Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 291 (JHR)

Ghanshyam Mahato v. State Of Jharkhand

2019-01-29

SUJIT NARAYAN PRASAD

body2019
JUDGMENT Sujit Narayan Prasad, J. - This writ petition under Article 227 of the Constitution of India wherein order dated 12.03.2018 passed in T.S. No.91/2010 has been assailed, whereby and whereunder application filed under Order VII Rule 11 of the Code of Civil Procedure has been rejected. 2. The case of the petitioner is that the present suit is having no cause of action for the reason that the plaintiffs have already filed a suit way back in 1979 being T.S. No.7/79 in which they have lost, against which, the appeal has been filed even in appeal they lost and in the second appeal, the order passed by the original court in T.S. No.7/79 has also been affirmed, therefore, the institution of proceeding by way of the suit which is obligatory in nature regarding title of the suit property in question, is sheer wastage of Court''s time and, as such, the application under Order VII Rule 11 has been filed, which ought to have been taken into consideration by the trial court by rejecting the plaint. 3. Having heard learned counsel for the petitioner and gone across the pleading made in the writ petition, as also the impugned order whereby and whereunder it is evident that a suit has been filed for declaration of right and title over the suit property filed by the plaintiff, in which, the petitioner/defendant has filed an application and after their appearance and filing of the written statement under the provision of Order-VII Rule-11 for rejection of the plaint on the ground that the said suit property is subject matter of a suit i.e. T.S. No.7/79 which has been affirmed by first and second Appellate Court and, therefore having no cause of action the court rejected it, and the present writ petition has been filed by invoking the jurisdiction conferred to this Court, under Article 227 of the Constitution of India. 4. 4. Before looking in the propriety of the finding in the impugned order, it would be relevant to look into the provision under Order-VII Rule-11 of the Code of Civil Procedure, which speaks as follows:- Rejection of plaint:- The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; (b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; 11[(e) where it is not filed in duplicate; 12[(f) where the plaintiff fails to comply with the provisions of rule 9:] 13[ Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.] 5. It is evident from the aforesaid provision that the plaint can be rejected only in a condition when there is no cause of action or the suit is under valued or not properly being stamp, save and except these three conditions and application under Order-VII Rule-11 of CPC is not to be entertained by the trial court. 6. This Court intends to go of the scope of Article 227 of the Constitution of India, before going into the legality and propriety of the impugned order dealing with the scope of Article 227 of the Constitution of India, Hon''ble Apex Court in the case of Shalini Shyam Shetty Vrs. 6. This Court intends to go of the scope of Article 227 of the Constitution of India, before going into the legality and propriety of the impugned order dealing with the scope of Article 227 of the Constitution of India, Hon''ble Apex Court in the case of Shalini Shyam Shetty Vrs. Rajendra Shankar Patii, (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. Vrs. Sukumar Mukherjee, (1951) AIR 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 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. 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. 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. Further, in the aforesaid judgment the Hon''ble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, (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. The Hon''ble 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. Further, the judgment rendered by the Hon''ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. The Hon''ble 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. Further, the judgment rendered by the Hon''ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, (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. 7. 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. 8. 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. 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 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. 9. Admittedly herein, the petitioner has filed an application after their appearance and filing of the written statement, raising an issue of having no cause of action on the ground that for the same suit of property, title suit being T.S.No.7/79 which has been affirmed in T.A. No.56/17 of 1981-83 and Second Appeal No.120 of 1983 (R) and, therefore, there is no cause of action. The Court has considered that aspect of the matter and has came to the conclusion that the plaintiffs are now claiming the title on the ground of adverse possession and, therefore, the suppression of material fact as has been raised by the petitioner/defendant regarding the decree passed in T.S. No.7/79 has been said to be not a valid ground for allowing the application under Order-VII Rule-11. 10. According to the considered view of this Court, taking into consideration the scope of Order-VII Rule-11 of C.P.C the trial court is supposed to see the cause of action on the face of the plaint, reference in this regard may be made to the judgment rendered by Hon''ble Apex Court in the case of Urvashiben & Anr. Vs. Krishnakant Manuprasad Trivedi, (2018) 12 JT 217 (SC) , wherein at paragraph-15 which is as under: "We are of the considered view that merits and demerits of the matter cannot be gone into at this stage, while deciding an application filed under Order VII Rule 11 of the CPC. It is fairly well settled that at this stage only averments in the plaint are to be looked into". And when the specific ground taken by the petitioner for declaration of right and title over the suit property is of adverse possession then it cannot be said that no cause of action is lying with the plaintiff/respondent. 11. In view thereof, the trial court while rejecting the said application has not committed any illegality and hence this Court sitting under Article 227 of the Constitution of India taking into consideration the limited scope of exercise under the revisional power, refrains itself from interfering with the finding with the impugned order. 11. In view thereof, the trial court while rejecting the said application has not committed any illegality and hence this Court sitting under Article 227 of the Constitution of India taking into consideration the limited scope of exercise under the revisional power, refrains itself from interfering with the finding with the impugned order. 12. Accordingly, the writ petition fails and is dismissed.