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2016 DIGILAW 457 (RAJ)

Babu Lal v. Parsu Ram

2016-03-30

P.K.LOHRA

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JUDGMENT : P.K. Lohra, J. Petitioner-defendant has preferred this writ petition under Article 226 & 227 of Constitution of India to assail the impugned order dated 28.10.2014 passed by the Senior Civil Judge, Sujangarh (Churu) [for short 'the learned Trial Court'] whereby learned Trial Court decided three applications simultaneously i.e. application of the petitioner-defendant under Order 2, Rule 2 read with Section 12 CPC, his application under Order 6, Rule 17 CPC for amendment of written statement and the application of the respondents-plaintiffs under Section 151 CPC. The learned Trial Court by the common order rejected application of the petitioner-defendant under Order 2, Rule 2 read with Section 12 CPC but allowed his application under Order 6, Rule 17 CPC. The third application under Section 151 CPC laid on behalf of the respondents-plaintiffs was allowed by the learned Trial Court and the written statement filed by the petitioner-defendant was ordered to be kept in Part-D of the file being not in consonance and in conformity with earlier order passed by this Court on 05.01.2011 while deciding S.B. Civil Writ Petition No. 8291/2010. This part of the order is under challenge in this petition at the behest of the petitioner-defendant. 2. Although there is a checkered history of the case as there are many litigation going on between the rival parties, for the purpose of this writ petition, suffice it to confine the facts pertaining to Civil Original Suit No. 23/2011 (Old No. 224/2010). The aforesaid suit is filed by the respondents-plaintiffs initially arraying three defendants praying therein relief of mandatory and perpetual injunction. By asserting their long possession on the land in dispute, the respondents-plaintiffs craved the relief of mandatory injunction under Section 39 of the Specific Relief Act, 1963 by seeking directions against the proforma respondents-defendants to regularise their possession and issue patta in their name. During pendency of the suit, the petitioner made endeavour for being impleaded as party defendant and an application under Order 1, Rule 10 CPC submitted. The learned Trial Court while acceding to the prayer of the petitioner impleaded it as defendant No. 4 in the suit. 3. Being aggrieved by the order of the learned Trial Court, the respondents-plaintiffs preferred a writ petition before this Court which was registered as S.B. Civil Writ Petition No. 8291/2010. The learned Trial Court while acceding to the prayer of the petitioner impleaded it as defendant No. 4 in the suit. 3. Being aggrieved by the order of the learned Trial Court, the respondents-plaintiffs preferred a writ petition before this Court which was registered as S.B. Civil Writ Petition No. 8291/2010. After hearing rival parties, the writ petition was decided by this Court on 05.01.2011 and the petition was rejected with some observations. The observations made by the Court reads as under :- "However it need be and hence is observed that by getting himself impleaded as a party to the suit that has been filed essentially against the original defendants the applicant respondent No. 4 would not be entitled to expand the scope of the suit or to put-forth any such claim which may not be within the periphery of the scope of the suit." 4. After decision of S.B. Civil Writ Petition No. 8291/2010, petitioner-defendant submitted his written statement wherein certain additional pleas were also raised. The written statement submitted by the petitioner-defendant has prompted the respondents-plaintiffs to lay application under Section 151 CPC wherein precisely it was averred by them that the written statement is not in consonance and in conformity with the observations made by this Court and the petitioner has made an endavour to enlarge the scope of the suit. The objection of the respondents-plaintiffs found favour of the learned Trial Court and consequently by the impugned order, learned Trial Court ordered for keeping written statement of the petitioner-defendant in Part-D of the file with a further direction to submit amended written statement. 5. Learned counsel for the petitioner Mr. Sandeep Shah submits that order impugned suffers from the vice of an error apparent on the face of record inasmuch as neither the petitioner has averred any facts beyond the scope of the suit nor any counter claim is laid on its behalf. Learned counsel further submits that all the facts pleaded by the petitioner in the written statement are in the form of a valid and plausible defence and confined within the scope of the suit but this vital aspect has not been examined by the learned Trial Court in right perspective. He, therefore, submits that on the face of it, the impugned order is vulnerable and cannot be sustained. He, therefore, submits that on the face of it, the impugned order is vulnerable and cannot be sustained. Highlighting some part of the pleadings, learned counsel would contend that petitioner has simply made an endeavour to render proper assistance to the learned Trial Court more particularly in the wake of a supporting written statement filed by the proforma respondent - Gram Panchayat and, therefore, in the interest of justice, impugned order is liable to be interfered with. 6. Per contra, learned Senior Counsel Mr. R.K. Thanvi while stoutly defending the impugned order submits that a bare perusal of the written statement makes it amply clear that petitioner has made an affirmative attempt to enlarge the scope of the suit and, therefore, such pleadings are not permissible in terms of the order passed by this Court on 05.01.2011 in S.B. Civil Writ Petition No. 8291/2010. While referring to Para 24 onwards of the written statement submitted by the petitioner, learned counsel would contend that all these pleas are per se in the nature of enlarging scope of the suit and, therefore, impugned order is not liable to be interfered with in exercise of supervisory jurisdiction of this Court. Lastly, learned Senior Counsel has urged that scope of judicial review under Article 227 is very much limited and the same is not akin to appellate or revisional jurisdiction and, therefore, no interference with the impugned order is warranted. 7. I have heard learned counsel for the parties and perused the impugned order. 8. At the outset, it may be observed that entire edifice of this litigation is earlier order passed by this Court on 05.01.2011 while deciding S.B. Civil Writ Petition No. 8291/2010. The rival parties have different perceptions in construing the observations made by this Court while passing the order dated 05.01.2011. The learned Trial Court while deciding application of the respondents-plaintiffs under Section 151 CPC has made sincere endeavour to construe the observations made by this Court in its order dated 05.01.2011. Upon threadbare examination of the impugned order in this context, I am unable to notice any jurisdictional error committed by the learned Trial Court. The learned Trial Court while deciding application of the respondents-plaintiffs under Section 151 CPC has made sincere endeavour to construe the observations made by this Court in its order dated 05.01.2011. Upon threadbare examination of the impugned order in this context, I am unable to notice any jurisdictional error committed by the learned Trial Court. When the discretion has been exercised by the learned Trial Court judiciously after examining the averments contained in the written statement of the petitioner, there is hardly any occasion for this Court to substitute its own view as against the view of the learned Trial Court. 9. It is trite that supervisory jurisdiction 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 record much less of an error of law. The jurisdiction under Article 227 of the Constitution is restricted to interference in cases of grave miscarriage of justice, dereliction of duty or flagrant violation of law by the subordinate court. 10. In totality, I am unable to find any manifest error in the impugned order which has occasioned failure of justice inasmuch as the petitioner-defendant has been permitted to file its amended written statement. It may also be observed here that proforma respondent Nos. 7 & 8 are seriously contesting the matter and have filed their written statement and the learned Trial Court is obliged to take cognizance of the pleas raised at their behest to counter the suit of the respondents-plaintiffs. 11. Supreme Court in Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329 has embarked on the scope of judicial review under Article 227 of the Constitution and laid down certain yardsticks and parameters for exercising supervisory jurisdiction. Applying those parameters, there is apparently no reason to categorise the impugned order as vulnerable within the four corners of limited scope of judicial review under Article 227 of the Constitution. 12. Supreme Court has further deprecated the practise of entertaining petitions under Article 227 in relation to pure property disputes, partition suits, matters relating to execution of decree and issued a word of caution not to stay proceedings in such matters. The Court held,- "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. The Court held,- "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. 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. 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 under Article 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." 13. In Jai Singh & Ors. v. Municipal Corporation of Delhi & Anr., (2010) 9 SCC 385 , Supreme Court has reiterated the same principle and held,- "15.......The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well-recognised constraints. It can not be exercised like a "bull in a china shop", to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice." 14. In view of foregoing discussion, I am not inclined to interfere with the impugned order. 15. Consequently, the writ petition fails and the same is hereby dismissed summarily.