Sheikh Zarinabanu Mohammad Nisar vs Risaldaar Rihanabanu Illiyaskhan on 30 March, 2022

[Cites 14, Cited by 0]

Gujarat High Court

Sheikh Zarinabanu Mohammad Nisar vs Risaldaar Rihanabanu Illiyaskhan on 30 March, 2022

2. This petition under Article 227 of the Constitution of India is directed against an order dated 09.11.2020 passed by the learned 22nd Additional Senior Civil Judge, Surat in Misc. Civil Page 1 of 10 Downloaded on : Wed Mar 30 21:43:00 IST 2022 C/SCA/2305/2021 JUDGMENT DATED: 30/03/2022 Application (Delay) No. 59 of 2018. By the said application, the petitioner had prayed for to condone the delay of 82 days caused in preferring the suit for implementation of the Promissory Note, which came to be rejected vide impugned order.

3. Though duly served and sufficient opportunity was given to the respondents, they put in no appearance, leaving no option but to proceed with the matter.

4. Heard, learned advocate Mr. Sikander Saiyed for the petitioner.

4.1 The learned advocate for the petitioner vehemently submitted that the impugned order suffers from material illegality and perversity inasmuch as, the learned trial Judge has failed to take into consideration the provisions of the Limitation Act, 1963 (the Act) in true and proper perspective. He submitted that while dealing with the application in question, the learned trial Judge has only considered the provisions of Section 3 of the Act and has not considered Section 5 of the Act, which clearly stipulates that any appeal or application may be admitted even after the limitation is over, if the appellant or applicant satisfies the Court that he had sufficient cause for not filing such an appeal or application. He submitted that despite sufficient cause having been shown, the learned trial Judge did not consider the same and outright rejected the application on the ground of non- applicability of the Limitation Act to the suits. The learned advocate for the petitioner further submitted that otherwise the petitioner has a good case on merits and such a technicality cannot be a bar to pursue the legitimate right of the petitioner. He submitted that the appeal filed by the petitioner against the Page 2 of 10 Downloaded on : Wed Mar 30 21:43:00 IST 2022 C/SCA/2305/2021 JUDGMENT DATED: 30/03/2022 aforesaid order before the learned District Court was not accepted for the reason of no jurisdiction and hence, the petitioner is before this Court by this petition. Thus, making such submissions, he urged that this petition may be allowed and to quash and set aside the impugned order and also to direct the trial Court to register the suit.

5. Regard being had to the submissions made and perusing the impugned order vis-a-vis the material on record, it emerges that in the suit sought to be filed by the petitioner for implementation of the promissory note, there was a delay of 82 days and hence, the petitioner preferred the Misc. Civil Application No. 59 of 2018 for condonation of such delay, which came to be rejected by the impugned order dated 09.11.2020 and hence, the grieved petitioner is before this Court.

5.1 At the outset, it would be worthwhile to refer to a decision of the Apex Court in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, (2010) 8 SCC 329, wherein, the Court has considered in detail the scope of interference by this Court to hold and observe that Article 227 can be invoked by the High Court Suo motu as a custodian of justice. An improper and a frequent exercise of this power would be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle. The observations of the Hon'ble Supreme Court, read as under:

"57. Articles 226 and 227 stand on substantially different footing. As noted above, prior to the Constitution, the Chartered High Courts as also the Judicial Committee of the Privy Council could issue prerogative writs in exercise of Page 3 of 10 Downloaded on : Wed Mar 30 21:43:00 IST 2022 C/SCA/2305/2021 JUDGMENT DATED: 30/03/2022 their original jurisdiction. [See 1986 (suppl.) SCC 401 at page 469)].

58. However, after the Constitution every High Court has been conferred with the power to issue writs under Article 226 and these are original proceeding. [State of U.P . and others vs. Dr. Vijay Anand Mahara j - AIR 1963 SC 946, page 951].

59. The jurisdiction under Article 227 on the other hand is not original nor is it appellate. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields.

60. Another distinction between these two jurisdictions is that under Article 226, High Court normally annuls or quashes an order or proceeding but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. {See Surya Dev Rai (supra), para 25 page 690 and also the decision of the Constitution Bench of this Court in Hari Vishnu Kamath vs. Ahmad Ishaque and others - [AIR 1955 SC 233, para 20 page 243]}.

61. Jurisdiction under Article 226 normally is exercised where a party is affected but power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. In fact, the power under Article 226 is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. Jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. In certain cases where there is infringement of fundamental right, the relief under Article 226 of the Constitution can be claimed ex-debito justicia or as a matter of right. But in cases where the High Court exercises its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claim it as a matter of right. From an order of a Single Judge passed under Article 226, a Letters Patent Appeal or an intra Court Appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Judge of a High Court in exercise of power under Article 227. In almost all High Courts, rules have been framed for regulating the exercise of jurisdiction Page 4 of 10 Downloaded on : Wed Mar 30 21:43:00 IST 2022 C/SCA/2305/2021 JUDGMENT DATED: 30/03/2022 under Article 226. No such rule appears to have been framed for exercise of High Court's power under Article 227 possibly to keep such exercise entirely in the domain of the discretion of High Court.

62. 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 superintendence can interfere in order only to keep the tribunals and Page 5 of 10 Downloaded on : Wed Mar 30 21:43:00 IST 2022 C/SCA/2305/2021 JUDGMENT DATED: 30/03/2022 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.

Page 6 of 10 Downloaded on : Wed Mar 30 21:43:00 IST 2022

C/SCA/2305/2021 JUDGMENT DATED: 30/03/2022

(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 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."

5.2 Thus, exercise of power under Article 227 of the Constitution of India should be with a view to keep the tribunals / Courts within the bounds of their authority, to ensure that law is followed by tribunals / Courts by exercising jurisdiction which is vested in them and/or 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. In exercise of its power of superintendence, High Court cannot interfere to correct Page 7 of 10 Downloaded on : Wed Mar 30 21:43:00 IST 2022 C/SCA/2305/2021 JUDGMENT DATED: 30/03/2022 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.

5.3 The Apex Court in a recent decision in Puri Investments v. Young Friends and Co. and Others, MANU/SC/0290/2022 has observed as under:

"13. There was no perversity in the order of the Appellate Tribunal on the basis of which the High Court could have interfered. In our view, the High Court tested the legality of the order of the Tribunal through the lens of an appellate body and not as a supervisory Court in adjudicating the application under Article 227 of the Considering. This is impermissible. The finding of the High Court that the appellate forum's decision was perverse and the manner in which such finding was arrived at was itself perverse."

5.4 Thus, a petition under Article 227 of the Constitution of India cannot be given a shape of appeal in disguise.

6. Since much ink has been spilled about the merits of the case, if the case on hand is adverted to, it is the case of the petitioner that the learned trial Judge has not taken into consideration the provisions of Section 5 of the Act in true and proper perspective. In this regard, Section 5 of the Act is referred to, the same reads as under:

"5. Extension of prescribed period in certain cases.

--Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

Page 8 of 10 Downloaded on : Wed Mar 30 21:43:00 IST 2022

C/SCA/2305/2021 JUDGMENT DATED: 30/03/2022 Explanation.-- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section."

6.1 Thus, from the perusal of the aforesaid section it is abundantly clear that "any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application. Indisputably, in the instant case, the delay has been occurred in preferring the "suit", which is not included in the aforesaid provision.

6.2 Further, the Apex Court, in a very recent decision in F. Liansanga & Anr. v. Union Of India & Ors., 2022 LiveLaw (SC) 252., (passed in SLP (C) Nos. 32875-32876 of 2018 dated 02.03.2022) has held as under:

"Limitation Act, 1963 - Section 5 does not apply to suits, but only to appeals and to applications except for applications under Order XXI of the Civil Procedure Code - Limitation may harshly affect a particular party, but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds, even though the statutory provision may sometimes cause hardship or inconvenience to a particular party. The Court has no choice, but to enforce it giving full effect to the same."

6.3 At this juncture, if the definition of "Suit" as referred in Section 2(l) of the Act is seen, it reads as under:

"(l) "suit" does not include an appeal or an application."

Page 9 of 10 Downloaded on : Wed Mar 30 21:43:00 IST 2022

C/SCA/2305/2021 JUDGMENT DATED: 30/03/2022 6.4 Thus, suit does not include an appeal or an application and therefore, the aforesaid provisions of Section 5 of the Act would not be applicable to the suits and they are meant for only the appeals and the applications.

6.5 Thus, in view of the above, it cannot be said that the learned trial Judge has committed an error, much less an error apparent on the face of it in rejecting such an application for condonation of delay, which requires interference at the hands of this Court.

7. For the forgoing discussion and observations, this petition fails and is dismissed accordingly. Rule is discharged. However, in the facts and circumstances of the case, there shall be no order as to costs.

[ A. C. Joshi, J. ] hiren Page 10 of 10 Downloaded on : Wed Mar 30 21:43:00 IST 2022

Unlock Advanced Research with PRISMAI

Gujarat High Court