Sanjay Kumar, Son Of Kedar Prasad v. Nanhaku Prasad Yadav,
2019-02-28
SUJIT NARAYAN PRASAD
body2019
DigiLaw.ai
JUDGMENT Sujit Narayan Prasad, J. - This writ petition is filed under Article 227 of the Constitution of India wherein order dated 19.07.2018 in Title Suit No. 07 of 2003 is under challenge whereby and whereunder petition filed under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, has been rejected. 2. It is the case of the petitioner that a declaratory Title Suit has been filed being Title Suit No. 07 of 2003 for declaration of right and title over the suit land in question, but during the pendency of the suit, substantial construction have been made over the land which necessitated by the petitioner/plaintiff to seek amendment in the plaint and for that, petition under Order VI Rule 17 has been passed wherein to allow him to insert a new paragraph being Paragraph No. 15A after Paragraph-15 which reads as follows:- 15(a) be added in the plaint as follows:- 1. Para 15(a) that during pendency of the suit the defendants nos. 1 to 9 under policy of divide and rle and by gaining over the plaintiffs nos. 3 to 7 and after compromising of the suit with them outside the court they left claim of title and possession over the their suit lands of item nos. 3 to 7 of Schedule-A and the defendants nos. 1 to 8 forcibly and illegally with sole motive of grabing the valuable suit lands of item no.I and II of the plaintiffs nos. 1 and 2 of their nos. 5440 and 5439 dated 22.09.2001 of khata no.4039, constructed pucca building of triple stories, consisting of 22 rooms in ground and first floor and 14 rooms in second and third floor over suit lands of item no.I and II of Schedule-A of the plaintiffs and they have let the rooms and building on monthly rent to different persons and are gaining unlawfully money and putting the plaintiffs in irreparable loss.
The plaintiffs no.3 to 7 being in complete collusion with defendants nos 1 to 8 have left their interest in this suit and have making any pairvi in the suit and the illegally and forcibly constructed building during the pendency of the suit over the suit land of item no.I and II of Schedule-A of the plaintiffs are liable to be demolish at the cost of the defendants nos.1 to 9 and possession of the plaintiffs be restored through process of the Court over the suit lands of item no.I and II of Schedule-A of the plaint. The trial court has been rejected the same against which this writ petition has been filed. 3. Having heard learned counsel for the petitioner and after going across the pleading made in the writ petition as also the impugned order as evident that the suit for declaration of right has been filed being Title Suit No. 07 of 2003 over the suit property. It the contention of the petitioner that in course of pendency of the suit the substantial construction has been made over the said land in question, therefore, amendment has been sought for as contained under Order VI Rule 17 of the Code of Civil Procedure. 4. The Trial Court has rejected the same on the ground that the issue in this case as has been settled on 25.09.2003 and last witness on behalf of the plaintiff was examined on 11.12.2013 since, then no further witnesses have been examined. It has also been recorded therein that the plaintiff filed which cause to hold up further hearing of the suit. It appears that all the petitions filed by the plaintiff but again after lapse of 15 years the present petition seeking amendment in the plaint has been filed. 5.
It has also been recorded therein that the plaintiff filed which cause to hold up further hearing of the suit. It appears that all the petitions filed by the plaintiff but again after lapse of 15 years the present petition seeking amendment in the plaint has been filed. 5. It is not in dispute that the amendment can be allowed by invoking jurisdiction of the trial court as per the provision made as contained under Order VI Rule 17 of the C.P.C. at any stage of trial after the amendment having been brought on in the C.P.C. w.e.f. 07.02.2002, but the question herein that if the amendment would not be allowed how the petitioner is going to be prejudiced, since the amendment sought for by the petitioner is with respect to the addition of prayer to the effect that the substantial construction made over the said land be allowed to be incorporated in the plaint, since the suit is for right and title, even accepting that the construction has been made, if the decree would be passed in favour of the petitioner, the same will be executed by declaring the title in favour of the petitioner of the suit property having consideration mode over there. That the suit is of the year 2003 in which the issues have been settled on 25.09.2003 and since on 11.12.2003 the case is running for evidence and several petitions had been filed by the petitioner/plaintiff last one is the petition which has been dealt with by the trial court by passing the impugned order. The trial court has further considered the fact that the plaintiff has sought for amendment of the pleading in the amendment of the name of the parties and also insert some facts and as such the trial court has come to finding by not allowing the said amendment, since the nature of suit will be changed and addition of the parties will not be proper at such a belated stage of the case. The plaintiff has also failed to prove due diligence since the amendment has been sought for after commencement of the trial. 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.
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 , (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. 10. 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, 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. 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, 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. 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. 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. 6. In view of the scope of Article 227 and taking into consideration the reason assigned in the impugned order as also on the basis of the detailed discussion made hereinabove, in the considered view of this Court the order impugned does not warrant any interference of this Court under Article 227 of the Constitution. 7. In view thereof this Court declines to interfere with the finding of the facts and circumstances and considering the scope of Article 227 of the Constitution of India this Court is not inclined to interfere with the order impugned. 8. In view thereof, the writ petition lacks merit and accordingly stands dismissed.