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Delhi High Court

Gautam Motors & Ors. vs Pawan Dynamics Pvt. Ltd. on 19 December, 2013

Author: Manmohan Singh

Bench: Manmohan Singh

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Order delivered on: December 19, 2013

+      CM(M) 811/2011, C.M. Nos.12808/2011, 6525/2012 & 14317/2013

      GAUTAM MOTORS & ORS                     ..... Petitioners
                 Through  Mr.Devendra Pandey, Manager in
                          person.

                          versus

      PAWAN DYNAMICS PVT LTD                  ..... Respondent
                 Through   Mr.Mayank Bughani, Adv. with
                           Mr.Naveen Chawla, Adv.

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By way of the present petition under Article 227 of the Constitution of India, the petitioners have assailed order dated 15 th March 2011 whereby the petitioners' application for review of order dated 18 th November, 2010 was dismissed and also the order dated 21st December, 2010 whereby an additional issue was framed in the matter.

2. Brief facts for the purpose of adjudication of the present petition are that the respondent/landlord had filed a suit for eviction against the petitioners/tenant. During the course of proceedings, the respondent filed an application under Order 6 Rule 17 CPC for including the prayer for recovery of pendent lite mesne profit.

3. The said application was opposed by the petitioners who submitted that since no recovery of rent was prayed in the suit initially, now under Order 2 Rule 2 CPC, the amendment was barred.

4. The learned Trial Court vide order dated 18th November, 2010 observed that non-payment of rent of each month gives rise to fresh cause of action. The suit was filed in May, 2008 and as per the respondent, rent upto that period stood paid. Objection under Order 2 Rule 2 CPC could not be raised qua rent payable for June, July, 2008 onwards in a suit which was filed in May, 2008. The learned Trial Court observed that although the respondent could file a fresh suit but that would lead to, and increase only multiplicity of litigations and accordingly, allowed the application of the respondent.

5. The petitioners filed a review application against the said order and the Court's attention was drawn to another relief sought in the same amendment application by the respondent whereby the respondent sought amendment of para 15 of the plaint qua notice of termination of lease. The petitioners submitted that the said amendment would cause prejudice to the defence in so far as nature of the suit would change and valuable rights acquired in favour of the petitioners were taken away.

6. The learned Trial Court observed that in case there was any discrepancy in the said notice of termination of lease as claimed by the petitioners, that infirmity shall remain and it could not be corrected by any amendment in the plaint. In the opinion of the learned Trial Court, comparison of unamended and amended para 15 showed that it only explained a position, but did not tantamount to change the contents of the lease termination notice and its effect. Even otherwise in opinion of the CM (M) No.811/2011 Page 2 of 6 learned Trial Court, the said order was a reasoned order and did not require interference with. Accordingly, the review application filed by the petitioners was dismissed.

7. In the meanwhile on 21st December, 2010, the learned Trial Court vide its order observed that written statement to the amended plaint had not been filed despite grant of four weeks time. The learned Trial Court opined that the petitioners seemed to adopt their previous written statement, already on record. Accordingly, in view of the amended plain, an additional issue was framed i.e. "whether plaintiff is entitled to mesne profits @17000/- per day till vacation of tenanted property? OPP"

8. Aggrieved of the above-mentioned three orders, the petitioners have filed the present petition before this Court.

9. It is well settled principle of law that the High Court while exercising its power under Article 227 of the Constitution of India, cannot proceed to act as a Court of appeal by interfering in mere errors of finding fact which requires re-appreciation and re-weighing of evidence unless it results in manifest miscarriage of justice as a Court of appeal. The said power under Article 227 of the Constitution of India has to be exercised sparingly and circumspectly to ensure that decision making done by lower Court and tribunal below is within their bounds and limits.

10. The said power under Article 227 of the Constitution of India being supervisory in nature cannot be equated with the powers of appellate Court and the jurisdiction under Article 227 could not be exercised as a cloak of an appeal in disguise.

11. In the case of Babhut Mal Raichand Oswal vs. Laxmi Bai R. Tarta reported in (1975) 1 SCC 858, the 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" (emphasis supplied) The Supreme Court in the case of Babhut Mal (supra) approved the dictum of Morris L., J. in Res v. Northumberland Compensation Appellate Tribunal, 1952 All England Reports 122.

12. In the case of State of Maharashtra vs. Milind & Ors., 2001 (1) SCC 4, the 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." (Emphasis supplied) CM (M) No.811/2011 Page 4 of 6

13. Again in the case of State vs. Navjot Sandhu, (2003) 6 SCC 641, the Supreme Court observed:

"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. It is settled law that the jurisdiction under Article 227 could not be exercised as the cloak of an appeal in disguise." (Emphasis supplied)

14. The decisions of Babhut Mal (supra), State vs. Navjot (supra) and State vs. Maharashtra (supra) have been approved by Hon'ble Justice C.K. Thakkar as his Lordship then was in the case of Shamshad Ahmad & Ors. vs. Tilak Raj Bajaj (D) By LRs. & Ors., 2008 (9) SCC 1.

15. Upon careful reading of observations in the above referred cases, it can be safely said that the scope of judicial interference under Article 227 is well settled and the Court ceased of the proceedings under Article 227 cannot act as a Court of appeal and should interfere with the decision of the inferior tribunal or Court only to keep the authorities and Courts within their bounds and in the cases where it results into manifest miscarriage of justice and not in all other cases to correct mere errors. The power under Article 227 is thus discretionary in nature and can be exercised in the cases where the lower Court ignores material piece of evidence or considers some evidence which it ought not to have considered resulting into injustice and not in cases where there are two views possible and the view adopted by lower Court is reasonable and plausible one and the High Court would be unjustified to interfere in such cases merely to arrive at different view in the matter as this would be re-appreciating the evidence on finding of facts which is the role of the appellate Court and not the supervisory Court acting under Article 227 of the Constitution of India.

16. In addition to that it is admitted position that the impugned order has been challenged after deciding the review application filed by the petitioner which was also not filed even after belated stage.

17. In view of the above, the present petition is not maintainable, the same is dismissed. Pending applications are also dismissed.

(MANMOHAN SINGH) JUDGE DECEMBER 19, 2013 CM (M) No.811/2011 Page 6 of 6