Madhya Pradesh High Court
Shantabai vs Ratanbai on 6 July, 2018
M.P. No.54/2017 1
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
M.P. No.54/2017
Shanti Bai & Others v/s Ratna Bai & Others
Indore, dated 06.07.2018
Shri M.A. Mansoori, learned counsel for the petitioners.
Shri Nitin Phadke, learned counsel for the respondents.
The petitioners before this Court have filed this present petition being aggrieved by the order dated 14.09.2017 passed by the Learned Civil Judge, Class-I, Sardarpur, District-Dhar in Civil Suit No.148-A/2014.
The petitioners before this Court, who are the plaintiffs, have filed a suit against the defendants seeking declaration of title and partition in respect of the agricultural land situated at village-Rajod, Tehsil-Sardarpur. The suit was based upon an unregistered document relating to partition. The learned Judge has passed the order, which is Annexure-P/1, holding that the document is not admissible in evidence even for collateral purposes.
Learned counsel for the petitioner has drawn the attention of this Court towards the judgment delivered by the Hon'ble Apex Court in the case of Yellapu Uma Maheswari & Another v/s Buddha Jagadheeswara Rao & Others (2015) 16 SCC 787 and heavy reliance has been placed upon paragraphs-15 and 16, the same reads as under:-
"15. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exhibits B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registerable document and if the same is not registered, becomes an inadmissible document as M.P. No.54/2017 2 envisaged under Section 49 of the Registration Act. Hence, Exhibits B-21 and B-22 are the documents which squarely fall within the ambit of section 17 (i)
(b) of the Registration Act and hence are compulsorily registerable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exhibits B 21 and B22 are not admissible in evidence for the purpose of proving primary purpose of partition.
16. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of Andhra Pradesh High Court in Chinnappa Reddy Gari Muthyala Reddy Vs. Chinnappa Reddy Gari Vankat Reddy , AIR 1969 A.P. (242) has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellants/defendants want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the Trial Court is at liberty to mark Exhibits B-21 and B- 22 for collateral purpose subject to proof and relevance."
He has also placed reliance upon a judgment delivered by co-ordinate Bench of this Court in the case of Seema Gupta (Smt.) v/s Smt Radha 2017 (II) MPWN 67 and his contention is that the document, even though it is an unregistered instrument, can be used for collateral purposes. Paragraph-5 of the aforesaid judgment reads as under:-
"5. The issue as to what extent an unregistered partition deed can be used for collateral purpose is no more res integra. In Roshan Singh vs Zile Singh AIR 1988 SC 881, it has been held :
16. ... It is well-settled that the document though unregistered can however be looked into for the limited purpose of establishing a severance in status, though that severance would ultimately M.P. No.54/2017 3 affect the nature of the possession held by the members of the separated family as co-tenants.
The document Exh.P- 12 can be used for the limited and collateral purpose of showing that the subsequent division of the properties allotted was in pursuance of the original intention to divide. In any view, the document Exh.P- 12 was a mere list of properties allotted to the shares of the parties.
In Bhaskarabhotla Padmanabhaiah vs B. Lakshmi Narayana AIR 1962 A.P. 132 (approved by the Supreme Court :: 3 ::
Writ Petition No.2797/2017 in Avinash Kumar Chauhan vs Vijay Krishna Mishra (2009) 2 SCC
532), it has been held :
"10. In the result, I agree with the learned Munsif- Magistrate that the document is 'an instrument of partition' under Section 2(15) of the Indian Stamp Act and it is not admissible in evidence because it is not stamped. But, I further held that if the document becomes duly stamped, then it would be admissible to evidence to prove the division in status but not the terms of the partition."
Recently, in Yellapu Uma Maheshwari vs Buddha Jagadheeswararao : [Civil Appeal No.8441 of 2015] arising out of Special Leave Petition (Civil) No.12788/2014 decided on 8.10.2015 : 2015 AIR SCW 6184, it has been held :
"18. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of Andhra Pradesh High Court in Chinnappa Reddy Gari Muthyala Reddy vs. Chinnappa Reddy Gari Vankat Reddy , AIR 1969 A.P. (242) has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellants/ defendants want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the Trial Court is at liberty to mark Exhibits B-21 and B- 22 for collateral purpose subject to proof and relevance."M.P. No.54/2017 4
This Court has carefully gone through the aforesaid judgment cited by the learned counsel for the petitioner. However, the facts remain that the learned counsel for the other side has also placed reliance upon a judgment delivered by the apex Court in the case of K.B. Saha & Sons Pvt. Ltd. v/s Development Consultant Ltd. (2008) 8 SCC 564. Paragraphs- 14 to 29 of the aforesaid judgment reads as under:-
"14. Having heard the learned counsel for the appellant and after going through the judgment of the High Court as well as of the trial court, we do not find any ground for which interference can be made with the judgment of the High Court. We may note that it was the case of the respondent before the High Court that it was protected by the provisions of the Act and that it could not be evicted only because as per the agreement, the tenancy was to be occupied by one of its officers. The appellant, on the other hand, as noted hereinabove, placed reliance on the decision of this court in Smt. Juthika Mullick's case [supra], to put forth the point that the respondent was bound to vacate the premises after the said officer had left the premises and relying on Smt.Juthika Mulick's case [supra] submitted that the lease agreement was not at all contrary to the provisions of the Act and that the parties were at liberty to contract out of the Section delineating the various grounds for eviction. We may note at this stage that in that decision, this court had held that although the tenant was protected under the provisions of Section 13 of the Act and such tenant could be evicted only for one or more grounds as provided in that Act, the parties had the freedom to enter into an agreement to take their case out of the provisions of that Section i.e. the parties were at liberty to contract out of that section. Before we deal with the submission of Mr. Mukherjee, learned counsel appearing on behalf of the appellant, on this question, we may look into the findings arrived at by the High Court on this question. The High Court in the impugned judgment has come to a conclusion that the decision in the case of Smt. Juthika Mulick's case (Supra) cannot be of any benefit to the appellant on the ground that in Smt.Juthika Mulick's case, the respondent had leased out the premises in question in favour of the lessee under a registered deed of sale whereas in the instant case, the lease deed was not registered. The High M.P. No.54/2017 5 Court has observed that the lease agreement between the parties was in effect an agreement for lease of the suit premises and was unregistered. Relying on Section 49 of the Registration Act, the High Court observed that a document purporting to be a lease and required to be registered under Section 107 of the Transfer of Property Act is not admissible in evidence if it is not registered. Proviso to Section 49, however, provides that although a lease deed falling under the provision of Section 107 of the Transfer of Property Act will not be admissible in evidence if the same is not registered but that deed may be used as evidence of any collateral transaction not required to be effected by a registered instrument. Therefore, the High Court observed that the question to be decided in this appeal is whether the conditions noted in the lease deed could be looked into for determining the question that the tenancy in question would be used only for the purpose of occupation of the named officer of the respondent.
15. Section 49 clearly provides that a document purporting to be a lease and required to be registered under Section 107 will not be admissible in evidence if the same is not registered. Proviso to this section, however, as noted hereinabove, provides that an unregistered lease deed may be looked into as evidence of collateral facts. Mr. Mukherjee, learned counsel for the appellant argued before us that the tenancy in question was exclusively granted for the benefit of the named officer and his family and unless the landlord gave his consent, no other person could use it and such condition in the lease agreement is admissible for ascertaining the purpose of allotting the suit premises which according to the appellant is a collateral fact.
16. Having heard the learned counsel for the appellant, we are of the view that the decision of this Court in Smt. Juthika Mullick's case [supra], on which strong reliance was placed by the learned counsel for the appellant is of no help to the appellant because as rightly pointed out by the High Court, the said decision was based on a registered deed of lease. In Smt. Juthika Mulick's case [supra], as noted herein earlier, it has been held that the language of Section 13 of the Act makes it clear that notwithstanding anything to the contrary contained in any other law, an order or decree for the recovery of possession of any premises shall be made by the court in favour of the landlord against a tenant on the M.P. No.54/2017 6 grounds mentioned in that section. It was further observed that in view of the language of Section 13(1) of the Act, the parties have freedom to contract out of the Section. In the aforesaid judgment of this Court, on which strong reliance was placed by the appellant, the fact was that the predecessor-in- interest of the respondents in that appeal leased out the premises in question in favour of one Lal Bihari Mulick in a registered deed of lease at a monthly rental of Rs. 160/- and the lease deed contained a covenant that the lease was for the lifetime of the lessee and his heirs, executors, administrators, representatives and the heirs must yield up and deliver quiet, peaceful and vacant possession of the demised premises within three months from the date of death of the lessee unconditionally and without any objection whatsoever. It was further stipulated that they shall have no right to handover the demised premises after the said period under any circumstances. The lessee died on 16th of December, 1970 and his heirs did not deliver vacant possession in favour of the lessors or their successors in interest and this necessitated filing of the suit for eviction of the defendants. In that decision, the main defence raised in the written statement was that the original lessee Lal Bihari Mulick, having died on 16th of December, 1970, the registered lease dated 11th of July, 1966 shall fall under the category of the West Bengal Premises Tenancy Act and the tenants were residing in the demised premises with the said lessee namely Lal Bihari Mullick during his lifetime became monthly tenants under the plaintiffs of that case by operation of law. In view of the aforesaid facts and considering the fact that the aforesaid decision of this Court was rendered on the basis of a registered lease deed, we are of the view that the said decision is clearly distinguishable from the present case because of the fact that in the present case, there was no registered deed of lease nor was there any such covenant as mentioned hereinabove. Therefore, we do not find any ground to place any reliance on the aforesaid decision of this court.
17. As we have already noted that under the proviso to Section 49 of the Registration Act, an unregistered document can also be admitted into evidence for a collateral fact/collateral purpose, let us now look at the meaning of "collateral purpose"
and then ascertain whether Clause 9 of the lease agreement can be looked into for such collateral M.P. No.54/2017 7 purpose. In Haran Chandra Chakrvarti Vs. Kaliprasanna Sarkar [AIR 1932 Cal 83(2)], it was held that the terms of a compulsorily registrable instrument are nothing less than a transaction affecting the property comprised in it. It was also held that to use such an instrument for the purpose of proving such a term would not be using it for a collateral purpose and that the question as to who is the tenant and on what terms he has been created a tenant are not collateral facts but they are important terms of the contract of tenancy, which cannot be proved by admission of an unregistered lease-deed into evidence.
18. The High Court in the impugned Judgment relied on a decision of the Allahabad High Court in the case of Ratan Lal & ors. Vs. Harisankar & Ors. [AIR 1980 Allahabad 180] to hold that since the appellant wanted to extinguish the right of the respondent with the help of the unregistered tenancy, the same was not a collateral purpose. In Ratan lal's case [supra], while discussing the meaning of the term "Collateral Purpose", the High Court had observed as follows :-
"The second contention was that the partition deed, even if it was not registered could certainly be looked into for a collateral purpose, but the collateral purpose has a limited scope and meaning. It cannot be used for the purpose of saying that the deed created or declared or assigned or limited or extinguish the right to immovable property term collateral purpose would not permit the party to establish any of these acts from the deed."
19. In the case of Bajaj Auto Limited vs. Behari Lal Kohli [AIR 1989 SC 1806] , this Court observed that if a document is inadmissible for non- registration, all its terms are inadmissible including the one dealing with landlord's permission to his tenant to sub-let. It was also held in that decision that if a decree purporting to create a lease is inadmissible in evidence for want of registration, none of the terms of the lease can be admitted in evidence and that to use a document for the purpose of proving an important clause in the lease is not using it as a collateral purpose. Again this court in Rai Chand Jain Vs. Chandra Kanta Khosla [AIR 1991 SC 747] reiterated the above and observed in paragraph 10 as M.P. No.54/2017 8 under : -
"the lease deed Ex. P1 dated 19th May, 1978 executed both by the appellant and the respondent i.e. the landlady and the tenant, Rai Chand Jain, though unregistered can be considered for collateral purposes and as such the findings of the Appellate Authority to the effect that the said deed cannot be used for collateral purposes namely to show that the purpose was to lease out the demised premises for residential purposes of the tenant only is not at all legally correct. It is well settled that unregistered lease executed by both the parties can be looked into for collateral purposes. In the instant case the purpose of the lease is evident from the deed itself which is as follows:
"The lessor hereby demises House No. 382, Sector 30-A, Chandigarh, to lessee for residential purposes only". This clearly evinces that the property in question was let out to the tenant for his residence only. ..."
20. In the case of Rana Vidya Bhushan Singh Vs. Ratiram [1969 (1) UJ 86 (SC)], the following has been laid down:
"A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. As stated by Mulla in his Indian Registration Act, 7th En., at p. 189 :
"The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Commissioner's Court of Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and M.P. No.54/2017 9 which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it." 21. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that :-
1. A document required to be registered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.
22. In our view, the particular clause in the lease agreement in question cannot be called a collateral purpose. As noted earlier, it is the case of the appellant that the suit premises was let out only for the particular named officer of the respondent and accordingly, after the same was vacated by the said officer, the respondent was not entitled to allot it to any other employee and was therefore, liable to be evicted which, in our view, was an important term forming part of the lease agreement. Therefore, such a Clause, namely, Clause 9 of the Lease Agreement in this case, cannot be looked into even for collateral purposes to come to a conclusion that the respondent was liable to be evicted because of violation of Clause M.P. No.54/2017 10 9 of the Lease Agreement. That being the position, we are unable to hold that Clause 9 of the Lease Agreement, which is admittedly unregistered, can be looked into for the purpose of evicting the respondent from the suit premises only because the respondent was not entitled to induct any other person other than the named officer in the same.
23. Before we part with this Judgment, let us deal with another ground, which the High Court had also taken into consideration. This is with regard to the violation of provisions of Section 108 (o) of the Transfer of Property Act. Section 108 (o) clearly provides that the Lessee must not use or permit another to use the property for a purpose other than that for which it was let out or leased. Relying on this provision, the learned counsel for the appellant argued that since the purpose of the lease was for the use and occupation of one of the officers of the respondent, after the said officer had vacated the suit premises, the respondent, by refusing to handover the possession of the suit premises to the appellant and by giving the same to another officer, had violated the provisions of Section 108 (o) of the Transfer of Property Act. Before we decide this question, it is necessary for us to reproduce the finding of the High Court on this aspect, which is as follows: -
"Clause (O) of Section 108 of the T.P. Act touches the question of user. This clause requires the lessee to use the property as a man of ordinary prudence would use his property and not to use the property, for any other purpose, for which it is leased. In the instant case, from the tenancy agreement, what can be seen as a collateral evidence is the purpose of the tenancy and such purpose clearly is for residence. Therefore, there is no question of violation of Clause (o) of Section 108 of the T.P. Act by the tenant/company in the facts and circumstances of the case."
24. We have carefully examined the aforesaid finding of the High Court on the question of violation of Section 108 (o) of the Transfer of Property Act. In our view, the High Court was justified in coming to a conclusion that since this was not a case of `Change of User' within the meaning of Section 108 (o) of the Transfer of Property Act, it could not be held that the appellant had violated the provisions of Section 108 M.P. No.54/2017 11
(o) of the Transfer of Property Act. Section 108(o) requires the lessee to use the property as a man of ordinary prudence would use his property and not to use it for a purpose different to that for which it was leased. It is true that under Section 108 (o) of the Transfer of Property Act, `use of the property for the purpose other than that for which it was leased i.e. `Change of User' is not permitted. Therefore, we have to consider whether in the backdrop of the facts of this case, violation of Clause 9 of the lease agreement, even if it is held that it can be looked into for collateral purposes, would be `Change of User' or not. In other words, we have to find whether the expression `change of user' would cover a situation wherein the property is let out for a particular named officer and for none else and despite this condition, the same is given to some one else, or would it cover and be limited to the cases where property is leased out for a residential or non- residential purpose or for a particular business and despite such express conditions, the property is used for the purpose other than the specified. We are of the view that letting out or leasing out the property for a particular named officer cannot be the `purpose' of letting. The purpose of letting out would be residential or non-residential or for a particular business etc.
25. The learned counsel for the appellant placed strong reliance on the decisions of this court in Dashrath Baburao Sangale and others Vs. Kashimath Bhaskar Data [AIR 1993 SC 2646] and M. Arul Jothi and another Vs. Lajja Bal (deceased) and another [AIR 2000 SC 1122] to suggest that the respondent had violated Section 108(o) of the Transfer of Property Act. After carefully examining the aforesaid decisions of this Court, we do not find any support from the said decisions for the purpose of holding that the present case is covered by the expression `Change of User' as used in Section 108(o) of the Transfer of Property Act. In Dashrath Baburao Sangale's case [supra], the premises was let out to the tenant for sugarcane juice business whereas the tenant was using the premises for selling cloth and readymade clothes and on this ground, it was held that he was liable to be evicted on account of `change of user'. Similarly, in M. Arul Jothi's case [supra], the tenant was held liable for eviction when the shop rented to him for carrying on the business of radios, cycles, fans, clocks and steel furniture was converted into a grocery store despite a specific clause in the rent agreement forbidding the same.
M.P. No.54/2017 1226. Therefore, in the present case, we are of the view that although the premises was leased out exclusively for the named officer of the respondent, the fact that it was subsequently used for the residence of some other officer of the respondent would not constitute `change of user' so as to be hit by Section 108 (o) of the Transfer of Property Act.
27. Before we part with this judgment, we may deal with a short submission of Mr. Mukherjee that since the lease agreement in question was simplicitor a tenancy agreement, which is not compulsorily registrable, the respondent was liable to be evicted even under the provisions of the Act. We are unable to agree with this contention of Mr. Mukherjee for the simple reason that for a decree to be passed under the Act, the landlord has to plead and prove one of the grounds mentioned in Section 13 of the Act. Even if we accept that the appellant had made out a case under Section 13(1b) of the Act to the extent that the respondent was liable to be evicted under Section 108(o) of the Transfer of Property Act, in view of our findings made hereinabove on that aspect, the appellant is not entitled to a decree of eviction under the Act.
28. In view of our discussions made hereinabove, we are, therefore, of the view that Clause 9 of the Agreement, which requires the respondent to use the suit premises only for its particular named officer, can not be looked into even for collateral purposes and that the decision of this court in Smt. Juthika Mullick's case [supra] would not be of any help to the appellant because in that case, the lease deed was registered.
29.Secondly, we are of the view that although the suit premises was leased out exclusively for the named officer of the respondent, the fact that the respondent sought to use it for some other officer would not constitute "Change of User" within the meaning of Section 108(o) of the Transfer of Property Act and, therefore, the respondent cannot be evicted for violation of the provisions of Section 108(o) of the Transfer of Property Act."
The contention of the learned counsel for the respondent is that in light of the aforesaid judgment, as it is an unregistered document, cannot be looked into even for collateral purposes.
The co-ordinate Bench of this Court in the case of M.P. No.54/2017 13 Gordhan v/s Dinesh & Others 2017 (4) MPLJ 565 has again dealt with a similar issue. Paragraphs-9 to 11 of the aforesaid judgment reads as under:-
9. The Apex Court in the case of Yellapu Uma Maheswari and another (supra) has held that Section 17(1)(b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and section 49 of the Registration Act imposes bar on the admissibility of an unregistered document in respect of an immovable property and deals with the documents that are required to be registered under section 17 of the Act. It is well settled that nomenclature given to the document is not decisive factor, but the nature and substance of the transaction has to be determined with respect to the terms of the documents and the admissibility of the document. In the suit for declaration of title, an unregistered document can be relied upon for collateral purposes i.e. to prove his possession, payment of sale consideration and nature of possession, but not for primary purpose i.e. sale between the plaintiff and defendant. As stated above, the defendant has clearly set out his defence and the claim in the written statement stating that he has purchased the property by deed dated 01/01/1985 and he wanted to exhibit as sale deed to get the decree of title.
The defendant has also placed reliance over the judgment cited by the respondent in the case of K.B. Saha and others (supra) 10 The Apex Court in the case of K.B. Saha and Sons Private Limited ( supra ) has laid down the principle in respect of the collateral purpose. Para 34 of the judgment is reproduced below :
34 From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that :-
1. A document required to be registered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.
3. A collateral transaction must be M.P. No.54/2017 14 independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.
11 According to the above judgment, a collateral transaction must be a transaction not itself required to be effected by a registered document. A collateral transaction must be independent of, or divisible from, the transaction to effect which required registration by the law. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence.
This Court, in light of the judgment delivered by the apex Court in the case of K.B. Saha (supra), which has been reproduced by the learned Single Judge, is of the opinion that a collateral transaction must be independent of, or divisible from the transaction to effect which the law required registration. The apex Court in the case of K.B. Saha (supra) has also held that if a document is inadmissible evidence for want of registration, none of its terms can be admitted in evidence and even it cannot be used for collateral purposes.
The Apex Court in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil reported in 2010 (8) SCC 329 in paragraph 49 held 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 M.P. No.54/2017 15 mode of exercise of power by 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, on 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 inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of 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 its 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 (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), 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 M.P. No.54/2017 16 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) 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 the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 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 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 M.P. No.54/2017 17 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."
In light of the aforesaid judgment as no patent illegality has been committed by the trial Court and the order passed by the trial Court neither suffers from any jurisdictional error nor from any perversity, this Court does not find any reason to interfere with the order dated 14.09.2017.
Resultantly, the present petition stands dismissed. However, the petitioners shall be at liberty to raise all the grounds, as raised in the present petition, in case, the suit is decided against them.
Certified copy as per rules.
(S.C. Sharma) Judge Ravi Digitally signed by Ravi Prakash Date: 2018.07.07 14:28:43 +05'30'