Himachal Pradesh High Court
C/O Shri Prem Chand Sanjay General vs Sagar Pal And Others (2017) 2 Scc 748 on 17 December, 2021
Author: Satyen Vaidya
Bench: Satyen Vaidya
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REPORTABLE/NONÂREPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 17th. DAY OF DECEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE SATYEN VAIDYA, JUDGE
CIVIL MISCELLANEOUS PETITION MAIN (ORIGINAL ) No. 199 / 2021
Between:
SHRI SUBHASH CHAND, SON OF LATE SH.
RAKHA RAM, RESIDENT OF VILLAGE
GADOHAG, PARGNA MAJHOLA, TEHSIL AND
DISTRICT SHIMLA, H.P. AND AT PRESENT
C/O SHRI PREM CHAND SANJAY GENERAL
STORE, GHANAHATTI, P.O. GHANAHATTI,
TEHSIL AND DISTRICT SHIMLA, H.P.
........PETITIONER/PLAINTIFF
( BY SH. ROMESH VERMA, ADVOCATE)
AND
1. SMT. SATYA DEVI, WIDOWOF LATE SH.
BALBIR S/O LATE SHRI BAHADRU,S/O
SH. NARDU.
2. SHRI ANIL KUMAR.
3. SH. AJAY KUMAR
BOTH SONS OF LATE SH.BALBIR
SON OF LATE SH. BAHADRU, S/O
LATE SH. NARDU, RESIDENT OF
VILLAGE GADOHAG, P.O.BOH, PARGNA
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MAJHOLA, TEHSIL AND DISTRICT
SHIMLA, H.P.
..........RESPONDENTS/DEFENDANTS
(BY SH. I.D. BALI, SR. ADVOCATE WITH
MR. SUMIT SHARMA, ADVOCATE, FOR
THE RESPONDENTS)
RESERVED ON: 10.12.2021
DECIDED ON: 17.12.2021
This petition coming on for orders this day, Hon'ble
Mr. Justice Satyen Vaidya, delivered the following:
ORDER
By way of instant petition, petitioner has challenged order dated 14.11.2019 passed by learned Civil Judge, Court No. IV, Shimla, in case No. 72-1/2018, whereby an application of the petitioner for framing of additional issues was rejected.
2. Petitioner, who is plaintiff before the learned Trial Court, has filed above noted suit with following prayers: -
a) That the plaintiff may be declare owner of the land and built up structure there on as entered against khata khatauni No. 3/3 khasra No.78 and 75 situated at Mauza Gadog, Tehsil and District Shimla as per jamabandi for the year 1957-58.::: Downloaded on - 31/01/2022 23:27:08 :::CIS
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b) That a decree for possession may be passed pertaining to land and built up structure existing thereon.
c) That the defendants being in unauthorized possession of the suit property may be held liable to pay use and occupation charges at the rate of Rs. 20,000/- per month from the date of filing suit till further orders and delivery of possession.
3. The petitioner has filed the suit on the premise that the suit land was owned by his father late Sh. Rakha Ram, who had died on 26.05.1959. During life time of Rakha Ram, suit land was recorded in his ownership and possession. However, during preparation of jamabandi for the year 1961-62, one Bhadru was wrongly shown in possession of suit land as "Gair Maurusi".
Petitioner has alleged that the entries made in revenue records in the name of Bhadru as non-occupancy tenants were illegal as it did not have any backing of a lawful order by a competent authority. The wrong revenue entries continued and on coming into force H.P. Tenancy and Land Reforms Act, 1972, Bhadru was shown to have acquired proprietary rights qua the suit land. It has further been pleaded by the petitioner that notwithstanding the entries so made in favour of Bhadru and on his death, his successors Balbir Singh, and therefore, the present respondents, petitioner continued to exercise rights of ownership and possession over the suit ::: Downloaded on - 31/01/2022 23:27:08 :::CIS .
property till December, 2011 when Balbir Singh, predecessor-in-
interest of respondents herein, forcibly dispossessed the petitioner from the suit land on the basis of wrong entries. Initially, the petitioner is stated to have taken recourse to revenue authorities but his contention was rejected on the ground that due to long lapse of time revenue entries could not be ordered to be corrected.
4. Respondents are contesting the suit. Besides having raised legal objections, the stand of the respondents, inter alia, is that they are in lawful possession of suit land as owners. They have denied that their predecessor-in-interest manipulated to procure wrong and illegal entries in the revenue records. The allegations with respect to dispossession of petitioner in the year 2011 have specifically been denied.
5. Learned Trial Court framed the following issues on 02.04.2019 and listed the case for evidence of plaintiff on 10.05.2019.
(i) Whether the plaintiff may be declared as owner of the land and built up structure there on as entered against khata khatauni No. 313 khasra No. 78 and 75 situated at Mauja Gadog, Tehsil and District Shimla as per Jamabandi for the year 1957-1958?
.........OPP
(ii) Whether the plaintiff is entitled for decree of possession of suit property?
..........OPP
(iii) Whether the defendant being in unauthorized possession of the suit property at the rate of Rs. 20,000/- per month from date of filing suit till further orders and delivery of possession of suit land?
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...........OPP
(iv) Whether the suit is maintainable in its present form?
.............OPD
(v) Whether the plaintiff is stranger to the property and has no right,title and interest to file the present suit?
...............OPD
(vi) Whether the suit is bad for non-joinder of necessary parties as alleged?
...............OPD
(vii) Whether the plaintiff has no locus standi to file the present suit? ..............OPD
(viii) Relief.
6. Instead of leading evidence on the given date, petitioner filed an application under Order 14 Rule 5 CPC with the prayer to frame additional issues as under: -
Whether defendants are owners in possession of the suit property and plaintiff have no right title and interest of any kind over the same.
...OPD Whether the entries of tenancy in favour of late Sh. Bhadru, Predecessor of the defendants, in the jamabandi for the years 1961-62, has been made on the basis of lawful order and whether subsequent jamabandi Sh. Bhadru, was rightly recorded as a Gair Maurusi and he lawfully acquired ownership rights under provisions of H.P. Tenancy and Land Reforms Act?
...OPD.
Whether entries of tenancy with respect to suit land in the name of Sh. Bhadru, was lawfully made in the jamabandi for the years 1961-62 and on the basis of these entries ::: Downloaded on - 31/01/2022 23:27:08 :::CIS .
and subsequent entries in the jamabandi mutation regarding conferment of ownership rights under Section 104 of H.P. Tenancy and land Reforms Act, have rightly been made in the name of late Sh. Bhadru."
....OPD.
7. Learned trial Court rejected the application of petitioner for framing of additional issues. Petitioner has sought to set aside the impugned order on the ground that the learned trial court has not recorded any valid reason for dismissal of the application and has not exercised the jurisdiction lawfully vested in it. It has been pleaded that grave injustice has been caused to the petitioner as the proposed issues are necessary for just and effective disposal of the controversy involved in the case.
8. I have heard learned counsel for the parties and have gone through the records.
9. Noticeably, the instant petition under Article 227 of the Constitution of India has been preferred on 14.09.2021 exactly after two years from the date of passing of impugned order. No reason whatsoever has been assigned by the petitioner for assailing the impugned order at such a belated stage. Though, no specific limitation is provided under any statute for filing the petition under Article 227 of the Constitution of India, yet the same cannot be allowed to be filed at the wish of the petitioner at any time, that to, without disclosing the reasons for delay, if any.
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10. Reference can be made to para-4 of the judgment passed by Hon'ble Supreme Court in Bithika Mazumdar and another Vs. Sagar Pal and others (2017) 2 SCC 748, which reads as under:-
"4 It is an admitted position in law that no limitation is prescribed for filing application under Article 227 of the Constitution. Of course, the petitioner who files such a petition is supposed to file the same without unreasonable delay and if there is a delay that should be duly and satisfactorily explained. In the facts of the present case, we find that the High Court has dismissed the said petition by observing that though there is no statutory period of limitation prescribed, such a petition should be filed within a period of limitation as prescribed for applications under Sections 115 of the Code of Civil Procedure. This approach of the High Court cannot be countenanced. As mentioned above, in the absence of any limitation period, if the petition is filed with some delay but at the same time, the petitioner gives satisfactory explanation thereof, the petition should be entertained on merits."
In view of the legal position detailed above, the instant petition is clearly not maintainable.
11. The petitioner, even otherwise, has not been able to make out any ground seeking indulgence of this Court under Article 227 of the Constitution of India. The jurisdiction of this Court under Article 227 of the Constitution of India is not unbridled. In Shalini ::: Downloaded on - 31/01/2022 23:27:08 :::CIS .
Shyam Shetty and another Vs. Rajendra Shankar Patil (2010) 8 SCC 329, Hon'ble Supreme Court has delineated the fetters in exercise of jurisdiction under Article 227 of the Constitution of India 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 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 ::: Downloaded on - 31/01/2022 23:27:08 :::CIS .
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) 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 ::: Downloaded on - 31/01/2022 23:27:08 :::CIS .
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 invest this extraordinary power of its strength and vitality.
12. From the aforesaid exposition of law, there remains no doubt that for exercising jurisdiction under Article 227 of the Constitution of India, it has to be established that the judicial order passed by the Court was so palpably wrong so as to strike at the conscience of the Court or should be without jurisdiction. As noticed above, the impugned order does not fall in any of the categories which may warrant interference by this Court. The frame of additional issues proposed by petitioner clearly reveals that the prayer was not bonafide. The plaintiff intends to shift the burden of proving the facts on to respondent, which otherwise are required to ::: Downloaded on - 31/01/2022 23:27:08 :::CIS .
be proved by the petitioner in the facts and circumstances of the instant case.The provisions of Sections 109 and 110 of the Evidence Act are applicable to the facts of the case, which reads as under: -
"109. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent. -- When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand, to each other in those relationships respectively, is on the person who affirms it.
110. Burden of proof as to ownership. When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner."
Thus, the pleadings as brought on record by the parties do not warrant the framing of additional issues as proposed by the petitioner.
13. In view of above discussions, I do not find any merit in the instant petition and the same is dismissed. No order as to costs.
( Satyen Vaidya ) Judge December 17, 2021 (sushma) ::: Downloaded on - 31/01/2022 23:27:08 :::CIS .
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