Rajasthan High Court - Jodhpur
Sukhvindra Singh vs Ramesh Kumar Yadav on 16 September, 2015
Author: P.K.Lohra
Bench: P.K.Lohra
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:ORDER:
S.B.CIVIL WRIT PETITION NO.10350/2015
Sukhvindra Singh
Vs
Ramesh Kumar Yadav
Date of Order :: 16th September 2015
PRESENT
HON'BLE MR.JUSTICE P.K.LOHRA
Mr.R.K.Thanvi, Sr.Advocate assisted by Mr.Narendra Thanvi for the
petitioner
Mr.Manoj Bhandari for the respondent
BY THE COURT:
By this writ petition under Article 227 of the Constitution of India, the petitioner-plaintiff has assailed the order impugned dated 02.09.2015 passed by the Additional District Judge, Anoopgarh Districdt Sriganganagar (for short 'learned court below') whereby learned court below has rejected his application under Section 22 read with Section 151 CPC for transferring civil suit No.176/2014 (Ramesh Kumar Yadav Vs. Sukhvindra Singh) pending adjudication before the Senior Civil Judge, Anoopgarh and consolidating civil suit No.8/2013 (Sukhvindra Singh Vs. Ramesh Kumar) pending before it. In the application submitted by the petitioner, it is inter alia averred that subject-matter of both the suits is the same disputed plot No.10 measuring 50 x 80 ft. and, therefore, both these suits are liable to be tried simultaneously after transferring civil suit No.176/2014 by the court. It is also averred in the application that the petitioner in the instant suit has claimed ownership over the plot in question on the 2 strength of doctrine of adverse possession whereas the respondent in his suit has craved for relief of possession and perpetual injunction. In totality, the petitioner has harped on the fact that as the subject-matter of both the suits is common piece of land i.e. plot No.10, power under Section 22 CPC be exercised by transferring the suit filed by the respondents and both the suits be tried by the court below.
The application is contested by the respondent. In the return, the respondent has also averred that nature of relief in both the suits are different and, therefore, power under Section 22 CPC is not liable to be invoked. It is also submitted in the return that in both the suits, the stages are different and the suit for possession and perpetual injunction filed on his behalf is at the fag end of the trial. As per the version of the respondent, in the suit filed by him, evidence of both the parties has completed and it is posted for final arguments. Therefore, at such a belated stage, the application filed by the petitioner is not entertainable as the same has been designed to prolong the decision in the suit filed by the respondent.
Learned court below after considering rival submissions and examining the legal precedents declined the prayer of the petitioner by rejecting his application. Learned court below has observed that looking to the nature of both the suits and the fact that both the suits are pending before different courts, it is not desirable to exercise power under Section 22 CPC.
Learned Senior Advocate Mr.R.K.Thanvi submits that learned court below has not at all cared to examine the subject-matter of both the suits in the light of provisions contained under Section 22 3 CPC and, therefore, the impugned order is per se vulnerable. Mr.Thanvi submits that when the learned court below has prima facie agreed that subject-matter of both the suits is one disputed plot, it ought to have exercised its discretion for consolidation of both the suits by way of transfer of the suit filed by the respondent for being tried simultaneously. Lastly, Mr.Thanvi submits that when the subject-matter in both the suits is one disputed plot and they are tried separately by different courts, there are possibility of different verdicts which may unnecessarily multiply the litigation.
Per contra, Mr.Manoj Bhandari, learned counsel for the respondent submits that the application submitted by the petitioner is grossly belated inasmuch as the suit filed by the respondent is at the fag end as it is posted for final arguments and, therefore, consolidation of both the cases by way of transfer would unnecessarily delay the disposal of the suit filed by the respondent. Learned counsel further submits that learned court below has exercised its discretion judiciously and the said discretion is not liable to be interfered with in exercise of supervisory jurisdiction of this Court under Article 227 of the Constitution. Lastly, Mr.Bhandari submits that Sections 22 and 23 can be invoked by a party before settlement of issues or simultaneously with settlement of issues and as in the instant case, in the suit filed by the respondent that stage has already gone and it is at the fag end of its trial, the discretion exercised by learned court below is not liable to be tinkered with. Mr.Bhandari has placed reliance on a decision of Andhra Pradesh High Court in S.T.V.Venkatarama Chettiar and Sons Vs. K.Munnaiah, A.R.Subrahmaniam and Co. Eluru (AIR 1968 AP 205) 4 wherein the Court has held that application under Sections 22 and 23 CPC for transfer of suit can be filed either before settlement of issues or simultaneously with settlement of issue and the application cannot be entertained after settlement of issue. Andhra Pradesh High Court in S.T.V.Venkatarama Chettiar (supra) has relied on judgment of Allahabad High Court in Dr.Rajnath Vs. L.Vidya Ram & Ors. (AIR 1953 Allahabad 772). In this verdict, Allahabad High Court while construing Section 22 CPC has held that if the conditions envisaged under this Section have not been complied with, the application is not maintainable and liable to be dismissed.
I have heard learned counsel for the parties and perused the impugned order and the materials available on record.
Upon perusal of the materials available on record as well as Section 22 CPC, in my opinion, the endeavour made by the petitioner for seeking transfer of the civil suit for possession and perpetual injunction filed by the respondent is grossly belated. The intention of the legislature is that if two suits are pending before two different courts having common subject-matter, then one of the suits be transferred to other court so that both can be tried simultaneously to avoid a conflicting decision. The legislature never intended to prolong the decision of any single case in the guise of exercising power under Section 22 CPC. It is, in that background, it is mandated by law that any party desirous of seeking transfer of the case must apply for transfer at the earliest possible opportunity and in all cases where issues are settled at or before such settlement. True it is that suit filed by the petitioner has not materially progressed though both the suits are instituted almost 5 simultaneously but then the suit filed by the respondent is on the verge of completion of trial and, therefore, by exercising powers under Section 22 CPC, no fruitful purpose can be served. As a matter of fact, if prayer made by the petitioner is allowed, it may have the effect of prolonging the decision in the suit filed by the respondent which is not the intention of the legislature. Moreover, in view of completion of evidence in the suit filed by the respondent, it is not possible for learned court below to record common evidence in both the cases and, therefore, in my considered opinion, the impugned order is not liable to be interfered with in exercise of supervisory jurisdiction of this Court. Learned court below has exercised its discretion after analysing all the pros and cons, therefore, the said discretion is not liable to be upset in limited scope of judicial review under Article 227 of the Constitution.
Hon'ble Apex Court in Shalini Shyam Shetty & Anr. vs Rajendra Shankar Patil: (2010) 8 SCC 329 has laid down the nature and scope of jurisdiction under Article 227 and laid down guidelines for exercising such jurisdiction in para 49 which reads as under:-
"49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a petition under Article 227.The mode of exercise of power by the High Court under these two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts 6 inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh, followed in subsequent cases, 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 their authority'.
(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of 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.
(h) 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.
(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v.
Union of India and therefore abridgement by a constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative 7 and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counter productive and will divest this extraordinary power of its strength and vitality."
While issuing a word of caution to the High Courts, Hon'ble Apex Court has observed that petitions under Article 227 are not to be treated as writ petitions and such powers are to be exercised sparingly with great care and circumspection. The Court has further held that in the matter of property disputes, money recovery suit, landlord-tenant dispute and execution proceedings, the Court while exercising supervisory jurisdiction is not expected to entertain petitions in a routine manner. The Court held,-
"64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions.
65. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown 8 that a private individual is acting in collusion with a statutory authority.
66. We may also observe that in some High Courts there is tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to Section 115 of the Civil Procedure Code by Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.
67. As a result of frequent interference by Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon'ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice within their jurisdiction will adhere to them strictly."
Hon'ble Apex Court in Jai Singh & Ors. Vs. Municipal Corporation of Delhi and Anr., (2010) 9 SCC 385 while dilating on nature and scope of power under Article 227 of the Constitution of India has held,-
"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 227of 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 9 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 reappreciate 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 reappreciate 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."
Therefore, in totality, I am not persuaded to interfere with the impugned order passed by learned court below while exercising supervisory jurisdiction of this Court.
The upshot of above discussion is that the writ petition fails and the same is hereby dismissed.
(P.K.LOHRA),J.
MK