Dismissed

Doodh Nath Mani and 4 Others v. District Judge Deoria and Another

Allahabad HC12 Dec 2017A227/6921/2017

Case brief

AI extract

What is this about?

High Court dismissed a writ petition challenging the rejection of an amendment application and an application for additional evidence in a decades-old property suit. The Court held that Article 227 supervisory jurisdiction does not allow interference with factual findings or procedural orders absent grave perversity or jurisdictional error.

What did the court decide?

Writ petition dismissed with no order as to costs.

Doodh Nath Mani and 4 Others Vs District Judge Deoria… — Property and Title | Allahabad HC (2017)

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Court No. - 18

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Case :- MATTERS UNDER ARTICLE 227 No. - 6921 of 2017

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Petitioner :- Doodh Nath Mani And 4 Others Respondent :- District Judge, Deoria And Another Counsel for Petitioner :- Himanshu Pandey Counsel for Respondent :- Arvind Prabodh

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Hon'ble Mahesh Chandra Tripathi,J.

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Heard Shri Himanshu Pandey, learned counsel for the petitioners and Shri Arvind Prabodh Dubey, learned counsel for the contesting respondent.

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The instant writ petition under Article 227 of Constitution of India has been preferred for setting aside the impugned order dated 18.10.2017 passed by learned District Judge, Deoria in Civil Misc. Appeal no.184 of 2008 (Doodhnath Mani and others vs. Smt. Chan Kali) whereby the application filed by the petitioners seeking an amendment for bringing order of criminal court on record as an additional evidence has been rejected.

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Brief matrix of the case as has been reflected from the record is that second respondent namely Chan Kali had filed a suit for cancellation of sale deed against present petitioners alleging therein that the sale deed dated 07.01.1983 was never executed by her father as her father had actually passed away on the same very date i.e. 07.01.1983 in morning at about 4 am. It has also been claimed that the alleged sale deed was actually executed by an impostor. The written statement has been filed by the defendants on 15.11.1983 with a specific assertion that it is incorrect to assert that the death of executor of sale deed namely Ram Ashish had occurred on 07.01.1983 and eventually he has died subsequently. Replication to the same has also been filed by the plaintiff. It appears that in order to substantiate her case, the plaintiff had relied upon the death certificate issued by doctor of Primary Health Centre, certifying that Ram Ashish had died on 07.01.1983 at 4 am. Finally the Trial Court had passed judgement and decree dated 29.11.2008, which was assailed in Civil Appeal no.184 of 2008, wherein the defendant-petitioners have taken a specific stand that the executor of the sale deed namely Ram Ashish had died on 12.01.1983 and reliance has also been placed on the earlier sale deed which was executed about ten years back and plea to the effect that the suit is barred by Section 331 of the U.P.Z.A.&L.R. Act has also been taken. Finally, the aforesaid appeal was

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decided by learned District Judge, Deoria vide judgement and order dated 18.08.2010 whereby it was held that the suit filed by the plaintiff Smt. Chan Kali was actually barred by the provisions of Section 331 of U.P.Z.A.&L.R. Act and the suit for cancellation of sale deed would not be maintainable in the case of agricultural land as per the law laid down by the Apex Court in the case of Kamla Prasad vs. Krishna Kant Pathak 2007(4) SCC 21 . The said order has been assailed by the plaintiff-respondent by preferring Second Appela no.1013 of 2010 (Smt. Chankali vs. Doodh Nath Mani and others) before this Court and this Court vide judgement and order dated 04.10.2010 had allowed the appeal in question and the judgement and decree dated 18.08.2010 passed by the first respondent has been set aside and the matter was remitted back to the lower appellate court for deciding the same on the points of determination already formulated by the court in accordance with law. While allowing the second appeal in question,the Court was of the considered opinion that the provisions of Section 331 of U.P.Z.A.&L.R. Act would be inapplicable in the present matter.

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It has also been averred in the writ petition that on the basis of some advice by the counsel, the defendant-petitioners had moved an amendment application paper no.69-A-2 under Order VI Rule 17 of the Code of Civil Procedure seeking amendment in their written statement regarding mention of specific date of death. The application was supported with an affidavit paper no.70-C-2. The plaintiff-respondent has filed specific objection to the same through paper no.75-C, which was filed on 11.09.2017. It also appears that defendantpetitioners have also filed another Misc. Application no.71-C-2 seeking permission for filing of additional evidence at the appellate stage under Order XLI Rule 27 of the Code of Civil Procedure whereby a certified copy of the dismissal of criminal complaint so filed by the defendant-petitioners has been sought to be filed. Objection to the same has also been filed by the plaintiff-respondent on 11.09.2017 and finally, after exchange of pleadings, the Lower Appellate Court vide common order dated 18.10.2017 had rejected both the applications of petitioners and as such, the petitioners are before this Court.

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In this backdrop, Shri Himanshu Pandey, learned counsel for the petitioners vehemently contended that the order impugned cannot sustain in the eyes of law and valuable rights of petitioners accrued on the basis of valid sale deed are taken away merely on account of introducing incorrect date of

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death, which was never supported by any document/evidence and the public document available on record was not given due weightage by the Court below and in case the aforesaid amendment application is not allowed, the petitioners would suffer irreparable loss and injury and as such, this Court should come tot he rescue and reprieve of the petitioners.

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Per contra Shri Arvidng Prabodh Dubey, learned counsel for contesting respondent has opposed the writ petition and submits that the suit in question is pending since 1983 and the matter has already reached at the level of Hon'ble High Court in Second Appeal no.1013 of 2010 and in between more than three decades have lapsed but in spite of sufficient time at no point of time, the amendment application or the application for adducing additional evidence had ever been moved and at this belated stage as an after thought the petitioners had moved application bearing paper no.69-A-2 and paper no.71-C-2 and the Lower Appellate court had rightly proceeded in the matter while passing the order impugned.

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Heard rival submissions and perused the record.

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Record in question clearly reflects that the aforesaid suit in question has been filed in the year 1983 and admittedly the matter has travelled to this Court in the shape of Second Appeal no.1013/2010 and the same was allowed and the matter was remitted back to the Lower Appellate Court vide judgement and order dated 04.10.2010 and since then the matter is seized at the level of Lower Appellate Court and even the application moved by the petitioners bearing paper no.69-A-2 seeking amendment in their written statement regarding mention of specific date of death as well as paper no.71-C-2 seeking permission for filing of additional evidence at the appellate stage under Order XLI Rule 27 of the Code of Civil Procedure had already been rejected by the Lower Appellate Court by order impugned. While rejecting the application in question, the Lower Appellate Court had clearly proceeded to observe that the petitioners are trying to introduce something new to the proceeding and even the fresh evidence is required to be adduced and at this belated stage, the said application could not be accepted.

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Once the Court below has recorded findings of fact and unless these findings are shown perverse or contrary to record resulting in grave injustice to petitioner, in writ jurisdiction under Article 227, this Court exercising restricted and narrow jurisdiction would not be justified in interfering

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with the same.

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In supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority.

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This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes.

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In D. N. Banerji Vs. P. R. Mukherjee 1953 SC 58 Hon'ble Supreme Court said:

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"Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 of the Constitution to interfere."

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A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 and made following observations at p. 571 :

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"This power of superintendence conferred by article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee AIR 1951 Cal. 193, to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors".

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The Constitution Bench of Apex Court in Nagendra Nath Bora and Another v. Commissioner of Hills Division and Appeals, Assam & Others AIR 1958 SC 398 settled that power under Article 227 is limited to seeing that the courts below function within the limit of its authority or jurisdiction.

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Hon'ble Apex Court had an occasion to examine this aspect of the matter in the case of Mohd. Yunus v. Mohd. Mustaqim & Others (1983) 4 SCC 566 in which Hon'ble Apex Court observed that the supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal

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functions within the limits of its authority," and not to correct an error apparent on the face of the record, much less an error of law. For this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision."

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The said view has also been reiterated by the Apex Court in Laxmikant Revchand Bhojwani & Another v. Pratapsing Mohansingh Pardeshi (1995) 6 SCC 576 and the Apex Court had again cautioned that the High Court under Article 227 of the Constitution cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.

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A three-Judge Bench of Hon'ble Apex Court in Rena Drego (Mrs.) v. Lalchand Soni & Others (1998) 3 SCC 341 again abundantly made it clear that the High Court cannot interfere with the findings of fact recorded by the subordinate court or the tribunal while exercising its jurisdiction under Article 227. Its function is limited to seeing that the subordinate court or the tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and re-appreciating it.

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In Virendra Kashinath Ravat & Another v. Vinayak N. Joshi & Others (1999) 1 SCC 47 Hon'ble Apex Court held that the limited power under Article 227 cannot be invoked except for ensuring that the subordinate courts function within its limits. The High Court cannot, while exercising jurisdiction under Article 227, interfere with findings of fact recorded by the subordinate Court or Tribunal. Its function is limited to seeing that the subordinate Court or Tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and re-appreciating it.

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It is well settled that power under Article 227 is

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of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (See: Chandra Bhushan Vs. Beni Prasad & ors. , (1999) 1 SCC 70; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja , (1999) 2 SCC 171; and Savita Chemical (P) Ltd. Vs. Dyes & Chemical Workers' Union & Anr. ,(1999) 2 SCC 143).

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Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See: Union of India & ors. Vs. Himmat Singh Chahar, (1999) 4 SCC 521).

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In Ajaib Singh Vs. Sirhind Co-opeative Marketing cum Processing Service Society Ltd. , (1999) 6 SCC 82, the Apex Court has held that there is no justification for the High Court to substitute its view for the opinion of the Authorities/ Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution.

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In Mohan Amba Prasad Agnihotri Vs. Bhaskar Balwant Aheer , AIR 2000 SC 931, the Court said that jurisdiction of High Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse.

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In Indian Overseas Bank Vs. Indian Overseas Bank Staff Canteen Workers' Union (2000) 4 SCC 245, the Court observed that it is impermissible for the Writ Court to reappreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere.

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In Union of India Vs. Rajendra Prabhu, (2001) 4 SCC 472, the Apex Court observed that the High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot reappreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below. Similar view has been reiterated in State of Maharashtra Vs. Milind & ors ., (2001) 1 SCC 4; Extrella Rubber Vs. Dass Estate (P) Ltd ., (2001) 8 SCC 97; and Omeph Mathai & ors. Vs. M. Abdul Khader, (2002) 1 SCC 319.

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In Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675, it was held by the Apex Court that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby.

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In Jasbir Singh Vs. State of Punjab (2006 ) 8 SCC 294, the Apex Court said:

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"...while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions."

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In Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil (2010) 8 SCC 329, the Apex Court said that power of interference under Article 227 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. The above authority has been cited and followed in Kokkanda B. Poondacha

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and others Vs. K.D. Ganapathi and another AIR 2011 SC 1353 and Bandaru Satyanarayana Vs. Imandi Anasuya (2011) 12 SCC 650.

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In Abdul Razak (D) through Lrs. & others Vs. Mangesh Rajaram Wagle and others (2010) 2 SCC 432, Apex Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction.

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In T.G.N. Kumar Vs. State of Kerala and others (2011) 2 SCC 772, the Court said that power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority.

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In Commandant, 22nd Battalion, CRPF and others Vs. Surinder Kumar (2011) 10 SCC 244, Apex Court referring to its earlier decision in Union of India Vs. R.K. Sharma (2001) 9 SCC 592 observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227.

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In view thereof, I find no justification warranting interference with the orders impugned in this writ petition.

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The writ petition sans merit and is accordingly dismissed .

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Order Date :- 12.12.2017 A. Pandey

Doodh Nath Mani and 4 Others v. District Judge Deoria and Another

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Doodh Nath Mani and 4 Others v. District Judge Deoria and Another

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