Dismissed

Gulab and 6 Others v. Satya Narayan and 2 Others

Allahabad HC18 Dec 2017A227/8553/2017

Case brief

AI extract

What is this about?

The Court dismissed a writ petition seeking interference under Article 227 of the Constitution against orders rejecting restoration applications under Order IX Rule 13 CPC. Holding that supervisory jurisdiction is limited to correcting grave dereliction of duty or errors of jurisdiction, the Court found no justification to upset the subordinate court's findings of delay and laches without merit.

What the court decided

AI extract

Gulab and 6 Others Vs Satya Narayan and 2… — Civil Procedure and Limitation | Allahabad HC (2017)

¶1

Court No. - 18

¶2

Case :- MATTERS UNDER ARTICLE 227 No. - 8553 of 2017

¶3

Petitioner :- Gulab And 6 Others Respondent :- Satya Narayan And 2 Others Counsel for Petitioner :- Sanjay Kumar Mishra

¶4

Hon'ble Mahesh Chandra Tripathi,J.

¶5

Heard learned counsel for the petitioners.

¶6

Petitioners are before this Court assailing the validity of order dated 10.08.2016 passed by Trial Court by which the Misc. Application no.48/1993 moved by the petitioners under Order IX rule 13 of CPC has been rejected as well as the order dated 23.05.2017 passed by Appellate Court in Misc. Appeal no.31 of 2016.

¶7

It appears that the plaintiff-respondent has filed a Civil Suit no.882/1993, for permanent injunction over the land in dispute as well as for setting aside the registered sale deed dated 10.09.1982 and 30.09.1982, which was registered in favour of first petitioner by the father of the plaintiffrespondents. It has been claimed that in the said proceeding, the father of petitioners namely Ramashanker filed written statement on 19.08.1983 wherein objection with regard to the jurisdiction of the Court below was also taken but the said objection was rejected on 21.01.1988. Admittedly the said order has been assailed by the father of petitioners by preferring Revision before the District Judge, Deoria and the same was also rejected on 03.02.1990. It also appears that both the abovesaid orders have been assailed by the father of the petitioners by preferring Writ Petition no.31304/1990, which was disposed of vide order dated 20.10.2008 but at no point of time in the aforesaid writ petition, any interim order has been accorded in favour of petitioners and thereafter the Court below, in its turn, has proceeded in the matter and finally the ex-parte judgement and decree has been passed on 06.05.1991. Thereafter the first petitioner has moved an application under Order IX Rule 13 of CPC for recall of the said order but the same was also rejected by the Court below on 13.12.1991. It is an admitted situation that the said order has never been assailed by the petitioners before the higher forum and as such, the same has attained finality. It has been averred in the Writ Petition that on the wrong advice of an Advocate, the restoration application was again moved by the petitioners on 08.10.1993 alongwith delay

¶8

condonation application, which was registered as Misc. Application no.48/1993. Against the said application, objection has also been filed by the plaintiff-respondents and finally the aforesaid application has been rejected by the Trial Court vide order dated 10.08.2016 on the ground of delay and laches. The same has also been assailed in Misc. Appeal No.31/2016, which was also dismissed by the Appellate Court vide order impugned dated 23.05.2017.

¶9

Learned counsel for the petitioners submits that this is an admitted situation that the judgement and order dated 06.05.1991 was passed ex-parte but as Writ Petition no.31304/1990 was pending consideration before this Court and on the wrong advice of an Advocate, the defendant-petitioners have not assailed the validity of the said order before the higher forum and only on 08.10.1993 proceeded to move restoration application, which was also rejected on 10.08.2016. He further submits that on account of wrong advice of an Advocate there is inadvertent delay on the part of the petitioners and as such, this Court should come to the rescue and reprieve of the petitioners.

¶10

This Court has the occasion to peruse the record in question and finds that an ex-parte order has been passed way back in the year 06.05.1991 and thereafter an application under Order IX Rule 13 CPC has also been moved on behalf of petitioners, which was also rejected on 13.12.1991 and thereafter again a restoration application has been moved by the petitioners on 08.10.1993, which was also rejected on 10.08.2016 on the ground of delay and laches but at no point of time, petitioners have assailed the validity of order dated 06.05.1991 before the higher forum and as such, the same has attained finality.

¶11

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.

¶12

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

¶13

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.

¶14

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

¶15

"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."

¶16

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 :

¶17

"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".

¶18

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.

¶19

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 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."

¶20

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.

¶21

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.

¶22

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.

¶23

It is well settled that power under Article 227 is 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).

¶24

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).

¶25

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.

¶26

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.

¶27

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.

¶28

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.

¶29

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

¶30

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.

¶31

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

¶32

"...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."

¶33

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

¶34

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.

¶35

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.

¶36

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.

¶37

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

¶38

The writ petition sans merit and is accordingly dismissed .

¶39

Order Date :- 18.12.2017 A. Pandey

Gulab and 6 Others v. Satya Narayan and 2 Others

Case brief

What is this about?

What the court decided

Gulab and 6 Others v. Satya Narayan and 2 Others

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Sri Gokul Singh Vs Sri Bhagwan Swarup and 28 Others

Doodh Nath Mani and 4 Others Vs District Judge Deoria and Another

Prem Shanker Sharma and 2 Others Vs Rambir Sharma and Another

Rajpati Vs District Judge Azamgarh and 8 Others

Smt. Shamita Bansal and Another Vs Shri Surendra Kumar Sharma and Another

Bechan Vs Additional Disrict Judge / F.T.C. and 15 Others