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2019 DIGILAW 312 (JHR)

Mariram Majhi v. Ludhu Majhi

2019-01-30

SUJIT NARAYAN PRASAD

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JUDGMENT Sujit Narayan Prasad, J. - This writ petition is under Article 227 of the Constitution of India wherein the order dated 07.02.2018 passed in Title (P) Suit No.125/94 whereby and whereunder the show cause dated 08.04.2010 filed on behalf of the defendant who is petitioner in this writ petition on the point of appointment of Pleader Commissioner, has been rejected, is before this Court. 2. Mr. K. C. Mahto, leaned counsel for the petitioner submits that after passing of the preliminary decree, the trial court has proceeded for appointment of Survey knowing Pleader Commissioner in order to prepare the final decree and at that time, he has filed the show cause stating therein that the preliminary decree has been obtained by the plaintiff by commission of fraud and, therefore, the decree obtained through fraud will be vitiated but the said application having been rejected, therefore, this writ petition has been filed. 3. This Court, after hearing learned counsel for the petitioner and going across the pleading made in the writ petition as also the impugned order, has found that the partition suit has been filed by the plaintiff in which a preliminary decree was passed on 16.01.2005, after knowing it, the petitioner has filed an application for setting aside the said preliminary decree on the ground of fraud but the same has been rejected vide order dated 20.12.2014. It is further evident that when the preliminary decree has been passed by the trial court, a Survey knowing Pleader Commissioner has been appointed. At that juncture objection has been filed by the petitioner on 08.04.2010 making therein objection regarding the appointment of Survey knowing Pleader Commissioner on the ground that the preliminary decree since has been obtained by way of fraud, the said decree will be said nullity in the eye of law on the basis of the principle of that fraud vitiated everything and, therefore, the trial court ought to have been taken into consideration this aspect of the matter instead of rejecting the said objection. 4. This Court is not in agreement with the said submission of Mr. 4. This Court is not in agreement with the said submission of Mr. K. C. Mahto, learned counsel for the petitioner, for the reason that the issue of Commission of alleged fraud has been raised by the petitioner by filing a Miscellaneous Case No.7/10 but the same has been dismissed vide order dated 20.12.2014, against which, it is admitted fact that, he has not challenged the order dated 20.12.2014 before any higher forum and in view thereof, the issue of fraud as has been raised by the petitioner since has been dealt with by the trial court by passing an order against the petitioner which the petitioner has accepted the objection made against the appointment of Survey knowing Pleader Commissioner, on the same set of ground will have no force therefore, it has rightly been considered by rejecting the objection of the petitioner. Therefore, according to the considered view of this Court there is no infirmity in the finding recorded by the trial court. 5. This writ petition has been filed under Article 227 of the Constitution of India. It is settled position of law that the High Court sitting under Article 227 of the Constitution of India exercises power of revision and it is settled that the power conferred to the High Court under the said provision is only to be exercised when there is any error on the face of record or the order is without jurisdiction or beyond jurisdiction. 6. 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 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. 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. 7. 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. 8. 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. 9. 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. 10. 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. 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. 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 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. 12. 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. 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. 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. This Court after taking into consideration the scope of the provision of 227 of the Constitution of India and considering the factual aspect as discussed hereinabove is of the view that there is no error evident on the face of the record rather the trial court has passed an order taking care of factual aspect and more particularly the plea of fraud having been rejected by the petitioner which has been accepted the same has not been assailed before any higher forum. Accordingly, the writ petition fails and is dismissed.