Jharkhand High Court
Shashi Kant Pandey vs M/S. Sanchayani Computers Pvt. Ltd on 20 November, 2021
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 390 of 2020
Shashi Kant Pandey ... ... Petitioner
Versus
M/s. Sanchayani Computers Pvt. Ltd., Kolkata being represented through its
authorised person Sri Somnath Das .... ... Respondent
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner : Mr. Sanjay Kumar Sinha, Advocate For the Respondent :
Order No. 03 Dated: 20.11.2021 The present case is taken up through video conferencing.
2. The present Civil Miscellaneous Petition has been preferred for quashing the order dated 05.02.2020 (Annexure-3 to the writ petition) passed by the Civil Judge (Senior Division)- I, Jamshedpur in Original Title Suit No. 68 of 2018 whereby the petitions dated 27.01.2019 and 03.01.2020 filed by the petitioner praying for dismissal of the suit on the ground of limitation, have been rejected.
3. Learned counsel for the petitioner submits that the petitioner purchased three flats being flat nos. 505, 506 and 507 situated at 5th floor, Akashdeep Plaza Complex, Golmuri, Jamshedpur developed by Akashdeep Builders (I) Pvt. Ltd. from its previous owner Somnath Das-the authorized representative of M/s. Sanchayani Computers Pvt. Ltd. (the respondent herein) through registered sale deed dated 28.06.2004. Thereafter, the petitioner faced many obstacles at the instance of the respondent as well as the builder of Akashdeep Plaza Complex for getting separate electricity connection in the said flats. Hence, he filed W.P.(C) No. 4612 of 2004 before this Court. The respondent accepted the sale of aforesaid flats to the petitioner by filing counter affidavit in the said writ petition (Annexure-2/1 to the present C.M.P.). However, it, in connivance with the builder filed suit being Original Title Suit No. 68 of 2018 for cancellation of sale deed no. 3005 dated 28.06.2004. The petitioner appeared in the suit and filed petitions dated 27.01.2019 and 03.01.2020 raising preliminary objection regarding maintainability of suit as per Section 3 of the Limitation Act, 1963 (in short, "the Act, 1963"), however the court below dismissed both the petitions vide impugned order dated 05.02.2020. It is further submitted that on bare perusal of all the documents annexed with the present C.M.P., it would be clear that the respondent was well aware of sale deed No. 3005 2 dated 28.06.2004 from the date of execution itself. It is also submitted that after the sale of flats in question, the petitioner and the respondent were issued notices by the office of the Assistant Director of Income Tax (Investigation), Jamshedpur vide letter nos. 260 and 262 respectively both dated 06.01.2005 in respect of purchase and sale of the flats in question. Pursuant to the said notice, the petitioner as well as the respondent appeared and admitted the execution of sale deed. The respondent also admitted receiving of consideration money against the sale of aforesaid flats. Thereafter, the proceeding against the petitioner and the respondent was dropped by the Income Tax Authority.
4. Heard the learned counsel for the petitioner and perused the impugned order dated 05.02.2020 passed by the Civil Judge (Senior Division)-I, Jamshedpur. It appears that the learned court below has rejected the petitions dated 27.01.2019 and 03.01.2020 filed by the petitioner holding that in view of Section 18 of the Act, 1963, the period of limitation starts running from the date of knowledge and the plaintiff in his pleading has mentioned that the suit has been filed on 26.04.2018 after having knowledge of the fact on 15.02.2018. It has further been held that the issue as to from which date the period of limitation starts running, is a mixed question of law and fact and is not a pure question of law. Hence, the learned court below did not think proper to frame the preliminary issue on the aforesaid point.
5. For better appreciation of this case, it would be appropriate to refer few judgments rendered by the Hon'ble Supreme Court explaining the scope of interference with the order of courts/tribunal by the writ court under Article 227 of the Constitution of India.
6. In the case of Gulshera Khanam Vs. Aftab Ahmad reported in (2016) 9 SCC 414, the Hon'ble Supreme Court has held as under:-
"33. Likewise, when we peruse the impugned judgment, we find, as rightly urged by the learned counsel for the appellant, the High Court did not keep in mind the aforesaid principle of law laid down by the Constitution Bench in [Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh, (2014) 9 SCC 78] so also the principle laid down by this Court in relation to exercise of jurisdiction under Article 227 of the Constitution of India in [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] , while deciding the writ petition and proceeded to decide like the first appellate court. The High Court as is clear from the judgment probed all factual aspects of the case, 3 appreciated evidence and then reversed the factual findings of the appellate court and the prescribed authority. This, in our view, was a jurisdictional error, which the High Court committed while deciding the writ petition. In other words, the High Court, in our view, should have confined its inquiry to examine as to whether any jurisdictional error was committed by the first appellate court while deciding the first appeal. It was, however, not done.
34. In our considered opinion, the question in relation to the bona fide need of the appellant's daughter to expand the activities of running the clinic was rightly held by the prescribed authority and the first appellate court in the appellant's favour by holding the appellant's need to be bona fide and genuine. We find no ground on which the High Court could have upset the concurrent finding on this question in its writ jurisdiction under Article 227, which is more or less akin to revisional jurisdiction of the High Court. The High Court also failed to hold that findings of the two courts were so perverse to the extent that any judicial person could ever reach to such conclusion or that the findings were against any provision of law or were contrary to evidence adduced, etc."
7. In the case of State through Special Cell, New Delhi Vs. Navjot Sandhu alias Afshan Guru and Others reported in (2003) 6 SCC 641, the Hon'ble Supreme Court has held as under:-
"28. 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".
8. Thus, the power under Article 227 of the Constitution of India is more or less akin to revisional jurisdiction of the High Courts which cannot be exercised to interfere with the findings of fact arrived at by the 4 courts/tribunals unless the same are so perverse that any adjudicator cannot ever reach such a conclusion or that the findings are against any provision of law or are contrary to evidence adduced, etc. The 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.
9. In the case in hand, though the petitioner has claimed that the suit is barred under Section 3 of the Act, 1963 as the respondent had knowledge of execution of the sale deed on 28.06.2004 and in support of the said contention, the petitioner has tried to highlight some of the instances, it is the specific case of the respondent that he got knowledge of the fact only on 15.02.2018 and the suit was filed on 26.04.2018 and therefore, the same is not barred by limitation. The learned court below has held that preliminary issue on point of law under Order XIV Rule 2(2) of CPC cannot be framed to decide the question as to on which date the period of limitation starts as the same is mixed question of law and fact and not a pure question of law. The order of the learned court below does not warrant interference of this Court under Article 227 of the Constitution of India.
10. In view of the aforesaid discussion, I see no reason to interfere with the impugned order dated 05.02.2020 passed by the Civil Judge (Senior Division)- I, Jamshedpur in Original Title Suit No. 68 of 2018. The C.M.P. is, accordingly, dismissed.
(Rajesh Shankar, J.) Ritesh/AFR