Smt. Nita Abbot & Ors. vs Smt. Gita Marwaha
2013 Latest Caselaw 5676 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Order delivered on: December 09, 2013

+                                  CM(M) 579/2013

      SMT NITA ABBOT & ORS                                 ..... Petitioners
                   Through              Mr.Vimal Goyal, Adv.

                          versus

      SMT GITA MARWAHA                                        ..... Respondent
                   Through              Mr.N.S.Negi, Adv.

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By way of the present petition under Article 227 of the Constitution of India, the petitioners have assailed order dated 26 th April, 2013 passed by learned Trial Court in a suit for partition, declaration and injunction filed by the respondent (plaintiff therein) against the petitioners (defendants therein).

2. When the matter was fixed for evidence of the petitioners before the learned Trial Court, petitioner No.1 sought an adjournment on the ground that her counsel had gone out of town for some religious ceremonies. The learned Trial Court vide the order dated 21 st October, 2011, closed the right of the petitioners for examination of the witneses.

3. An application was moved by petitioner No.1 for recalling of the said order. The said application was partly allowed by the order dated 12 th December, 2011 to the extent that only one witness namely Sh. Naveen Abbot was allowed to be cross examined and the other witness namely, Sh. Vijay Shourie was not allowed to be cross examined. The petitioner No.1

filed an application seeking a review of the said order dated 12 th December, 2011.

4. The learned Trial Court while deciding the review application observed that the issues in the matter were framed on 10th February, 2009 and thereafter, on the very first date i.e. 12th May, 2009, the respondent examined his witnesses and closed his evidence. Thereafter when the matter was listed for evidence of the petitioners', on 12th August, 2009, 20th October, 2009 and 14th December, 2009, either no one was present from the petitioners' side or an adjournment was sought by them. In the order dated 2nd February, 2010 the learned Trial Court recorded the conduct of the petitioners and directed that no other opportunity would be granted to the petitioners to lead their evidence and gave one more opportunity. However, on 22nd March, 2010, 12th May, 2010, 4th August, 2010 and 6th December, 2010, when the matter was subsequently listed, no witnesses were examined by the petitioners for one reason or the other. On 24 th January, 2011, when none appeared on behalf of petitioner Nos.1 and 3, they were proceeded ex- parte. However, on 21st July, 2011, the ex-parte order was set aside subject to the payment of cost and last and final opportunity was given to the petitioner Nos. 1 and 3 to conclude their evidence on 21st October, 2011. However again, on 21st October, 2011, an adjournment was sought stating that the counsel for petitioner Nos. 1 and 3 had gone to Gaya for some religious rites and ceremonies. On the said date, the learned Trial Court observed the conduct of the petitioners in its order.

5. The learned Trial Court while deciding the review application observed that the conduct of the petitioner Nos. 1 and 3 as such was only to delay the disposal of the case and that the act of again and again either

seeking adjournments or moving applications was done so that the disposal of the case may be delayed. It was observed that while a review application lies only in cases of errors apparent on the face of the record, there was no such error apparent on the face of the record or mistake on part of the court to review the order dated 12th December, 2010 or 21st October, 2011.

6. With these observations the learned Trial court dismissed the review application of the petitioner No.1 with cost. Aggrieved thereof, the petitioners filed the present petition under Article 227 of the Constitution of India before this Court.

7. It is well settled principle of law that the High Court while exercising its power under Article 227 of the Constitution of India, cannot proceed to act as a Court of appeal by interfering in mere errors of finding fact which requires re-appreciation and re-weighing of evidence unless it results in manifest miscarriage of justice as a Court of appeal. The said power under Article 227 of the Constitution of India has to be exercised sparingly and circumspectly to ensure that decision making done by lower Court and tribunal below is within their bounds and limits.

8. The said power under Article 227 of the Constitution of India being supervisory in nature cannot be equated with the powers of appellate Court and the jurisdiction under Article 227 could not be exercised as a cloak of an appeal in disguise.

9. In the case of Babhut Mal Raichand Oswal vs. Laxmi Bai R. Tarta reported in (1975) 1 SCC 858, the Supreme Court speaking through Bhagwati J. as his Lordship then was observed thus:

"If an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari it should follow a fortiori that it is not

subject to correction by the High Court in the exercise of its jurisdiction under Article 227.

The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory power as a Court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a Court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate Court or tribunal final on facts" (emphasis supplied) The Supreme Court in the case of Babhut Mal (supra) approved the dictum of Morris L., J. in Res v. Northumberland Compensation Appellate Tribunal, 1952 All England Reports 122.

10. In the case of State of Maharashtra vs. Milind & Ors., 2001 (1) SCC 4, the Supreme Court observed:

"The power of the High Court under Article 227 of the Constitution of India, while exercising the power of judicial review against an order of inferior tribunal being supervisory and not appellate, the High Court would be justified in interfering with the conclusion of the tribunal, only when it records a finding that the inferior tribunal's conclusion is based upon exclusion of some admissible evidence or consideration of some inadmissible evidence or the inferior tribunal has no jurisdiction at all or that the finding is such, which no reasonable man could arrive at, on the materials on record." (Emphasis supplied)

11. Again in the case of State vs. Navjot Sandhu, (2003) 6 SCC 641, the Supreme Court observed:

"Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This

jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order.

However, the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised as the cloak of an appeal in disguise." (Emphasis supplied)

12. The decisions of Babhut Mal (supra), State vs. Navjot (supra) and State vs. Maharashtra (supra) have been approved by Hon'ble Justice C.K. Thakkar as his Lordship then was in the case of Shamshad Ahmad & Ors. vs. Tilak Raj Bajaj (D) By LRs. & Ors., 2008 (9) SCC 1.

13. Upon careful reading of the observations made in the above referred cases, it can be safely stated that the scope of judicial interference under Article 227 is well settled and the Court ceased of the proceedings under Article 227 cannot act as a Court of appeal and should interfere with the decision of the inferior tribunal or Court only to keep the authorities and Courts within their bounds and in the cases where it results into manifest

miscarriage of justice and not in all other cases to correct mere errors. The power under Article 227 is thus discretionary in nature and can be exercised in the cases where the lower Court ignores material piece of evidence or considers some evidence which it ought not to have considered resulting into injustice and not in cases where there are two views possible and the view adopted by lower Court is reasonable and plausible one and the High Court would be unjustified to interfere in such cases merely to arrive at different view in the matter as this would be re-appreciating the evidence on finding of facts which is the role of the appellate Court and not the supervisory Court acting under Article 227 of the Constitution of India.

14. The case is now at the stage of final hearing. The present petition has been filed after the expiry of long period. It appears to the Court that the same is filed in order to delay the progress of the matter. In view of settled law on scope of the powers of this Court under Article 227 of Constitution of India, I do not find any merit in the petition.

15. The present petition and pending application, if any, are accordingly dismissed. Interim order stands vacated.

16. No costs.

(MANMOHAN SINGH) JUDGE DECEMBER 09, 2013