Uttarakhand High Court
Smt. Bimla Devi Pharasi vs Vineeta Pharasi & Another on 7 September, 2018
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (M/S) No. 2682 of 2018
Smt. Bimla Devi Pharasi ...Petitioner
Vs.
Vineeta Pharasi & Another ...Respondent
Mr. Nagesh Agarwal, Advocate for the petitioner.
JUDGMENT
Dated: 07 September, 2018 Sharad Sharma, J. (Oral) This Court cannot be oblivious of the fact that Writ Courts while seized with the jurisdiction under Article 227 of the Constitution of India where it exercises its supervisory jurisdiction over the orders passed by the subordinate Courts, the ambit of powers under Article 227 cannot be widened to an extent to scrutinize the propriety of orders as if the Writ Court is sitting in an appellate jurisdiction, and in particular when challenge is to an interlocutory orders, which may if any finding is recorded to the contrary may have a bearing on the principal proceedings. In the case at hand the respondents, herein are the plaintiffs, they are said to have instituted a Suit being Suit No. 50 of 2017 'Smt. Vineeta Pharasi vs. Bimla Devi', which was filed on 07.03.2017 for the reliefs to the following effect:
"vuqrks'k& ;g fd izkfFkZuh dks foi{kh ls fuEufyf[kr vuqrks'k fnyok;k tk;s%& ¼d½ ;g fd izkfFkZuhx.kksa ds firk dh e`R;q ds mijkUr ls vc rd isa"ku ls izkIr /kujkf"k ls olh;r ds eqrkfcd isa"ku ds fgLls dh lEiw.kZ /kujkf"k o ml ij fu;ekuqlkj fu/kkZfjr C;kt izkfFkZuhx.kksa dks foi{kh ls fnyok;k tk;sA ¼[k½ ;g fd foi{khfu dks izfrekg feyus okyh isa"ku dh /kujkf"k ls muds fgLls dh /kujkf"k izkfFkZuhx.k dks foi{khfu ls izfrekg fnyok;h tk;sA ¼x½ vc rd izkfFkZuhx.kksa dks okn O;; foi{khfu ls fnyok;k tk;sA ¼?k½ vU; vuqrks'k tks ekuuh; U;k;ky; mfpr le>s izkfFkZuhx.kksa dks foi{kh ls fnyok;k tk;sA"2
2. In the case of 'Mrs. Rena Drega v. Lalchand Soni' reported in AIR 1998 Supreme Court 1990 the Hon'ble Apex Court held as follows:
"4. According to us, the high Court has traversed far beyond the limit of its supervisory jurisdiction under Article 227 of the Constitution when the learned Single Judge reversed the Decree of eviction which was based on findings of facts arrived at by the fact-finding authority upon the evidence on record. it would have been well for the High court to remind itself that it was not exercising certiorari jurisdiction under Article 226 of the Constitution but a supervisory jurisdiction under Article 226 of the Constitution but a supervisory jurisdiction under Article 227 which obliges the High Court to confine to the Scrutiny of records and proceedings of the lower tribunal. By relying on fresh materials which were not before the tribunal, the High Court should not have disturbed findings of facts in exercise of such supervisory jurisdiction. it is now well high settled that power under Article 227 is one of judicial superintendence which cannot be used to upset conclusions of facts, however erroneous those may be, unless such conclusions are so perverse or so unreasonable that no court could ever have reached them Way back in 1954, a Constitution Bench of this Court, in Waryam Singh & anr. Vs. Amarnath & anr. ( AIR 1954 SC 215) has pointed out that the power of superintendence conferred by Article 227 should be exercised "most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors." (emphasis supplied)"
3. In another case of 'Mohan Amba Prasad Agnihotri and others v. Bhaskar Balwant Aher (Dead) through L.Rs.' reported in AIR 2000 Supreme Court 931 the Hon'ble Apex Court held as follows:
"On the first submission of Mr. Lalit, it will suffice to observe that it is settled law that the jurisdiction of the High Court under Article 227 is not appellate but supervisory. It cannot interfere with a finding of fact recorded by lower court/tribunal unless there is no evidence to support the finding or the finding is perverse."
4. In AIR 2009 (NOC) 1582 (DEL.) it was held that:
(B) Constitution of India, Art. 227-
Supervisory jurisdiction - Limited to seeing that inferior Court of tribunal functions within its limit - High Court under Art. 227 does not exercise appellate jurisdiction
- High Court cannot review or reweigh evidence - Nor can it correct error or law in decision of subordinate Courts.
35. The petitioner is a defendant in the Suit, herein she is the widow of the deceased freedom fighter Late Mr. Buddhi Prakash Pharasi and the plaintiffs are the unmarried daughters of the freedom fighter. These unmarried daughters contend in the plaint that they would be entitled for the grant of freedom fighter pension based on the provisions of the Freedom Fighter Rules as provided under sub- clause (a) of Clause 5 of the Freedom Fighter Pension Rules, 1975. The Rule 5 (a) includes in it ambit unmarried daughters also and the plaintiffs are unmarried they would be entitled for the freedom fighter pension. Rule 5 (a) of the Freedom Fighter Rules, 1975 is quoted hereunder:
"5(d) fdlh ,sls Loraa=rk laxzke lsukuh dh e`R;q ij tks bl fu;ekoyh ds v/khu Lora=rk isa"ku ik jgk gks mDr isa"ku ;k mlds fy;s rRdky fu/kkZfjr U;wure /kujkf"k] tks Hkh vf/kd gks] Lora=rk laxzke ikfjokfjd isa"ku ds :Ik esa mlds ifjokj ds ik= lnL; dks nh tk ldsxhA bl "krZ ds loZFkk v/khu jgrs gq, fd ,d le; esa ,d ls vf/kd O;fDr bldk gdnkj u gksxk mDr ik=rk dk mRrjksRrj dze bl izdkj gksxk] vFkkZr~ loZizFke fo/kok tks bls e`R;q ;k iqufoZokg rd ik ldsxhA rRi"pkr~ T;s'Bre~ thfor vo;Ld iq=] ;fn dksbZ gks] vkSj ;g Øe thfor vo;Ld iq=ksa rd pyrk jgsxk tks bls 18 o'kZ dh vk;q rd ik ldsaxsaA bls Ik"pkr~ T;s'Bre~ thfor vo;Ld ,oa vfookfgr iq=h tks bls fookg ;k 21 o'kZ dh vk;q rd tks Hkh igys ?kfVr gks] ik ldsxh vkSj ;fn dksbZ nwljh vfookfg iq=h gks rks blds Ik"pkr~ og Hkh bls fookg ;k 21 o'kZ dh vk;q rd tks Hkh igys ?kfVr gks] ik ldsxh ;g Øe vfookfgr iqf=;ksa rd blh izdkj pyrk jgsxkA"
6. They have contended in plaint that petitioner has deserted their late father as back as in 1991 and started residing with her elder son separately. Their case is that their late father prior to his death on 10.09.1999 has executed a Will on 07.07.1999, whereby, he had divided his property in favour of the plaintiff as well as his son and the defendant. In the Will it was mentioned that whatsoever pension is received by defendant she will keep 1/3rd for herself and will part 1/3rd each to the plaintiff. The case of plaintiff was when defendant was functioning contrary the covenant of the Will, the last desire of the Late father, as such, they had lodged a criminal proceeding by way of Complaint Case No. 9818 of 2013 under Section 406 against the defendant in which she was convicted for the offence on 04.02.2010 for imprisonment for one year. As against the order of conviction the petitioner filed a Criminal Appeal No. 07 of 2010 'Smt. Bimla Pharasi 4 vs. Vijita Pharasi' in which the learned Additional Sessions Judge vide its judgment order dated 04.07.2011 had acquitted the petitioner. The respondent filed a Criminal Appeal No. 208/2011 'Km. Vijita Pharasi vs. State of Uttarakhand' against acquittal judgment dated 04.07.2011. The appeal of the respondent preferred against acquittal order being Appeal No. 208 of 2011 was allowed and the judgment of Trial court of conviction of petitioner dated 04.02.2010 was sustained, which was later on challenge by the petitioner before Apex Court in SLP (CRL) 4896/2014 was set aside by the judgment dated 19.09.2016. The Hon'ble Apex Court had not exonerated her but by considering her age the imprisonment was set aside on the basis of Probation Of Offenders Act, 1958.
7. On issuance of a notice to those proceedings of the Suit the present petitioner had put in appearance and filed her application invoking Order 7 Rule 11, which was numbered as Paper No. 42A1 (1) in the application thus filed by her. She contended that the relief as claimed by the plaintiffs/respondents, (i) was time barred and (ii) consequently there would not be any accrual of cause of action for them to institute the Suit for settlement of the pension on the death of the father, which has chanced on 10.09.1999.
8. The said application was contested by the plaintiffs/respondents by filing objection contending thereof to the manner in which the withdrawal of the pensionary benefits was made by defendant contrary to bequeath and also that they have sent the notice on 23.01.2017 demanding the remittance of their share of pensionary benefits. The application thus filed by the defendants was rejected by the learned Trial Court of Civil Judge (J.D.), Dehradun by its order dated 28.10.2017. So far as the entitlement of the freedom fighter pensionary benefits is concerned, after the death of deceased freedom fighter since has been bequeathed by virtue of the Will as claimed by the plaintiffs and the said Will is still in existence in the eyes of law, the issue requires a consideration on merits by the Trial 5 Court, particularly in the light of provisions of Rule 3(5) of 1975, which is quoted hereunder:
"3(5) Lora=rk laxzke lsukuh dh e`R;q ds mijkUr ;fn mldh isa"ku vFkok vuqnku dh dksbZ /kujkf"k Hkqxrku djuk vo"ks'k jg tk; rks mldk Hkqxrku] ;fn lacaf/kr lsukuh us dksbZ olh;r ugha dh gS] mlds dkuwuh mRrjkf/kdkfj;ksa dks vFkok lsukuh }kjk fyf[kr olh;r ds vuqlkj dj fn;k tk;sxkA"
9. Thus, the Court held that though the defendant might be receiving the freedom fighter pension after the death of the deceased husband but the entitlement accruing through 'Will', will grant a cause of action and hence held that the relief claimed is not time barred as accruing each day for which deprivation continues. Accordingly, the said order dated 28.10.2017 decided the other objections pertaining to the valuation of the Suit against the petitioner.
10. Being aggrieved against the order dated 28.10.2017 the petitioner preferred the Revision and the Revisional Court too by the impugned order dated 03.08.2018 had dismissed the Revision holding thereof that the controversy pertaining to the settlement of the freedom fighter pension would not be treated as to be barred by limitation owing to the fact that 'Will' executed in their favour for the entitlement of the plaintiffs to get their share of freedom fighter pension would be a continuous and recurring action and held that it would be recurring in nature. Consequently, the application filed under Order 7 Rule 11 was concurrently rejected by both the courts below.
11. Learned counsel for the petitioner has placed reliance on a judgment as rendered by the Hon'ble Apex Court 'Violet Issac vs. Union of India' reported in 1991(1) SCC 725, which deals with the question as to whether the family pension payable under Services Rules could be bequeathed by Will. This is an issue which was dealt in the said judgment when an adjudication was made on the merits of the matter and that too it was not in relation to the freedom fighter but rather it was in relation to the family pension which is payable to the 6 Railway employees in terms of the rules as applicable to the said department governing their service conditions. The said preposition may not apply in instant case, reason being the entitlement of grant of freedom fighter pension to an unmarried daughter is governed by Rule 5(a) read with Rule 3(5) of the Rules of 1975. Thus, this preposition since being distinct to the controversy involved would not comply.
12. Another judgment relied by the petitioner is reported in 1980(4) SCC 306, 'Jodh Singh vs. Union of India'. In this case too it was family pension which was paid as per the terms of the service rules applicable. In this case too the right and limitation to bequeath family pension was decided only when the Suit was adjudicated on merit. In the said case the claim was where issue was decided as to claim raised by defendant of the deceased or not as per Rule 74 of Pension Regulation.
13. Consequently, this Court does not agree with the argument extended by the learned counsel for the petitioner. Writ Petition thus fails and is accordingly dismissed.
14. There would be no order as to cost.
(Sharad Kumar Sharma, J.) 07.09.2018 Pooja