lal & Anr. vs. Ashok & Anr.: 1998(3) WLC 223 = RLW 1998(2) Raj. 730 and State of Rajasthan & Anr. vs. Mohammed Ikbal & Ors.: 1998(2) WLC 649 = RLW 1999(1) Raj. 20 and submitted that the order as passed by the learned Trial Court is beyond the scope of Order VIII Rule 9 CPC. 4. Per contra, the learned counsel for the plaintiff has duly supported the order impugned and submitted that the suit in question, now pending in the court of Civil Judge (Sr.Div.), Mount Abu was, in fact, originally filed in the Court of Additional District Judge, Abu Road and was registered as Civil Suit No.2/2007; and even prior to that, a suit for eviction was filed in the year 1989 that was withdrawn on 27.02.2006 with liberty of taking recourse to the remedies under the Rajasthan Rent Control Act, 2001 ('the Act of 2001') but then, recourse to such remedies was objected against on the ground that the Act of 2001 had not been extended to the area in question and, therefore, the plaintiff was required to file the suit afresh. The learned counsel further submitted that even in this suit, when filed in the Court of Additional District Judge, Abu Road, an objection regarding pecuniary jurisdiction was taken and that was allowed by the Court at a late stage and, by the order dated 18.03.2010, the plaint was ordered to be returned for presentation in the proper Court. The learned counsel pointed out that before passing of the said order dated 18.03.2010, a similar nature replication had, in fact, been filed and the same was permitted to be taken on record by the learned Trial Court then dealing with the suit, by its order dated 10.03.2008. The learned counsel submitted that even when the plaintiff-respondent has filed the parawise replication with reference to the paragraphs of the plaint and the written statement yet, nothing new has been pleaded therein which might travel beyond the periphery of the subject matter of the suit and the pleadings as taken in the plaint and the written statement. 5. The learned counsel submitted that even when the plaintiff-respondent has filed the parawise replication with reference to the paragraphs of the plaint and the written statement yet, nothing new has been pleaded therein which might travel beyond the periphery of the subject matter of the suit and the pleadings as taken in the plaint and the written statement. 5. After having given a thoughtful consideration to the rival submissions and having considered the material placed on record with reference to the law applicable, this Court is clearly of the opinion that the order impugned cannot be said to be suffering from any such jurisdictional error as to call for interference. 6. The limitations and parameters of the jurisdiction of this Court under Article 227 of the Constitution of India in relation to the petition of the present nature could be noticed from the 3-Judges' Bench judgment of the Hon'ble Supreme Court in the case of Sadhana Lodh vs. National Insurance Co. Ltd. & Anr. (2003) 3 SCC 524 wherein the Hon'ble Court has laid down:- “7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.” (emphasis supplied) 7. The learned counsel for the petitioner has referred to paragraph 13 of the decision in Kishore Kumar Khaitan & Anr. (supra). In Kishore Kumar Khaitan, the salient feature of the case had been that the Hon'ble Supreme Court found an order for interim mandatory injunction having been passed without adverting to the relevant material and without recording prima facie finding as to whether the plaintiff was in possession on a day after the interim order was passed and he was in fact dispossessed. In the given set of facts and circumstances, the Hon'ble Court considered the scope of jurisdiction under Article 227 of the Constitution of India and said,- “13. 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. Here the jurisdiction to grant an interim mandatory injunction could be exercised on entering a finding that on the day the order for maintaining the status quo was passed, the plaintiff was in possession and a day after the interim order was passed, he was in fact dispossessed. The interim direction to maintain status quo was an ex parte order. From the order of the Additional District Court it is not possible to come to the conclusion that on a proper advertence to the relevant materials, prima facie clear findings had been rendered by that court on these aspects......” 8. The learned counsel has further referred to sub-paragraphs (f) and (g) of paragraph 49 in Shalini Shyam Shetty (supra). In this decision, after analysing several of the past decisions, the Hon'ble Supreme Court has summed up the principles on the parameters of the jurisdiction of High Court under Article 227 of the Constitution of India. Apart from sub-paragraph (f) and (g) as referred by the learned counsel for the petitioner, the other sub-paragraphs particularly (h), (k), (m) and (n) do have direct bearing on the present petition. Apposite and appropriate it shall be to take note of paragraph 49 in Shalini Shyam Shetty in extenso as under:- “49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, “within the bounds of their authority”. (f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L.Chandra Kumar vs. Union of India and therefore abridgment by a constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality.” (emphasis supplied) 9. The decisions as referred by the learned counsel for the petitioner do not in any manner dilute the principles laid down in Sadhana Lodh's case (supra) nor lay down any principle different. There are different eventualities and aspects that could arise for consideration in such petitions as indicated in Kishore Kumar Khaitan and Shalini Shyam Shetty's case (supra) but then, in a comprehension of the principles laid down and explained by the Hon'ble Supreme Court, what could essentially be found is that the power of superintendence under Article 227 is to be very sparingly exercised on equitable principles and to ensure that the subordinate Courts do not adopt such an approach that could ultimately lead to failure of justice. 10. The submissions of learned counsel for the petitioner seeking interference by this Court in the impugned order dated 29.4.2011 lack merit essentially for the reason that by the order impugned what the learned Trial Court has permitted is filing of the replication by the plaintiff on the conside-ration that various aspects pleaded by the defendant in the written statement call for reply from the plaintiff. The learned Trial Court has also observed that the facts sought to be pleaded by the plaintiff by way of replication were in relation to the previous proceedings between the parties; and it was considered expedient by the learned Trial Court to take such pleadings on record so as to avoid the likelihood of any conflicting view being expressed by it than the views earlier expressed by the Courts in this very dispute. Neither such considerations could be said to be irrelevant or unjustified nor the learned Trial Court could be said to have asked itself a wrong question or having approached the core question in an improper manner. 11. The indications in the arguments of the learned counsel for the petitioner about the few things wanting in the frame of order as passed by the learned Trial Court do not make out a case for interference by this Court in its jurisdiction under Article 227 of the Constitution of India. The substance of the matter remains that it is not a case of the petitioner that by way of replication, any such fact has been pleaded by the plaintiff which could be said to be beyond the existing pleading as contained in the plaint and the written statement. The submissions as made on behalf of the petitioner about the plaintiff having been permitted to file parawise pleading and not having been confined to the points sought to be pleaded in relation to the additional pleas taken by the petitioner or that some of the submissions of the petitioner having not been dealt with by the learned Trial Court, looking to the nature of the proceedings and the nature of the order impugned, are merely the matter of form and not of substance. 12. The decisions of this Court in Gurjant Singh, Ishwar Lal and Mohammed Ikbal as referred by the learned counsel for the petitioner relating to the scope of Order VIII Rule 9 CPC essentially proceed on their own facts but in any event, do not make out a case for interference on the principles stated therein. For the present purpose, suffice is to notice the principles summarised in Mohammed Ikbal's case (supra) as under:- “9. For the present purpose, suffice is to notice the principles summarised in Mohammed Ikbal's case (supra) as under:- “9. The principles deducible from the above discussions may be summarised thus- (a) The plaintiff cannot be allowed to introduce new pleas by way of filing rejoinder, so as to alter the basis of his plaint. (b) In rejoinder, the plaintiff can be permitted to explain the additional facts which have been incorporated in the written statement. (c) The plaintiff cannot be allowed to come forward with an entirely new case in his rejoinder. (d) The plaintiff cannot be permitted to raise inconsistent pleas so as to alter his original cause of action. (e) Application under Order 8 Rule 9 CPC cannot be treated as one under Order 6 Rule 17 CPC as both are contextually different.” 13. As noticed hereinabove, the replication permitted by the learned Trial Court in this case is not of introduction of new plea so as to alter the basis of the plaint nor the plaintiff has been allowed to plead a new case or to take inconsistent plea nor there is any alteration in the original cause of action. In the ultimate analysis, the impugned order, according permission to the plaintiff to put the replication on record, does not appear suffering from any such infirmity as to warrant interference by this Court in the supervisory jurisdiction. 14. As a result of aforesaid, this petition fails and, is therefore, dismissed.