Himachal Pradesh High Court
Naminder Singh vs Atma Singh on 18 May, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
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CMPMO No. 394 of 2015.
Judgment reserved on: 6.5.2016 Date of decision: May 18th , 2016 ___________________________________________________________ of Naminder Singh ...Petitioner Versus Atma Singh ....Respondent Coram rt The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes For the Petitioner : Mr. Dinesh Chand Sharma, Advocate.
For the Respondent : Mr. Ajay Sharma, Advocate.
Tarlok Singh Chauhan, Judge This petition under Article 227 of the Constitution of India is directed against the orders passed by learned Civil Judge (Junior Division) on 19.8.2015 and 28.8.2015, respectively.
2. The petitioner/plaintiff instituted a suit for declaration to the effect that he alongwith another co-sharer was the owner in possession of the suit land. The parties completed their pleadings, issues were framed and thereafter evidence was also led and closed by the respective parties. At an earlier stage, the petitioner had even approached this Court by filing Civil Revision No. 56 of 2015 and this Court vide order dated 26.6.2015 had not only dismissed the revision but had directed the learned Court below to decide the case as expeditiously as possible and in no event later than 30.9.2015, the ____________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 20:22:55 :::HCHP 2 .
reason being that the suit had been filed more than a decade on 13.02.2005.
3. The grievance of the petitioner is two fold. Firstly, vide order dated 19.8.2015 (Annexure P-10) his application under Section of 151 CPC for placing certain documents on record has been ordered to be dismissed and thereafter vide order dated 28.8.2015 the rt subsequent application filed by him for seeking permission to examine two persons namely Prittam Chand and Harbhajan Singh in rebuttal evidence has been dismissed.
4. The order dated 19.8.2015 (Annexure P-10) has been assailed on the ground that the learned court below has wrongly observed that the evidence of the petitioner stood closed and has further averred that "something which wrongly crept in the foundation, the same has become a source of misgivings as far as the appreciation of the grievance of the petitioner/plaintiff is concerned." Similarly, the subsequent order dated 28.8.2015 (Annexure P-14) has been assailed on various grounds as taken in the petition.
5. The first and foremost question that arises for consideration is as to what is precisely the scope of judicial intervention in such like matters. It is well settled that the High Court can exercise jurisdiction under Article 227 when the orders passed by the learned Court below is vitiated by an error, which is manifest and apparent on the face of the proceedings, i.e. when it is based on clear ignorance or utter disregard of the proposition of law and a grave injustice or gross failure of justice has occasioned thereby. The supervisory jurisdiction is ::: Downloaded on - 15/04/2017 20:22:55 :::HCHP 3 wide and used to improve the ends of justice. The power must however .
be exercised sparingly only to keep the subordinate courts and tribunals within the bounds of their authority. Power is neither available to be exercised to correct mere errors (whether on the facts or laws), nor is it a cloak of an appeal in disguise. The supervisory powers of of revision under Article 227 cast an obligation on the High Court to keep the inferior courts and tribunals within their bounds and erroneous rt decision may not be accorded for exercise of jurisdiction under Article 227 of the Constitution of India, unless the error is referable to the Court or there is dereliction of duty or flagrant abuse of power by the subordinate courts and tribunals resulting in grave injustice to any party, therefore, the scope of interference in proceedings under Article 227 of the Constitution is limited and the power conferred thereunder has to be exercised within certain parameters.
6. In Waryam Singh and another vs. Amarnath and another, AIR 1954 SC 45, the Hon'ble Supreme Court observed:
"This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in "Dalmia Jain Airways Ltd. vs. Sukumar Mukherjee", AIR 1951 CAL 193 (SB) 1 (B), to 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."
7. In Bathutmal Raichand Oswal vs. Laxmibai R. Tarta, AIR 1975 SC 1297, the Hon'ble Supreme Court again reaffirmed that the power of superintendence of the High Court under Article 227 being extraordinary was to be exercised most sparingly and only in appropriate cases. The Hon'ble Supreme Court speaking through Bhagwati J. as his Lordship then was observed thus:
::: Downloaded on - 15/04/2017 20:22:55 :::HCHP 4"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 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 rt final on facts".
The Hon'ble Supreme Court in the case of Bathutmal (supra) approved the dictum of Morris L., J. in Res v. Northumberland Compensation Appellate Tribunal, 1952 All England Reports 122.
8. In Laxmikant Revchand Bhojwani and another vs. Pratapsing Mohansing Pardeshi Deceased through his heirs and legal representatives, JT 1995 (7) SCC 400, the Hon'ble Supreme Court observed:
"The High Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes."
9. In State of Maharashtra vs. Milind & Others, 2001 (1) SCC 4, the Hon'ble 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 ::: Downloaded on - 15/04/2017 20:22:55 :::HCHP 5 jurisdiction at all or that the finding is such, which no reasonable man .
could arrive at, on the materials on record."
10. Again in State vs. Navjot Sandhu (2003) 6 SCC 641, the Hon'ble Supreme Court observed as under:
"Thus the law is that Article 227 of the Constitution of India gives the of 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 rt 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."
11. In Mohammed Yusuf vs. Faij Mohammad and others, 2009 (1) Scale 71, the Hon'ble Supreme Court held as under:
"The jurisdiction of the High Court under Article 226 & 227 of the Constitution is limited. It could have set aside the orders passed by the learned trial Court and revisional Court only on limited ground, namely, illegality, irrationality and procedural impropriety".::: Downloaded on - 15/04/2017 20:22:55 :::HCHP 6
12. In State of West Bengal and others vs. Samar Kumar .
Sarkar, JT 2009 (11) SC 258, the Hon'ble Supreme Court held as under:
"10. Under Article 227, the High Court has been given power of superintendence both in judicial as well as administrative matters of over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. It is in order to indicate the plentitude of the power conferred upon the High Court with respect to Courts and the Tribunals of every kind that the Constitution conferred the rt power of superintendence on the High Court. The power of superintendence conferred upon the High Court is not as extensive as the power conferred upon it by Article 226 of the Constitution. Thus, ordinarily it will be open to the High Court, in exercise of the power of superintendence only to consider whether there is error of jurisdiction in the decision of the Court or the Tribunal subject to its superintendence."
13. In Jai Singh and others vs. Municipal Corporation of Delhi and others (2010) 9 SCC 385, the Hon'ble Supreme Court in paras 15, 16 and 42 of the judgment held as under:
"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 227 of 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 ::: Downloaded on - 15/04/2017 20:22:55 :::HCHP 7 care, caution and circumspection. The exercise of jurisdiction 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.
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16. The High Court cannot lightly or liberally act as an appellate court and re-appreciate the evidence. Generally, it can not substitute its own conclusions for the conclusions reached by the courts below rt or the statutory/quasi judicial tribunals. The power to re-appreciate 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.
42. Undoubtedly, the High Court has the power to reach injustice whenever, wherever found. The scope and ambit of Article 227 of the Constitution of India had been discussed in the case of The Estralla Rubber Vs. Dass Estate (P) Ltd., [(2001) 8 SCC 97] wherein it was observed as follows:
"The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, ::: Downloaded on - 15/04/2017 20:22:55 :::HCHP 8 which is not apparent on the face of the record. The High .
Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
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14. Bearing in mind the aforesaid principles, it would be noticed that the petitioner after the evidence of the parties had been rt completed, moved an application under Section 151 of the Code of Civil Procedure for placing on record certain documents. To my mind, the application was rightly dismissed as in the trial of a suit there is no procedure whereby the documents can simply be placed on record without proving the same unless these documents are public document and are per se admissible in law.
15. Even otherwise, it would be evident from the bare perusal of the application that no sufficient reason has been shown for not placing these documents earlier on record. This assumes significance in light of the fact that the suit is pending adjudication for more than a decade. Apparently, the only reason accorded in the application was that the petitioner wanted to impeach upon the credibility of the witness Purshottam Lal, but then as rightly observed by the learned Court below that at the stage of examining the documents, no findings in this regard especially regarding the credibility of the witness could be recorded. Having said so, no fault can be found with the order passed by the learned Court below on 19.8.2015.
16. The petitioner after passing of the aforesaid order moved an application for permission to examine two witnesses, out of whom, ::: Downloaded on - 15/04/2017 20:22:55 :::HCHP 9 one witness Prittam Chand, who is none other than the attorney of the .
opposite party, but this fact is conspicuously concealed and not mentioned in the application. It was averred in the application that the petitioner intends to examine Prittam Chand regarding his statement dated 10.2.2010 recorded in CMA No. 52/2006 under Order 39 of Rule 2-A, CPC to rebut the evidence led by the respondent to establish the genuineness of the execution of the impugned sale deed Ext. DW-
rt 1/A. The certified copy of such statement was also enclosed with the application. Further, Harbhajan Singh was sought to be examined to rebut the respondent's evidence whereby it has been asserted that the petitioner in connivance with his wife Chand Rani had filed Civil Suit No. 89/2004 whereas during that period Chand Rani was in matrimonial litigation with the plaintiff/applicant. On these allegations, it was averred that the examination of these witnesses was necessary in order to rebut the evidence of the respondent.
17. The respondent opposed the application by raising preliminary objections of estoppel and maintainability. On merits, it was averred that the petitioner had no right whatsoever to examine the witnesses in rebuttal at this stage, that too, when his evidence had already been closed in affirmative on 24.1.2015. It was also averred that the witnesses sought to be examined should have been examined in affirmative and not in rebuttal. It was also averred that Harbhajan Singh had no role in the present case and therefore, his evidence was not at all necessary.
::: Downloaded on - 15/04/2017 20:22:55 :::HCHP 1018. The learned Court below held that as the petitioner had .
failed to disclose that he wanted to examine in rebuttal GPA of the respondent Prittam Chand, who in fact had now stepped into the shoes of the defendant and therefore could not be permitted to be examined.
It was further observed that the statement from which this Prittam of Chand was proposed to be confronted was not legally placed on record as the same had been simply enclosed with the application without rt seeking permission of the Court by filing an application under Order 7 Rule 14 CPC.
19. Insofar as Harbhajan Singh is concerned, the learned Court below held that his evidence in rebuttal was not at all necessary.
20. In order to appreciate the controversy, it would be necessary for this Court to look at the issues framed in the case on 24.9.2012, which are as follows:
1. Whether the plaintiff is entitled for the relief of declaration, as prayed? OPP
2. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed? OPP
3. Whether the plaintiff is entitled for the relief of mandatory injunction, as prayed? OPP
4. Whether the plaintiff is entitled for the relief of possession, as prayed? OPP
5. Whether the suit is not maintainable, as alleged? OPD
6. Whether the plaintiff is estopped by his own acts and conduct to file this suit? OPD ::: Downloaded on - 15/04/2017 20:22:55 :::HCHP 11
7. Whether the suit is not properly valued for the purpose of court .
fee and jurisdiction? OPD
8. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD
9. Whether the plaintiff has no locus standi to file the present suit, as alleged? OPD of
10. Relief.
21. rt Evidently, only the burden to prove issues regarding maintainability, estoppel, valuation, cause of action and locus-standi rests upon the respondent/defendant and, therefore, rebuttal evidence can be allowed only qua the evidence of the defendant on these issues. Notably, the evidence in rebuttal as sought to be led by the petitioner has in fact no bearing on the evidence led by the respondent/defendant on the aforesaid issues.
22. Having said so, this Court is of the firm view that the endeavour on the part of the petitioner clearly appears to be to delay the outcome of the decision or else the petitioner would not have filed such frivolous application which has unnecessarily consumed valuable time of this Court. Not only there is no merit in this petition, but the same otherwise amounts to abuse of the process of the Court and is accordingly dismissed with costs of `30,000/- to be paid by the petitioner to the opposite side on or before the next date of hearing.
23. The parties through their counsels are directed to appear before the trial Court on 23.5.2016. Records be sent back to the Court below so as to reach well before the date fixed. Interim order granted ::: Downloaded on - 15/04/2017 20:22:55 :::HCHP 12 by this Court on 18.9.2015 is vacated. Pending application(s), if any, .
also stands disposed of.
May 18th , 2016 (Tarlok Singh Chauhan)
(GR) Judge
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