w w w . L a w y e r S e r v i c e s . i n



Neetu & Another v/s Shanti Devi & Others

    Civil Writ Petition No. 2467 of 2011

    Decided On, 23 March 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE GOPAL KRISHAN VYAS

    For the Petitioners:I.R. Choudhary, Advocate. For the Respondents: ----------



Judgment Text

Gopal Krishan Vyas, J.

1. Heard learned counsel for the petitioners.

2. In this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioners have prayed for quashing the order dated 23.2.2011 (Annexure-6) passed by Addl. District Judge, Sojat City, District Pali in Civil Original Case No. 4/2008.

3. As per facts of the case, a suit was filed by the, plaintiffs petitioners for partition and permanent injunction against the defendants respondents in respect of house and shop situated at the place which is mentioned in paras I and 2 of the writ petition. The main contention of learned counsel for the petitioners is that after filing suit, a reply was filed and trial Court framed following issues ;

"LANGUAGE"

4. Thereafter, learned trial Court proceeded to decide the issue No. 3 first and for that purpose, opportunity to lead evidence was given to the respondents to prove the said issue in which the statement of PW-1 Nitu, PW-2 Manju, PW-3 Ghevar Ram and PW-4 Dhaglaram were recorded and from the side of respondents, the statement of DW-1 Jewat Ram was recorded.

5. After recording the evidence for the purpose of deciding

Please Login To View The Full Judgment!

issue No. 3, learned trial Court finally heard the arguments and finally decided the issue No. 3 vide impugned order dated 23.2.2011 whereby learned trial Court passed an order that in this matter Section 35(2) of the Rajasthan Court Fees and Suit Valuation Act is not applicable and further held that in this case it is not proved that the plaintiffs petitioners are in possession. Learned counsel for the petitioners while assailing the finding of learned trial Court submits that finding of learned trial Court is totally erroneous because it is settled law that for applicability of Section 35(1) of the Act it has to be proved in a suit for partition that plaintiffs were excluded from the possession of the property. Learned counsel for the petitioners further submits that the order impugned is in contravention of the adjudication made by Hon'ble Supreme Court and for the said purpose he has invited my attention towards the judgments reported in AIR 1980 SC 961, AIR 1978 SC 1601 and recent judgment of Hon'ble Supreme Court in case of Sri Ramakrishna Mutt Rep. By Manager v. M. Maheswaran & Ors., (Civil Appeal No. 8864/2010 arising out of SLP (C) No. 5301/2007) decided on 8.10.2010. These judgments are in support of the contention of learned counsel for the petitioners that even if a person is not in actual possession then also it will not be the conclusion that he is not in possession. The contention of learned counsel for the petitioner is that even if the plaintiffs petitioners are married and living in their in-laws house then it cannot be presumed that they are not in possession, so also there is evidence on record to show that they are living at the place, therefore, learned trial Court has not appreciated the evidence in right perspective.

6. Learned counsel for the petitioners further submits that the finding of learned trial Court with regard to the fall that the plaintiffs petitioners are not in possession is totally erroneous because DW-1 in his statement stated that rent was also paid to Neetu and Manju, therefore, the finding of learned trial Court is not proper. It is also submitted that as per the statement of DW-1, it is proved that plaintiffs petitioners are in possession of the property in question, therefore, the finding given by learned trial Court may be quashed.

7. After hearing learned counsel for the petitioner, I have perused the order impugned. Learned trial Court after taking evidence on issue No. 3 appreciated the oral evidence adduced by both the parties and came to the conclusion that plaintiffs petitioners are not in possession of the property in question. The said order is under challenge in this writ petition filed under Articles 226 and 227 of the Constitution of India.

8. Recently Hon'ble Supreme Court in case of Shalini Shyam Shetty and Anr. v. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 has laid down certain para- meters upon which the High Courts can exercise its jurisdiction under Article 227 of the Constitution of India.

9. I have considered the argument made by learned counsel for the petitioners and finding of learned trial Court in the light of parameters laid down by Hon'ble Supreme Court in aforesaid judgment.

10. In paras 48 and 49 of the aforesaid judgment, following adjudication has been made by Hon'ble Supreme Court :

"48. The jurisdiction under Article 226 normally is exercised where a party is affected but power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. In fact, the power under Article 226 is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. In certain cases where there is infringement of fundamental right, the relief under Article 226 of the Constitution can be claimed ex-debito justitiae or as a matter of right. But in cases where the High Court exercises its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claim it as a matter of right. From an order of a Single judge passed under Article 226, a Letters Patent Appeal or an intra Court Appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Judge of a High Court in exercise of power under Article 227. In almost all High Courts, rules have been framed for regulating the exercise of jurisdiction under Article 226. No such rule appears to have been framed for exercise of High Court's power under Article 227 possibly to keep such exercise entirely in the domain of the discretion of High Court.

49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution maybe formulated:

(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.

(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of Tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or Tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the Tribunals and Courts subordinate to it, 'within the bounds of their authority'. (f) In order to ensure that law is followed by such Tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (1), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of Tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the Tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar v. Union of India & Ors., reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(1) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article 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.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counter- productive and will divest this extraordinary power of its strength and vitality."

11. In this case, upon perusal of the impugned order, it is revealed that before adjudicating issue No. 3, the evidence was taken by the trial Court and after taking into consideration entire facts and evidence, the conclusion has been given by learned trial Court that valuation of the house property in question is 210,00,000/- and valuation of shop in question is Rs. 4,00,000/- upon which, Court fee is payable. In my opinion, re-appreciation of the evidence is not permissible under Article 227 of the Constitution of India. Further, issue No. 3 has been decided on the basis of the fact that the plaintiffs petitioners are married and they are living in their in-laws house, therefore, it cannot be said that they are in possession of the property in question.

12. In this view of the matter, the case of the petitioners does not fall within the parameters laid down by Hon'ble Supreme Court in case of Shalini Shyam Shetty (supra) for interference under Article 227 of the Constitution of India. Accordingly, this writ petition is hereby dismissed.

Petition dismissed.
O R