Gujarat High Court
Kunal Vinaykumar Rayllon vs Dhansukh Harjibhai Patel on 27 April, 2021
Author: Ashokkumar C. Joshi
Bench: Ashokkumar C. Joshi
C/SCA/15899/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15899 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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Whether Reporters of Local Papers may be allowed
1 NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
Whether their Lordships wish to see the fair copy
3 NO
of the judgment ?
Whether this case involves a substantial question
4 of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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KUNAL VINAYKUMAR RAYLLON
Versus
DHANSUKH HARJIBHAI PATEL
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Appearance:
MS TRUSHA K PATEL(2434) for the Petitioner(s) No. 1,2
JENIL M SHAH(7840) for the Respondent(s) No. 3
MR SK PATEL(654) for the Respondent(s) No. 2
NOTICE SERVED(4) for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 27/04/2021
ORAL JUDGMENT
1. This petition under Article 227 of the Constitution of India is filed by the petitioners against the order dated 09.08.2019 passed below exhs. 68 and 70 in Special Civil Suit No. 140 of 2015 by the learned 4th Additional Senior Civil Judge, and Page 1 of 20 Downloaded on : Fri Jan 14 04:07:00 IST 2022 C/SCA/15899/2019 JUDGMENT Additional Chief Judicial Magistrate, Bhuj - Kachchh.
2. Facts in brief of the case on hand are that the land bearing revenue survey No. 30 and 173P13 of Village: Mirzapur, Taluka:
Bhuj, District: Kachchh is the land in dispute. The said land originally belonged to the respondent No. 1 herein viz. Dhansukhbhai Harjibhai Patel. On 02.05.2000, Dhansukhlal executed a power of attorney in favour of his brother-in-law namely Dhirajlal. Since Dhansukhbhai Harjibhai Patel was living in Oman, his properties were being managed by his brother-in-law Dhirajlal. On 13.6.2000, on the basis of power of attorney, Dhirajlal sold out one of the lands by a registered sale deed. On 14.12.2000, Dhirajlal applied for release of certain lands from the Notification issued by the Forest Department. On 25.07.2001, Dhirajlal Ladhabhai Patel, acting as power of attorney holder of Dhansukhbhai, applied for conversion of land bearing survey No. 30 paiki A2-30G into old tenure land. On 17.05.2003, Dhansukhbhai executed a power of attorney in favour of the father of the respondent No. 3 - Vasudevbhai. After execution of power of attorney in favour of Vasudevbhai (on 17.05.2003), further communications and proceedings had been carried out by Vasudevbhai only and Dhirajlal had stopped taking any steps. On 22.12.2003, an application was submitted that on 17.05.2003, applicant Dhansukhbhai had executed power of attorney in favour of Vasudevbhai and hence, premium would be paid by him and that further communication be made with him. On 01.02.2004, third party published a notice for purchase of land bearing Survey No. 30. On 03.02.2004, Vasudevbhai had, acting as a power of attorney holder of Dhansukhbhai, published objections against the same. On 23.7.2004, Vasudevbhai paid Rs.36,60,160/- for conversion of new tenure land bearing survey Page 2 of 20 Downloaded on : Fri Jan 14 04:07:00 IST 2022 C/SCA/15899/2019 JUDGMENT No. 30 paiki A2-30G into old tenure land. On 08.09.2004, the Collector passed an order allowing the application. On 10.11.2005, Vasudevbhai issued a cheque for Rs. 30,27,088/- in Government treasury for conversion of land bearing survey No. 173 paiki A2-30G into old tenure. On 12.11.2005, the said cheque was realized from the bank account of Vasudevbhai. On 30.11.2005, the Collector passed the order converting survey No. 173 paiki A2-30G into old tenure, wherein, also name of Vasudevbhai was mentioned as a power of attorney holder of Dhansukhbhai. On 07.12.2005, Vasudevbhai applied for Development Permission and paid Rs. 33,827/- to BHADA. On 10.08.2006, Vasudevbhai appeared in the Special Civil Suit No. 205 of 2005 as a power of attorney holder of the applicant and is defending the suit on his behalf. Since land bearing survey No. 173 was included in 'Forest Zone', Vasudevbhai had, on 30.12.2004, applied for its exclusion from the 'Forest Zone' and inclusion in General Commercial Zone. On 09.05.2007, UD & UH Department, State of Gujarat replied to Vasudevbhai to apply to BHADA. On 29.02.2008, one more application was given by Vasudevbhai to BHADA. Thus, all throughout, Vasudevbhai i.e. father of respondent No. 3 herein was acting as a power of attorney holder of respondent No. 1 i.e. Dhansukhbhai.
2.1 On 05.06.2009, Vasudevbhai, acting as a power of attorney holder of Dhansukhbhai, executed a sale deed in favour of Nishant Thakkar, i.e. respondent No. 3 herein. However, the Sub-
registrar had referred the said sale deed under section 32A of the Stamp Act for proper valuation. On 19.03.2010, the Deputy Collector, Stamp Duty Valuation considered the sale deed as one of N.A. land and hence, ordered to pay the stamp duty treating the land as NA land. On 16.11.2010, the order passed by the Page 3 of 20 Downloaded on : Fri Jan 14 04:07:00 IST 2022 C/SCA/15899/2019 JUDGMENT Deputy Collector, was confirmed by the CCRA. Nishantbhai filed Special Civil Application No. 2939 of 2011 before this Court challenging both the above referred orders. On 21.02.2012, this Court allowed the petition and quashed the orders passed by the Deputy Collector and CCRA. On 01.06.2013, after remand, the order was passed to pay the deficit stamp duty, which was paid and hence, the sale deed was ordered to be registered.
2.2 Though the lands were already sold out to Nishant Vasudev Thakkar, Dhansukhbhai executed registered sale deed in favour of Manish Ambalal Padmani (respondent No. 2 herein) qua half of the disputed lands on 20.01.2014. On 31.08.2014, a Public Notice was issued at the instance of Dhansukhbhai, whereby, transaction with Nishantbhai and his father Vasudevbhai were disowned. Hence, on 27.09.2014, an F.I.R. being C.R. No. I-131 of 2014 came to be lodged by Nishantbhai against Dhansukhbhai. The matter in that regard is pending before this Court. In this background, on 08.12.2015, Special Civil Suit No. 140 of 2015 came to be filed by Nishant Vasudev Thakkar against Patel Dhansukhlal Harji and Manish Ambalal Padamni seeking reliefs viz. (1) declaration that the defendants have no right to interfere with the rights, title and possession of the plaintiff; (2) declare that the Sale deed dated 20.01.2014 executed by defendant No. 1 in favour of defendant No. 2 is void and; (3) permanent injunction.
2.3 In the said suit, the defendants had appeared and on 01.07.2016, and counter claim came to be filed by Dhansukhbhai Limbani and Manish Padamani, who are the defendants in the said suit, mainly seeking cancellation of power of attorney deed dated 17.05.2003, registered sale deed dated 05.06.2009 and Page 4 of 20 Downloaded on : Fri Jan 14 04:07:00 IST 2022 C/SCA/15899/2019 JUDGMENT seeking damages of Rs.5 Crore. On 03.02.2018, a registered sale deed came to be executed for the land in dispute by Nishant Thakkar in favour of the petitioners herein i.e. Kunal Rayllon and Dipakbhai P. Thakkar and consideration of Rs.1,15,00,000/- was paid. Pursuant to the sale deed dated 03.02.2018, an Entry No. 6452 was posted, which is ordered to be certified, overruling objections raised by Dhansukhbhai Limbani on 16.05.2018. On 09.04.2018, an application exh. 44, was filed by the original defendant Nos. 1 and 2 to join the present petitioners as party defendants in the counter claim filed by them, which came to be allowed and the petitioners herein were joined as defendants in counter claim. On 10.07.2018, an application was filed by Kunal Rayllon vide exh. 68 seeking to join him as plaintiff No. 2 and to amend the plaint by bringing on record the fact of execution of sale deed in his favour. Same day, an application was also filed by Dipak Thakkar vide exh. 70 seeking to join him as plaintiff No. 3 and to amend the plaint by bringing on record the fact of execution of sale deed in his favour. The said applications came to be rejected by a common order 09.08.2019 and hence, this petition.
3. Rule.
4. Heard, learned advocate Ms. Trusha K. Patel for the petitioners, learned advocate Mr. S. K. Patel for the respondent Nos. 1 and 2 and learned advocate Mr. Jenil Shah for the respondent No. 3.
4.1 The learned advocate for the petitioners vehemently argued that the impugned order is contrary to the express provisions of O.22 R.10 r/w. O.1 R.10 of the Civil Procedure Code, Page 5 of 20 Downloaded on : Fri Jan 14 04:07:00 IST 2022 C/SCA/15899/2019 JUDGMENT 1908 (CPC). It is submitted that by an order below application exh. 44, the petitioners were ordered to be joined as a party defendants in the counter claim only and not in the suit, however, the learned trial Judge has failed to appreciate the said fact that accordingly, has materially erred in passing such an order. It is submitted that when the original plaintiff has expressed no objection as to impleadment of the present petitioners as plaintiffs in the suit, the learned trial Judge ought not to have rejected the applications, wrongly relying upon the decision of the Hon'ble Apex Court in Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and Others, (2010) 7 SCC 417 as, in the facts and circumstances of the case, the said decision has no application.
4.2 The learned advocate for the petitioners further submitted that the learned trial Judge has failed to appreciate the provisions of Section 52 of the Transfer of Property Act, 1882 as it does not debar joining of parties under O.22 R.10 of the CPC. It is submitted that it would only mean that even if the subsequent purchaser is not joined, he would be bound by the decree that may be passed against his predecessor in title. Further, in Gujarat, for application of section 52 of the Transfer of Property Act, lis pendens have to be registered, however, in the case on hand, there is nothing on record to show that the lis pendens is registered and hence, Section 52 of the said Act has no application in the present case. It is also submitted that the learned trial Judge has not properly followed the ratio laid down in the decisions of the Hon'ble Apex Court in Bibi Zubaida Khatoon v. Nabi Hassan Saheb, 2003 (0) GLHEL SC 3681 and in Sanjay Verma v. Manik Roy, 2006 GLHEL SC 38393 and submitted that decision in Bibi Zubaida Khatoon (supra) Page 6 of 20 Downloaded on : Fri Jan 14 04:07:00 IST 2022 C/SCA/15899/2019 JUDGMENT does not lay down any law that the purchaser need not be joined. Further, it is submitted that though it is specifically observed in the decision in Amit Kumar Shaw v. Farida Khatoon, 2005 AIR SC 2209, that a transferee pendente lite is vitally interested in the litigation to the extent he has acquired interest from the defendant, the learned trial Judge has not assigned any reasons for not following the ratio laid down in the said decision.
4.3 The learned advocate for the petitioners further submitted that as per the settled principles of law, mentioning of wrong provisions or non-mentioning of relevant provisions in an application, is immaterial. To substantiate her say, she has relied upon a few decisions viz. i) (2009) 9 SCC 173, paragraph 13, ii) (2009) 12 SCC 175, paragraph 14 and iii) 2008 (2) GLH 553, paragraph 11.
4.4 So far as the say that the petitioners are necessary and property party in the suit, she has relied upon several decision viz. i) (2005) 1 SCC 787, ii) 2004 (1) GLR 106 and iii) 1984 GLH
883. She also, drawing attention of the Court to O.8 R.6 CPC submitted that counter claim would have separate entity of being a separate suit.
4.5 Thus, making above submissions, it is urged that the impugned order may be set aside and to allow this petition.
5. Per contra, the learned advocate for the respondent Nos. 1 and 2 has, while strongly opposing the present petition and supporting the impugned order, submitted that the order impugned herein being well-reasoned order, supported with the settled principles of law, requires no interference. It is submitted Page 7 of 20 Downloaded on : Fri Jan 14 04:07:00 IST 2022 C/SCA/15899/2019 JUDGMENT that application of the petitioners was under specific provisions i.e. O.1 R.10 r/w. Section 151 CPC and the learned trial Court, after due application of mind, has rejected the said application giving detailed reasons. It is submitted that a petition filed under Article 227 of the Constitution of India has a specific scope for interference in the orders of the lower Court, Tribunal and Authority and not for mere correction or error of law. He submitted that the learned trial Court has rejected the application mainly on the ground that the petitioners are already impleaded as a party in the counter suit. It is submitted that it is inadvertently mentioned as counter suit instead of suit. However, the fact remains that the petitioners are already party to the proceedings in the form of the defendants before the learned trial Court. It is submitted that if the impugned order is set aside, serious prejudice would be caused to the respondents herein. Further, the proceedings before the trial Court would be prolonged unnecessarily. It is also submitted that the petitioners are the relatives of the original plaintiff and hence, there are all chances that they may collude with each other.
5.1 The learned advocate for the respondent Nos. 1 and 2 has further submitted that when the application before the learned trial Court was specifically made under O.1 R.10 CPC, the petitioners cannot be permitted to argue their case under O.22 R.10 CPC, more particularly, when the present respondents had no occasion or chance to meet with the case under O.22 R.10 CPC, which is now sought to be canvassed before this Court for the first time. The learned advocate for the respondent Nos. 1 and 2 further submitted that wrong referring of any provisions does not vitiate the order passed by the authority if otherwise the authority has power and jurisdiction to pass the order as held by Page 8 of 20 Downloaded on : Fri Jan 14 04:07:00 IST 2022 C/SCA/15899/2019 JUDGMENT the Hon'ble Apex Court in Ram Sunder Ram v. Union of India, (2007) 13 SCC 255 (paragraph 20) and N. Mani v. Sangeetha Theatres & Ors., (2004) 12 SCC 278 (paragraph 9).
5.2 The learned advocate for the respondent Nos. 1 and 2 further submitted that the impugned order is in the nature of discretion of the trial Court which cannot be interfered only to substitute the views as per the settled legal position as held by the Hon'ble Apex Court in Sadhana Lodh v. National Insurance Company Ltd. & Anr., (2003) 3 SCC 524.
5.3 The learned advocate for the respondent Nos. 1 and 2 submitted that as per the settled legal position, even if the petitioners are joined as plaintiffs in the main suit, they will have to step in the shoes of the plaintiff and they cannot add anything in the suit, as held by the Hon'ble Apex Court in Thomson Press (India) Ltd. v. Nanak Builders & Investors P. Ltd. & Ors. , AIR 2013 SC 2389 (paragraph 43 and End Note).
5.4 It is also submitted that the petitioners have not stated as to what prejudice would be caused to the petitioners if not added as plaintiffs in the suit.
5.5 Thus, making above submissions, it is prayed that present petition, being devoid of any merits, deserves to be dismissed.
6. The learned advocate for the respondent No. 3 has adopted the submissions made on behalf of the petitioners.
7. Regard being had to the submissions advanced and on going through the material available on record, it appears that Page 9 of 20 Downloaded on : Fri Jan 14 04:07:00 IST 2022 C/SCA/15899/2019 JUDGMENT the respondent No. 3 has filed a suit being Special Civil Suit No. 140 of 2015 for declaration and permanent injunction in which, the present petitioners had made application exhs. 68 and 70 under O.1 R.10 and O.6 R.17 r/w. Section 151 CPC for impleading them as plaintiffs in the aforesaid suit and to amend the plaint. The said application came to be rejected vide order dated 09.04.2018, which is impugned herein. As it emerges from the record, the petitioners, by way of a sale deed dated 03.02.2018 purchased the suit land from the original plaintiff - respondent No. 3 herein. In the said suit, the original owner viz. respondent No. 1 - original defendant No. 1 and respondent No. 2 herein - original defendant No. 2 filed counter claim. Further, by way of an application exh. 44, preferred by the respondent Nos. 1 and 2 herein - original defendant Nos. 1 and 2, the present petitioners were sought to be joined as party defendants in the counter claim, which came to be allowed by an order dated 09.04.2018 and the petitioners came to be joined as party defendant Nos. 2 and 3 in the counter claim and thus, by virtue of the said order, the petitioners are already party in the counter-claim in the suit. However, as said earlier, the petitioners made application exhs. 68 and 70 for joining them as plaintiffs in the said suit, which, came to be rejected vide impugned order dated 09.08.2019 against which, present petition is filed.
7.1 In the aforesaid backdrop, provisions of O.1 R.10 CPC are relevant, which read thus:
"10. Suit in name of wrong plaintiff.--(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, Page 10 of 20 Downloaded on : Fri Jan 14 04:07:00 IST 2022 C/SCA/15899/2019 JUDGMENT order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) Court may strike out or add parties.--The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended.--
Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant .
(5) Subject to the provisions of the Indian Limitation Act, 1877 (XV of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons. "
7.2 Thus, by virtue of O.1 R.10(2) CPC, discretion is vested in the Court and the Court may strike out or add parties at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, and order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions Page 11 of 20 Downloaded on : Fri Jan 14 04:07:00 IST 2022 C/SCA/15899/2019 JUDGMENT involved in the suit, be added.
7.3 Further, O.8 R.6A CPC is relevant for the purpose and hence, extracted hereunder:
"6A. Counter-claim by defendant.--(1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:
Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the court.
(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.
(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the court.
(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. "
7.4 Thus, from the plain reading of the aforesaid Rule 6A(2) and (4) of O.8 CPC, it appears that a counter-claim shall have the same effect as a cross-suit and shall be treated as plaint, so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. Accordingly, the counter-claim is as good as a cross-suit and the Court concerned, shall pronounce the judgment on both viz. original claim as well as on the counter-claim.
Page 12 of 20 Downloaded on : Fri Jan 14 04:07:00 IST 2022C/SCA/15899/2019 JUDGMENT 7.5 In the aforesaid prelude, if the facts of the case are adverted to, by way of counter-claim, the original defendant Nos. 1 and 2 - respondent Nos. 1 and 2 herein have also prayed for declaration and permanent injunction qua the suit property against the original plaintiff. At the cost of repetition it is stated that the petitioners are already joined as defendants in the counter-claim which is filed in the original suit, meaning thereby, they are already there on the record of the counter suit in the main suit. Further, the learned advocate for the petitioners has contended that the impugned order was passed expressly in violation of O.22 R.10 r/w. O.1 R.10 CPC, however, a bare reading of O.22 R.10 CPC reveals that it confers a discretion on the Court hearing the suit to grant leave for the person in or upon whom such interest has come to vest or devolve to be brought on record. Bringing of a lis pendens transferee on record is not as of right but is the discretion of the Court. Further, as per the settled law, though not brought on record, the lis pendens transferee remains bound by the decree. However, in the present case, the petitioners are indisputably the lis pendens transferee and are already on the record of the counter suit in the main suit, subject matter of both is the same viz. the suit property for which, different sale deeds have been executed and registered. Further, the petitioners can very well take all the contentions as defendants in the counter-claim application.
7.6 The above-cited provisions viz. O.1 R.10, O.8 R.6A and O.22 R.10 of the CPC are enabling provisions vesting discretion in the Court concerned and are subservient to do the substantial justice. As said earlier, the petitioners are already on the record of the counter-claim in the suit and thereby, it is not a case that, they are not a party anywhere in the proceedings which are Page 13 of 20 Downloaded on : Fri Jan 14 04:07:00 IST 2022 C/SCA/15899/2019 JUDGMENT pending or that, their right of being heard is taken away. The learned trial Judge, relying upon decision of the Hon'ble Apex Court in Bibi Zubaida Khatoon and in Sanjay Verma (supra) has come to the conclusion that on consideration of the principles laid down in the said cases, present petitioners are not entitled, as of right, to be made party to the suit. Further, the trial Court did not find any reason to use its discretion to add them as plaintiffs in the suit for mere reason that no permission had been obtained by the Court even knowing that the suit property is under lis. Further, the trial Court has also observed that the Court had failed to find any loss to the present petitioners (proposed plaintiffs) if they were not joined as plaintiffs.
7.7 The learned advocate for the petitioners has submitted that though it is observed in Amit Kumar Shaw (supra) that, transferee pendente lite is vitally interested in the litigation to the extent he has acquired interest from the defendant, the learned trial Judge has not assigned any reasons for not following the ratio laid down in the said decision, however, in the opinion of this Court, as it observed in the said decision only [Amit Kumar Shaw (supra)], the Court has discretion in the matter which must be exercised judiciously. In the case on hand, when the petitioners are already joined as party defendants in the counter- claim in the suit and when, it is not the case of the petitioners that their right to defend is curtailed in any way, and when, it is the case of the respondent Nos. 1 and 2 that the original plaintiff and the petitioners are relatives and between whom, the sale transaction pendente lite has taken place, in the considered opinion of this Court, the learned trial Judge has committed no error which requires interference at the hands of this Court.
Page 14 of 20 Downloaded on : Fri Jan 14 04:07:00 IST 2022C/SCA/15899/2019 JUDGMENT 7.8 Further, if the decision of the Hon'ble Apex Court in Sadhana Lodh (supra) is perused, it is observed that, 'the supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision'. Thus, under supervisory jurisdiction under Article 227 of the Constitution, this Court has limited scope.
7.9 Further, in the decision of Thomson Press (India) Ltd. (supra), the Hon'ble Apex Court while allowing the transferee pendente lite to be joined as party defendant in the suit, permitted him to take all such defences which are available to the vendor as the appellant derived title, if any, from the vendor on the basis of purchase of the suit property subsequent to the agreement with the plaintiff and during the pendency of the suit. Here, in the case on hand also, the petitioners are the party defendants in the counter-claim which is in the main suit only and thus, it is not the case that they are not the party to the suit. Further, when the learned advocate for the respondent Nos. 1 and 2 has specifically averred that it may be inadvertently mentioned as counter suit instead of suit, this Court does not find any reason to interfere in the impugned order.
Page 15 of 20 Downloaded on : Fri Jan 14 04:07:00 IST 2022C/SCA/15899/2019 JUDGMENT 7.10 So far as the decisions relied upon by the learned advocate for the petitioners on the points of non-mentioning the proper provisions or wrong mentioning of the provisions as well as on necessary and proper parties are concerned, this Court deems it proper not to discuss the same as not required.
7.11 Last but not the least, it would not be out of place to mention here that supervisory jurisdiction under Article 227 of the Constitution of India is confined only to see whether the subordinate Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of record, much less, an error of law and the High Court cannot act as an appellate authority and has only to see that an inferior Court has to function within the limits of its authority. In the case of Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil , (2010) 8 SCC 329, the Hon'ble Apex 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. Relevant observations made therein, 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 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 Page 16 of 20 Downloaded on : Fri Jan 14 04:07:00 IST 2022 C/SCA/15899/2019 JUDGMENT 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 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.Page 17 of 20 Downloaded on : Fri Jan 14 04:07:00 IST 2022
C/SCA/15899/2019 JUDGMENT
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 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.Page 18 of 20 Downloaded on : Fri Jan 14 04:07:00 IST 2022
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(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 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 Page 19 of 20 Downloaded on : Fri Jan 14 04:07:00 IST 2022 C/SCA/15899/2019 JUDGMENT 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.
7.12 Further, in Ouseph Mathai and Ors. v. M. Abdul Khadir, AIR 2002 SC 110:MANU/SC/0718/2001, it is held as under:
"...Only wrong decision may not be a ground for the exercise of jurisdiction under this article unless the wrong is referable to grave dereliction of duty, flagrant abuse of power by the subordinate Courts and tribunals, resultantly in "grave injustice" to any party."
8. For the aforesaid discussion and observations, this petition fails and is dismissed accordingly. Rule is discharged with no order as to costs.
8.1 However, it it is clarified that the petitioners are permitted to take all such defences, including the written statement in counter suit, which are available to them as the petitioners derived title, if any, from the on the basis of purchase of the suit property subsequently during the pendency of the suit.
[ A. C. Joshi, J. ] hiren Page 20 of 20 Downloaded on : Fri Jan 14 04:07:00 IST 2022