Bombay High Court
Om Prakash Singh And Anr vs Maria Evarista Fernandes E Noronha And 3 ... on 25 April, 2025
2025:BHC-GOA:848
2025:BHC-GOA:848
WP 525.2025(F)
Sonam
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 525 OF 2025(F)
1. Mr. Om Prakash Singh
Son of Mr. Ram Ratan Singh,
Married, aged 39 years, businessman
2. Mrs. Prakash Singh alias
Bindu Prakash Singh,
Wife of Mr. Om Prakash Singh,
Aged 48 years, businessman,
Both carrying out business at
Prakash Enterprises,
Near Water Tank, Chogum Road,
Porvorim, Bardez, Goa. ... Petitioners
Versus
1. Mrs. Maria Evarista Fernandes e Noronha,
Married,
Daughter of late Mr. Felecio Luzio Fernandes,
Age 63 years, housewife
2. Mr. Nelson Noronha,
Married,
Son of late Mr. Remedios Francisco Noronha,
Businessman, aged 65,
Both above r/o House No. 300,
Tambudki, Arpora, Bardez, Goa.
3. Uttam Kumar,
R/o Prudential Palms,
Alto Porvorim, Bardez, Goa.
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WP 525.2025(F)
Mobile No. 9657711886.
4. Krishanan Kishore Gupta,
R/o H. No. 45-46, Street No. 1,
Chandu Park, Krishna Nagar,
East Delhi 110051. ... Respondents
Mr. Subodh S. Kantak, Senior Advocate with Mr.
Vishnuprasad Lawande, Mr. Parimal Redkar, Mr. Preetam
Talaulikar, Ms. Neha Kholkar, Ms. Saicha Desai, Mr. Kher
Simoes, Mr. Atul Satre and Ms. Smita Gawas, Advocates for
the Petitioners.
Mr. Jayant Karn, Advocate for Respondent Nos.1 and 2.
Mr. Sanjay Hegde, Senior Advocate with Mr. Jayant Karn,
Mr. Ebad Ur Rahman, Mr. Anas Tanwir, Mr. Zainab
Shaikh, Mr. Massom Raj Singh and Mr. Ashish Kumar,
Advocates for Respondent Nos. 3 and 4.
CORAM : VALMIKI MENEZES, J.
PRONOUNCED ON : 25th APRIL, 2025.
JUDGMENT:
1. Heard learned Counsel for the parties.
2. Rule. Rule is made returnable forthwith and with the
consent of the parties; the petition is finally heard and disposed
of. Learned Advocate Mr. Preetam Talaulikar waives service on
25th April, 2025.
WP 525.2025(F)
behalf of the Petitioners and learned Advocate Mr. Jayant Karn
waives service for the Respondent Nos. 1 to 4.
3. The Petitioners have invoked the writ and supervisory
jurisdiction of this court under Articles 226 and 227 of the
Constitution of India seeking the following reliefs:
(a) To quash and set aside the impugned Judgment and
Decree dated 21.01.2023 (hereinafter referred to as
the 'Impugned Order') passed by the Civil Judge
Senior Division at Mapusa, Goa in special Civil Suit
No. 27/2012/A/B("The Suit") by which the Civil
Court has declared a Sale Deed dated 27.09.2006
executed by the Respondent Nos. 1 and 2 ("Original
Vendors") in favour of the Petitioners
("Purchasers"), transferring a specific area of 1050
sq. mts. of the suit property (hereinafter referred to
as the "said property") under Survey No. 193/17 of
village Arpora to be null and void and cancelled the
said Sale Deed.
(b) For a writ of mandamus/direction to Respondent
Nos. 3 and 4 not to carry out any construction in the
suit property or create third party rights, and
(c) To direct the Sub Registrar of Bardez Taluka to
cancel the Sale Deed dated 27.02.2024, registered
25th April, 2025.
WP 525.2025(F)
before the Sub Registrar of Bardez, Mapusa under
registration no. BRZ-1-1132-2024 on 28.02.2024,
executed by Original Vendors (after the impugned
Decree sets aside Sale Deed dated 27.09.2006
executed in favour of the Petitioners) in favour of
Respondent Nos. 3 and 4("the new purchasers").
The Petitioners are original Defendant Nos. 1 and 2 in the
suit, whilst Respondent Nos. 1 and 2 herein are the Plaintiffs;
Respondent Nos. 3 and 4 being the New Purchasers after Sale
Deed dated 27.09.2006 was cancelled by the impugned Decree,
are not parties to the suit, but have been arrayed herein as
Respondents, since consequential relief of cancellation of Sale
Deed dated 27.02.2024, executed by the Plaintiffs in their favour
have been sought in this petition.
FACTS
4. The undisputed facts that have led to the filing of this
petition are as delineated below:
(i) The Original Vendors and the Petitioners entered into
an Agreement of Sale bearing registration number 4116/06
dated 01.09.2006, by virtue of which, Original Vendors
agreed to sell a specific area of 1050 sq. mts of a property
known as 'Tamburqui' or 'Cotorbata' situated at Tambdki
25th April, 2025.
WP 525.2025(F)
in Arpora village bearing Survey No. 193/17 (hereinafter
referred to as the 'said property'), retaining the possession
and ownership of the remaining 300 sq. mts. for
themselves. The consideration agreed to be paid by the
Petitioners to the Original Vendors was Rs. 31,50,000/- to
be paid by the Petitioners in the following manner:
(a) Rs. 2,00,000/- paid at the time of execution of
the Agreement of Sale;
(b) Rs. 14,50,000/- to be paid at the time of the
execution of the Deed of Sale;
(c) A bungalow to be constructed by Petitioners
(Defendant No. 1) with the balance amount of
15,00,000/- for the Original Vendors within a period
of 6 months.
(ii) Pursuant to the aforementioned Agreement of Sale,
Original Vendors executed a Deed of Sale dated 27.09.2006
bearing registration number 5084, to which effect an entry
was made at pages 61 to 80 of Book I volume 1831 dated
06.10.2006, handing over the possession of 1050 sq. mts.
of land demarcated on the plan annexed to the Deed to the
Petitioners. The balance area of 300 sq. mts. on which stood
the house of the Vendors, was retained by the Vendors. At
the time Sale Deed was executed in favour of the
Petitioners, they paid to the original Vendors an amount of
25th April, 2025.
WP 525.2025(F)
Rs. 10,00,000/-, being part of the balance consideration on
the Agreement; however, the demolition of the old structure
and construction of the new bungalow for the original
Vendors on the area of 300 sq. mts. retained by the Vendors
was not completed at the time the Deed of Sale was
executed. Pursuant to the execution of the Sale, the name
of the Petitioner No. 1 was mutated in the Survey record in
Form I and XIV of the said property.
(iii) About 6 years after the Sale Deed was executed, on
15.05.2012, the original Vendors filed Special Civil Suit
No. 27/2012/A/B before the Civil Judge Senior Division at
Mapusa, Goa against the Petitioners for the following
reliefs:
(a) For a Decree of declaration that Deed of Sale
dated 06.10.2006 is null and void and the same
be delivered up to the Plaintiffs.
(b) That the Sub-Registrar at Mapusa be directed to
cancel the registration of the said Deed of Sale.
(c) That a Decree of permanent injunction be
passed to restrain the Defendants (Petitioners)
from interfering with the suit property.
(d) That a Decree of permanent injunction be
passed to restrain the Defendants (Petitioners)
from creating any third party rights in the suit
25th April, 2025.
WP 525.2025(F)
property on the basis of Sale Deed dated
27.09.2006.
(iv) Written statement was filed by the Petitioners on
07.06.2012, claiming that the suit was barred by limitation
and the Plaintiffs/Vendors were not entitled to the reliefs
claimed therein. The suit proceeded for trial and the
Affidavit in Evidence of the Plaintiff No. 1 came to be filed
on 03.02.2018, on which the examination in chief was
recorded.
(v) According to the Roznama of the suit, the Petitioners
were represented by their Advocate, one Mr. Karkera at
least till 13.02.2019. Prior to this, according to the
Petitioners' case the Petitioner No.1 suffered a stroke on
18.05.2018, though, on 09.08.2018, the Roznama records
that the Petitioner was present in person in the Court.
According to the Roznama on 01.10.2019, the
representative of the Petitioner one Jerry Martin, was
present before the Trial Court and informed the Court that
the Petitioners' Advocate has passed away. The Roznama
then records on several dates, until 23.01.2020, that the
parties were attempting to settle the matter and arrive at
Consent Terms.
25th April, 2025.
WP 525.2025(F)
(vi) Thereafter, between 07.04.2020 and 22.10.2020, the
Roznama records that the matter was adjourned due to
circulars issued on account of the COVID-19 pandemic. On
01.12.2020, none of the parties were present, though after
that, between 04.02.2021 to 27.06.2022, the matter was
adjourned for reporting on the settlement talks; the
Petitioners were marked absent on all these hearings. On
27.06.2022, the Advocate for the Plaintiffs was directed to
contact the Defendants, obviously to inquire the status of
the settlement talks, and the matter was adjourned for cross
examination of PW1. Due to the absence of the Petitioners
on 22.07.2022, the cross examination of the witness PW1
was closed, after which on 17.08.2022, the Plaintiffs closed
their evidence. An opportunity was given for the Petitioners
to lead their evidence on 21.09.2022, on which date, owing
to the absence of the Petitioners, their evidence was closed
and final arguments in the suit were heard on 21.10.2022
and the suit was decreed on 21.01.2023.
(vii) The impugned Judgment decrees as follows:
(a) The Sale Deed dated 27.09.2006 is declared
null and void.
(b) The Sub-Registrar at Mapusa is directed to
cancel the registration of the said Sale deed.
25th April, 2025.
WP 525.2025(F)
(c) The Defendants (Petitioners) are restrained
from interfering with the suit property (area
of 1050 sq. mts. under Survey No. 193/17).
(d) The Defendants (Petitioners) are restrained
and from creating third party rights in the said
property on the basis of the Sale Deed dated
27.09.2006.
(viii) Pursuant to the impugned Judgment and Decree, the
Original Vendors executed a Deed of Sale dated
(New Purchasers), registered before the Sub
Registrar of Bardez, Mapusa, under Registration No.
BRZ-1-1132-2024 on 28.02.2024. By this Sale Deed,
the original Vendors sold the entire survey holding
under No. 193/17 comprising 1350 sq. mts., which
included 1050 sq. mts. earlier sold to the Petitioners
and 300 sq. mts. retained by the original Vendors. A
Mutation entry was effected in the Survey Records in
Form I & XIV of Survey No. 193/17, including the
name of the New Purchasers. The names of the
original Vendors and of the Petitioner No. 1 were
deleted from the Survey Records and presently, it is
only the name of the New Purchasers (Respondent
25th April, 2025.
WP 525.2025(F)
Nos. 3 and 4), that is entered in the Occupant's
column.
(ix) Aggrieved by the impugned Judgment and Decree
and the execution of the subsequent Deed of Sale
dated 28.02.2024 executed by the original Vendors in
favour of the New Purchasers, Respondent Nos. 3 and
4, the Petitioners have preferred the present Petition.
5. In the Writ Petition, the following facts are pleaded:
(a) That the subsequent Sale executed in favour of
Respondent Nos. 3 and 4 contends false recitals that
the Court, by its order dated 21.01.2024, had declared
the original Vendors as sole owners of the suit
property.
(b) That possession continued with the Petitioners
despite the impugned Decree being passed, as no
recovery of possession from the Petitioners was
sought in the suit as a consequence of the Decree of
declaring the Sale Deed to be null and void.
(c) That the Petitioners continued in lawful possession of
the suit property and cannot be dispossessed without
the due process of law.
(d) That there was interference with the suit property on
15.01.2025, when the entire property including suit
25th April, 2025.
WP 525.2025(F)
property was fenced with metal sheets and thereafter,
the house standing in the area of 300 sq. mts. earlier
retained by the original Vendors was illegally
demolished on 12.02.2025.
(e) That Petitioner No. 1 was admitted to the Goa
Medical College and Hospital for treatment on
account of having suffered a brain stroke on
07.05.2018 and was discharged on 16.05.2018.
Thereafter, on 21.05.2018, Petitioner No. 1 was
admitted to the Redkar Hospital, Dhargal, Goa, where
he was diagnosed with haemorrhagic stroke, residual
spastic hemiparesis and hypertension.
(f) That on 05.06.2023, Petitioner No. 1 was again
admitted to the Redkar Hospital for the treatment of
hypoglycaemic syncope, acute infective bronchitis,
recent dengue, fibril illness and pre-existing
conditions including haemorrhagic stroke, type 2
diabetes mellitus and hypertension
(g) That a Medical Certificate dated 18.01.2025 issued
by the Redkar Hospital has been produced to
substantiate that Petitioner No. 1 has been under their
care for Haemorrhagic Stroke, Residual Spastic
Hemiparesis, Type 2 Diabetes Mellitus with
Hypertension and early onset of Dementia.
25th April, 2025.
WP 525.2025(F)
(h) That it was primarily Petitioner No. 1 who would
follow the proceedings before the Trial Court. On
account of his illness, he could not pursue the matter
personally and Petitioner No. 2, his wife, being his
caregiver was also not in a position to keep track of
the said proceedings. Petitioner No. 1 is stated to have
been unable to recall the proceedings before the Trial
Court.
(i) That, on 10.01.2025, Petitioner No. 2 visited the said
property where she observed some labourers
trespassing and undertaking the cutting of bushes.
She also observed that metal roofing sheets were
dumped in the said property. Upon inquiring about
the same, she was informed by the Contractor at the
site that the said property had been sold by the
Original Vendors to the New Purchasers through a
sale deed dated 27.02.2024.
(j) Subsequently, on the same day, Petitioner No. 2
visited the office of Advocate Karkera, who
represented the Petitioners in the proceedings before
the Trial Court. The office was found to be closed,
and she was unable to contact Advocate Karkera
telephonically.
25th April, 2025.
WP 525.2025(F)
(k) Petitioner No. 2 then approached Advocate V. A.
Lawande for legal advice who informed her that the
suit in the Trial Court had been decreed against the
Petitioners and that the roznama records indicate that
the Petitioners had not been represented in the
proceedings after the death of Advocate Karkera. He
also informed her that the existing survey records
revealed a Sale Deed dated 27.02.2024, executed by
the Original Vendors in favour of the New
Purchasers.
(l) The Petitioners applied for a copy of the Sale Deed
dated 27.02.2024 on 17.01.2025, which was made
available to them on 20.01.2025. It also came to their
knowledge that the New Purchasers had mutated their
names on Form I and Form XIV of the property under
Survey No. 193/17 of Village Arpora.
(m) That the Petitioners applied for certified copies of all
necessary documents on 15.01.2025, which were
received on 24.01.2025 and subsequently handed
over to the advocate on 25.01.2025. The certified
copy of the impugned Judgment and Decree was
applied for on 27.01.2025 which was made available
to the Petitioners on 04.02.2025.
25th April, 2025.
WP 525.2025(F)
(n) That on 10.02.2025, the Petitioners filed an
application before the Court of Civil Judge Senior
Division, Mapusa to set aside the impugned
Judgment and Decree, as well as the impugned
Roznama orders dated 22.07.2022 and 21.09.2022,
further praying for the restoration of Special Civil
Suit No. 27/2012/A/B. In addition, they filed an
application for condonation of delay, which was
registered as CMA/32/2025.
(o) However, considering that a subsequent Sale Deed
dated 27.02.2024 had been executed in favour of the
new purchasers, the Petitioners sought further legal
advice and accordingly decided to file the present
Writ Petition to challenge the impugned judgment
and decree, as well as the said sale deed. The
Petitioners have undertaken to withdraw the
application CMA/32/2025 and the application for
condonation of delay. However, it is noted that until
disposal of this petition, this application has not been
withdrawn by the Petitioners and is still pending
disposal.
6. An Affidavit in Reply dated 10.03.2025 came to be filed on
behalf of Respondent Nos. 3 and 4 in this Writ Petition. The
25th April, 2025.
WP 525.2025(F)
following averments made therein would be pertinent to the
decision in this matter:
(a) Denying the Petitioners contention that the suit filed
by Respondent Nos. 1 and 2 before the Trial Court was
liable to be rejected at the outset under Order VII Rule 11,
CPC and/or dismissed being barred by limitation, it is
stated that the Petitioners have not at any stage, resorted to
filing an application seeking rejection of plaint before the
Trial Court. (Paragraph 23)
(b) That, Respondent Nos. 3 and 4 have procured all the
necessary licenses and permissions and have commenced
work at the said property. (Paragraph 26)
(c) That the Petitioners were being represented by one Mr.
Jerry Martin before the Trial Court. Roznama dated
01.10.2019 records that Mr. Jerry Martin informed the
court about the demise of Adv. Karkera who appeared for
the Petitioners in the said proceedings. Subsequently, Mr.
Jerry Martin is shown to have appeared as a representative
of the Petitioners before the Trial Court on multiple
hearings, including 30.10.2018, 23.07.2019. 01.10.2019,
12.12.2019 and 23.01.2020. The said representative,
having represented the Petitioners before the Trial Court, it
is contended that his knowledge is deemed to be the
knowledge of the Petitioners. Therefore, the contention of
25th April, 2025.
WP 525.2025(F)
the Petitioners that it was only in the year 2025 that they
came to know of the death of Adv. Karkera is frivolous.
(Paragraph 37)
(d) It is alleged at paragraph no. 42 of the Affidavit in Reply
that the Petitioners have been uninterruptedly running a
hotel in the name and style of 'Om Guest House' earlier
known as 'OYO 16945 Om Guest House' situated on the
property adjacent to the suit property, in the time period that
they claim to have been unable to attend the proceedings
before the Trial Court owing to the incapacity of Petitioner
No.1 to do so. It is contended that this fact has been
suppressed by the Petitioners in the present petition before
this Court. (Paragraph 42)
7. In response to the Affidavit in Reply dated 10.03.2024, the
Petitioners have filed an Affidavit in Rejoinder, dated 12.03.2025
in which, relevant to this case, the following facts have been
pleaded:
(a) That Jerry Martins did not appear in the matter, having
failed to pursue the court proceedings, for which the
Petitioners could not be made to suffer. That Jerry Martin
never informed the Petitioners of the death of Adv. Karkera.
(b) That the Hotel/Guest House was given on leave and
licence basis vide leave and license agreement dated
25th April, 2025.
WP 525.2025(F)
09.12.2021 to one Babujan S Nadaf and subsequently to
one Reshma Babujan Nadaf vide agreement for leave and
license dated 11.01.2023. The Petitioners denied their
involvement in running the guest house as also in any
management contracting, booking, paying any taxes and/or
availing any licences, etc. Copies of the Agreements dated
09.12.2021 and 11.01.2023 granting Leave and Licence
have been annexed with the Affidavit in Rejoinder.
8. Shri. Subodh Kantak, learned Senior Advocate
representing the Purchasers, raised the following contentions:
(i) That the interference of this Court in its supervisory
jurisdiction under Article 227 of the Constitution of India
is warranted in this matter to set aside the impugned
judgment and decree, which is perverse and in complete
contravention of the principles laid down by the Supreme
Court in several judgments.
(ii) That the Petitioner could not have availed of
alternative remedies available such as that of approaching
this court in a First Appeal or filing an application under
Order IX Rule 13 before the Trial Court to set aside the
impugned Judgment and Decree which was passed ex
parte, given that it would not be permissible to challenge
25th April, 2025.
WP 525.2025(F)
the subsequent Deed of Sale dated 27.02.2024 and to array
the new purchasers in either of these proceedings.
(iii) Even assuming that the Purchasers succeeded in the
First Appeal or the Application under Order IX Rule 13, the
Purchasers would have to take recourse to Restitution
under Section 144, CPC. Moreover, considering the time
taken to dispose of such proceedings, the new purchasers
could possibly change the nature of the said property.
(iv) That the delay in filing the present petition was
caused due to several reasons, that is to say, the Petitioner's
suffering a brain stroke in May, 2018, followed by
paralysis. Furthermore, the Advocate representing the
Purchasers in the matter before the Trial Court expired
during the pendency of the proceedings, in the mid of May,
2018. The Court functioning was restricted between
15.03.2020 to 28.02.2022, owing to the COVID-19
Pandemic. Resultantly, the Purchasers lost track of the
court proceedings.
(v) It was only in January 2025, when the Purchasers
were put to notice about the interference in the said
property, that they discovered about the impugned
Judgment and Decree and the Sale Deed dated 27.02.2024,
executed by the Old Vendors in favour of the New
Purchasers.
25th April, 2025.
WP 525.2025(F)
9. The learned Senior Advocate for the Petitioners relied on
the following judgments in support of his contentions:
(i) Kanhaiyyalal Fattelalji Upadhyaya v. Mahavir Tea
Company & Ors., 2007 SCC OnLine om 104.
(ii) Shaila Subrao Shetye & Ors. v. Kunda Madhukar
Shetye & Ors., 2014 (3) Mh.L.J. 194
(iii) Panoli Intermediate (India) Pvt. Ltd. v. Union of
India & Ors., 2015 SCC OnLine Guj 570
(iv) A. Jeyaprakash v. I. K. Soundaram & Ors,
C.R.P(MD) No. 2551 of 2017 and C.M.P(MD) No.
11893 of 2017, Madras High Court, Madurai Bench
(v) Rajendra Diwan v. Pradeep Kumar Ranibala &
Anr., (2019) 20 SCC 143
(vi) Asset Reconstruction Company (India) Ltd. v. V.
Chola & Ors., 2021 SCC OnLine Mad 13921
(vii) Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra)
& Ors., (2020) 7 SCC 366
10. Opposing these submissions, learned Senior Advocate
Shri Sanjay Hegde advanced the following submissions on
behalf of the Respondents:
(i) That the present Petition, invoking the extraordinary
jurisdiction of this Court to challenge an order passed by
a civil court is not maintainable, given that the existence
25th April, 2025.
WP 525.2025(F)
of alternative efficacious statutory remedies in the nature
of appeal or review under CPC has been construed as a
near total bar on proceedings under writ jurisdiction in
multiple judgments of the Supreme Court.
(ii) That the inordinate delay in filing this Writ Petition
has not been sufficiently explained. The roznama records
establish that the Purchasers have deliberately and
wilfully failed to participate in the proceedings before the
Trial Court despite multiple opportunities provided by the
said Court. The explanation for the delay rendered by the
Purchasers is vague, inaccurate on timelines and consists
of general statements.
(iii) That the powers of this Court under Article 226 and
227 are extraordinary powers and are not meant for
declaring private rights of parties. Considering the settled
position of law that writ petitions cannot be resorted to for
reliefs pertaining to cancellation of registered sale deeds,
given that they concern adjudication on private civil rights
and involve disputed questions of fact and title, which are
subject to the jurisdiction of civil courts, this petition is
liable to be dismissed given that it seeks cancellation of a
registered Deed of Sale dated 27.02.2024 and restoration
of Deed of Sale dated 06.10.2006 which was cancelled by
the impugned Judgment and Decree dated 21.01.2023.
25th April, 2025.
WP 525.2025(F)
(iv) That writ/supervisory jurisdiction under Articles
226 and 227 of the Constitution is discretionary and
equitable in nature and as such any person invoking the
extraordinary jurisdiction of this court must approach
the court with clean hands.
11. Shri Sanjay Hegde, Senior Advocate and Shri Jayant Karn,
both learned Advocates representing the Respondents, cited the
following precedents supporting their case:
(i) Union of India v. T. R. Varma, 1957 SCC OnLine SC
(ii) A. Venkatasubbiah Naidu v. S. Chellappan & Ors.,
(2000) 7 SCC 695
(iii) Shalini Shyam Shetty & Anr. v. Rajendra Shankar
Patil, (2010) 8 SCC 329
(iv) Virudhunagar Hindu Nadargal Dharma
Paribalana Sabai & Ors. v.Tuticorin Educational
Society & Ors., (2019) 9 SCC 538
(v) Mrinmoy Maity v. Chhanda Koley & Ors., 2024
SCC OnLine SC 551
(vi) Pathapati Subba Reddy & Ors. v. The Special
Deputy Collector (LA), Special Leave Petition
(Civil) No. 31248 of 2018, Supreme Court of India
25th April, 2025.
WP 525.2025(F)
(vii) H Guruswamy & Ors. v. A. Krishnaiah since
deceased by LRs, Civil Appeal No. 317 of 2025
(Petition for Special Leave to Appeal (C) No.
9719/2020).
12. Based upon the facts of the case and the rival submissions
advanced by the parties, the point for determination in this
petition is whether, notwithstanding the alternate remedy of
Appeal being available to the Petitioners, the Petitioners have
made out a case for invoking extraordinary or supervisory
jurisdiction of this Court under Article 226 and 227 of the
Constitution of India.
THE CASE LAW:
13. Before evaluating the rival submissions of the parties, it
would be advantageous to make reference to the scope and
jurisdiction of this Court in exercise of its powers under Article
226 and 227 of the Constitution of India. In Union of India v.
T.R. Varma (supra), the Supreme Court has considered the scope
of invoking the remedy under Article 226 of the Constitution of
India when an alternate remedy is available. The relevant
observations are quoted below:
"6. At the very outset, we have to observe that a
writ petition under Article 226 is not the
appropriate proceeding for adjudication of
disputes like the present. Under the law, a
25th April, 2025.
WP 525.2025(F)
person whose services have been wrongfully
terminated, is entitled to institute an action to
vindicate his rights, and in such an action, the
Court will be competent to award all the reliefs
to which he may be entitled, including some
which would not be admissible in a writ petition.
It is well-settled that when an alternative and
equally efficacious remedy is open to a litigant,
he should be required to pursue that remedy and
not invoke the special jurisdiction of the High
Court to issue a prerogative writ. It is true that
the existence of another remedy does not affect
the jurisdiction of the Court to issue a writ; but,
as observed by this Court in Rashid Ahmed v.
Municipal Board, Kairana1 the existence of an
adequate legal remedy is a thing to be taken into
consideration in the matter of granting writs".
Vide also K.S. Rashid and Son v. Income Tax
Investigation Commission2. And where such
remedy exists, it will be a sound exercise of
discretion to refuse to interfere in a petition
under Article 226, unless there are good
grounds therefor. None such appears in the
present case. ..."
14. In Panoli Intermediate (India) Pvt. Ltd. v. Union of India
& Ors., the Gujarat High Court, on a reference to a Full Bench,
which was called upon to decide the following questions referred
to it:
"(1.) Whether the period of limitation provided
of 60 days, for filing an appeal under Section 35
of the Central Excise Act, 1944, could be
extended only upto 30 days as provided by the
proviso or the delay beyond the period of 90
days could also be condoned in filing an
appeal?
(2.) Where a statutory remedy or appeal is
provided under Section 35 of the Central Excise
Act, 1944 and the delay cannot be condoned
under Section 35 beyond the period of 90 days,
then whether Writ Petition under Article 226 of
the Constitution of India would lie for the
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WP 525.2025(F)
purpose of condoning the delay in filing the
appeal?
(3.) When if the statutory remedy or appeal
under Section 35 is barred by the law of
limitation whether in a Writ Petition under
Article 226 of the Constitution of India, the
order passed by the original adjudicating
authority could be challenged on merits?
These questions were answered by the Full Bench in the
following terms:
....
31. We may now proceed to answer the question
-
(1) Question No. 1 is answered in negative by
observing that the limitation provided under
section 35 of the Act cannot be condoned in
filing the appeal beyond the period of 30 days
as provided by the proviso nor the appeal can be
filed beyond the period of 90 days.
(2) The second question is answered in negative
to the extent that the petition under Article 226
of the Constitution would not lie for the purpose
of condonation of delay in filing the appeal.
(3) On the third question, the answer is in
affirmative, but with the clarification that- A)
The petition under Article 226 of the
Constitution can be preferred for challenging
the order passed by the original adjudicating
authority in following circumstances that A.1)
The authority has passed the order without
jurisdiction and by assuming Jurisdiction which
there exist none, or A.2) Has exercised the
power in excess of the jurisdiction and by
overstepping or crossing the limits of
jurisdiction, or A.3) Has acted in flagrant
disregard to law or rules or procedure or acted
in violation of principles natural-justice where
no procedure is specified."
25th April, 2025.
WP 525.2025(F)
15. In Mrinmoy Maity v. Chhanda Koley & Ors. (supra), the
Supreme Court considered in what circumstances the
extraordinary writ powers under Article 226 and 227 under
Constitution of India should be exercised, and more particular
with reference to delay and laches in filing a petition. The
relevant passages are quoted below:
"9. Having heard rival contentions raised and
on perusal of the facts obtained in the present
case, we are of the considered view that writ
petitioner ought to have been non-suited or in
other words writ petition ought to have been
dismissed on the ground of delay and laches
itself. An applicant who approaches the court
belatedly or in other words sleeps over his rights
for a considerable period of time, wakes up from
his deep slumber ought not to be granted the
extraordinary relief by the writ courts. This
Court time and again has held that delay defeats
equity. Delay or laches is one of the factors
which should be born in mind by the High Court
while exercising discretionary powers under
Article 226 of the Constitution of India. In a
given case, the High Court may refuse to invoke
its extraordinary powers if laxity on the part of
the applicant to assert his right has allowed the
cause of action to drift away and attempts are
made subsequently to rekindle the lapsed cause
of action.
10. The discretion to be exercised would be with
care and caution. If the delay which has
occasioned in approaching the writ court is
explained which would appeal to the conscience
of the court, in such circumstances it cannot be
gainsaid by the contesting party that for all
times to come the delay is not to be condoned.
There may be myriad circumstances which gives
rise to the invoking of the extraordinary
jurisdiction and it all depends on facts and
circumstances of each case, same cannot be
described in a straight jacket formula with
mathematical precision. The ultimate discretion
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to be exercised by the writ court depends upon
the facts that it has to travel or the terrain in
which the facts have travelled.
11. For filing of a writ petition, there is no doubt
that no fixed period of limitation is prescribed.
However, when the extraordinary jurisdiction of
the writ court is invoked, it has to be seen as to
whether within a reasonable time same has been
invoked and even submitting of memorials
would not revive the dead cause of action or
resurrect the cause of action which has had a
natural death. In such circumstances on the
ground of delay and laches alone, the appeal
ought to be dismissed or the applicant ought to
be non-suited. If it is found that the writ
petitioner is guilty of delay and laches, the High
Court ought to dismiss the petition on that sole
ground itself, in as much as the writ courts are
not to indulge in permitting such indolent
litigant to take advantage of his own wrong. It is
true that there cannot be any waiver of
fundamental right but while exercising
discretionary jurisdiction under Article 226, the
High Court will have to necessarily take into
consideration the delay and laches on the part
of the applicant in approaching a writ court.
This Court in the case of Tridip Kumar Dingal
v. State of W.B., (2009) 1 SCC 768 has held to
the following effect:
"56. We are unable to uphold the contention. It
is no doubt true that there can be no waiver of
fundamental right. But while exercising
discretionary jurisdiction under Articles 32,
226, 227 or 136 of the Constitution, this Court
takes into account certain factors and one of
such considerations is delay and laches on the
part of the applicant in approaching a writ
court. It is well settled that power to Issue a writ
is discretionary. One of the grounds for refusing
reliefs under Article 32 or 226 of the
Constitution is that the petitioner is guilty of
delay and laches.
57. If the petitioner wants to invoke jurisdiction
of a writ court, he should come to the Court at
the earliest reasonably possible opportunity.
Inordinate delay in making the motion for a writ
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will indeed be a good ground for refusing to
exercise such discretionary jurisdiction. The
underlying object of this principle is not to
encourage agitation of stale claims and exhume
matters which have already been disposed of or
settled or where the rights of third parties have
accrued in the meantime (vide State of M.P. v.
Bhailal Bhai, [AIR 1964 SC 1006: (1964) 6 SCR
261], Moon Mills Ltd. v. Industrial Court, [AIR
1967 SC 1450] and Bhoop Singh v. Union of
India, [(1992) 3 SCC 136: (1992) 21 ATC 675:
(1992) 2 SCR 969]). This principle applies even
in case of an infringement of fundamental right
(vide Tilokchand Motichand v. H.B. Munshi,
[(1969) 1 SCC 110], Durga Prashad v. Chief
Controller of Imports & Exports, [(1969) 1 SCC
185] and Rabindranath Bose v. Union of India,
[(1970) 1 SCC 84]).
58. There is no upper limit and there is no lower
limit as to when a person can approach a court.
The question is one of discretion and has to be
decided on the basis of facts before the court
depending on and varying from case to case. It
will depend upon what the breach of
fundamental right and the remedy claimed are
and when and how the delay arose."
12. It is apposite to take note of the dicta laid
down by this Court in Karnataka Power
Corporation Ltd. v. K. Thangappan, (2006) 4
SCC 322 whereunder it has been held that the
High Court may refuse to exercise extraordinary
jurisdiction if there is negligence or omissions
on the part of the applicant to assert his right. It
has been further held thereunder:
"6. Delay or laches is one of the factors which
is to be borne in mind by the High Court when
they exercise their discretionary powers under
Article 226 of the Constitution. In an
appropriate case the High Court may refuse to
invoke its extraordinary powers if there is such
negligence or omission on the part of the
applicant to assert his right as taken in
conjunction with the lapse of time and other
circumstances, causes prejudice to the opposite
party. Even where fundamental right is involved
the matter is still within the discretion of the
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Court as pointed out in Durga Prashad v. Chief
Controller of Imports and Exports, [(1969) 1
SCC 185 AIR 1970 SC 769]. Of course, the
discretion has to be exercised judicially and
reasonably.
7. What was stated in this regard by Sir Barnes
Peacock in Lindsay Petroleum Co. v. Prosper
Armstrong Hurd, [[L.R.] 5 P.C. 221 22 WR 492]
(PC at p. 239) was approved by this Court in
Moon Mills Ltd. v. M.R. Meher, [AIR 1967 SC
1450] and Maharashtra SRTC v. Shri Balwant
Regular Motor Service, [(1969) 1 SCR 808: AIR
1969 SC 329]. Sir Barnes had stated:
"Now, the doctrine of laches in courts of equity
is not an arbitrary or a technical doctrine.
Where it would be practically unjust to give a
remedy either because the party has, by his
conduct done that which might fairly be
regarded as equivalent to a waiver of it, or
where by his conduct and neglect he has though
perhaps not waiving that remedy, yet put the
other party in a situation in which it would not
be reasonable to place him if the remedy were
afterwards to be asserted, in either of these
cases, lapse of time and delay are most material.
But in every case, if an argument against relief,
which otherwise would be just, is founded upon
mere delay, that delay of course not amounting
to a bar by any statute of limitation, the validity
of that defence must be tried upon principles
substantially equitable. Two circumstances
always important in such cases are, the length
of the delay and the nature of the acts done
during the interval which might affect either
party and cause a balance of justice or injustice
in taking the one course or the other, so far as it
relates to the remedy."
8. It would be appropriate to note certain
decisions of this Court in which this aspect has
been dealt with in relation to Article 32 of the
Constitution. It is apparent that what has been
stated as regards that article would apply, a
fortiori, to Article 226. It was observed in
Rabindranath Bose v. Union of India, [(1970) 1
SCC 84: AIR 1970 SC 470] that no relief can be
given to the petitioner who without any
25th April, 2025.
WP 525.2025(F)
reasonable explanation approaches this Court
under Article 32 after inordinate delay. It was
stated that though Article 32 is itself a
guaranteed right, it does not follow from this
that it was the intention of the Constitution-
makers that this Court should disregard all
principles and grant relief in petitions filed after
inordinate delay.
9. It was stated in State of M.P. v. Nandlal
Jaiswal, [(1986) 4 SCC 566: AIR 1987 SC 251]
that the High Court in exercise of its discretion
does not ordinarily assist the tardy and the
indolent or the acquiescent and the lethargic. If
there is inordinate delay on the part of the
petitioner and such delay is not satisfactorily
explained, the High Court may decline to
intervene and grant relief in exercise of its writ
jurisdiction. It was stated that this rule is
premised on a number of factors. The High
Court does not ordinarily permit a belated
resort to the extraordinary remedy because it is
likely to cause confusion and public
inconvenience and bring, in its train new
injustices, and if writ jurisdiction is exercised
after unreasonable delay, it may have the effect
of inflicting not only hardship and
inconvenience but also injustice on third
parties. It was pointed out that when writ
jurisdiction is invoked, unexplained delay
coupled with the creation of third-party rights in
the meantime is an important factor which also
weighs with the High Court in deciding whether
or not to exercise such jurisdiction." 13.
Reiterating the aspect of delay and laches would
disentitle the discretionary relief being granted,
this Court in the case of Chennal Metropolitan
Water Supply & Sewerage Board v. T.T. Murali
Babu, (2014) 4 SCC 108 has held:
"16. Thus, the doctrine of delay and laches
should not be lightly brushed aside. A writ court
is required to weigh the explanation offered and
the acceptability of the same. The court should
bear in mind that it is exercising an
extraordinary and equitable jurisdiction. As a
constitutional court it has a duty to protect the
rights of the citizens but simultaneously it is to
keep itself alive to the primary principle that
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WP 525.2025(F)
when an aggrieved person, without adequate
reason, approaches the court at his own leisure
or pleasure, the court would be under legal
obligation to scrutinise whether the lis at a
belated stage should be entertained or not. Be it
noted, delay comes in the way of equity. In
certain circumstances delay and laches may not
be fatal but in most circumstances inordinate
delay would only invite disaster for the litigant
who knocks at the doors of the court. Delay
reflects Inactivity and Inaction on the part of a
litigant a litigant who has forgotten the basic
norms, namely, "procrastination is the greatest
thief of time" and second, law does not permit
one to sleep and rise like a phoenix. Delay does
bring in hazard and causes injury to the lis."
16. In A. Venkatasubbiah Naidu v. S. Chellappan & Ors., the
Supreme Court, whilst considering whether the High Court
should entertain a petition under Article 227 of the Constitution
of India when there were alternate remedies available, has held
as under:
"22. Now what remains is the question whether
the High Court should have entertained the
petition under Article 227 of the Constitution
when the party had two other alternative
remedies. Though no hurdle can be put against
the exercise of the constitutional powers of the
High Court it is a well-recognised principle
which gained judicial recognition that the High
Court should direct the party to avail himself of
such remedies one or the other before he resorts
to a constitutional remedy. Learned Single
Judge need not have entertained the revision
petition at all and the party affected by the
interim ex parte order should have been directed
to resort to one of the other remedies. Be that as
it may, now it is idle to embark on that aspect as
the High Court had chosen to entertain the
revision petition."
25th April, 2025.
WP 525.2025(F)
17. In Kanhaiyyalal Fattelalji Upadhyaya v. Mahavir Tea
Company & Ors. (supra), a Division Bench of this Court
considered the scope of the supervisory jurisdiction under Article
227 of the Constitution of India and in what circumstances the
same should be exercised. This Judgment considers the view
taken by the Supreme Court in Suryadevi Rai (supra) and various
other Judgments and then holds as under:
"6. The Apex Court in para (24) of its judgment
in the case of Surya Dev Rai (cited supra) has
elaborated difference between a writ of
certiorari under Article 226 of the Constitution
and supervisory jurisdiction of the Court under
Article 227 of the Constitution and observed
thus:
"The difference between Articles 226 and 227 of
the Constitution was well brought out in Umaji
Keshao Meshram v. Smt. Radhikabai (1986)
Supp SCC 401. Proceedings under Article 226
are in exercise of the original jurisdiction of the
High Court while proceedings under Article
227 of the Constitution are not original but only
supervisory. Article 227 substantially
reproduces the provisions court or tribunal has
assumed a jurisdiction which it does not have,
(ii) has failed to exercise a jurisdiction which it
does have, such failure occasioning a failure of
justice, and (iii) the jurisdiction though
available is being exercised in a manner which
tantamounts to overstepping the limits of
jurisdiction."
7. The above referred observations make it
implicitly clear that under Article 226 of the
Constitution, jurisdiction exercised by this
Court while issuing writ of certiorari is the
original jurisdiction whereas when power is
exercised by this Court to correct the
jurisdictional error, such as lower
Court/Tribunal assumed jurisdiction, which is
not vested, failure to exercise jurisdiction, which
25th April, 2025.
WP 525.2025(F)
is vested, resulting in failure of justice or
Jurisdiction though available is being exercised
in a manner, which tantamounts to overstepping
the limits of jurisdiction it is always under
supervisory jurisdiction under Article 227 of the
Constitution. It is no doubt true that the Apex
Court in para (25) of its judgment in the case of
Surya Dev Rai (cited supra) has held that
distinction between these two jurisdictions
stands almost obliterated in practice and,
therefore, it has become customary with the
Lawyers labelling their petitions as one under
Articles 226 and 227 of the Constitution.
However, the Apex Court has also observed in
the said paragraph that such practice has been
deprecated in some judicial pronouncements
and in para (38) has observed thus:
"Such like matters frequently arise before the
High Courts. We sum up our conclusions in a
nutshell, even at the risk of repetition and state
the same as hereunder:-
(1) Amendment by Act No. 46 of 1999 with effect
from 1-7-2002 in Section 115 of the Code of
Civil Procedure cannot and does not affect in
any manner the jurisdiction of the High Court
under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts
subordinate to the High Court, against which
remedy of revision has been excluded by the
CPC Amendment Act No. 46 of 1999 are
nevertheless open to challenge in, and continue
to be subject to, certiorari and supervisory
jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the
Constitution, is issued for correcting gross
errors of jurisdiction, i.e. when a subordinate
court is found to have acted (i) without
jurisdiction by assuming jurisdiction where
there exists none, or (ii) in excess of its
jurisdiction by overstepping or crossing the
limits of jurisdiction, or (iii) acting in flagrant
disregard of law or the rules of procedure or
acting in violation of principles of natural
justice where there is no procedure specified
and thereby occasioning failure of justice.
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WP 525.2025(F)
(4) Supervisory jurisdiction under Article 227 of
the Constitution is exercised for keeping the
subordinate Courts within the bounds of their
jurisdiction. When the subordinate Court has
assumed a jurisdiction which it does not have or
has failed to exercise a jurisdiction which it does
have or the jurisdiction though available is
being 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."
9. It is, therefore, evident that the original
jurisdiction of the High Court under Article 226
of the Constitution while issuing a writ of
certiorari is distinct from the supervisory
jurisdiction exercised under Article 227 of the
Constitution. It is no doubt true that though it
seems that the distinction between two
jurisdictions stands almost obliterated in
practice, however, nature of jurisdiction this
Court exercises under these two Articles is quite
distinct and different, although may be for
correcting the jurisdictional error. We cannot
ignore history and background in which
supervisory jurisdiction of the High Court came
into existence. Section 15 of the High Court Act
of 1961 gave a power of judicial
superintendence to the High Court apart from
revisional Jurisdiction. Section 7 of the
Government of India Act, 1919 as well as
Section 224 of the Government of India Act.
1935 were similarly worded. However, sub-
section (2) was added in Section 224, which
confined the jurisdiction of the High Court to
judgments of the inferior Courts, which were not
otherwise subject to appeal or revision. That
restriction has not been carried forward in
Article 227 of the Constitution. It is no doubt
true that original jurisdiction under Article 226
or supervisory jurisdiction under Article 227 of
the Constitution of the High Court is unfettered
and may be invoked for correcting the
Jurisdictional error. However, their areas of
operation are distinct and separate and it is the
tenor of the order passed by the learned Single
Judge coupled with pleadings in the petition and
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contentions raised therein, which would decide
whether jurisdiction exercised by the learned
Single Judge was under Article 226 or Article
227 of the Constitution. Similarly, jurisdictional
errors resulting in failure of justice committed
by the subordinate Courts or Tribunals while
passing orders and since such Courts and
Tribunals are subordinate to the High Court
and, therefore. subject to supervisory
jurisdiction of this Court under Article 227 of
the Constitution and since this Court is
conferred with power to correct such
jurisdictional errors in exercise of power under
Article 227, there is no reason, in such situation,
to have a resort to the original jurisdiction
vested in the High Court under Article 226,
which may be exercised by the High Court for
correcting the jurisdictional errors caused by
the Authorities, which are not subordinate to the
High Court.
10. It is well settled that in exercise of original
jurisdiction, this Court can issue writ of
certiorari and set aside the orders or
proceedings of the subordinate Courts. It is
equally well settled that while doing so. this
Court cannot substitute its own decision in
place thereof, whereas in exercise of
supervisory jurisdiction under Article 227 of the
Constitution, this Court is not only entitled to set
aside the order passed by the Court or Tribunal
below and can correct the Jurisdictional error,
but is also legally entitled to give suitable
directions so as to guide the subordinate Court
as to the manner in which it would act or
proceed thereafter. Under Article 227, this
Court in an appropriate case, is also entitled to
make an order in supersession or substitution of
the order of the subordinate Court. Filing of the
writ petition under Articles 226 and 227 of the
Constitution by itself would not determine that
the order passed by the learned Single Judge is
under Article 226 of the Constitution unless in
substance the pleadings, reliefs claimed and
Jurisdiction invoked show that it was under
Article 226 of the Constitution. Similarly, tenor
of the order passed by the learned Single Judge
also renders active assistance to determine
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whether jurisdiction exercised by the learned
Single Judge was under either Article 226 or
Article 227 of the Constitution.
11. Article 227 of the Constitution confers on
every High Court special power and
responsibility over all subordinate Courts and
Tribunals within its territorial jurisdiction, with
the object of securing that all such Institutions
exercise their powers and discharge their duties
properly and in accordance with law. The power
conferred by this Article on every High Court is
unlimited and unfettered. There are no limits or
restrictions placed on the power of
superintendence and looking to the nature of
power conferred on the High Court under
Article 227, the High Court is armed with a
weapon, which could be used for the purpose of
seeing that justice is meted out fairly and
properly by the Courts and Tribunals, which are
subordinate to the High Court. Thus, the
supervisory jurisdiction of this Court under
Article 227 extends to keeping all subordinate
Courts and Tribunals within the limit of their
authority and to ensure that they obey the law.
In other words, the jurisdiction vested in this
Court under Article 227 is to ensure that the
judicial or quasi-judicial Tribunals do not
exercise their powers in excess of their statutory
jurisdiction and correctly administer the law by
exercising power within their jurisdiction.
However, the power of superintendence
conferred on the High Court extends only over
Courte and Tribunals throughout the territories
in relation to which High Court exercises
jurisdiction. It is no doubt true that in exercising
supervisory power, the High Court does not act
as a Court of appeal. However, exercise of
power under this Article involves a duty to keep
inferior Courts and Tribunals within the bounds
of their authority and to see that they do duty
expected or required by them in legal manner.
The exercise of this power and interfering with
the orders of the Courts or Tribunals is
restricted to the case of grave injustice, failure
of justice and Court or Tribunal has assumed
jurisdiction, which it does not have or has failed
to exercise jurisdiction, which it has as well as
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in case of jurisdiction though available is being
exercised in a manner, which tantamounts to
overstepping the limits of jurisdiction as has
been held by the Apex Court. It is well settled
that in exercise of jurisdiction under Article 227
of the Constitution, the High Court ran set aside
or ignore findings of facts of the inferior Court
or Tribunal, if there is no evidence to justify such
conclusion or if no reasonable person would
possibly have come to the conclusion, which the
Court or Tribunal has come to or it is a finding,
which is perverse in law. ..."
18. In Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil
(supra), the Supreme Court was considering the scope of Article
226 as opposed to the supervisory jurisdiction of the High Court
under Article 227 and has made the following observations:
"25. The power to issue writs underwent a sea
change with the coming of the Constitution from
26-1-1950. Now writs can be issued by the High
Courts only under Article 226 of the
Constitution and by the Supreme Court only
under Article 32 of the Constitution. No writ
petition can be moved under Article 227 of the
Constitution nor can a writ be issued under
Article 227 of the Constitution. Therefore, a
petition filed under Article 227 of the
Constitution cannot be called-a-writ petition.
This is clearly the constitutional position. No
rule of any High Court can amend or alter this
clear constitutional scheme. In fact the Rules of
the Bombay High Court have not done that and
proceedings under Articles 226 and 227 have
been separately dealt with under the said Rules.
26. The High Courts' power of superintendence
under Article 227 of the Constitution has its
origin as early as in the Indian High Courts Act
of 1861. This concept of superintendence has
been borrowed from English Law. The power of
superintendence owes its origin to the
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supervisory jurisdiction of the King's Bench in
England. In the Presidency towns of the then
Calcutta, Bombay, Madras initially Supreme
Court was established under the Regulating Act
of 1793. Those Courts were endowed with the
power of superintendence, similar to the powers
of the King's Bench under the English Law. Then
the Indian High Courts in three Presidency
towns were endowed with similar jurisdiction of
superintendence. Such power was conferred on
them under Section 15 of the Indian High Courts
Act, 1861.
27. Section 15 of the Indian High Courts Act of
1861 runs as under: "15. Each of the High
Courts established under this Act shall have
superintendence over all courts which may be
subject to its appellate jurisdiction, and shall
have power to call for returns, and to direct the
transfer of any suit or appeal for any such court
to any other court of equal or superior
jurisdiction, and shall have power to make and
issue general rules for regulating the practice
and proceedings of such courts, and also to
prescribe forms for every proceeding in the said
courts for which it shall think necessary that a
form be provided, and also for keeping all books
entries, and accounts to be kept by the officers,
and also to settle tables of fees to be allowed to
the Sheriff, Attorneys, and all clerks and officers
of the courts, and from time to time to alter any
such rule or form or table; and the rules so
made, and the forms so framed, and the tables
so settled, shall be used and observed in the said
courts, provided that such general rules and
forms and tables be not inconsistent with the
provisions of any law in force. and shall before
they are issued have received the sanction, in the
Presidency of Fort William of the Governor
General-in-Council, and in Madras or Bombay
of the Governor-in-Council of the respective
Presidencies."
28. Then in the Government of India Act, 1915,
Section 107 continued this power of
superintendence with the High Court. Section
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WP 525.2025(F)
107 of the Government of India Act, 1915 was
structured as follows:
"107. Powers of High Court with respect to
subordinate courts. Each of the High Courts has
superintendence over all courts for the time
being subject to its appellate jurisdiction, and
may do any of the following things, that is to
say-
(a) call for returns;
(b) direct the transfer of any suit or appeal from
any such court to any other court of equal or
superior jurisdiction;
(c) make and issue general rules and prescribe
forms for regulating the practice and
proceedings of such courts;
(d) prescribe forms in which books, entries and
accounts shall be kept by the officers of any such
courts; and
(e) settle tables of fees to be allowed to the
sheriff, attorneys and all clerks and officers of
courts:
Provided that such rules, forms and tables shall
not be inconsistent with the provisions of any
law for the time being in force, and shall require
the previous approval, in the case of the High
Court at Calcutta, of the Governor General-in-
Council, and in other cases of the local
Government."
...
42. Same views have been taken by this Court in
respect of the ambit of High Court's power
under Article 227 in Lonand Grampanchayat v.
Ramgiri Gosavi13 (see AIR pp. 222-34, para 5 of
the Report) and the decision of this Court in
Jijabai Vithalrao Gajre v. Pathankhan14. The
Constitution Bench ratio in Waryam Singh
about the scope of Article 227 was again
followed in Ahmedabad Mfg. & Calico Ptg. Co.
Ltd. v. Ram Tahel Ramnandis.
43. In a rather recent decision of the Supreme
Court in Surya Dev Rai v. Ram Chander Rai16,
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WP 525.2025(F)
a two-Judge Bench of this Court discussed the
principles of interference by the High Court
under Article 227. Of course in Surya Dev Rai16
this Court held that a writ of certiorari is
maintainable against the order of a civil court,
subordinate to the High Court (SCC p. 688,
para 19 of the Report). The correctness of that
ratio was doubted by another Division Bench of
this Court in Radhey Shyam v. Chhabi Nath17
and a request to the Hon'ble Chief Justice for a
reference to a larger Bench is pending. But
insofar as the formulation of the principles on
the scope of interference by the High Court
under Article 227 is concerned, there is no
divergence of views.
46. Articles 226 and 227 stand on substantially
different footing. As noted above, prior to the
Constitution, the Chartered High Courts as also
the Judicial Committee of the Privy Council
could issue prerogative writs in exercise of their
original jurisdiction. (See Umaji Keshao
Meshram v. Radhikabai18, SCC at p. 469.)
However, after the Constitution every High
Court has been conferred with the power to
issue writs under Article 226 and these are
original proceeding. (State of U.P. v. Dr. Vijay
Anand Maharaj19, AIR p. 951.)
....
47. The jurisdiction under Article 227 on the
other hand is not original nor is it appellate.
This jurisdiction of superintendence under
Article 227 is for both administrative and
judicial superintendence. Therefore, the powers
conferred under Articles 226 and 227 are
separate and distinct and operate in different
fields. Another distinction between these two
jurisdictions is that under Article 226, the High
Court normally annuls or quashes an order or
proceeding but in exercise of its jurisdiction
under Article 227, the High Court, apart from
annulling the proceeding, can also substitute the
impugned order by the order which the inferior
tribunal should have made. (See Surya Dev
Rai16, SCC p. 690, para 25 and also the decision
of the Constitution Bench of this Court in Hari
25th April, 2025.
WP 525.2025(F)
Vishnu Kamath v. Ahmad Ishaque20, AIR p. 243,
para 20.)
....
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 may be
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
the 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, at 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 the 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 their 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 and the principles in Waryam
Singh have been repeatedly followed by
subsequent Constitution Benches and various
other decisions of this Court.
25th April, 2025.
WP 525.2025(F)
(e) According to the ratio in Waryam Singh,
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
(f). High Court can interfere in exercise of its
power of superintendence when there has been
patent perversity in the orders of the 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) The 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 L. Chandra Kumar v.
Union of India21 and therefore abridgment 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.
25th April, 2025.
WP 525.2025(F)
(k) The power is discretionary and has to be
exercised on equitable principle. In an
appropriate case, the power can be exercised
suo motu.
(l) 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 the 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 counterproductive and will divest
this extraordinary power of its strength and
vitality.
...........
57. Therefore, a private person becomes
amenable to writ jurisdiction only if he is
connected with a statutory authority or only if
he/she discharges any official duty.
58. In the instant case none of the above features
are present, even then a writ petition was filed
25th April, 2025.
WP 525.2025(F)
in a pure dispute between landlord and tenant
and where the only respondent is the plaintiff
landlord. Therefore, the High Court erred by
entertaining the writ petition. However, the
petition was dismissed on merits by a rather
cryptic order.
59. It has repeatedly been held by this Court that
a proceeding under Article 226 of the
Constitution is not the appropriate forum for
adjudication of property disputes or disputes
relating to title. In Mohd. Hanif v. State of
Assam26 a three-Judge Bench of this Court,
explaining the general principles governing
writ jurisdiction under Article 226, held that this
jurisdiction is extraordinary in nature and is not
meant for declaring the private rights of the
parties. (See SCC p. 786, para 5 of the Report.)
In coming to the aforesaid conclusion in
Hanif26, this Court referred to the Constitution
Bench decision in T.C. Basappa v. T. Nagappa27.
...
64. However, this Court unfortunately discerns
that of late there is a growing trend amongst
several High Courts to entertain writ petition in
cases of pure property disputes. Disputes
relating to partition suits, matters relating to
execution of a decree, in cases of dispute
between landlord and tenant and also in a case
of money decree and in various other cases
where disputed questions of property are
involved, writ courts are entertaining such
disputes. In some cases the High Courts, in a
routine manner, entertain petitions under Article
227 0ver such disputes and such petitions are
treated as writ petitions.
65. We would like to make it clear that in view
of the law referred to above in cases of property
rights and in disputes between private
individuals writ court should not interfere
unless there is any infraction of statute or it can
be shown that a private individual is acting in
collusion with a statutory authority.
66. We may also observe that in some High
Courts there is a tendency of entertaining
25th April, 2025.
WP 525.2025(F)
petitions under Article 227 of the Constitution
by terming them as writ petitions. This is sought
to be justified on an erroneous appreciation of
the ratio in Surya Dev16 and in view of the recent
amendment to Section 115 of the Civil
Procedure Code by the Civil Procedure Code
(Amendment) Act, 1999. It is urged that as a
result of the amendment, scope of Section 115
CPC has been curtailed. In our view, even if the
scope of Section 115 CPC is curtailed that has
not resulted in expanding the High Court's
power of superintendence. It is too well known
to be reiterated that in exercising its
jurisdiction, High Court must follow the regime
of law.
67. As a result of frequent interference by the
Hon'ble High Court either under Article 226 or
227 of the Constitution with pending civil and at
times criminal cases, the disposal of cases by
the civil and criminal courts gets further
impeded and thus causing serious problems in
the administration of justice. This Court hopes
and trusts that in exercising its power either
under Article 226 227, the Hon'ble High Court
will follow the time honoured principles
discussed above. Those principles have been
formulated by this Court for ends of justice and
the High Courts as the highest courts of justice
within their jurisdiction will adhere to them
strictly.
68. For the reasons aforesaid, it is held that the
High Court committed an error in entertaining
the writ petition in a dispute between landlord
and tenant and where the only respondent is a
private landlord. The course adopted by the
High Court cannot be approved. Of course, the
High Court's order of non-interference in view
of concurrent findings of facts is
unexceptionable. Consequently, the appeal is
dismissed. However, there shall be no order as
to costs."
19. In Shaila Subrao Shetye & Ors. v. Kunda Madhukar
Shetye (supra), a single Judge of this Court considering the scope
25th April, 2025.
WP 525.2025(F)
of Article 227 while exercising supervisory jurisdiction over the
actions of the Civil Courts, and after referring to Shalini Shetty
(supra) has held thus:
19. ...In Shalini Shetty's case (supra), the Apex
Court draws distinction between jurisdiction
under Articles 226 and 227 in following manner
and formulated principles on the exercise of
High Court's jurisdiction under Article 227. As
regards the distinction between the two
jurisdictions, the Apex Court states as follows:
"47. The jurisdiction under Article 227 on the
other hand is not original nor is it appellate.
This jurisdiction of superintendence under
Article 227 is for both administrative and
judicial superintendence. Therefore, the powers
conferred under Articles 226 and 227 are
separate and distinct and operate in different
fields another distinction between these two
jurisdictions is that under Article 226, the High
Court normally annuls or quashes an order or
proceeding but in exercise of its jurisdiction
under Article 227, the High Court, apart from
annulling the proceeding, can also substitute
the impugned order by the order which is
inferior tribunal should have made.
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. The 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
25th April, 2025.
WP 525.2025(F)
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."
On the parameters of interference under Article
227, the observations of the Apex Court at para
49(d)(e)(f)(g)(h) are as follows:
"49....
(d) The parameters of interference by High
Courts in exercise of their 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 and the principles in Waryam
Singh have been repeatedly followed by
subsequent Constitution Benches and various
other decisions of this Court.
(e) According to the ratio in Waryam Singh,
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
(f), the High Court can interfere in exercise of
its power of superintendence when there has
been a patent perversity in the orders of the
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
25th April, 2025.
WP 525.2025(F)
other words, the jurisdiction has to be very
sparingly exercised.
....
22. The essence of the submission advanced on
behalf defendants No. 6 and 7 by relying upon
the decisions cited above is that this Court, in
its extraordinary jurisdiction under Article 227
can examine orders of the Civil Court only in
exceptional cases when manifest miscarriage of
justice has been occasioned or there is grave
dereliction of duty or flagrant abuse of
fundamental principles of law or justice, i.e.,
patent perversity reflected in the order. The
High Court cannot lightly or liberally act as an
Appellate Court and reappreciate the evidence.
The rival submissions on merits are now
required to be considered on the background of
the above submission supported by the
decisions cited."
20. In Virudhunagar Hindu Nadargal Dharma Paribalana
Sabai & Ors. v. Tuticorin Educational Society & Ors. (supra),
the Supreme Court considering the very same question and
referring to Suryadev Rai (supra) holds thus:
"10. Primarily the High Court, in our view,
went wrong in overlooking the fact that there
was already an appeal in CMA No. 1 of 2018
filed before the Sub-Court at Tuticorin under
Order 41, Rule 1(r) of the Code, at the instance
of the fifth defendant in the suit (third
respondent herein), as against the very same
order of injunction and, therefore, there was no
justification for invoking the supervisory
jurisdiction under Article 227.
11. Secondly, the High Court ought to have seen
that when a remedy of b appeal under Section
104(1)(i) read with Order 43, Rule 1(r) of the
Code of Civil Procedure, 1908, was directly
25th April, 2025.
WP 525.2025(F)
available, Respondents 1 and 2 ought to have
taken recourse to the same. It is true that the
availability of a remedy of appeal may not
always be a bar for the exercise of supervisory
jurisdiction. of the High Court. In A.
Venkatasubbiah Naidu v. S. Chellappan², this
Court held that "though no hurdle can be put
against the exercise of the constitutional
powers of the High Court, it is a well-
recognised principle which gained judicial
recognition that the High Court should direct
the party to avail himself of such remedies
before he resorts to a constitutional remedy".
12. But courts should always bear in mind a
distinction between (i) cases where such
alternative remedy is available before civil
courts in terms of the provisions of Code of
Civil Procedure, and (ii) cases where such
alternative remedy is available under special
enactments and/or statutory rules and the fora
provided therein happen to be quasi-judicial
authorities and tribunals. In respect of cases
falling under the first category, which may
involve suits and other proceedings before civil
courts, the availability of an appellate-remedy-
in terms of the provisions of CPC may have to
be construed as near total bar Otherwise, there
is a danger that someone may challenge in a
revision under Article 227, even a decree
passed in a suit, on the same grounds on which
Respondents 1 and 2 invoked the jurisdiction of
the High Court. This is why, a 3-member Bench
of this Court, while overruling the decision in
Surya Dev Rai v. Ram Chander Rai³, pointed
out in Radhey Shyam v. Chhabi Nath that
"orders of civil court stand on different footing
from the orders of authorities or tribunals or
courts other than judicial/civil courts".
13. Therefore wherever the proceedings are
under the Code of Civil Procedure and the
forum is the civil court, the availability of a
25th April, 2025.
WP 525.2025(F)
remedy under the CPC, will deter the High
Court, not merely as a measure of self-imposed
restriction, but as a matter of discipline and
prudence, from exercising its power of
superintendence under the Constitution. Hence,
the High Court ought not to have entertained
the revision under Article 227 especially in a
case where a specific remedy of appeal is
provided under the Code of Civil Procedure
itself."
21. In Asset Reconstruction Company (India) Ltd. v. V.
Chola & Ors. (supra), on facts of that case, a Single Judge
of the Madras High Court, where obtaining of a decree by
collusion and suppression were pleaded, has considered the
scope of the supervisory jurisdiction of the High Court under
Article 227 in the following terms:
"20. In the decision reported in (2002) 1 CTC
183 (Roshan Deen v. Preeti Lal), the
Honourable Supreme Court dealt with the
powers that could be exercised by the Courts
under Article 227 of the Constitution of India
and held that no man should be subjected to
injustice by violating the Rule of law.
21. In this case, though there is an alternative
remedy of appeal, considering the issue
involved in this case and also considering the
fact that the respondents 1 to 4 delayed the
process of auctioning about 10 years by
abusing the process of the Court and the decree
has been obtained by the respondents 1 to 4 by
collusion and suppression, and without
impleading necessary parties and in order to
avoid further delay, this Court is of the view that
interference of the judgment and decree passed
by the Court below is required by exercising the
power of superintendence under Article 227 of
the Constitution of India.
25th April, 2025.
WP 525.2025(F)
22. Though, in this case, the respondents 1 to 4
obtained decree as early as on 28.06.2017, they
did not take any steps to obtain final decree and
execute the same for the reason best known to
them. It further strengthened the submission of
the learned counsel for the petitioner/company
that only in order to create an hurdle to the
recovery process and to delay the same, they
kept the matter pending for years together. It is
seen that only after issuance of sale notice by
the petitioner/company, the respondents 1 and
2 came out and questioned the same before the
Debt Recovery Tribunal stating that
preliminary decree had been obtained in the
suit in O.S. No. 55 of 2006. On 25.09.2020, the
Tribunal has granted an interim order of stay of
confirmation of sale alone subject to payment
of Rs. 2,76,72,000/- in three instalments, failing
which the interim order shall stand vacated. It
is stated by the petitioner/company that since
the respondents 1 and 2 did not pay any pie to
the petitioner company as directed by the
Tribunal, they confirmed the sale in favour of
one Prabhakaran and issued sale certificate on
15.12.2020. The above act of the respondents 1
and 2 clearly shows that the intention of the
respondents 1 and 2 is only to drag on the
process and not to settle the amount. As the
decree had been obtained by suppression of fact
and collusion, this Court is of the view that the
submission of the respondents 1 and 2 about
locus standi of the petitioner need not be taken
into account. In view of the above, this Court is
inclined to set aside the judgment and decree
passed by the Court below."
22. The scope of interference in supervisory jurisdiction was
further considered by the Supreme Court in Rajendra Diwan v.
Pradeep Kumar Ranibala & Anr. (supra) as under:
85. The power of superintendence conferred by
Article 227 is, however, supervisory and not
appellate. It is settled law that this power of
judicial superintendence must be exercised
sparingly, to keep subordinate courts and
25th April, 2025.
WP 525.2025(F)
tribunals within the limits of their authority.
When a Tribunal has acted within its
jurisdiction, the High Court does not interfere
in exercise of its extraordinary writ jurisdiction
unless there is grave miscarriage of justice or
flagrant violation of law. Jurisdiction under
Article 227 cannot be exercised "in the cloak of
an appeal in disguise".
86. In exercise of its extraordinary power of
superintendence and/or judicial review under
Articles 226 and 227 of the Constitution of
India, the High Courts restrict interference to
cases of patent error of law which go to the root
of the decision; perversity: arbitrariness and/or
unreasonableness; violation of principles of
natural justice, lack of jurisdiction and
usurpation of powers. The High Court does no
re-assess or re-analyse the evidence and/or
materials on record. Whether the High Court
would exercise its writ jurisdiction to test a
decision of the Rent Control Tribunal would
depend on the facts and circumstances of the
case. The writ jurisdiction of the High Court
cannot be converted into an alternative
appellate forum, just because there is no other
provision of appeal in the eye of the law."
23. From the above case law, the following broad principles
supervisory and original jurisdiction of the High Court, under
Articles 227 and 226 of the Constitution of India can be deduced:
(i) The High Court may intervene in exercise of
its supervisory jurisdiction when a court or a
tribunal:
(a) Assumes jurisdiction that is not vested in
it, or
25th April, 2025.
WP 525.2025(F)
(b) Fails to exercise jurisdiction that is
legitimately vested in it, or
(c) Exercises jurisdiction in a manner that
exceeds the limits of its lawful authority.
(ii) The exercise of Supervisory jurisdiction is
warranted in cases of grave injustice, patent
perversity, or flagrant violation of law or natural
justice, especially when no alternative efficacious
remedy is available, in order to prevent miscarriage
of justice.
(iii) The supervisory jurisdiction of the High Court
does not extend to re-appreciating evidence or
correcting mere errors of fact or law; Its jurisdiction
under Article 227 is limited, supervisory in nature,
and must be exercised sparingly, with the sole
intention to ensure lawful and equitable functioning
of subordinate courts. Consequently, supervisory
jurisdiction cannot be exercised as a substitute to
the remedies of appeal and revision.
(iv) Extraordinary powers of the High Court cannot
be invoked when the petition suffers from delay and
laches. This stems from the principle that the High
Court's extraordinary powers cannot be exercised
25th April, 2025.
WP 525.2025(F)
to assist a cause that has been prejudiced due to
inaction on the part of the petitioner in seeking the
appropriate remedy.
(v) A petition under Article 226 and/or Article 227,
for seeking condonation of delay in filing appeal,
would not lie. The jurisdiction of the High Court
under the aforesaid Articles is essentially aimed at
determining the correctness and legality of
administrative or judicial decisions; it does not
serve as a remedy for procedural lapses such as
delay in filing an appeal.
The present matter would have to be viewed keeping the
aforementioned principles in mind whilst exercising supervisory
jurisdiction.
24. Considering that the remedy of Appeal in the present case,
would be admittedly barred for the Petitioners by the law of
limitation, it would be also relevant, for arriving at a just decision
in this case, to consider the effect of the bar of limitation, and
whether the reasons for such delay in lodging an Appeal would
permit this Court to hold that the delay and laches in filing this
petition has been justified. For that purpose, I would make
reference to certain decisions of various Courts, which have
25th April, 2025.
WP 525.2025(F)
considered the question of bar created to a proceeding under the
Law of Limitation and to what extend would a writ Court
exercise its jurisdiction in such matters.
25. In Pathapati Subba Reddy & Ors. v. The Special Deputy
Collector (LA) (supra), the Supreme Court has considered the
approach that Courts ought to have whilst keeping the balance
between the provisions of Section 3 and Section 5 of the
Limitation Act. The relevant passages are quoted below:
"7. The law of limitation is founded on public
policy. It is enshrined in the legal maxim
"interest reipublicae ut sit finis litium" i.e. it is
for the general welfare that a period of
limitation be put to litigation. The object is to
put an end to every legal remedy and to have a
fixed period of life for every litigation as it is
futile to keep any litigation or dispute pending
indefinitely. Even public policy requires that
there should be an end to the litigation
otherwise it would be a dichotomy if the
litigation is made immortal vis-a-vis the
litigating parties i.e. human beings, who are
mortals.
8. The courts have always treated the statutes of
limitation and prescription as statutes of peace
and repose. They envisage that a right not
exercised or the remedy not availed for a long
time ceases to exist. This is one way of putting
to an end to a litigation by barring the remedy
rather than the right with the passage of time.
9. Section 3 of the Limitation Act in no
uncertain terms lays down that no suit, appeal
or application instituted, preferred or made
after the period prescribed shall be entertained
rather dismissed even though limitation has not
been set up as a defence subject to the
exceptions contained in Sections 4 to 24
(inclusive) of the Limitation Act.
25th April, 2025.
WP 525.2025(F)
12. In view of the above provision, the appeal
which is preferred after the expiry of the
limitation is liable to be dismissed. The use of
the word 'shall' in the aforesaid provision
connotes that the dismissal is mandatory
subject to the exceptions. Section 3 of the Act is
peremptory and had to be given effect to even
though no objection regarding limitation is
taken by the other side or referred to in the
pleadings. In other words, it casts an obligation
upon the court to dismiss an appeal which is
presented beyond limitation. This is the general
law of limitation. The exceptions are carved out
under Sections 4 to 24 (inclusive) of the
Limitation Act but we are concerned only with
the exception contained in Section 5 which
empowers the courts to admit an appeal even if
it is preferred after the prescribed period
provided the proposed appellant gives
'sufficient cause' for not preferring the appeal
within the period prescribed. In other words,
the courts are conferred with discretionary
powers to admit an appeal even after the expiry
of the prescribed period provided the proposed
appellant is able to establish 'sufficient cause'
for not filing it within time. The said power to
condone the delay or to admit the appeal
preferred after the expiry of time is
discretionary in nature and may not be
exercised even if sufficient cause is shown
based upon host of other factors such as
negligence, failure to exercise due diligence etc.
...
14. It may also be important to point out that
though on one hand, Section 5 of the Limitation
Act is to be construed liberally, but on the other
hand, Section 3 of the Limitation Act, being a
substantive law of mandatory nature has to be
interpreted in a strict sense. In Bhag Mal alias
Ram Bux and Ors. us. Munshi (Dead) by LRs.
and Ors., it has been observed that different
provisions of Limitation Act may require
different construction, as for example, the court
exercises its power in a given case liberally in
condoning the delay in filing the appeal under
Section 5 of the Limitation Act, however, the
same may not be true while construing Section
25th April, 2025.
WP 525.2025(F)
3 of the Limitation Act. It, therefore, follows that
though liberal interpretation has to be given in
construing Section 5 of the Limitation Act but
not in applying Section 3 of the Limitation Act,
which has to be construed strictly.
...
16. Generally, the courts have adopted a very
liberal approach in construing the phrase
'sufficient cause' used in Section 5 of the
Limitation Act in order to condone the delay to
enable the courts to do substantial justice and
to apply law in a meaningful manner which
subserves the ends of justice. In Collector, Land
Acquisition, Anantnag and Ors. vs. Katiji and
Ors., this Court in advocating the liberal
approach in condoning the delay for 'sufficient
cause' held that ordinarily a litigant does not
stand to benefit by lodging an appeal late; it is
not necessary to explain every day's delay in
filing the appeal; and since sometimes refusal
to condone delay may result in throwing out a
meritorious matter, it is necessary in the interest
of justice that cause of substantial justice
should be allowed to prevail upon technical
considerations and if the delay is not deliberate,
it ought to be condoned. Notwithstanding the
above, howsoever, liberal approach is adopted
in condoning the delay, existence of 'sufficient
cause' for not filing the appeal in time, is a
condition precedent for exercising the
discretionary power to condone the delay. The
phrases 'liberal approach', 'justice- oriented
approach' and cause for the advancement of
'substantial justice' cannot be employed to
defeat the law of limitation so as to allow stale
matters or as a matter of fact dead matters to
be revived and re-opened by taking aid of
Section 5 of the Limitation Act.
26. On a harmonious consideration of the
provisions of the law, as aforesaid, and the law
laid down by this Court, it is evident that:
(i) Law of limitation is based upon public policy
that there should be an end to litigation by
forfeiting the right to remedy rather than the
right itself;
25th April, 2025.
WP 525.2025(F)
(ii) A right or the remedy that has not been
exercised or availed of for a long time must
come to an end or cease to exist after a fixed
period of time;
(iii) The provisions of the Limitation Act have
to be construed differently, such as Section 3
has to be construed in a strict sense whereas
Section 5 has to be construed liberally;
(iv) In order to advance substantial justice,
though liberal approach, justice-oriented
approach or cause of substantial justice may be
kept in mind but the same cannot be used to
defeat the substantial law of limitation
contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion
to condone the delay if sufficient cause had
been explained, but that exercise of power is
discretionary in nature and may not be
exercised even if sufficient cause is established
for various factors such as, where there is
inordinate delay, negligence and want of due
diligence;
(vi) Merely some persons obtained relief in
similar matter, it does not mean that others are
also entitled to the same benefit if the court is
not satisfied with the cause shown for the delay
in filing the appeal;
(vii) Merits of the case are not required to be
considered in condoning the delay; and
(viii) Delay condonation application has to be
decided on the parameters laid down for
condoning the delay and condoning the delay
for the reason that the conditions have been
imposed, tantamounts to disregarding the
statutory provision."
26. In H Guruswamy & Ors. v. A. Krishnaiah, since deceased
by LRs, the Supreme Court observed that the law of limitation
should be applied rigorously, especially in cases involving
25th April, 2025.
WP 525.2025(F)
inordinate and unexplained delays without sufficient cause. The
relevant paragraphs are quoted below:
"12. We take notice of the following
glaring features of the matter:
(i) The original suit is of the year 1977. The said
suit came to be re-numbered as Original Suit
No. 1833 of 1980. It has been 48 years that the
suit is pending for recording of evidence.
(ii) The Original Suit No. 1833 of 1980 came to
be dismissed for default in the year 1983. The
same was restored in 1984.
(iii) The defendant No. 4 in Original Suit No.
1833 of 1980, namely, Nagaraja passed away
on 4.12.1999.
(iv) The respondents herein were granted
opportunities on 6.03.2000, 18.7.2000 and
22.8.2000 respectively to bring the legal heirs
of the defendant No. 4 on record. Having failed
to do so the suit ultimately came to be dismissed
as having stood abated.
had already been decided in the suit filed for
specific performance i.e. the Original Suit No.
33 of 1971.
(vi) The respondents having obtained the
certified copies on 26.8.2005 preferred the
Misc. Case No. 223 of 2006 on 06.03.2006.
(vii) Indisputably, there is a delay of 6 years
2200 days) itself. (about in filing the
application for recall
13. We are at our wits end to understand why
the High Court overlooked all the aforesaid
aspects. What was the good reason for the High
Court to ignore all this? Time and again, the
Supreme Court has reminded the District
judiciary as well the High courts that the
concepts such as "liberal approach",
25th April, 2025.
WP 525.2025(F)
"substantial justice" "Justice oriented
approach", should not be employed frustrate or
jettison the substantial law of limitation.
14. We are constrained to observe that the High
Court has exhibited complete absence of
judicial conscience and restraints, which a
judge is expected to maintain while
adjudicating a lis between the parties.
15. The rules of limitation are not meant to
destroy the rights of parties They are meant to
see that the parties do not resort to dilatory
tactics but seek their remedy promptly.
16. The length of the delay is definitely a
relevant matter which the court must take into
consideration while considering whether the
delay should be condoned or not from the tenor
of the approach of the respondents herein, it
appears that they want to fix their own period
of limitation for the purpose of instituting the
proceedings for which law has prescribed a
period of limitation. Once it is held that a party
has lost his right to have the matter considered
on merits because of his own inaction for a
long, it cannot be presumed to be non-
deliberate delay and in such circumstances of
the case, he cannot be heard to plead that the
substantial justice deserves to be preferred as
against the technical considerations While
considering the plea for condonation of delay,
the court must not start with the merits of the
main matter. The court owes a duty to first
ascertain the bona fides of the explanation
offered by the party seeking condonation. It is
only if the sufficient cause assigned by the
litigant and the opposition of the other side is
equally balanced that the court may bring into
aid the merits of the matter for the purpose of
condoning the delay."
27. The upshot of these judgments is that a Court dealing with
an application for condonation of delay must be always
conscious, while exercising jurisdiction under Section 5 of the
25th April, 2025.
WP 525.2025(F)
Limitation Act, that Section 3 of that Act emphasis a bar on the
remedy provided by law. These Judgments further lay emphasis
on the principle that whilst Courts should adopt a liberal and
justice oriented approach, which should advance the cause of
substantial justice, this approach cannot defeat the law of
limitation, so as to allow stale claims or revive dead matters
taking the aid of Section 5 of the Limitation Act.
28. Keeping the aforementioned principles restricting the
exercise of supervisory jurisdiction of this Court, and further
considering the law discussed above all the principles on which
the power to condone the delay, would be exercised, I would
proceed to consider the conduct of the Petitioners prior to
approaching this Court, and whether they have made out a case
demonstrating due diligence and are entitled to invoke,
supervisory jurisdiction of this Court.
29. For easy reference to the relevant facts and events, the same
have been concised in tabular form as under:
DATE EVENT
01.09.2006 Agreement for Sale executed by
Respondent Nos. 1 and 2 in favour of the
Petitioner No.1. The Petitioners do not
complete the construction of the house for
25th April, 2025.
WP 525.2025(F)
the Respondents, claiming that possession
of the old house was never handed over.
27.09.2006 Deed of Sale Executed by Respondent Nos.
1 and 2 in favour of Petitioner No. 1. for Part
payment of consideration
17.07.2007 Legal notice issued by the Petitioners to
Respondent no. 1 demanding that vacant
possession of the said property along with
the house standing thereon be handed over
to the Purchasers in pursuance of the
Agreement for Sale dated 01.09.2006 and
Deed of Sale dated 27.09.2006.
Notice was replied to on 24.07.2007 stating
that title was not transferred under the Sale
Deed as the Petitioners had failed to fulfil
their part of the contract.
14.04.2008 Second Notice issued by Petitioners to
Respondent Nos. 1 & 2, demanding that
Respondents either vacate the house on the
said property and to hand over vacant
possession of the same to the Purchasers or
to execute a Deed of Rectification and
Ratification of Deed of Sale dated
27.09.2006.
15.05.2012 Civil Suit [ SCS NO. 27/2012/A/B] filed by
Respondent Nos. 1 and 2 seeking
cancellation of the Deed of sale. No relief of
recovery of possession was sought.
25th April, 2025.
WP 525.2025(F)
07.06.2012 Written Statement by the Petitioners
claiming they are in possession of the suit
property
07.05.2018 Petitioner No. 1 claims to have suffered
from brain stroke and partial paralysis and
was admitted at GMC hospital on
07.05.2018 and was discharged on
16.05.2018.
13.02.2019 Roznama shows that the Advocate for
Purchasers was representing them before
the Trial Court, Mapusa as on this date.
21.05.2018 Petitioner No. 1 claims he was admitted to
the Redkar Hospital, Dhargal, Goa Where
he was diagnosed with haemorrhagic stroke,
residual spastic hemiparesis and
hypertension
ROZNAMA ENTRIES IN THE CIVIL SUIT
09.08.2018 The Petitioner was present in person in the
Court.
01.10.2019 Representative of Defendant (Petitioner
herein), Mr. Jerry Martin who intimated the
court that Adv. Karkare, who appeared for
the Petitioner had expired. Trial Court
records that the matter is being considered
for settlement.
12.12.2019 Court records the presence of Mr. Jerry
& Martin and that the matter is being
23.01.2020 considered for settlement.
25th April, 2025.
WP 525.2025(F)
07.04.2020 COVID-19 Pandemic
to
22.10.2020
04.02.2021 Petitioners remained absent and the matter
to was adjourned for settlement/evidence. In
08.11.2021 view of Covid Circular dated 07.01.2022,
matter was adjourned.
16.03.2022 Petitioners/Defendants absent. Opportunity
to granted for cross examination.
20.04.2022
27.06.2022 Last Opportunity given to the
Defendant/Petitioners who remain
unrepresented.
22.07.2022 Cross Examination Of Pw-1 Closed
(impugned Roznama Order)
17.08.2022 Plaintiff's evidence closed
21.09.2022 Defence Evidence Closed. Defendant
Unrepresented (Impugned Roznama Order)
21.10.2022 Final Arguments Heard. Defendant
unrepresented
21.01.2023 Impugned Judgment and Decree Passed
(Declaring Deed of Sale dated 27.09.2006
null and void and directing the cancellation
of the same.)
05.06.2023 Petitioner No. 1 was again admitted to the
Redkar Hospital for the treatment of
hypoglycaemic syncope, acute infective
25th April, 2025.
WP 525.2025(F)
bronchitis, recent dengue, fibril illness and
other ailments
27.02.2024 Deed Of Sale executed by Respondent Nos.
1 and 2 in favour of Respondent Nos. 3 and
4 pursuant to Decree dated 21.01.2023
01.04.2024 Respondent No. 3 applied for a Mutation in
the survey records.
10.01.2025 Petitioner No. 2 claims to have visited the
suit property and observes a contractor at
site, who brings to her notice the fact that
the Civil Suit SCS NO. 27/2012/A/B had
been decreed in their absence, and the Sale
Deed dated 27.02.2024 was declared to be
void.
Certified copies of Court documents applied
for.
On the same day, the suit property was
interfered with By Fencing The Same With
15.01.2025
Metal Sheets. Entire Property, including suit
property was fenced with metal sheets.
17.01.2025 Petitioners applied for a certified copy of the
Sale Deed dated 27.02.2024. On 18.01.2025
a medical certificate was obtained to
substantiate the state of health of the
Petitioners.
25th April, 2025.
WP 525.2025(F)
20.01.2025 Certified copy of the Sale Deed dated
to 27.02.2024, and Impugned Judgment and
27.01.2025 Decree obtained by the Petitioners.
06.02.2025 Application under Order IX Rule 13 &
application for Condonation of delay filed
before the Court of Civil Judge Senior
Division, Mapusa, Goa
12.02.2025 Petitioners claimed the house standing on
the property was demolished by the
Respondents.
17.02.2025 Present Writ Petition filed
30. On a perusal of the aforementioned chronology, what
emerges is the following:
(a) The suit proceeded with the Petitioners being
unrepresented nor attending the proceedings between
04.02.2021 and 21.01.2023(almost two years). Suit was
decreed on 21.01.2023 setting aside the Sale Deed.
(b) Limitation for filing an Appeal against the Decree
expired on 18.04.2023, and on 20.02.2023 for filing an
application under Order 9 Rule 13 CPC.
(c) the Petitioner No. 1 was unwell on three occasions,
the first and the second time, before the evidence in the suit
commenced; the first being on 07.02.2018 and the second
25th April, 2025.
WP 525.2025(F)
being 21.05.2018. The third bout of sickness was after the
suit was decreed on 05.06.2023.
(d) The subsequent sale in favour of the Respondent Nos.
3 and 4 was registered on 27.02.2024 and Mutation was
applied for on 01.04.2024 and completed thereafter.
(e) On 10.02.2025, almost one year after the Sale Deed
in favour of Respondent Nos. 3 and 4 was executed, the
application under Order 9 Rule 13 seeking condonation of
delay was filed.
(f) On 17.02.2025, the present writ petition was filed.
31. The upshot of these events, would reveal that the Sale Deed
of the Petitioners was cancelled on 21.01.20023 and the entry of
the registration stood deleted. Further, fresh rights were created
in favour of Respondent Nos. 3 and 4 by execution of Deed of
Sale on 27.02.2024 and Mutation in the Revenue Records carried
out. Apart from the various rights created by these events, by
operation of the Limitation Act, the remedy of Appeal to
challenge the Decree became barred by more than 2 years.
32. From these facts, obviously therefore the petition suffers
from laches and delay, which going by the sketchy explanation
given by the Petitioner, or rather the lack of proper reasons for
delay, invocation of this Court's jurisdiction under Article 226
25th April, 2025.
WP 525.2025(F)
and 227 of the Constitution of India would be misplaced. This is
not a case where there is a small delay which is explained to
exercise supervisory powers in favour of the Petitioners. The
powers of this Court would have to be exercised, surmounting
the huge delay and ignoring the various rights created either by
operation of the law of limitation or by transfer of ownership to
the Respondent No. 3 vide the Sale Deed executed on
27.02.2024. This, notwithstanding the fact that Respondent Nos.
3 and 4 by the Petitioner's own pleadings, having exercised
rights of possession over the property and the Petitioners having
availed of one of the alternate remedy available to them by filing
an application under Order IX Rule 13 CPC before the Trial
Court.
33. Applying the principles culled out in the case law referred
above, to the facts in the preceding paragraphs, there is no case
made out for the exercise of supervisory and extraordinary
jurisdiction of this Court either under Article 226 or 227 of the
Constitution of India. The petition would have to be rejected on
this count alone.
34. I am mindful of the fact that having considered the question
of delay and laches, any observations made herein to conclude
that this petition would be barred by delay and laches may affect
the decision in the pending application for condonation of delay
25th April, 2025.
WP 525.2025(F)
filed in the proceeding under Order 9 Rule 13 CPC before the
Trial Court. So also, in the event of the Petitioners seeking to
avail their remedy of a First Appeal against the Decree, they
would obviously have to seek condonation of delay in filing the
same.
It is made clear that any observation made in this Judgment
on the question of delay is purely to determine whether the
Petition suffers from the vice of laches and such observations
shall not come in the way or influence either the Trial Court or
an Appellate Forum which might deal with an application under
Section 5 of the Limitation Act in any proceedings pending
(including the application under Order IX Rule 13 CPC) in
considering the same on its own merits.
35. It was submitted by Senior Advocate Shri. Subodh Kantak
that notwithstanding the fact that the Decree was passed almost
two years ago, the Decree would call for interference in the
supervisory jurisdiction of this Court, since it is passed in
complete contravention of settled principles of law under the
Transfer of Property Act; he further submits that a plain reading
of the plaint would reveal that there is a complete non disclosure
of a cause of action, which would justify the rejection of the
plaint at the threshold. He further submits that in terms of Section
54 of the Transfer of Property Act, the sale transaction from the
25th April, 2025.
WP 525.2025(F)
original Vendors to the Petitioners being complete and the
property having been put in possession and passed to the
Petitioners, the only remedy available to the Plaintiffs in law
would be for recovery of the balance consideration, if any,
payable by the Petitioners and for compensation. He further
submits that the suit was ex-facie barred by limitation, since the
sale transaction was of the year 2006 and the suit for cancellation
of the sale having been filed in the year 2012, more than 3 years
from the transaction. According to the Petitioners, since no relief
of recovery of possession was sought, a Decree for cancellation
of the document without consequential relief of recovery of
possession was barred by law. Reliance was placed to buttress
this submission on the judgments of the Supreme Court in
Dahiben (supra).
36. In Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) &
Ors. the Supreme Court was considering the question of
limitation qua an application for rejection of the plaint. On this
aspect it has observed as under:
"9. Respondents 2 and 3 filed an application for
rejection of the plaint under Order 7 Rules
11(a) and (d) CPC, contending that the suit filed
by the plaintiffs was barred by limitation, and
that no cause of action had been disclosed in
the plaint. It was inter alia submitted that the
plaintiffs had admitted the execution of the sale
deed dated 2-7-2009 in favour of Respondent I
before the Sub-Registrar. Surat. The only
25th April, 2025.
WP 525.2025(F)
dispute now sought to be raised was that they
had not received a part of the sale
consideration. This plea was denied as being
incorrect.
...
11. It was further submitted that pursuant to the
execution of the registered sale deed dated 2-7-
2009, the plaintiffs had participated in the
proceedings before the Revenue Officer for
transfer of the suit property in the revenue
records in favour of Respondent 1. On that
basis, the suit property had been transferred to
Respondent 1 vide Hakk Patrak Entry No. 6517
dated 24-7-2009. Before certifying the said
entry, notice under Section 135-D of the Land
Revenue Code had been duly served on the
plaintiffs, and ever since, Respondent 1 had
been paying the land revenue on the suit
property, and taking the produce therefrom.
21. The present suit for cancellation of the sale
deed was filed by the plaintiffs after a period of
over 5 years after the execution of the sale deed
dated 2-7-2009, and 1 year after the execution
of the sale deed dated 1-4-2013 by Respondent
I It was noted that prior to the institution of the
suit on 15-12-2014, at no point of time did the
plaintiffs raise any grievance whatsoever, of not
having received the full sale consideration
mentioned in C the sale deed dated 2-7-2009. It
was for the first time that such an allegation
was made after over 5 years from the date of
execution of the sale deed dated 2-7-2009.
Since the suit in respect of the sale deed dated
2-7-2009 was held to be barred by law of
limitation, the High Court was of the view that
the suit could not be permitted to be continued
even with respect to the subsequent sale deed
dated 1-4-2013. The plaintiffs had not raised
any allegation against Respondents 2 and 3,
and there was no privity of contract between the
plaintiffs and Respondents 2 and 3. The High
Court rightly affirmed the findings of the trial
court, and held that the suit was barred by
limitation, since it was filed beyond the period
of limitation of three years. 22. Aggrieved by the
impugned judgment and order dated 19-10-
25th April, 2025.
WP 525.2025(F)
2016 passed by the High Court, the original
Plaintiff 1 has filed the present civil appeal.
23. We have heard the learned counsel for the
parties, perused the plaint and documents filed
therewith, as also the written submissions filed
on behalf of the parties.
23.1. We will first briefly touch upon the law
applicable for deciding an application under
Order 7 Rule 11 CPC, which reads as under:
"11. Rejection of plaint. The plaint shall be
rejected in the following cases-
(a) where it does not disclose a cause of
action;
(b) where the relief claimed is undervalued,
and the plaintiff, on being required by the
court to correct the valuation within a time to
be fixed by the court, fails to do so;
(c) where the relief claimed is properly valued
but the plaint is written upon paper
insufficiently stamped, and the plaintiff, on
being required by the court to supply the
requisite stamp paper within a time to be fixed
by the court, fails to do so;
(d) where the suit appears from the statement
in the plaint to be barred by any law:
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the
provisions of Rule 9:
Provided that the time fixed by the court for
the correction of the valuation or supplying of
the requisite stamp-papers shall not be
extended unless the court, for reasons to be
recorded, is satisfied that the plaintiff was
prevented by any cause of an exceptional
nature from correcting the valuation or
supplying the requisite stamp-papers, as the
case may be, within the time fixed by the court
25th April, 2025.
WP 525.2025(F)
and that refusal to extend such time would
cause grave injustice to the plaintiff"
23.2. The remedy under Order 7 Rule 11 is an
independent and special remedy, wherein the
court is empowered to summarily dismiss a
suit at the threshold, without proceeding to
record evidence, and conducting a trial, on the
basis of the evidence adduced, if it is satisfied
that the action should be terminated on any of
the grounds contained in this provision.
23.3. The underlying object of Order 7 Rule
11(a) is that if in a suit, no cause of action is
disclosed, or the suit is barred by limitation
under Rule 11(d), the court would not permit
the plaintiff to unnecessarily protract the
proceedings in the suit. In such a case, it
would be necessary to put an end to the sham
litigation, so that further judicial time is not
wasted.
23.4. In Azhar Hussain v. Rajiv Gandhi this
Court held that the whole purpose of
conferment of powers under this provision is
to ensure that a litigation which is
meaningless, and bound to prove abortive,
should not be permitted to waste judicial time
of the court, in the following words: (SCC p.
324, para 12)
"12.... The whole purpose of conferment of
such powers is to ensure that a litigation
which is meaningless, and bound to prove
abortive should not be permitted to occupy the
time of the court, and exercise the mind of the
respondent. The sword of Damocles need not
be kept hanging over his head unnecessarily
without point or purpose. Even in an ordinary
civil litigation, the court readily exercises the
power to reject a plaint, if it does not disclose
any cause of action."
23.5 The power conferred on the court to
terminate a civil action is, however, a drastic
one, and the conditions enumerated in Order
7 Rule 11 are required to be strictly adhered
to.
25th April, 2025.
WP 525.2025(F)
23.6 Under Order 7 Rule 11, a duty is cast on
the court to determine g whether the plaint
discloses a cause of action by scrutinising the
averments in the plaint, read in conjunction
with the documents relied upon, or whether
the suit is barred by any law.
23.7. Order 7 Rule 14(1) provides for
production of documents, on which the
plaintiff places reliance in his suit, which
reads as under
"14. Production of document on which
plaintiff sues or relies (1)
Where a plaintiff sues upon a document or
relies upon document in his possession or
power in support of his claim, he shall enter
such documents in a list, and shall produce it
in court when the plaint is presented by him
and shall, at the same time deliver the
document and a copy thereof, to be filed with
the plaint.
(2) Where any such document is not in the
possession or power of the plaintiff, he shall,
wherever possible, state in whose possession
or power it is.
(3) A document which ought to be produced in
court by the plaintiff when the plaint is
presented, or to be entered in the list to be
added or annexed to the plaint but is not
produced or entered accordingly, shall not,
without the leave of the court, be received in
evidence on his behalf at the hearing of the
suit.
(4) Nothing in this Rule shall apply to
document produced for the cross-examination
of the plaintiff's witnesses, or, handed over to
a witness merely to refresh his memory."
(emphasis supplied)
23.8. Having regard to Order 7 Rule 14 CPC,
the documents filed along with the plaint, are
required to be taken into consideration for
25th April, 2025.
WP 525.2025(F)
deciding the application under Order 7 Rule
11(a). When a document referred to in the
plaint, forms the basis of the plaint, it should
be treated as a part of the plaint.
....
23.15. The provision of Order 7 Rule 11 is
mandatory in nature. It states that the plaint
"shall" be rejected if any of the grounds
specified in clauses (a) to (e) are made out. If
the court finds that the plaint does not disclose
a cause of action, or that the suit is barred by
any law, the court has no option, but to reject
the plaint."
37. In that Judgment, the Supreme Court has further
considered whether a Sale Deed could be cancelled on the
grounds of non-payment of part consideration. On this
aspect it has observed as under:
"29.1. On a reading of the plaint and the
documents relied upon, it is clear that the
plaintiffs have admitted the execution of the
registered sale deed dated 2-7-2009 in favour
of Defendant 1-Respondent 1 herein. Para (5)
of the plaint reads as:
"(5) Thus, subject of the aforesaid terms the
plaintiffs had executed sale deed selling the
suit property to Opponent 1 vide sale deed
dated 2-7-2009 bearing Sl. No. 5158..."
29.2. The case made out in the plaint is that
even though they had executed the registered
sale deed dated 2-7-2009 for a sale
consideration of Rs 1,74,02,000, an amount of
only Rs 40,000 was paid to them. The
remaining 31 cheques mentioned in the sale
deed, which covered the balance amount of Rs
1,73,62,000 were alleged to be "bogus" or
"false", and allegedly remained unpaid. We
find the averments in the plaint completely
contrary to the recitals in the sale deed dated
25th April, 2025.
WP 525.2025(F)
2-7-2009, which was admittedly executed by
the plaintiffs in favour of Respondent 1. In the
sale deed, the plaintiffs have expressly and
unequivocally acknowledged that the entire
sale consideration was "paid" by Defendant
1-Respondent I herein to the plaintiffs.
29.5. If the case made out in the plaint is to be
believed, it would mean that almost 99% of the
sale consideration Le. Rs 1,73,62,000
allegedly remained unpaid throughout. It is,
however, inconceivable that if the payments
had remained unpaid, the plaintiffs would
have remained completely silent for a period
of over five-and-half years, without even
issuing a legal notice for payment of the
unpaid sale consideration, or instituting any
proceeding for recovery of the amount, till the
filing of the present suit in December 2014.
29.6. The plaintiffs have made out a case of
alleged non-payment of a part of the sale
consideration in the Plaint, and prayed for the
relief of cancellation of the sale deed on this
ground.
29.7. Section 54 of the Transfer of Property
Act, 1882 provides as under: "54. "Sale"
defined.-"Sale" is a transfer of ownership in
exchange for a price paid or promised or part-
paid and part-promised."
The definition of "sale" indicates that there
must be a transfer of ownership from one
person to another i.e. transfer of all rights and
interest in the property, which was possessed
by the transferor to the transferee. The
transferor cannot retain any part of the
interest or right in the property, or else it
would not be a sale. The definition further
indicates that the transfer of ownership has to
be made for a "price paid or promised or part-
paid and part-promised". Price thus
constitutes an essential ingredient of the
transaction of sale.
29.8. In Vidhyadhar v. Manikrao14 this Court
held that the words "price paid or promised or
25th April, 2025.
WP 525.2025(F)
part-paid and part-promised" indicates that
actual payment of the whole of the price at the
time of the execution of the sale deed is not a
sine qua non for completion of the sale. Even
if the whole of the price is not paid, but the
document is executed, and thereafter
registered, the sale would be complete, and
the title would pass on to the transferee under
the transaction. The non-payment of a part of
the sale price would not affect the validity of
the sale. Once the title in the property has
already passed, even if the balance sale
consideration is not paid, the sale could not
be invalidated on this ground. In order to
constitute a "sale", the parties must intend to
transfer the ownership of the property, on the
agreement to pay the price either in praesenti,
or in future. The intention is to be gathered
from the recitals of the sale deed, the conduct
of the parties and the evidence on record.
29.9. In view of the law laid down by this
Court, even if the averments of the plaintiffs
are taken to be true, that the entire sale
consideration had not in fact been paid, it
could not be a ground for cancellation of the
sale deed. The plaintiffs may have other
remedies in law for recovery of the balance
consideration, but could not be granted the
relief of cancellation of the registered sale
deed. We find that the suit filed by the plaintiffs
is vexatious, meritless, and does not disclose
a right to sue. The plaint is liable to be
rejected under Order 7 Rule 11(a).
...
29.11. The plea taken in the plaint that they
learnt of the alleged fraud in 2014, on receipt
of the index of the sale deed, is wholly
misconceived, since the receipt of the index
would not constitute the cause of action for
filing the suit.
....
29.13. The conduct of the plaintiffs in not
taking recourse to legal action for over a
25th April, 2025.
WP 525.2025(F)
period of 5 and ½ years from the execution of
the sale deed in 2009, for payment of the
balance sale consideration, also reflects that
the institution of the present suit is an
afterthought. The plaintiffs apparently filed
the suit after the property was further sold by
Respondent 1 to Respondents 2 and 3, to cast
a doubt on the title of Respondent 1 to the suit
property.
...
29.18. The delay of over 5 and ½ years after
the alleged cause of action arose in 2009,
shows that the suit was clearly barred by
limitation as per Article 59 of the Limitation
Act, 1963. The suit was instituted on 15-12-
2014, even though the alleged cause of action
arose in 2009, when the last cheque delivered
to the plaintiffs. The plaintiffs have failed to
discharge the onus of proof that the suit was
filed within the period of limitation. The plaint
is therefore, liable to be rejected under Order
7 Rule 11(d) CPC.
29.19. Reliance is placed on the recent
judgment of this Court rendered in
Raghwendra Sharan Singh v. Ram Prasanna
Singh16 wherein this Court held that the suit
would be barred by limitation under Article 59
of the Limitation Act, if it was filed beyond
three years of the execution of the registered
deed.
29.20 The plaintiffs have also prayed for
cancellation of the subsequent sale deed dated
1-4-2013 executed by Respondent 1 in favour
of Respondents 2 and 3; since the suit in
respect of the first sale deed dated 2-7-2009 is
rejected both under Clauses (a) and (d) of
Order 7 Rule 11, the prayer with respect to the
second sale deed dated 1-4-2003 cannot be
entertained.
30. The present suit filed by the plaintiffs is
clearly an abuse of the process of the court,
and bereft of any merit. The trial court has
rightly exercised the power under Order 7
Rule 11 CPC, by allowing the application filed
25th April, 2025.
WP 525.2025(F)
by Respondents 2 and 3, which was affirmed
by the High Court."
38. The cause of action disclosed in the suit as can be read from
paragraph Nos. 20, 23 and 33 in the plaint is on the claim that
the Deed of Sale dated 27.09.2006 cannot convey title as the
consideration has not yet been paid. Under Section 54 of the TP
Act and in terms of what is laid down by the Supreme Court in
Dahiben (supra), the plaint would obviously be barred by
limitation. The plaint would also not be maintainable for reliefs
of cancellation of the Deed of Sale dated 27.09.2006. Had the
Appeal against impugned Decree not been barred by limitation
and no third party rights been created by execution of this
subsequent Deed of Sale on 27.02.2024, this perhaps would be a
justifiable case for the exercise of supervisory jurisdiction of this
Court under Article 227 of the Constitution of India. However,
considering the gross delay and laches which I have referred to
in the preceding paragraphs, in my opinion, this would not be a
fit case to interfere in writ or supervisory jurisdiction of this
Court.
39. For all the reasons stated above, this petition is dismissed
with no order as to costs. Rule discharged.
VALMIKI MENEZES, J.
25th April, 2025.
