Dismissed

Nanda Ram v. Joginder Singh

Himachal Pradesh HC13 Sept 2017CMPMO/396/2016

Case brief

AI extract

What is this about?

A renewed application to place documents on record in a specific-performance suit was rejected. The High Court declined interference under Article 227, dismissed the petition and vacated interim protection. It required expeditious disposal of the suit without prejudicing the parties.

What the court decided

AI extract

Nanda Ram Vs Joginder Singh — Specific Performance | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMPMO No.396 of 2016.

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Date of decision: 13.09.2017.

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Nanda Ram …..Petitioner.

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Versus Joginder Singh and another …..Respondents.

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Coram

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?¹ No

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For the Petitioner : Mr.Naresh Sharma, Advocate. For the Respondents: Mr.Neeraj Gupta, Advocate, for respondent No.1.

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Mr.C.N.Singh, Advocate, for respondent No.2.

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Tarlok Singh Chauhan, Judge (Oral).

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This petition under Article 227 of the Constitution of India takes exception to the order passed by the learned trial Court on 23.07.2016 whereby the application filed by the petitioner/plaintiff under Order 7 Rule 14 read with Section 151 of CPC came to be dismissed.

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The learned trial Court dismissed the application by according following reasons:-

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“3. I have heard the Ld. Counsels for the parties and gone through the file which shows that plaintiff has filed the suit for specific performance of agreement dated 13.07.2004 for issuance of direction to the defendant to execute the registered sale deed in his favour on the basis of impugned agreement. The file further reveals that earlier also the plaintiff/applicant filed the similar application for placing on record these documents only which was allowed vide order dated 17.09.2015 and thereafter case was listed for plaintiff’s evidence but as

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Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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certified copies were not there accordingly the evidence could not be recorded. When once the application for placing on record the documents has already been allowed then now at this stage this application cannot be considered again for placing on record the same documents. Though earlier certified copies of these documents were not in the record but the perusal of the file shows that time and again plaintiff/applicant is filing the application to place on record some documents due to which matter has been lingered on. The file further reveals that certified copies of these documents were earlier also in the possession of the plaintiff/applicant but he has not placed them on record when his application earlier allowed on 17.09.2015. The plaintiff cannot take the advantage of his own wrong. Accordingly, time and again he cannot be given the opportunity to file the same documents which are in his possession since long.”

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Taking exception to the order passed by the learned trial Court, it is vehemently argued by the learned counsel for the petitioner that the order so passed by the learned trial Court is perverse and deserves to be set aside and has assailed the same on the ground that the present application could have been filed by the petitioner/plaintiff only after he had received the information under Right to Information Act and, therefore, the learned trial Court was not right in rejecting the application filed by the petitioner/plaintiff.

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I have heard the learned counsel for the parties and gone

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through the records of the case.

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At the outset, it may be observed that the power of superintendence conferred by Article 227 is to be exercised most sparingly and with circumspection that too 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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5. In D.N. Banerji v. P.R. Mukherjee, 1953 AIR (SC) 58, the

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Hon’ble Supreme Court held as under:

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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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In Waryam Singh and another v. Amarnath and another 1954 AIR (SC) 215 , a Constitution Bench of the Hon’ble Supreme Court has examined the scope of Article 227 of the Constitution and observed as under:-

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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. V. Sukumar Mukherjee, 1951 AIR (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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7. In Mohd. Yunus v. Mohd. Mustaquim and others, 1984

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AIR (SC) 38 , the Hon’ble Supreme Court held that the High Court has very limited scope under Article 227 of the Constitution and even errors of law cannot be corrected in exercise of power of judicial review while exercising such power. The powers can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. It was further held that High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of Tribunal etc. has resulted in grave injustice.

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In Nibaran Chandra Bag v. Mahendra Nath Chughu 1963 AIR (SC) 1895 , the Hon’ble Supreme Court held that interference under Article 227 of the Constitution, finding of facts recorded by

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Authority should have found to be perverse or patently erroneous and de hors factual and legal position on record.

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In Rena Drego v. Lalchand Soni and others, 1998 (3) SCC 341, the Hon’ble Supreme Court has categorically held that the power under Article 227 of the Constitution is of the judicial superintendence which cannot be used to up-set the conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could have ever reached them.

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Similar reiteration can be found in Chandra Bhushan v. Beni Prasad and others 1999 (1) SCC 70 ; Savitrabai Bhausaheb and others v. Raichand Dhanraj Lunja 1999 (2) SCC 171 ; and Savita Chemical (P) Ltd. v. Dyes and Chemical Workers Union and another, 1999 (2) SCC 143 .

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In Union of India and others v. Himmat Singh Chahar, 1994 (4) SCC 521 , the Hon’ble Supreme Court held that 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 conclusion reached by Competent Statutory Authority merely on the ground of insufficiency of evidence.

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In Ajaib Singh v. Sirhind Co-operative Marketing cum Processing Service Society Ltd., 1999 (6) SCC 82 , the Hon’ble Supreme Court held that there is no justification for High Court to substitute its view for the opinion of 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 Agnihotiri v. Bhaskar Balwant

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Aheer, 2000 AIR (SC) 931 , the Hon’ble Supreme Court held that the jurisdiction of High Court under Article 227 of the Constitution is not appellate but supervisory. It cannot interfere with the finding of facts recorded by Courts below unless there is no evidence to support findings or findings are totally perverse.

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In Union of India v. Rajendra Prabhu, 2001 (4) SCC 472 , the Hon’ble Supreme Court held that High Court in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate evidence nor it can substitute its subjective opinion in place of findings of Authorities below.

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In Shalini Shyam Shetty and another v. Rajendra Shankar Patil, 2010 (8) SCC 329 , the Hon’ble Supreme Court observed that power of interference under Article 227 is to be kept to the minimum to ensure that wheel of justice does not come to a halt and fountain of justice remains pure and unpolluted in order to maintain public confidence in functioning of Tribunals and Courts subordinate to High Court.

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Similar reiteration can be also found in Kokkanda B. Poondacha and others v. K.D. Ganapathi and another, 2011 AIR (SC) 1353 , and Bandaru Satyanarayana v. Imandi Anasuya, 2011 (12) SCC 650 .

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In Abdul Razak (D) through Lrs. And others v. Mangesh Rajaram Wagle and others, 2010 (2) SCC 432 , the Hon’ble Supreme 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 Commandant, 22^nd Battalion, CRPF and others v. Surinder Kumar 2011 (10) SCC 244 , the Hon’ble Supreme Court reiterated that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Article 226 or 227.

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From the aforesaid conspectus of law, it can conveniently be held that the supervisory jurisdiction under Article 227 of the Constitution of India is exercised for keeping the Subordinate Courts within the bound of the jurisdiction. When a Subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise jurisdiction which it does have or jurisdiction though available is exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby the High Court may step into exercise its supervisory jurisdiction. The supervisory jurisdiction is not available to correct mere errors of fact or law unless the following requirement is satisfied:-

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(i) The error is manifest and apparent on the face of the proceedings such as when it is based on ignorance or utter disregard to the provisions of law, and to grave injustice or gross failure of justice has occasioned thereby.

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(ii) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscious of the High Court dictates which too act lest gross failure of justice or grave injustice has occasioned.

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Adverting to the facts, it would be noticed that the suit is pending adjudication since 2005 and the petitioner/plaintiff himself had earlier filed an application for placing on record certain documents which was duly allowed by the learned trial Court vide order dated 17.09.2015 and thereafter the case was listed for plaintiff’s evidence.

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The petitioner/plaintiff has failed to make out any justifiable cause which earlier prevented him from either procuring these documents or not placing the same before the learned trial Court and, therefore, the learned trial Court committed no error by rejecting the application by observing that the petitioner/plaintiff time and again cannot be granted opportunity to file the documents.

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In view of the aforesaid discussion, no fault can be found with the order passed by the learned trial Court. Accordingly there is no merit in this petition and the same is dismissed, leaving the parties to bear their own costs. Interim order dated 20.10.2016 stands vacated. Pending application, if any, also stands disposed of.

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However, before parting, it may be noticed that the suit from which the instant proceedings emanated was filed as far as back in the year 2005. Meaning thereby, more than 12 years back and, therefore, it is expected that the learned trial Court shall dispose of the suit as expeditiously as possible and in no event later than 31^st March, 2018. However, the learned trial Court even while rendering a time bound decision shall ensure that no prejudice is caused to the parties, more particularly, the defendant, who is yet to lead his evidence.

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(Tarlok Singh Chauhan), Judge. 13^th September, 2017. ( krt)

Nanda Ram v. Joginder Singh

Case brief

What is this about?

What the court decided

Nanda Ram v. Joginder Singh

Case brief

What is this about?

What the court decided

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