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2024 DIGILAW 55 (JHR)

Sunny Johar v. Bhupendra Pratap Singh

2024-01-12

SUJIT NARAYAN PRASAD

body2024
JUDGMENT : HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD 1. This petition under Article 227 of the Constitution of India, whereby and whereunder, order dated 29.11.2022 passed by the Judicial Commissioner, Ranchi in Misc. Civil Application No.27 of 2021, arising out Civil Appeal No.23 of 2020 has been challenged whereby the learned court while setting aside the order of abetment, has come to the conclusion based upon the registered Will dated 09.08.2017 that the petitioner has a right to step into the shoes of deceased/appellant, as such, the prayer for impleading/substituting Bhupendra Pratap Singh and Akil Ahmad in Civil Appeal no.23 of 2020 after deleting the name of appellant, namely Pushpa Lata has been allowed. 2. The brief fact of the case as per the pleading made in the petition which requires to be enumerated, reads as under:- 3. It is the case of the petitioner that Saroja Rani, since deceased mother of the petitioner and the Proforma Opposite Party Nos. 3 and 4 filed Partition Suit No. 154 of 1985 against her mother Rani Brij Mani and her sister namely Sneh Lata Goel and Miss Pushpa Lata claiming a decree for partition of 1/4th for Share in the various properties mentioned in Schedule-B and C to the plaint. 4. In the said suit, preliminary decree for partition of 1/4th Share of the plaintiff, Saroja Rani was passed and ultimately final decree dated16.03.1992 was passed by the learned Sub-Judge-V, Ranchi in Partition Suit No. 154/145 of 1985/1990. 5. After passing of the final decree Saroja Rani, who was the sole plaintiff died leaving behind her husband Surendra Singh Johar and one son, namely, Sunny Johar and one daughter Samta J Singh. 6. In the said partition suit Rani Brij Mani, the Defendant No.1 died and as such, her 1/4th Share in the suit property was inherited by the petitioner as well as the Proforma Opposite Party Nos.3 and 4. 7. Sneh Lata Goel, the Respondent No.4 filed petition in the said partition suit for carving out her share in the suit properties and accordingly, final decree was passed on 18.12.2013. 8. 7. Sneh Lata Goel, the Respondent No.4 filed petition in the said partition suit for carving out her share in the suit properties and accordingly, final decree was passed on 18.12.2013. 8. It is the further case that the Defendant No.3 Pushpa Lata since deceased filed Civil Appeal No.22 of 2020 and 23 of 2020 before the High Court against the preliminary and final decree passed in the said partition suit and there was inordinate delay of 8946 days in filing the said appeal which is barred by limitation and delay has not been condoned as yet and both the appeals have been transferred to the court of learned Judicial Commissioner, Ranchi in view of the pecuniary jurisdiction. 9. During the pendency of the above appeal, the sole appellant Miss Pushpa Lata died unmarried leaving behind the petitioner and the Proforma Opposite Party Nos.3 and 4 as her heirs and legal representatives. 10. In the said appeal Bhupendra Pratap Singh of son Late Yaduvansh Singh and Akil Ahmad son of Late Nizam Khan filed petition under Order XXII Rule 1, 3(1) read with Section 151 C.P.C. for impleading/substituting their names in place of deceased, namely, Pushpa Lata sole appellant basis upon the Registered Will dated 09.08.2017. 11. Pushpa Lata, the deceased sole appellant died on 05.09.2019 and substitution petition has been filed 22.03.2021 along with a petition under Section 5 of the Limitation Act for condoning the delay in filing substitution petition. 12. It is the further case that the petitioner and the Proforma Opposite Party Nos. 3 and 4 filed objection to the said petition stating therein that the Opposite Party Nos. 1 and 2 are not the legal heirs of the deceased sole appellant Pushpa Lata rather they are strangers and the petitioner along with Proforma Opposite Party Nos. 3 and 4 have filed Case No. 241 of 2020 in the court of Civil Judge, Sr. Div., Varanasi challenging the alleged Will dated 09.08.2017 alleged to have been executed by Pushpa Lata in favour of the Opposite Party Nos. 1 and 2 on the ground that the same has been procured by fraudulent means in order to grab the property belonging to the petitioner and the Proforma Opposite Party Nos. 3 and 4 and the matter is sub-judice. It was further stated that the Opposite Party Nos. 1 and 2 on the ground that the same has been procured by fraudulent means in order to grab the property belonging to the petitioner and the Proforma Opposite Party Nos. 3 and 4 and the matter is sub-judice. It was further stated that the Opposite Party Nos. 1 and 2 are not the beneficiaries of the said will which is ab-initio illegal, void, inoperative and not binding upon the petitioner. 13. It is the further case that the substitution petition has been filed after delay of about 02 years and delay in filing substitution has not properly been explained nor any sufficient cause has been shown in condoning the delay. 14. The learned Judicial Commissioner, Ranchi in terms of order dated 29.11.2022 has illegally allowed the petition filed by the Opposite Party Nos.1 and 2 for substituting/impleading their names in place of the deceased sole appellant Pushpa Lata, against which, the present petition. 15. The ground has been taken in the said petition that by virtue of the said registered Will, it would be evident that even though, the Will has not been probated but the petitioners of the substitution petition are having the substantial right over the property in question. 16. Serious objection has been made to the said petition. 17. Learned Court, while considering the rival contention of the parties, has passed the order on 29.11.2022 by which the aforesaid application has been allowed by allowing the prayer for impleading and substituting the petitioners, Bhupendra Pratap Singh and Akil Ahmad in Civil Appeal No.23 of 2020 after deleting the name of the deceased Pushpa Lata. 18. The aforesaid order is under challenge by filing this petition under Article 227 of the Constitution of India. 19. Mr. Amar Kumar Sinha, learned counsel for the petitioner has submitted that the impugned order dated 29.11.2022 is absolutely wrong and improper having been passed without taking into consideration the substantive right of the petitioners, who are respondents herein, since, they have claimed their right on the basis of the Will dated 09.08.2017 which has not well been probated, rather, the said Will has been challenged before the Civil Judge, Sr. Div., Varanasi which is still lying pending. 20. Div., Varanasi which is still lying pending. 20. It has been contended that merely on the ground of registered Will having not been probated, the private respondents herein cannot claim their independent right over the property in question but taking into consideration the aforesaid fact, the impugned order has been passed, therefore, the present petition. 21. This Court has heard the learned counsel for the petitioner and considered the finding recorded by the learned court as referred in the impugned order dated 29.11.2022. 22. The admitted fact herein as would be evident from the perusal of the impugned order and the pleading that the partition suit being Partition Suit No. 154/145 of 1985-90, wherein, 1/4th of the share has been decreed in favour of one Pushpa Lata and accordingly, the final decree has also been passed in her favour. But, she has been said to be issueless and had died. It has also come in the impugned order that the said Pushpa Lata has executed a Will in favour of the respondents. 23. It appears from the impugned order that the said Will has although was registered but was not probated. Further the said Will has been question before the competent court at Varanasi. 24. But, in the appeal against the final decree, one application has been filed by the respondents for their impleadment since in the meanwhile, the said Pushpa Lata had died. 25. The claim is based upon the Will dated 09.08.2017 claiming the right and title of 1/4th of share of said Pushpa Lata. 26. It further appears from the order that after the death of Pushpa Lata the case was abated so far as the said Pushpa Lata is concerned, but after filing of the application for impleadment by the private respondents in place of said Pushpa Lata, the order of abatement has been quashed and the private respondents have been found to be entered into the shoe of the said Pushpa Lata and accordingly, impleaded party to the appeal, against which, the present petition has been filed invoking the jurisdiction conferred under Article 227 of the Constitution of India. 27. 27. The ground has been taken that on the basis of Will, having not been probated, no right can be claimed over the property in question and hence, the private respondents herein who have been said to be entered into the shoes of said Pushpa Lata, have got no right to claim the title over the property in question in view of the decree passed in the partition suit decreeing therein 1/4th of share of property in question. 28. This Court, on appreciation of the argument, so made, as referred hereinabove and coming to the impugned order has found that the petitioner, although has challenged the Will dated 09.08.2017 before the competent court of civil jurisdiction at Varanasi and even though, the said Will said to be not abated but the question is that when two parties are claiming their right based upon the decree passed in the partition suit to the extent of ¼ th of share which has been decreed in favour of Pushpa Lata, who had died issueless executing Will in favour of Bhupendra Pratap Singh and Akil Ahmad. 29. However, the ground has been taken that these respondents, namely, Bhupendra Pratap Singh and Akil Ahmad are totally strangers to the suit property and hence, the gross illegality has been committed in impleading these respondents party to the proceeding. 30. This is the basis of the challenge of the impugned order by the petitioner. 31. Therefore, the question is that whether these two private respondents, namely, Bhupendra Pratap Singh and Akil Ahmad are strangers or having any right and interest over the property in question who will decide it, whether it can be the petitioner herein or by the Court of law. 32. If in such circumstances, these two respondents having been impleaded as party to the proceeding, then how can it be said to be the order suffering from an error. 33. According to the considered view of this Court, if a person is claiming title even based upon the un-registered deed which has been challenged, no inference can be reached that merely because the Will has not been probated or the Will has been challenged, these two respondents are intruder to the property in absence of any adjudication by the competent court. 34. 34. Therefore, if the learned appellate court impleaded these respondents in order to decide the issue for all time to come, then how can it be said to suffer from an error. 35. Further, if these two respondents are intruders and strangers to the property as is being claimed on behalf of the petitioner, then the truth is to come to the surface and if for the purpose of the truth coming to the surface then the question will be how the petitioner will be prejudiced, since, the truth will always be truth and the same needs adjudication whether it is correct or incorrect and in order to reach to the conclusion and adjudication by providing an opportunity to the parties is necessary, otherwise, if the order impugned will be interfered with, then the private respondents even without adjudicating the right and interest over the property in question, they will be made to be remediless without coming to the logical end regarding their title over the property in question. 36. This petition has been filed under the provision of Article 227 of the Constitution of India and it is settled position of law that the High Court sitting under Article 227 of the Constitution of India has got limited jurisdiction as has been held by the Hon’ble Supreme Court rendered in the case of Shalini Shyam Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 wherein, the Hon’ble Supreme Court has laid down 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. 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. 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. 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. In other words the jurisdiction has to be very sparingly exercised. 37. This Court, taking into consideration the aforesaid consideration based upon the fact as also the position of law, is of the view that if the learned trial Court has passed the impugned order, the same cannot be said to suffer from an error. 38. Accordingly, the instant petition fails and is dismissed. 39. It has been submitted that the partition suit is of the year 1985 and it is still lingering and as such, the prayer has been made to direct the appellate court to expedite the same. 40. 38. Accordingly, the instant petition fails and is dismissed. 39. It has been submitted that the partition suit is of the year 1985 and it is still lingering and as such, the prayer has been made to direct the appellate court to expedite the same. 40. This Court, in exercise of power conferred under Article 227 of the Constitution of India, i.e., the power of superintendence, is of the view that such direction is required to be passed taking into consideration the fact that the suit is of the year 1985 and since then 38 years had already lapsed, therefore, the concerned Court is directed to expedite the appeal without granting unnecessary adjournment to the parties, so that the appeal be decided at an early date.