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2019 DIGILAW 250 (JHR)

Vijaya Florence Tiru v. Rajendra Tiru

2019-01-24

SUJIT NARAYAN PRASAD

body2019
JUDGMENT 1. This writ petition is under Article 227 of the Constitution of India , wherein the order dated 10.10.2018, passed in Original Title Suit No.16/2013, pending before Civil Judge, Sr. Division-I, Khunti, whereby and whereunder an application filed under Order VI Rule 17 of Code of Civil Procedure has been rejected. 2. The brief facts of the case as per the pleading made in the writ petition is that title suit is going on, being T.S. No.16/2013, the petitioner /defendant and the plaintiffs are claiming title over the suit property. One of the ground of the petitioner to claim the title over the property, apart from the claim of property, being purchased from his own source of income, he has also claimed the title on the basis of gift deed. The petitioner/defendant after being noticed has filed a written statement wherein he after narrating the dispute about the title of the plaintiff to the suit has also taken ground of keeping the property in his favour on the basis of gift deed and, therefore, reference of a Baksisnama/Will has been made in the written statement, but subsequently it has been realised by the petitioner that there is inadvertent error in mentioning Baksisnama/will in place of gift deed, therefore, he has made an application under Order VI rule 17 of C.P.C, permitting him to make necessary correction, so far as it relates to making reference of Baksisnama/will to be corrected as gift deed. The Trial Court having rejected it, this writ petition has been filed invoking the jurisdiction conferred to this Court, under Article 227 of the Constitution of India. 3. The contention of the learned counsel for the petitioner is that the application under Order VI Rule 17 of C.P.C can be entertained at any stage of trial even before pronouncement of the judgment, therefore, rejecting the said application is not proper rather the petitioner/defendant has been deprived from placing his case before the trial court for its proper adjudication. Further, case of the petitioner is that if the said amendment in the written statement would not be made, the interest of the petitioner will be jeopardized and, therefore, the said amendment is necessary to be allowed. 4. Further, case of the petitioner is that if the said amendment in the written statement would not be made, the interest of the petitioner will be jeopardized and, therefore, the said amendment is necessary to be allowed. 4. Having heard learned counsel for the petitioner and gone across the pleading made in the writ petition, as also by taking into consideration, the order passed by the trial court dated 10.10.2018, it is evident that the suit has been filed in the year, 2013 in which, the petitioner/defendant has put his appearance and filed a written statement on 08.10.2015, the issues have been framed. It is evident from the impugned order that others have been impleaded as party, vide order dated 19.04.2018 to the suit. While such decision was taken in the suit, the petitioner has filed an application under Order VI rule 17 of C.P.C on 06.08.2018 making prayer therein to allow the petitioner/defendant to make necessary correction in the written statement to the effect that in place, where it has been referred as Bakshishnama/Will, the same may be allowed to be corrected as a ''Gift deed'' but the same has been rejected. 5. The question of allowing the amendment as stipulated under the Provision of Order VI rule 17 of C.P.C is for proper adjudication of this issue and, therefore, the provision, conferring power upon the trail court to allow amendment at any stage of the trial, even before the pronouncement of the judgment so that interest of the party may not be prejudiced and proper adjudication of the issue may be done. With respect to the question of prejudice and jeopardize, the interest is paramount consideration for making provision under Order VI rule 17 of C.P.C. 6. It is not in dispute that the amendment application can be allowed at any stage of the suit but equally it is also settled that for the purpose of allowing the amendment application, the intention of the party needs to be seen. If the amendment sought for is necessary and if it is not causing prejudice then the amendment needs to be allowed. 7. If the amendment sought for is necessary and if it is not causing prejudice then the amendment needs to be allowed. 7. In this respect, the factual aspect involved needs to be examined and accordingly on its examination it is gathered by this Court although the petitioner in his written statement has made a reference of a Will but it is not in dispute that the said Will is a part of the proceeding now, and merely because it has been referred in the list of documents as Bakshishnama/Will the content of the Will will not be changed. 8. The purpose of making a document on record is for appreciation of the factual aspect and the trial court would only see the pleading made either in the plaint or the written statement rather the trial court is supposed to look into the documents supporting the statement either in the plaint or the written statement. 9. In that view of the matter, if the error has crept up as the petitioner''s claim with respect to making reference of Will instead of Gift deed since Gift deed is already on record this will not cause any prejudice therefore, the applicability of Order VI rule 17 of C.P.C will not have a paramount importance in this case. The trial court after taking into consideration and making a reference of this aspect of the matter i.e. regarding applicability of the Will and to that effect and issue has already been framed therefore, considering the said dispute there is no doubt that the trial court will not appreciate the content of the document. 10. Further it is evident from the impugned order that if the amendment would be allowed at this stage since the suit in the year 2013 and as has been submitted by the petitioner that he is in possession of the suit property the interest of the plaintiff would be prejudiced due to lingering of the suit. In that view of the matter, this Court is of the view that in this case needs no interference in exercise of revisional power conferred to this Court under Article 227 of the Constitution of India. 11. This Court also intends to go through the scope of Article 227 of the Constitution of India. In that view of the matter, this Court is of the view that in this case needs no interference in exercise of revisional power conferred to this Court under Article 227 of the Constitution of India. 11. 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, Honble Apex Court in the case of Shalini Shyam Shetty Vrs. 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 Honble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee, reported in AIR 1951 Calcutta 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 courts 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. In general words, the High Courts 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. 12. The power of superintendence is not to be exercised unless there has been; 1. An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or 2. gross abuse of jurisdiction; or 3. an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals. 13. Further, in the aforesaid judgment the Honble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs. 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. 14. 14. 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. 15. Further, the judgment rendered by the Honble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. 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. 16. 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 Article 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. 17. It has further been laid down regarding the powers to be 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. 18. 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. 18. 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. 19. In view thereof, I am not inclined to interfere with the writ petition, accordingly, the writ petition stands dismissed.