United India Insurance Co. Ltd. vs Escptrac Finance & Investment Co. ...
1997 Latest Caselaw 300 Del

JUDGMENT

M.S.A. Siddiqui, J.

(1) By this writ petition under Article 227 of the Constitution, the petitioner seeks quashing of the judgment and decree dated 28.10.93passed by the Additional District Judge, Delhi in Civil Suit No. 28/1993, directing the respondent No. 2 to issue duplicate share certificates in favour of the respondent No. I in respect of the shares bearing Nos. .10302198-247, 10551148-197, 10551148-197, 10653698-747, 10840898-947, 11372198-247,12148598-647, 12594748-497, 13742568- 617, 14177942-991, 10644548-597, 10653948-997, 10669448-497, 10805698-747, 10969798-847,10995448-497,111163448-497,11174698-747,11249248-297,11293698- 747, 12574148-197, 12310348-397, 13436773-822, 13300420-469, 13300470-519, 13300520-569,13300570-619 & 10716298-347 and further restraining the respondent No. 2 from paying the dividends/ bonus in respect of the said shares to any person other than the respondent No. 1.

(2) An expose of the facts may be given to the extent necessary for deciding the objection with regard to maintainability of this petition. The petitioner-Company had purchased 500 shares of the respondent No. 2 for a consideration of Rs. 2,20,000.00 vide letter dated 19.6.92 and on 17.8.92 they were registered in petitioner's name. The respondent No. 2 did not pay dividend to the petitioner for the year ending on 31.3.93 in respect of the following 500 shares, which were registered in the name of the petitioner on 17.8.92 : SI. No. No. of shares Distinctive No. 1. 50 10644548-597 2. 50 10653948-997 3. 50 10669448-497 4. 50 10805698-747 5. 50 10969798-847 6. 50 10995448-97 7. 50 11163448-497 8. 50 11174698-747 9. 50 11249248-297 10. 50 11293698-747

(3) On enquiry, the respondent No. 1 intimated the petitioner that the respondent No. 1 had filed a civil suit in the Court of Mr. M.S. Rohilla, Addl. District Judge, Delhi for issue of duplicate share certificates on the ground that they had been lost/destroyed. (Letter dated 29.12.93 at flag J). In response to the petitioner's letter dated 31.12.93, the respondent No. 2 forwarded a copy of the impugned judgment to the petitioner informing him that the dividend in respect of the said shares had been paid in accordance with the directions contained in the judgment. It is alleged that the Addl. District Judge, Delhi has acted arbitrarily and illegally in injuncting the respondent No. 2 from transferring the aforesaid 500 shares held by the petitioner and as such the decree passed by the Addl District. Judge in Civil Suit No. 28/1993 is a nullity. .

(4) On 23.5.94, when the matter came up for admission, and adjournment was sought on behalf of the petitioner to approach the Trial Court for obtaining appropriate relief in accordance with law. It appears that the petitioner did not approach the Trial Court and contended that existence of alternate remedy does not bar jurisdiction of this Court under Article 227 of the Constitution. Thus the question which arises for consideration is whether on the facts and in the circumstances of this case, the petitioner is entitled to invoke extraordinary jurisdiction of this Court under Article 227 of the Constitution. The history of Article 227 and its scope was considered by the Supreme Court in Waryam Singh v. Amarnath, (1954) Scr 565 and it was observed that: "THE material part of Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915, except that the power of superintendence has been extended by the article also to Tribunals. That the Rent Controller and the District Judge exercising jurisdiction under the Act are Tribunals cannot and has not been controverted. The only question raised is as to the nature of the power of superintendence conferred by the article. Reference is made to Clause (2) of the article in support of the contention that this article only confers on the High Court administrative superintendence over the Subordinate Courts and Tribunals. We are unable to accept this contention because Clause (2) is expressed to be without prejudice to the generality of the provisions in Clause (1). Further, the preponderance of judicial opinion in India was that Section 107 which was singular in terms to Section 15 of the High Courts Act, 1986, gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisional jurisdiction on the High Court. In this connection it has to be remembered that Section 107 of the Government of India Act, 1915, was reproduced in the Government of India Act, 1935, as Section 224. Section 224 of the 1935 Act, however, introduced Sub-section 2, which was new, providing that nothing in the section should be construed as giving the High Court any jurisdiction to question any judgment of any inferior Court which was not otherwise subject to appeal or revision. The idea presumably was to nullify the effect of the decisions of the different High Courts referred to above. Section 224 of the 1935 Act has been reproduced with certain modifications in Article 227 of the Constitution. It is significant to note that Sub-section 2 to Section 224 of the 1935 Act has been omitted from Article 227. This significant omission has been regarded by all High Courts in India before whom this question has arisen as having restored to the High Court the power of judicial superintendence it had under Section 15 of the High Courts Act, 1861, and Section 107 of the Government of India Act, 1915."

(5) In Maneck Custodji v. Sarfraz Ah, Air 1976 Sc 2246, it was held that "it must be realised that the jurisdiction under Article 227 of the Constitution is an extraordinary jurisdiction which has to be exercised sparingly and in appropriate cases and it is not to be exercised as if it were an appellate jurisdiction or as if it gave unfettered and unrestricted power to this Court to do whatever it like. True, if an order of a Tribunal is violative of the fundamental basic principles of justice and fairplay or where a patent or flagrant error in procedure or law has crept or where the order passed results in manifest injustice, then this Court can intervene under Article 227 of the Constitution of India. (Trinbak v. Ram Chandra, ). I may add here that the question of alternate remedy would not arise in a case where fundamental right is violated or abridged or the impugned action is monstrous on the face of it.

(6) Challenging the judgment and decree of the Addl. District Judge, learned Counsel for the petitioner has raised the following contentions :

(I)that the learned Addl. District Judge by the impugned judgment deprived the petitioner of its ownership of 500 shares without affording an opportunity of hearing and thereby violated the principles of natural justice;

(II)that the impugned judgment suffered from an error of law apparent on the face of record inasmuch as the record of the respondent No. 2 clearly reveals that these 500 shares were registered in the name of the petitioner-Company and in this view of the matter the suit ought to have been dismissed for non-joinder of the necessary party.

(7) In order to appreciate the first contention, it is necessary to mention here that in Civil Suit No. 28 of 1993, the respondent Nos. 2 and 3 were arrayed as defendants and since they did not appear to contest the case, they were proceeded ex-parte. There was nothing before the Trial Court to show that the said 500 shares were registered in the name of the petitioner-Company. On the contrary, the learned Trial Court believed the ex-parte evidence adduced by the plaintiff/ respondent No. 1 and granted the ex-parte decree. In this view of the matter, it can't be held that the learned Addl. District Judge violated the principles of natural justice in granting ex-parte decree in favour of the plaintiff.

(8) The next contention of the learned Counsel for the petitioner was that on the question of non-joinder of the petitioner-Company as a necessary party in the Civil Suit No. 28/1993, the impugned judgment suffered from an error of law apparent on the record. Reading the impugned judgment it is difficult to say that legal proposition it contains in respect of which it can be said that there is an error of law apparent on the record. The issue before the Trial Court was whether the plaintiff/respondent No. 1 was registered owner of the shares in question alleged to have been lost/destroyed and, if so, whether the plaintiff was entitled to get a decree of mandatory injunction directing the respondent No. 2 to issue duplicate certificates in the name of the plaintiff in respect of the said shares. There was nothing before the Trial Court to show that out of these shares, 500 shares were registered in the name of the petitioner-Company or that the petitioner-Company was in any way a necessary party to the suit. As stated earlier, the case against the defendants proceeded ex-parte. The plaintiff adduced ex-parte evidence in support of his case and the learned Trial Court granted ex-parte decree in favour of the plaintiff. Thus it is not a case of an error apparent on the face of the record. As it would apparent from the above narration, the instant case does not involve any error of law or procedure warranting inference under Article 227 of the Constitution of India.

(9) That apart, in the instant case, there is no scope for dispute that the petitioner-Company could have preferred an appeal against the impugned decree. In this connection I may usefully excerpt the following observations of their Lordships of the Supreme court in State of Punjab v. Amar Singh, : "FIRSTLY there is a catena of authorities which, following the doctrine of Lindley, L.J., in re Securities Insurance Company (1894) 2 Ch 410 have laid down the rule that a person who is not a party to a decree or order may with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it. As a rule, leave to appeal will not be refused to a person who might have been made ex nominee a party - see Province of Bomaby V Bom. 141; Heera Singh v. Veerka, and Shivaraya v. Siddamma, Air 1963 MyS l27; Executive Officer v. Raghavan Pillai, . In Re: B, an infant (1958) Qb 12; Govinda Menon v. Madhavan Nair, ."

(10) In Mahraj Singh v. State of Uttar Pradesh and Others, , it was observed that : "Aside from this stand, it is easy to take the view that the 1st plaintiff, is a person aggrieved and has the competence to carry an appeal against the dismissal of the suit. Of course, he who has a proprietary right, which has been or is threatened to be violated is surely an 'aggrieved person'. An legal injury creates a remedial right in the injured person. But the right to a remedy apart, a larger circle of person can move the Court for the protection or defense or enforcement of a civil right or to ward off or claim compensation for a civil wrong even if they are not proprietarily or personally linked with the cause of action. The nexus between the lis and the plaintiff need not necessarily be personal, although it has to be more than a wayfarer's allergy to an unpalatable episode. 'A person aggrieved' is an expression which has expanded with, the larger urgencies and felt necessities of our times. Processual jurisprudence is not too jejune to respond to societal changes and challenges. Law necessary has to carry within it the impress of the past traditions, the capacity to respond to the needs of the present and enough resilience to cope with the demands of the future. A code of law, especially in the social fields, is not a document for fastidious dialectics; properly drafted an rightly implemented it can be the means of the ordering of the life of a people."

(11) Thus the petitioner, being an aggrieved person, had clearly a legal remedy by way of appeal against the impugned decree and this remedy of appeal was not only adequate but more comprehensive than the one under Article 227 of the Constitution of India. There existed no special or exceptional circumstances to justify the petitioner by-passing the alternative remedy which was available to him by way of appeal. This Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the Code of Civil Procedure are available to the petitioner. In this view of the matter, the petitioner cannot be permitted to by-pass the alternative and efficacious remedy provided under the Code of Civil Procedure by invoking the extraordinary jurisdiction of this Court under Article 227 of the Constitution.

(12) For the foregoing reasons, I am not inclined to interfere in the matter in exercise of extraordinary jurisdiction under Article 227 of the Constitution of India. Accordingly the petition is dismissed.