Rajesh Kumar Vishwakarma v. Ram Briksh Vishwakarma
2019-01-23
SUJIT NARAYAN PRASAD
body2019
DigiLaw.ai
ORDER 1. Learned counsel Mr. Achinto Sen, at the outset, has submitted that he is putting his appearance on behalf of respondent Nos. 2 to 14, except respondent No.6, and on their behalf he undertakes to file Vakalatnama in course of the day. 2. This writ petition has been preferred under Article 227 of Constitution of India wherein the order dated 01.12.2018 passed in Partition Appeal No. 67 of 2005 is under challenge whereby and whereunder the application filed by the petitioner/appellant for making necessary correction in the decree by deleting the names of appellants namely late Mostt. Rajmati Kuer, w/o late Parameshwar Mistry, late Mostt Bachani Kuer, w/o late Parameshwar Mistry, late Tilotma Devi, w/o Rajmani Vishwakarma and d/o Parmeshwar Mistry, Mohan Vishwakarma, s/o late Shivnandan Vishwakarma, Girja Devi, d/o late Parameshwar Mistry, late Gimani Devi, w/o late Maheshwar Mistry. late Mahabir Mistry s/o late Kishun Mistry, late Bigan Mistry, s/o late Rail Mistry, since they have died in course of pendency of suit itself.- Aforesaid application has been rejected and hence this writ petition has been filed invoking the jurisdiction conferred to this Court under Article 227 of Constitution of India. 3. Mr. Rahul Kr. Gupta, learned counsel appearing for respondent No. 1 has vehemently opposed the ground and defended the impugned order by submitting that there is no error in the order impugned since petitioner has taken aforesaid ground in the appeal assailing the decree passed in the original suit. Therefore, if it would be directed to rectify at this stage, then the ground which has been raised by the petitioner in the appeal would be answered at this stage. Therefore, the appellate trial Court after taking into consideration this aspect of the matter as also tile delay part has rejected the same hence there is no infirmity in the aforesaid order. 4. Having heard learned counsel appearing for the parties and on going through the material available on record, it is evident that a partition-suit was filed before the competent Court of civil jurisdiction being Partition Suit No. 32 of 1971 which has been disposed of by passing decree/judgment dated 25.08.2005 which has been assailed by the petitioner/defendant No. 13 before the appellate Court.
The memo of appeal has been annexed with the instant writ petition as Annexure-4 wherein one of the ground is that the decree passed in the suit is not sustainable since the same has been passed against the defendants who have already died in course of its pendency. 5. This Court. after considering this aspect of the matter and taking into consideration the fact that the issue of death of aforesaid defendants have already been raised and therefore passing any order at this stage for making correction by deleting their names from the decree passed in the original suit by the trial Court would amount to answering the appeal at this stage. Since the appeal is at the stage of argument, therefore, this Court decline to pass positive order in favour of petitioner. 6. There is no dispute that Article 227 of Constitution of India confers power upon the High Court of superintendence/revision but the same is to be considered by the Court while exercising the aforesaid power if there is any error apparent on the face of record or the order is without jurisdiction or beyond jurisdiction. Meaning thereby, the scope of Article 227 of Constitution of India is very limited. 7. This Court also intends to go through the scope of Article 227 of the Constitution of India. Dealing with the scope of Article 227 of the Constitution of India, Hon'ble Apex Court in the case of Shalini Shyam Shetty v. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 has been pleased to laid down therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Hon’ble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, reported in AIB. 1951 Cal 193, wherein it has been laid down that Article 227 of the Constitution of India does not vest the High Court with limit less power which may be exercised at the Court's discretion to remove the hardship of particular decisions. The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character.
The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the High Court's power of superintendence is a power to keep the subordinate Courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner. 8. The power of superintendence is not to be exercised unless there has been : (a) An unwarranted assumption of jurisdiction, not vested in a Court or Tribunal; or (b) gross abuse of jurisdiction; or (c) an unjustifiable refusal to exercise jurisdiction vested in Courts or Tribunals. Further, in the aforesaid judgment the Hon'ble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala v. Phiroz N. Bhatena, reported in (1991) 3 SCC 141 wherein it has been laid down that in exercise of jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior Court or Tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the Court or Tribunal has come to. 9. The Honble Apex Court has made it clear that except to this limited extent the High Court has no jurisdiction to interfere with the finding of facts. 10. Further, the judgment rendered by the Hon'ble Apex Court in the case of Laxmikant Revchand Bhojwani v. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice. 11. It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appellable. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields.
11. It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appellable. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields. Another distinction between these two jurisdictions is that under Article 226 the High Court normal annuls or quashes an order or proceedings but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior Tribunal should have made. 12. It has further been laid down regarding the powers to he exercised by the High Court under Article 227 of the Constitution of India. 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 its authority, in order to ensure that law is followed by such Tribunals and Courts by exercising jurisdiction which is vested with them and by not declining to exercise the jurisdiction which is vested in them. Apart from that, 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. 13. 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. 14. The reason which has been assigned by the appellate Court is found to have substance, therefore, this Court is not inclined to exercise the power conferred under Article 227 of Constitution of India. 15. In this result, this appeal stands dismissed. Petition dismissed.