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Himachal Pradesh High Court · body

2016 DIGILAW 2233 (HP)

Dharam Dutt v. Hari Saran

2016-10-20

AJAY MOHAN GOEL

body2016
JUDGMENT : AJAY MOHAN GOEL, J: 1. By way of this petition filed under Article 227 of the Constitution of India, the petitioner/defendant has prayed for quashing of judgment passed by the Court of learned Additional District Judge-I, Shimla in Civil Miscellaneous Appeal No. 2-S/14 of 2012 dated 08.07.2013, vide which the learned Court below allowed the appeal filed by the present respondents/plaintiffs under Order 43 Rule 1 of the Code of Civil Procedure and while setting aside order dated 01.10.2011 passed by the Court of learned Civil Judge (Junior Division) (V), Shimla in Case No. 164-IV of 2007, learned appellate Court ordered Civil Suit filed by the respondents/plaintiffs titled Hari Saran Vs. Dharam Dutt to be restored to its original number subject to costs of Rs.500/-. 2. Brief facts necessary for the adjudication of the present case are that a Suit filed by the present respondents/plaintiffs which was pending adjudication in the Court of learned Civil Judge (Junior Division), Court No. 5 Shimla was ordered to be dismissed in default on 07.09.2007. An application filed by the respondents/plaintiffs for setting aside order dated 07.09.2007 and for restoration of Civil Suit was also dismissed by the Court of learned Civil Judge (Junior Division), Court No. 5, Shimla vide order dated 01.10.2011. The application was rejected inter alia on the grounds that neither there were sufficient grounds for restoration of the Civil Suit which stood dismissed in default nor the application was maintainable and further that the application so filed was also barred by limitation. 3. In appeal, the Court of learned Additional District Judge-I vide judgment dated 08.07.2013 set aside the order so passed by the Court of learned Civil Judge (Junior Division), Court No. 5, Shimla dated 01.10.2011. It was held by the learned appellate Court that the application was not barred by limitation as the suit was dismissed in default on 07.09.2007 and application for restoration of the same was filed on 08.10.2007. Learned appellate Court further held that there was sufficient cause for the absence of the plaintiffs from the Court on 07.09.2007 as the plaintiffs had proved that due to noting of wrong date of hearing neither the plaintiffs not their counsel could put in appearance on 07.09.2007 when the Suit was ordered to be dismissed in default. Learned appellate Court further held that there was sufficient cause for the absence of the plaintiffs from the Court on 07.09.2007 as the plaintiffs had proved that due to noting of wrong date of hearing neither the plaintiffs not their counsel could put in appearance on 07.09.2007 when the Suit was ordered to be dismissed in default. Learned appellate Court also took note of the fact that while disallowing the application for restoration of the Suit, learned trial Court had discussed different dates on which the suit of the plaintiffs was fixed for evidence, which as per the learned appellate Court was not relevant at all because the fact which was to be taken into consideration was only as to whether the absence was due to some reasonable cause or it was intentional or deliberate. It was concluded by the learned appellate Court that un-rebutted statement of one of the plaintiffs was sufficient to prove that the absence of the plaintiffs or their counsel on 07.09.2007 was neither intentional nor deliberate but due to the reason of noting wrong date of hearing. On these basis, the learned appellate Court while setting aside order dated 01.10.2011, ordered the Civil Suit to be restored to its original number subject to cost of Rs.500/-. 4. Feeling aggrieved by the said judgment, the petitioner/defendant has filed this petition. 5. Mr. Bimal Gupta, learned Senior Advocate appearing for the petitioner has argued that the judgment under challenge is not sustainable as learned appellate Court erred in coming to the conclusion that the application filed for restoration of the Civil Suit was not time barred and that there was sufficient cause shown by the plaintiffs in the said application for nonappearance on 07.09.2007, on which date the case was dismissed in default. According to Mr. Gupta, the case was dismissed in default on 07.09.2007, whereas the application for restoration of the same was filed on 08.10.2007, i.e. after the expiry of the period of limitation as was provided under Article 122 of the Limitation Act, which was 30 days. It was further argued by Mr. According to Mr. Gupta, the case was dismissed in default on 07.09.2007, whereas the application for restoration of the same was filed on 08.10.2007, i.e. after the expiry of the period of limitation as was provided under Article 122 of the Limitation Act, which was 30 days. It was further argued by Mr. Gupta that the learned appellate Court had failed to appreciate while allowing the appeal that the plaintiffs had failed to take any steps for summoning the witnesses and adduce any evidence from the year 2003 onwards despite the fact that issues stood framed as on 10.06.2003 and thereafter, the plaintiffs were required to furnish the list of witnesses within fourteen days from the date of framing of the issues. He further argued that learned appellate Court had further not appreciated that the averments made in the application for restoration of the suit were totally wrong as there was no averment in the application as to how and why the counsel of the plaintiffs was not present on 07.09.2007. On these basis, it was urged by Mr. Bimal Gupta that the judgment passed by the learned appellate Court was not sustainable in law and was liable to be set aside. 6. On the other hand, Mr. G.D. Verma, learned Senior Counsel appearing for respondents No. 1 to 3 and 5 argued there was no merit in the present petition as there was no perversity or infirmity with the judgment passed by the learned appellate Court ordering the restoration of the suit so filed by the respondents/plaintiffs. Mr. Verma argued that the contention of the petitioner that the application was time barred was misleading as the application for restoration of the case was in fact filed within the period of limitation. He further argued that in the application itself it was clearly mentioned by the plaintiffs that non-appearance in the Court on 07.09.2007 was on account of the date having been wrongly noted as 07.10.2007 instead of 07.09.2007 by the plaintiffs and it was only on 06.10.2007 when the plaintiffs came for the briefing of next date of hearing with respect to witnesses that this fact was revealed by counsel that the case stood dismissed in default. Mr. Mr. Verma also pointed out that it was categorically mentioned in the application itself that when the case was fixed on 18.07.2007 on which date the case was adjourned for 07.09.2007, the next date of hearing was inadvertently noted as 07.10.2007 instead of 07.09.2007 and it was on this count that neither the plaintiffs nor their counsel could put in appearance before the Court on 07.09.2007, on which date the case was dismissed in default. It was further argued by Mr. Verma that even otherwise in exercise of its jurisdiction under Article 227 of the Constitution of India, this Court was not to sit over the judgment passed by the learned appellate Court as an appellate Court but was to see as to whether there was any error of jurisdiction committed by the learned Court below while passing the order/judgment which was under challenge. On these grounds, it was urged by Mr. Verma that neither there was any perversity nor any infirmity with the findings returned by the learned appellate Court and the petition be accordingly dismissed as there was no merit in the same. 7. Mr. Devender Ghosh adopted the arguments of Mr. Verma. 8. I have heard the learned counsel for the parties and also gone through the records of the case as well as the judgment passed by the learned appellate Court and order passed by the learned trial Court. 9. Before proceeding further, it is relevant to take note of the fact that 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 fact of the record, much less of an error of law. It is settled law that in exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate Court. 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. 10. The Hon'ble Supreme Court in Radhey Shyam and another Vs. 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. 10. The Hon'ble Supreme Court in Radhey Shyam and another Vs. Chhabi Nath and other (2015) 5 Supreme Court Cases 423 has held that judicial orders of Civil Courts are not amenable to writ of certiorari under Article 226 of the Constitution of India. It has further held that jurisdiction under Article 227 is distinct from jurisdiction under Article 226 of the Constitution of India. It further held that all the Courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227. The Hon'ble Supreme Court has further held as under: ?26. The Bench in Surya Dev Rai also observed in para 25 of its judgment that distinction between Articles 226 and 227stood almost obliterated. In para 24 of the said judgment distinction in the two articles has been noted. In view thereof, observation that scope of Article 226 and 227 was obliterated was not correct as rightly observed by the referring Bench in Para 32 quoted above. We make it clear that though despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected, it has been wrongly assumed in certain quarters that the said jurisdiction has been expanded. Scope of Article 227 has been explained in several decisions including Waryam Singh and another vs. Amarnathand anotherst, Ouseph Mathai vs. M. Abdul Khadir[12], Shalini Shyam Shetty vs. Rajendra Shankar Patil[13] and Sameer Suresh Gupta vs. Rahul Kumar Agarwal[14]. In Shalini Shyam Shetty, this Court observed : "64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions. 65. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority. 66. We may also observe that in some High Courts there is a tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding the High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law. 67. As a result of frequent interference by the Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. This Court hopes and trusts that in exercising its power either underArticle 226 or 227, the Hon'ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice within their jurisdiction will adhere to them strictly." (emphasis supplied) 11. It is in this background that this Court will examine the order under challenge in exercise of its supervisory jurisdiction. 12. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice within their jurisdiction will adhere to them strictly." (emphasis supplied) 11. It is in this background that this Court will examine the order under challenge in exercise of its supervisory jurisdiction. 12. The first contention of the learned counsel for the petitioner that the judgment passed by the learned appellate Court is not sustainable in law as the findings returned by the learned appellate Court to the effect that the application filed by the plaintiffs for restoration of the suit was barred by limitation is without any merit. Admittedly, the suit was dismissed in default on 07.09.2007 and the application for restoration of the same was filed on 08.10.2007. Admittedly, 07.10.2007 was Sunday. Thus, the last date of limitation for filing the application being Sunday, the limitation but obvious was to expire on 08.10.2007 and as the application for restoration of the Civil Suit was filed on 08.10.2007, it could not be said that the same was barred by limitation. 13. Coming to the other aspect of the matter, in my considered view, learned appellate Court while setting aside the order dated 01.10.2011 passed by the learned trial Court and further by ordering the restoration of the Civil Suit to its original number has neither overreached its jurisdiction nor it can be said that while deciding the said appeal, the learned appellate Court has not proceeded within its parameters. The findings so returned by the learned appellate Court are based on the appreciation of material which was placed on record by the respective parties. A perusal of the application filed by the plaintiffs for restoration of the suit as well as other material placed on record by the parties also demonstrate that it cannot be said that the conclusion which has been arrived at by the learned appellate Court to the effect that the plaintiffs had shown sufficient cause for their absence from the Court on 07.09.2007 and were entitled to the relief of restoration of the suit was a perverse conclusion. Even otherwise, in my considered view, interest of justice would not have been served if the application filed by the plaintiffs for restoration of the Civil Suit was disallowed on some technicalities. Even otherwise, in my considered view, interest of justice would not have been served if the application filed by the plaintiffs for restoration of the Civil Suit was disallowed on some technicalities. No prejudice has been caused to the defendant by allowing the application for restoration of the Civil Suit because it is not as if the application for restoration of the suit was either filed beyond the period of limitation and was filed after a long delay. 14. The Hon'ble Supreme Court in State of Nagaland Vs. Lipok AO and others (2005) 3 Supreme Court Cases 752 has held that when substantial justice and technical approach are pitted against each other, the former has to be preferred. 15. Even otherwise, it is settled law that technicalities of law cannot prevent the Court from doing substantial justice. Judiciary is not respected on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so by making justice oriented approach from this perspective. 16. Therefore, in view of the discussion held above, I do not find any merit in the present petition and the same is accordingly dismissed with a slight modification in the order dated 08.07.2013 passed by the learned appellate Court to the extent that cost assessed by the learned appellate Court of Rs.500/- is raised to Rs.2000/-, which shall be paid by the respondents/plaintiffs to the petitioner/defendant within a period of six weeks from today. With the above modification in the judgment passed by the learned appellate Court, the present petition is disposed of.