Dismissed

Smt. Asha Rani Sharma v. Committee of Management Gandhi Nagar Public School, Moradabad and 3 Others

Allahabad HC30 Aug 2018A227/6337/2018

Case brief

AI extract

What is this about?

In a writ petition challenging an order setting aside an amendment application allowed by the Trial Court, the High Court held that Article 227 intervention is limited to grave dereliction of duty. Finding no manifest error, the petition against the revisional order was dismissed.

What did the court decide?

The writ petition was dismissed as it was without merit.

Smt. Asha Rani Sharma Vs Committee of… — Civil Procedure and Limitation | Allahabad HC (2018)

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Court No. - 18

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Case :- MATTERS UNDER ARTICLE 227 No. - 6337 of 2018

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Petitioner :- Smt. Asha Rani Sharma Respondent :- Committee Of Management Gandhi Nagar Public School, Moradabad And 3 Others Counsel for Petitioner :- Mansoor Ahmad Counsel for Respondent :- Kshitij Shailendra

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Hon'ble Mahesh Chandra Tripathi,J.

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Heard learned counsel for the petitioner and Shri Kshitij Shailendra, learned counsel for contesting respondents.

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Petitioner is before this Court assailing the order dated 26.05.2018 passed by the Additional District Judge (Managing Committee Gandhi Nagar Public School and others vs. Smt. Asha Rani Sharma).

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It appears that plaintiff-petitioner has instituted the Original Suit no.206/2009 (Smt. Asha Rani Sharma vs. Managing Committee Gandhi Nagar Public School, Gandhi Nagar, Moradabad) for permanent injunction. In the said proceeding, an amendment application (68Ka) has been filed by the plaintiff-petitioner on 15.10.2015 seeking amendment in para nos. 5, 11, 12 of the plaint. The Trial Court had proceeded to allow the same vide order dated 08.12.2017. The same has been assailed by defendant-respondents by preferring Civil Revision no.10/2018 on 24.01.2018 before the District Judge, Moradabad. By the order impugned dated 26.05.2018, the Revisional Court has proceeded to consider each and every aspect of the matter and set aside the order passed by the Trial Court and directed the Trial Court to decide the application 68Ka on the merit of the case.

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Learned counsel for the petitioner has vehemently contended that in the said suit, issues have been framed and evidence of plaintiff-petitioner is going on and the provision under Order VI Rule 17 CPC provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties and in such a situation, the Trial Court has rightly proceeded to allow the application in question but in most arbitrary manner, the Revisional Court has proceeded to set aside the order dated 08.12.2017 and remanded the

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matter back to the Trial Court and as such, this Court should come to the rescue and reprieve of the petitioner.

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On the other hand, Shri Kshitij Shailendra, learned counsel for the defendant-respondents have contended that the Revisional Court has rightly proceeded to set aside the order passed by the Trial Court in the light of the provizo defined under Order VI Rule 17 CPC, which provides that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial and in this backdrop, the scope and ambit under Article 227 of Constitution of India being very limited and as such, the no interference should be made in the order impugned.

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The Court has proceeded to examine the record as well as the revisional order and finds that categorical findings of fact have been recorded by the Revisional Court and keeping in mind law laid down in 2014 (Suppl.) Civil Court Cases 127 Ram Prasad vs. D.M. and others; 2015 (2) Civil Court Cases 86 Sant Lal vs. Ram Kewal and others; 2013(2) Civil Court Cases 268 Allahabad Khdawan Tala Maukhuma; 2017 (4) Civil Court Cases 204 Shahwali vs. Nafru and others; 2013(2) Civil Court Cases 611 Mashyaq Grih Nirman Sahkari Sanstha Maryadit vs. Ushman Habib Bhukha and others as well as the provizo provided under Order VI Rule 17 CPC, it has proceeded to set aside the order dated 08.12.2017 passed by the Trial Court and remanded the matter back to the Trial Court to decide the application 68Ka on the merits.

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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

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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 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

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

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The writ petition sans merit and is accordingly dismissed .

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Order Date :- 30.8.2018 A. Pandey

Smt. Asha Rani Sharma v. Committee of Management Gandhi Nagar Public School, Moradabad and 3 Others

Case brief

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Smt. Asha Rani Sharma v. Committee of Management Gandhi Nagar Public School, Moradabad and 3 Others

Case brief

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