Delhi High Court
M-Power Energy India (P) Ltd & Anr. vs Sumana Mazumdar (Since Deceased) ... on 7 October, 2022
Author: C.Hari Shankar
Bench: C. Hari Shankar
$~2 (Appellate)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 866/2022, CM 37262/2022 (stay) & CM 37263/2022
(exemption)
M-POWER ENERGY INDIA (P) LTD & ANR...... Petitioners
Through: Mr. Anil Kher, Sr. Advocate
with Mr. Aditya Narain, Mr. Ankur Gosain,
Mr. Sandeep Thukral and Mr. Kunal Kher,
Advs.
versus
SUMANA MAZUMDAR (SINCE DECEASED)
THROUGH MS SADHANA MAZUMDAR ..... Respondent
Through: Mr. Sujoy Kumar, Mr.
Arvindam Ghose and Mr. Raghav Kumar,
Advs.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
% J U D G M E N T (ORAL)
07.10.2022
1. This petition under Article 227 of the Constitution of India emanates from CS 10886/2016, instituted by the original plaintiff Sumana Mazumdar (since deceased and sought to be represented by her sister and sole surviving legal heir Sadhana Mazumdar) against the petitioners and other defendants.
2. Given the nature of the controversy in this petition, it is necessary to distil, in brief, the claim of Sumana Mazumdar in the suit instituted by her.
3. Sumana Mazumdar joined the services of Petitioner 1 on 26th Signature Not Verified Digitally Signed CM(M) 866/2022 Page 1 of 21 By:SUNIL SINGH NEGI Signing Date:11.10.2022 16:31:03 November 2002 as Senior Manager, Business Development. She was promoted as Assistant General Manager, Business Development on 1 st April 2006 and, further, as Head, Business Development on 1st April 2008. She continued, except for a brief stint when she was transferred to another office, in the service of Petitioner 1 till 8th July 2014, when her services were terminated. CS 10886/2016, instituted by Sumana Mazumdar, assails the said termination on various grounds and seeks
(i) a declaration that the termination of her services on 8th July 2014 was illegal, wrongful, mala fide and arbitrary and (ii) damages to the tune of ₹ 1.5 crores alongwith interest @ 18% per annum, along with costs.
4. Sumana Mazumdar expired during the pendency of the aforesaid suit instituted by her. Her sister Sadhana Mazumdar moved an application under Order XXII Rule 3(1) of the Code of Civil Procedure, 1908 (CPC), seeking to be impleaded as plaintiff in place of Sumana Mazumdar.
5. The impugned order dated 24th May 2022 has come to be passed on the said application. The learned Additional District Judge (―the learned ADJ‖) has allowed the application. Aggrieved, the petitioners, as Defendants 1 and 6 in CS 10886/2016, have approached this Court, invoking the writ jurisdiction vested in it by Article 227 of the Constitution of India.
6. Sadhana Mazumdar, who is Respondent 1 in the present petition, contended that she was the sole surviving legal heir of Signature Not Verified Digitally Signed CM(M) 866/2022 Page 2 of 21 By:SUNIL SINGH NEGI Signing Date:11.10.2022 16:31:03 Sumana Mazumdar, the original plaintiff and was, therefore, entitled to continue the suit and being impleaded in her place. That Sadhana Mazumdar is, in fact, the sole surviving legal heir of Sumana Mazumdar, has not been disputed.
7. Rules (1) and 3(1) of Order XXII of the CPC read thus:
―ORDER XXII DEATH, MARRIAGE AND INSOLVENCY OF PARTIES
1. No abatement by party's death if right to sue survives. - The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.
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3. Procedure in case of death of one of several plaintiffs or of sole plaintiff. -
(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.‖
8. The learned ADJ held that, as the right to sue survived in favour of Sadhana Mazumdar, she was entitled to continue the suit initially instituted by her sister Sumana Mazumdar, by being substituted as plaintiff in her place.
9. The application under Order XXII Rule 3(1) of the CPC was seriously contested by the petitioners before the learned ADJ and is contested, equally seriously, before this Court.
Signature Not Verified Digitally Signed CM(M) 866/2022 Page 3 of 21 By:SUNIL SINGH NEGI Signing Date:11.10.2022 16:31:0310. The petitioners seek to contend that, as the claim of Sumana Mazumdar in the suit was founded on tort, the right to sue the suit did not survive, and perished with her death. For this purpose, the petitioners relied on the judgment of the Supreme Court in Melepurath Sankunni Ezhuthassan v. Thekittil Gopalankutty Nair1. The learned ADJ, having noted the said reliance, preferred to decide the issue on the basis of para 15 of the report in M. Veerappa v. Evelyn Sequeira2, specifically relying on the following enunciation of the law, to be found therein:
―If the entire suit claim is founded on torts the suit would undoubtedly abate. If the action is founded partly on torts and partly on contract then such part of the claim as relates to torts would stand abated and the other part would survive. If the suit claim is founded entirely on contract then the suit has to proceed to trial in its entirety and be adjudicated upon.‖
11. Holding that the suit instituted by Sumana Mazumdar was not founded solely on tort, but was, rather, filed ―on the basis of violation of terms of service contract‖, the learned ADJ permitted impleadment of Sadhana Mazumdar in place of Sumana Mazumdar under Order XXII Rule 1 of the CPC and, therefore, allowed the application filed by her.
12. Mr. Anil Kher, learned Senior Counsel appearing for the petitioners and opposing the impugned order, submits that the learned ADJ has erred in holding that the suit instituted by Sumana Mazumdar was not founded solely on tort. He submits that a holistic reading of 1 (1986) 1 SCC 118 Signature Not Verified Digitally Signed CM(M) 866/2022 Page 4 of 21 By:SUNIL SINGH NEGI Signing Date:11.10.2022 16:31:03 the suit would reveal that the claim for damages, contained in the suit, was essentially predicated on allegations of harassment, loss of reputation etc., which fall within the realm of tort and have nothing to do with the contract between Sumana Mazumdar and his clients. As such, even applying the principles enunciated in M. Veerappa2, he submits that, with the death of the original plaintiff Sumana Mazumdar, the suit instituted by her did not survive for adjudication and her sister Sadhana Mazumdar could not be allowed to be impleaded in her place.
13. Alternatively, and without prejudice to the said submissions, Mr. Kher submits that even if it were to be assumed, arguendo, that the suit was founded partly on contract and partly on tort, the learned ADJ ought, while passing the impugned order, to have specifically held that the suit survived only qua the claim to the extent it was founded on contract.
14. Mr. Kher has also placed reliance on Section 306 of the Indian Succession Act, 1925, which reads thus:
―306. Demands and rights of action of or against deceased survive to and against executor or administrator. - All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, 1860 (45 of 1860) or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, 2 (1988) 1 SCC 556 Signature Not Verified Digitally Signed CM(M) 866/2022 Page 5 of 21 By:SUNIL SINGH NEGI Signing Date:11.10.2022 16:31:03 the relief sought could not be enjoyed or granting it would be nugatory.‖ Analysis
15. The authoritative pronouncement on the point, as rightly noted by the learned ADJ, is M. Veerappa2, which has taken into account the earlier decision on Melepurath Sankunni1, among other decisions. One may, therefore, briefly advert to the said decision.
16. Evelyn Sequeira (―Sequeira‖, hereinafter), Respondent 1 before the Supreme Court in M. Veerappa2, desired to file an appeal before the Supreme Court challenging an order of eviction passed against him. For the said purpose, he approached the appellant M. Veerappa (―Veerappa‖, hereinafter), who was an Advocate, practising in the Supreme Court. Veerappa filed a Special Leave Petition in the Supreme Court on behalf of Sequeira. The SLP was dismissed as withdrawn on 22nd November 1971.
17. Alleging that Veerappa had been negligent in rendering professional services and had misconducted himself by having filed the SLP after considerable delay, conveyed misleading information in that regard and withdrawn the SLP without authorisation, Sequeira instituted a suit (OS 255/1972) against M. Veerappa before the learned District Munsif, Mangalore. Sequeira claimed compensation, from M. Veerappa, to the tune of ₹ 20,000/-, which was subsequently reduced to ₹ 4,500/-.
Signature Not Verified Digitally Signed CM(M) 866/2022 Page 6 of 21 By:SUNIL SINGH NEGI Signing Date:11.10.2022 16:31:0318. During the pendency of the suit, Sequeira died. His legal representatives moved an application, seeking to be impleaded in the suit in place of the Sequeira under Order XXII Rule 3(1) of the CPC. The application was opposed by Veerappa, who contended that, as the suit claimed damages for personal injuries sustained by Sequeira, the suit abated on his death, applying the maxim actio personalis moritur persona3. The learned District Munsif dismissed the suit as having abated. The order of the learned District Munsif was however reversed by a learned Single Judge of the High Court, against which Veerappa appealed to the Supreme Court.
19. The Supreme Court, at the very outset, took into account Section 306 of the Indian Succession Act, on which Mr. Kher, before me, relies. Having considered a veritable plethora of decisions on the issue, rendered by the Supreme Court as well as by various High Courts, including Melepurath Sankunni1, the Supreme Court, in paras 10 to 13 of the report in M. Veerappa2 held thus:
―10. The maxim 'actio personalis cum moritur persona' has been applied not only to those cases where a plaintiff dies during the pendency of a suit filed by him for damages for personal injuries sustained by him but also to cases where a plaintiff dies during the pendency of an appeal to the Appellate Court, be it the First Appellate Court or the Second Appellate Court against the dismissal of the suit by the Trial Court and/or the First Appellate Court as the case may be. This is on the footing that by reason of the dismissal of the suit by the Trial Court or the First Appellate Court as the case may be, the plaintiff stands relegated to his original position before the Trial Court.3
―A personal right of action dies with the person."Signature Not Verified Digitally Signed CM(M) 866/2022 Page 7 of 21 By:SUNIL SINGH NEGI Signing Date:11.10.2022 16:31:03
Vide the decisions in Punjab Singh v. Ramautar Singh4, Irulappa v. Madhva5, Maniramlala v. B Chattibai6, Baboolal v. Ram Lal 7and Melepurath Sankunni Ezhuthassan v. Thekittil Gopalankutty Nair (supra). In Palaniappa Chettiar v. Rajah of Ramnad 8and Motilal v. Harnarayan9, it was held that a suit or an action which has abated cannot be continued thereafter even for the limited purpose of recovering the costs suffered by the injured party. The maxim of actio personalis cum moritur persona has been held inapplicable only in those cases where the injury caused to the deceased person has tangibly affected his estate or has caused an accretion to the estate of the wrong doer vide Rustomji Dorabji v. W.H. Nurse10 and Ratanlal v. Baboolal11 as well as in those cases where a suit for damages for defamation, assault or other personal injuries sustained by the plaintiff had resulted in a decree in favour of the plaintiff because in such a case the cause of action becomes merged in the decree and the decretal debt forms part of the plaintiff's estate and the appeal from the decree by the defendant become a question of benefit or detriment to the estate of the plaintiff which his legal representatives are entitled to uphold and defend (vide Gopal v. Ramchandra12 and Melepurath Sankunni v. Thekittil1.
11. Though Section 306 speaks only of executors and administrators and order XXII Rule 3 Civil Procedure Code sets out the rights of legal representatives to continue the proceedings instituted earlier by a deceased plaintiff if the right to sue survives, the courts have taken the view that the legal representatives stand on par with executors and administrators regarding their right to seek impleadment in order to continue the suit. We may in this connection only quote the following passage occurring in Melepurath Sankunni's case (supra).
4AIR 1920 Pat 841 5 (1916) 31 MLJ 772 6 AIR 1937 Nag 216 7 AIR 1952 Nag 408 8 ILR 49 Mad 208 9 AIR 1923 Bom 408 10 ILR 44 Mad 357 11 AIR 1960 MP 200 12 ILR 26 Bom 597 Signature Not Verified Digitally Signed CM(M) 866/2022 Page 8 of 21 By:SUNIL SINGH NEGI Signing Date:11.10.2022 16:31:03 "Section 306 further speaks only of executors and administrators but on principle the same position must necessarily prevail in the case of other legal representatives, for such legal representatives cannot in law be in better or worse position than executors and administrators and what applies to executors and administrators will apply to other legal representatives also."
12. Thus it may be seen that there is unanimity of view among many High Courts in the country regarding the interpretation to be given to the words "other personal injuries not causing the death of the party" occurring in Section 306 of the Indian Succession Act and that the contrary view taken by the Calcutta & Rangoon High Courts in the solitary cases referred to above has not commended itself for acceptance to any of the other High Courts. The preponderant view taken by several High Courts has found acceptance with this Court in its decision in Melepurath Sankunni Ezhuthassan's1 case. It is on account of these factors we have expressed our disapproval at the outset itself of the view taken by the High Court in this case.
13. What now falls for consideration is whether the suit filed by the plaintiff was founded on torts or on contract. Mr. Kaushik, learned counsel for the appellant, in all fairness, did not contend that the words "other personal injuries" must be read narrowly-i.e., ejusdem generis only with assault and other physical injuries not resulting in the death of the party. His argument however was that the plaintiff's suit is wholly founded on torts because it related to the damages sought for by the plaintiff for alleged loss of reputation, mental agony, worry etc. and hence the suit is based only on the personal injuries of the plaintiff and it inevitably abated on his death. On the other hand, Mr. Khanduja, counsel for the respondents, contended that the suit is not really founded on torts but is founded on contract and there had been a breach of the conditions of engagement by the appeal being withdrawn contrary to instructions, not to speak of the delay in the filing of the appeal. By reason of the breach of the conditions of engagenment, the plaintiff had been evicted and put to loss and, therefore, the suit for damages really pertained to the Signature Not Verified Digitally Signed CM(M) 866/2022 Page 9 of 21 By:SUNIL SINGH NEGI Signing Date:11.10.2022 16:31:03 loss suffered by the estate of the plaintiff and the said loss could well be claimed by the legal representatives after the death of the plaintiff. It was further urged by him that the suit amount consisted of claims under different heads and that while Rs.4,500 had been claimed by way of compensation for the monetary loss sustained by the plaintiff's estate, the claims relating to Rs.1,500 under three different heads were also amounts due to the estate as expenditure suffered by it and hence it was not open to the appellant to contend that the suit was only for personal injuries sustained by the plaintiff and therefore it abated on his death.‖
20. In view of the law laid down by M. Veerappa2, the issue that arises for consideration is undoubtedly, whether the suit instituted by Sumana Mazumdar was one founded only on contract, or on tort, or partly on contract and partly on tort.
21. Mr. Kher would seek to contend, initially, that the suit was founded wholly on tort, for which purpose he has invited my attention to various paragraphs in the plaint, instituted by Sumana Mazumdar, in which he has referred to harassment, loss of reputation and other such tortuous injuries suffered by her.
22. The claim in the suit instituted by Sumana Mazumdar, to the extent it is premised on allegations of harassment, loss of reputation, and the like, may unquestionably be said to be predicated on tort. It would not, however, be correct, in the opinion of this Court, to hold that the claim of Sumana Mazumdar was founded wholly on tort, as Mr. Kher would seek to contend. This may be easily gleaned from paras 68 and 69 of the plaint, the relevant portion of which may be reproduced thus:
Signature Not Verified Digitally Signed CM(M) 866/2022 Page 10 of 21 By:SUNIL SINGH NEGI Signing Date:11.10.2022 16:31:03―68. It is submitted that as all the defendants have illegally, wrongfully and fraudulently terminated the services of the plaintiff, the plaintiff is constrained to file the present suit.
69. The plaintiff is entitled to a decree of declaration to the effect that the termination of the services of the plaintiff is wrongful and illegal, inter alia, for the reasons stated hereunder:-
(i) The termination of services as per the Termination Letter dated 8.7.2014 is predicated on false allegations regarding the performance of the plaintiff and the alleged unauthorized absence i.e. by leveling allegation of misconduct without holding any inquiry against the plaintiff which is in contravention of the Service Rules.
(ii) In view of the allegations made in the termination letter dated 8.7.2014, it is evident that the termination of services of the plaintiff is not a termination simplicitor and as such, the defendants ought to have held a proper inquiry in the matter giving lull opportunity to the plaintiff to file her defence and lead evidence in support of her defence.
(iii) In the absence of any inquiry to prove the various charges and allegations which were purportedly the foundation for terminating the services of the plaintiff, there was no material or evidence much less any credible evidence to prove any allegations against the plaintiff except for the vague, wild, reckless and unsubstantiated allegations in the termination letter dated 8.7.2014.‖ (Emphasis supplied)
23. Mr. Sujoy Kumar, learned Counsel for the respondent submitted, relying on the aforesaid extracted passages of the plaint, that one of the grounds urged by Sumana Mazumdar in the plaint was that her termination was in violation of her service rules. The service Signature Not Verified Digitally Signed CM(M) 866/2022 Page 11 of 21 By:SUNIL SINGH NEGI Signing Date:11.10.2022 16:31:03 rules, she submits, had been made applicable to Sumana Mazumdar under the contract of service whereby she was employed with the petitioners. The appointment letter dated 1st September 2009, constituting the contract of service of Sumana Mazumdar and whereby she was appointed by the petitioners, has been placed on record by Mr. Sujoy Kumar. Paras 11, 16, 17 and 20 of the appointment letter read thus:
―11. Leave Entitlement You will be governed by UPES Rules and Regulations, Presently the leave entitlement is as follows:
Earned Leave (EL): 30 days for every completed year of service Sick Leave (SL): 10 days in a calendar year Casual leave (CL): 10 days In a calendar year *EL can be availed if (a) the employee has been confirmed
(b) has completed one year of service at UPES.
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16. Other Applicable Policies and Regulations You will be governed by all policies, rules and regulations framed from time to time as applicable to the employees of your cadre in the Organization.
17. Good Conduct Rules You are expected to adhere to the Good Conduct Rules of UPES as detailed in the attached Annexure-111. The university reserves the right to take disciplinary action against you in case of repeated nonadherence of these rules by you. The disciplinary action shall be taken according to the provisions stipulated In the First Statues and Rules of the University.
***** Signature Not Verified Digitally Signed CM(M) 866/2022 Page 12 of 21 By:SUNIL SINGH NEGI Signing Date:11.10.2022 16:31:03
20. Acceptance You are advised to sign a copy of this letter as token of having accepted the terms and conditions of your employment and return the same to the University.‖
24. Clearly, therefore, the service rules, which governed the appointment and service of Sumana Mazumdar with the petitioners, were made applicable to her as per the appointment letter dated 1 st September 2009, whereby she was taken in service. The appointment letter, indisputably, constitutes the contract of service between Sumana Mazumdar and the petitioners. Inasmuch as Sumana Mazumdar has, in her plaint, also advanced a contention that her termination was in violation of the service rules, she has, in a manner of speaking, invoked the contract of service, whereby she was appointed in service. In any event, the submission, urged in the plaint, that the termination of Sumana Mazumdar was in violation of the service rules applicable to her, cannot be treated as a submission predicated on tort.
25. The claim of Sumana Mazumdar cannot, therefore, be treated as one founded solely on tort. At the very least, it is a claim, which is founded partly on tort and partly on contract. Applying the law enunciated in M. Veerappa2, therefore, the right to sue would survive in favour of Sadhana Mazumdar, as the sole surviving legal heir.
26. The submission, of Mr. Kher, that the suit instituted by Sumana Mazumdar was founded solely on tort and, therefore, abated with her Signature Not Verified Digitally Signed CM(M) 866/2022 Page 13 of 21 By:SUNIL SINGH NEGI Signing Date:11.10.2022 16:31:03 death and could not be allowed to be continued by her sister Sadhana Mazumdar cannot, therefore, be accepted.
27. Mr. Kher has advanced an alternative contention to the effect that the learned ADJ ought, at the very least, to have restricted the right to sue of Sadhana Mazumdar to the extent to which the claim in the suit was founded on contract, and should have held that the suit had abated to the extent it was founded on tort.
28. Such an exercise is not envisaged by Order XXII Rule 3(1) of the CPC. Order XXII Rule 1 clearly states that the death of a plaintiff would not cause the suit to abate if the right to sue survived. Order XXII Rule 3(1) requires the Court, in such a situation, to allow the legal representative, on whom the right to sue survived, to be impleaded as a party the suit and to allow the suit to continue to trial and decision. The learned ADJ, while passing an order under Order XXII Rule 1 of the CPC, is not mandatorily required to delineate the extent to which the right to sue would survive.
29. Inasmuch as the right to sue did survive in favour of Sadhana Mazumdar, applying the law enunciated in M. Veerappa2, the learned ADJ cannot be faulted in the view he took, even if it does not identify the extent to which the right to sue survives, or hold in specific terms that the right to sue would survive in favour of Sadhana Mazumdar only to the extent the claim in the original plaint was based on contract.
Signature Not Verified Digitally Signed CM(M) 866/2022 Page 14 of 21 By:SUNIL SINGH NEGI Signing Date:11.10.2022 16:31:0330. That said, this Court does not proffer to return any finding on the extent to which the right to sue would survive in favour of Sadhana Mazumdar. The Court is merely concerned with the question of whether the impugned order, whereby the learned ADJ has allowed the impleadment of Sadhana Mazumdar in place of the deceased Sumana Mazumdar under Order XXII Rule 1 of the CPC, calls for interference in exercise of a supervisory jurisdiction vested in this Court by Article 227 of the Constitution of India.
31. It is well settled that, while exercising the supervisory jurisdiction under Article 227 of the Constitution of India, the Court does not sit in appeal over the decision of the Court below. The Court is not even expected to examine the correctness of the order passed by the Court below, to the extent it does not call for interference in exercise of supervisory jurisdiction. It is only where the manner in which the jurisdiction has been exercised by the Court below calls for supervisory interference that the jurisdiction vested in the Court by Article 227 would be legitimately invokable. For this purpose, one may refer to the following passage from Sadhana Lodh v. National Insurance Co. Ltd.13, which was rendered by three Hon'ble Judges of the Supreme Court:
―7. 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 13 (2003) 3 SSC 524 Signature Not Verified Digitally Signed CM(M) 866/2022 Page 15 of 21 By:SUNIL SINGH NEGI Signing Date:11.10.2022 16:31:03 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 reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.‖ (Emphasis supplied)
32. In its recent decision in Ibrat Faizan v. Omaxe Buildhome Pvt. Ltd.14, rendered on 13th May 2022, the Supreme Court has again reiterated the limited parameters of Article 227 jurisdiction in para 28 of the report thus:
―28. The scope and ambit of jurisdiction of Article 227 of the Constitution has been explained by this Court in the case of Estralla Rubber v. Dass Estate (P) Ltd.15, which has been consistently followed by this Court (see the recent decision of this Court in the case of Garment Craft v. Prakash Chand Goel16). Therefore, while exercising the powers under Article 227 of the Constitution, the High Court has to act within the parameters to exercise the powers under Article 227 of the Constitution. It goes without saying that even while considering the grant of interim stay/relief in a writ petition under Article 227 of the Constitution of India, the High Court has to bear in mind the limited jurisdiction of superintendence under Article 227 of the Constitution. Therefore, while granting any interim stay/relief in a writ petition under Article 227 of the Constitution against an order passed by the National Commission, the same shall always be subject to the rigour of the powers to be exercised under Article 227 of the Constitution of India.‖
33. The following passages from the judgments in Estralla Rubber15 and Garment Craft16, on which the Supreme Court places reliance in the afore-extracted para 28 of the report in Ibrat Faizan14, 14 2022 SCC Online SC 620 15 (2001) 8 SCC 97 16 2022 SCC OnLine SC 29 Signature Not Verified Digitally Signed CM(M) 866/2022 Page 16 of 21 By:SUNIL SINGH NEGI Signing Date:11.10.2022 16:31:03 again recapitulate the legal position regarding Article 227:
Estralla Rubber15 ―7. This Court in Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand17 in para 12 has stated that the power under Article 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and, not for correcting mere errors. Reference also has been made in this regard to the case Waryam Singh v. Amarnath18. This Court in Bathutmal Raichand Oswal v. Laxmibai R. Tarte19 has observed that 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 and that the High Court in exercising its jurisdiction under Article 227 cannot convert itself into a court of appeal when the legislature has not conferred a right of appeal. Judged by these pronounced principles, the High Court clearly exceeded its jurisdiction under Article 227 in passing the impugned order.
***** 16 Garment Craft
15. Having heard the counsel for the parties, we are clearly of the view that the impugned order [Prakash Chand Goel v. Garment Craft20] is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based.
Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be 17 AIR 1972 SC 1598 18 AIR 1954 SC 215 19 AIR 1975 SC 1297 20 2019 SCC OnLine Del 11943 Signature Not Verified Digitally Signed CM(M) 866/2022 Page 17 of 21 By:SUNIL SINGH NEGI Signing Date:11.10.2022 16:31:03 supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar21] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when 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 that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd15 has observed : (SCC pp. 101-102, para 6) ―6. 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, 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 21 (2010) 1 SCC 217 Signature Not Verified Digitally Signed CM(M) 866/2022 Page 18 of 21 By:SUNIL SINGH NEGI Signing Date:11.10.2022 16:31:03 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.‖
34. To the same effect are the following words in paras 14 to 16 of the report in Puri Investments v. Young Friends and Co.22:
―14. In the case before us, occupation of a portion of the subject-premises by the three doctors stands admitted. What has been argued by the learned counsel for the appellant is that once the Tribunal had arrived at a finding on fact based on the principles of law, which have been enunciated by this Court, and reflected in the aforesaid passages quoted from the three authorities, the interference by the High Court under Article 227 of the Constitution of India was unwarranted. To persuade us to sustain the High Court's order, learned counsel appearing for the respondents has emphasized that full control over the premises was never ceded to the medical practitioners and the entry and exit to the premises in question remained under exclusive control of the respondent(s)-tenant. This is the main defence of the tenant. We have considered the submissions of the respective counsel and also gone through the decisions of the fact-finding fora and also that of the High Court. At this stage, we cannot revisit the factual aspects of the dispute. Nor can we re-appreciate evidence to assess the quality thereof, which has been considered by the two fact-finding fora. The view of the forum of first instance was reversed by the Appellate Tribunal. The High Court was conscious of the restrictive nature of jurisdiction under Article 227 of the Constitution of India. In the judgment under appeal, it has been recorded that it could not subject the decision of the appellate forum in a manner which would project as if it was sitting in appeal. It proceeded, on such observation being made, to opine that it was the duty of the supervisory Court to interdict if it was found that findings of the appellate forum were perverse. Three situations were spelt out in the judgment under appeal as to when a finding on facts or questions of law would be perverse. These are: --22
2022 SCC Online SC 283 Signature Not Verified Digitally Signed CM(M) 866/2022 Page 19 of 21 By:SUNIL SINGH NEGI Signing Date:11.10.2022 16:31:03
(i) Erroneous on account of non-consideration of material evidence, or
(ii) Being conclusions which are contrary to the evidence, or
(iii) Based on inferences that are impermissible in law.
15. We are in agreement with the High Court's enunciation of the principles of law on scope of interference by the supervisory Court on decisions of the fact-finding forum. But having gone through the decisions of the two stages of fact-finding by the statutory fora, we are of the view that there was overstepping of this boundary by the supervisory Court. In its exercise of scrutinizing the evidence to find out if any of the three aforesaid conditions were breached, there was re-appreciation of evidence itself by the supervisory Court.
16. In our opinion, the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India in the judgment under appeal had gone deep into the factual arena to disagree with the final fact-finding forum. ......‖
35. Cabined within the limited parameters of the jurisdiction vested in this Court by Article 227 of the Constitution of India, I am not convinced that a case for interference with the impugned order, which merely allows Sadhana Mazumdar to continue the suit initially constituted by Sumana Mazumdar, calls for interference.
36. The issue to the extent to which the right to sue would survive in favour of Sadhana Mazumdar, which would necessarily depend on the extent to which the suit could be said to be founded on contract and/or on tort, is left open. This Court does not express any view on that regard. It would be open to the petitioners to advance appropriate submissions before the learned ADJ in that context and, needless to Signature Not Verified Digitally Signed CM(M) 866/2022 Page 20 of 21 By:SUNIL SINGH NEGI Signing Date:11.10.2022 16:31:03 say, it would be open to the respondent to respond thereto. The learned ADJ would consider the submissions and take a view on the extent to which the right to sue would survive in favour of Sadhana Mazumdar.
37. Subject to the aforesaid limited caveat, this petition, being bereft of merits, is dismissed with no orders as to costs.
38. Miscellaneous applications do not survive for consideration and stand disposed of accordingly.
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