MAHAVEER SWAMI GRAH NIRMAN SAHAKARI SAMITI LIMITED v. CHHOTI DEVI
2020-07-21
MAHENDAR KUMAR GOYAL
body2020
DigiLaw.ai
ORDER Mahendar Kumar Goyal, J. - This writ petition has been filed assailing the order dated 20.09.2018 whereby, the application filed by the petitioner-plaintiff under Order 6 Rule 17 read with Section 151 CPC has been dismissed. 2. The facts in brief are that the petitioner-plaintiff filed a suit for specific performance, cancellation of sale deed/single lease deed, possession and permanent injunction. During pendency of the suit, the respondent No. 11 i.e. P.P. Colonizers Private Ltd. vide registered sale deed dated 11.03.2015 sold the disputed land in favour of M/s. Name Developers which, came to be impleaded as defendant No.11-A in the suit on application by the petitioner under Order 1 Rule 10 (2) read with Section 151 CPC. Thereafter, the petitioner filed an application under Order 6 Rule 17 read with Section 151 seeking amendment in the plaint seeking to assail the registered sale deed dated 11.03.2015 executed by the defendant No.11 in favour of the defendant No.11-A and its cancellation. Learned trial Court has, vide order impugned herein, rejected the application. 3. Assailing the order dated 20.09.2018, it is contended by learned counsel for the petitioner that the learned trial Court did not appreciate that the amendments sought were consequential in nature on account of impleadment of the defendant No.11-A and pertained to subsequent developments which should have been allowed. He contended that in order to have complete and effective relief, it was essential for him to have assailed the sale deed dated 11.03.2015 and to have a decree of its cancellation. He also submitted that the order impugned dated 20.09.2018 is non-speaking one. He has placed reliance upon judgments of the Hon'ble Apex Court in Rajesh Kumar Aggarwal & Ors. versus K.K. Modi & Ors. reported in 2006 (4) SCC 385 and Abdul Rehman & Anr. versus Mohd. Ruldu & Ors. reported in 2013(1) DNJ 75 . 4. Heard learned counsel for the petitioner and perused the record. 5.
He has placed reliance upon judgments of the Hon'ble Apex Court in Rajesh Kumar Aggarwal & Ors. versus K.K. Modi & Ors. reported in 2006 (4) SCC 385 and Abdul Rehman & Anr. versus Mohd. Ruldu & Ors. reported in 2013(1) DNJ 75 . 4. Heard learned counsel for the petitioner and perused the record. 5. A perusal of the order dated 10.04.2018 passed by the learned trial Court allowing the application filed by the petitioner under Order 1 Rule 10 read with Section 151 CPC reveals that the defendant No.11-A was impleaded as a party with specific stipulation that it was being impleaded as assignee of the defendant No. 11 in its footsteps and it would not be permissible for the newly impleaded defendant No. 11 to file any written statement as the written statement of the defendant No. 11 was already on record or to set up any new defence. As a matter of fact, the order has been passed by the learned trial Court exercising its jurisdiction under Order 22 Rule 10 CPC. Therefore, no consequential amendment in the plaint was required. The apprehension of the learned counsel for the petitioner that in absence of challenge to the sale deed dated 11.03.2015, he would not get the effective relief, is misplaced in view of the principle of "lis pendens" as envisaged under Section 52 of the Transfer of Property Act, 1882. This court is in respectful agreement with the law laid down by the Hon'ble Apex Court in cases of Rajesh Kumar Aggarwal (supra) and Abdul Rehman (supra); but, the same has no applicability in the facts and circumstances of the present case. 6. The Hon'ble Apex Court has laid down parameters for interference by the High Court under Article 227 of the Constitution of India in the orders passed by the learned trial Courts in following terms:- " In Waryam Singh and another vs. Amarnath and another, AIR 1954 SC 45, the Hon'ble Supreme Court observed: "This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in "Dalmia Jain Airways Ltd. vs. Sukumar Mukherjee", AIR 1951 CAL 193 (SB) 1 (B), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors." 7.
In Bathutmal Raichand Oswal vs. Laxmibai R. Tarta, AIR 1975 SC 1297 , the Hon'ble Supreme Court again reaffirmed that the power of superintendence of the High Court under Article 227 being extraordinary was to be exercised most sparingly and only in appropriate cases. 8. The Hon'ble Supreme Court speaking through Bhagwati J. as his Lordship then was observed thus: "If an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory power as a Court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a Court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate Court or tribunal final on facts". 9. The Hon'ble Supreme Court in the case of Bathutmal (supra) approved the dictum of Morris L, J. in Res v. Northumberland Compensation Appellate Tribunal, 1952 All England Reports 122. 10. In Laxmikant Revchand Bhojwani and another vs. Pratapsing Mohansing Pardeshi Deceased through his heirs and legal representatives, JT 1995 (7) SCC 400, the Hon'ble Supreme Court observed: "The High Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes." 11.
It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes." 11. In State of Maharashtra vs. Milind & Others, 2001 (1) SCC 4 , the Hon'ble Supreme Court observed: "The power of the High Court under Article 227 of the Constitution of India, while exercising the power of judicial review against an order of inferior tribunal being supervisory and not appellate, the High Court would be justified in interfering with the conclusion of the tribunal, only when it records a finding that the inferior tribunal's conclusion is based upon exclusion of some admissible evidence or consideration of some inadmissible evidence or the inferior tribunal has no jurisdiction at all or that the finding is such, which no reasonable man could arrive at, on the materials on record." 12. Again in State vs. Navjot Sandhu (2003) 6 SCC 641 , the Hon'ble Supreme Court observed as under: "Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However, the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law.
Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised as the cloak of an appeal in disguise." 13. In Mohammed Yusuf vs. Faij Mohammad and others, 2009 (1) Scale 71 , the Hon'ble Supreme Court held as under: "The jurisdiction of the High Court under Article 226 & 227 of the Constitution is limited. It could have set aside the orders passed by the learned trial Court and revisional Court only on limited ground, namely, illegality, irrationality and procedural impropriety". 14. In State of West Bengal and others vs. Samar Kumar Sarkar, JT 2009 (11) SC 258, the Hon'ble Supreme Court held as under: "10. Under Article 227, the High Court has been given power of superintendence both in judicial as well as administrative matters over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. It is in order to indicate the plentitude of the power conferred upon the High Court with respect to Courts and the Tribunals of every kind that the Constitution conferred the power of superintendence on the High Court. The power of superintendence conferred upon the High Court is not as extensive as the power conferred upon it by Article 226 of the Constitution. Thus, ordinarily it will be open to the High Court, in exercise of the power of superintendence only to consider whether there is error of jurisdiction in the decision of the Court or the Tribunal subject to its superintendence." 15. In Jai Singh and others vs. Municipal Corporation of Delhi and others (2010) 9 SCC 385 , the Hon'ble Supreme Court in paras 15, 16 and 42 of the judgment held as under: "15. We have anxiously considered the submissions of the learned counsel. Before we consider the factual and legal issues involved herein, we may notice certain well recognized principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India.
We have anxiously considered the submissions of the learned counsel. Before we consider the factual and legal issues involved herein, we may notice certain well recognized principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this Article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognized constraints. It can not be exercised like a "bull in a china shop, to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 16. The High Court cannot lightly or liberally act as an appellate court and re-appreciate the evidence. Generally, it can not substitute its own conclusions for the conclusions reached by the courts below or the statutory/quasi judicial tribunals. The power to re-appreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice. 42. Undoubtedly, the High Court has the power to reach injustice whenever, wherever found. The scope and ambit of Article 227 of the Constitution of India had been discussed in the case of The Estralla Rubber Vs.
42. Undoubtedly, the High Court has the power to reach injustice whenever, wherever found. The scope and ambit of Article 227 of the Constitution of India had been discussed in the case of The Estralla Rubber Vs. Dass Estate (P) Ltd., [ (2001) 8 SCC 97 ] wherein it was observed as follows: "The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to." 16. I find no such illegality or perversity in the order impugned warranting interference of this Court under its supervisory jurisdiction vide Article 227 of the Constitution of India. Consequently, the writ petition is dismissed being devoid of merit.