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2019 DIGILAW 520 (JHR)

Shankar Gope v. Mossomat Lakhpatiya

2019-02-21

SUJIT NARAYAN PRASAD

body2019
ORDER : 1. This writ petition is under Article 227 of the Constitution of India, whereby order dated 20.06.2017 passed in Partition Suit Case No.70 of 2007 is under challenge, whereby and whereunder two amendments i.e.:- (a) That in the cause title of the plaint after the description of the proforma defendant twenty the following be allowed to be added:- 21. Raju Sao S/o Late Charu Sao 22. Gandauri Sao S/o Meghan Sao 23. Parwati Devi w/o Basudeo Sao 24. Mukhlal Sao S/o Annachwa Sao 25. Budhani Devi W/o Bitai Sao 26. Taro Devi W/o Radhan Nath Munda (b) That in lone three of para 11 the name Yaspal Sao, Yespal Sao appearing in between the words “one” and “died” be allowed to be deleted and in its palce the following be allowed to be added:-“Jaipal Sao, Jaipal Sao”. Lastly Ld. Lawyer prayed that above named persons as mentioned in para (a) and for correction in para (b) be allowed. 2. The trial Court having rejected the same vide order dated 20.06.2017, the instant writ petition has been filed invoking the jurisdiction of this Court under Article 227 of the Constitution of India. 3. The case of the petitioner/plaintiff in brief as per the pleading made in the writ petition is that the suit for partition has been filed in the year 2007 and when it reaches to the stage of argument, the petition under Order 6 Rule 17 has been filed on 18.05.2015 seeking the aforesaid amendment. 4. 3. The case of the petitioner/plaintiff in brief as per the pleading made in the writ petition is that the suit for partition has been filed in the year 2007 and when it reaches to the stage of argument, the petition under Order 6 Rule 17 has been filed on 18.05.2015 seeking the aforesaid amendment. 4. It is evident from the material available on record as also the impugned order that the suit for partition was filed in the year 2007 which reaches to the stage of argument and on 18.05.2015 two petitions have been filed for amendment as indicated hereinabove, the Court has rejected the same on the ground that the suit is at the stage of argument and if the aforesaid amendment shall be allowed the suit reaches to its initial stage and the entire process is to be commenced afresh, further amendment has been sought for, which was within the knowledge of the petitioner/plaintiff since the impleadment of the parties as has been sought for in the aforesaid amendment who are said to have purchased the property is prior to filing of the suit and therefore, it was within the knowledge of the petitioner/plaintiff and hence, the petition under Order 6 Rule 17 has been rejected. 5. This Court after considering the pleading made in the writ petition as also the finding given in the impugned order found that the suit for partition was filed in the year 2007 and prior to the institution of the suit some part of the property has been sold out in favour of the subsequent purchaser, this fact is admitted, but the petitioner/plaintiff has not taken any endeavor to implead the purchaser as party at the time of the filing of the suit, rather he has proceeded with the suit fairly for a long period i.e. for a period of 18 years and when the suit is came at the stage of argument in the month of May, 2017, the petition under Order 6 Rule 17 has been filed. 6. 6. It is not in dispute that scope of Order 6 Rule 17 is for just and proper adjudication of the issue but amendment is to be allowed, subject to certain conditions i.e. if the nature of suit will not be changed, the amendment sought for, is not barred by limitation and the amendment sought for must be consequent to the filing of the suit i.e. subsequent development occurred during the pendency of the suit. 7. Here in the instant case, it is not in dispute that the suit has been filed in the year 2007 and the property have been sold is prior to institution of the suit now the petitioner/plaintiff at the stage of argument has filed an application under Order 6 Rule 17 for impleadment of the purchaser as party who are not the subsequent purchaser and if at this juncture they would be allowed to be impleaded as party, the entire nature of suit will be changed and partition for the suit will be converted to suit for declaration of the title because the persons who have purchased the property they will make their claims over the said property by virtue of the title got by way of transfer under the provision of Transfer of Property Act. 8. In view thereof, since the transfer of the said property is prior to the institution of the suit and even though it was within the knowledge of the petitioner/plaintiff, the same has been filed after lapse of 08 years and when it reaches to the stage of argument, the Court has rejected it by assigning the reason that if the same would be allowed at this stage, the entire suit will come to its inception. 9. This Court is of the view that the trial Court has committed no error in rejecting the petition filed under Order 6 Rule 17 of the C.P.C. 10. It is not in dispute that the trial Court sitting under Article 227 of the Constitution of India to exercise revisable power that can be exercised only in case where there is any error apparent on the face of record or the order is without jurisdiction or beyond jurisdiction. 11. This Court also intends to go through the scope of 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, Hon’ble 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 Hon’ble 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 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. i. 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. ii. 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, 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. iii. 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. iv. Further, the judgment rendered by the Hon’ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. iii. 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. iv. Further, the judgment rendered by the Hon’ble 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. v. 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. vi. 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. vii. 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. vii. 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. 12. In view thereof, looking into the scope of Article 227 of the Constitution of India and going across the facts and circumstance involved in this case, according to the considered view of this Court, the trial Court has committed no error in passing the order impugned. 13. In view thereof, the instant writ petition fails and it is accordingly, dismissed. Petition dismissed.