Delhi High Court
Chandra Prabha Mahajan vs Praveen Sharma & Ors. on 27 May, 2022
$~65(Appellate Side)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 501/2022 & CM APPL. 25511/2022, CM APPL.
25512/2022
CHANDRA PRABHA MAHAJAN ..... Petitioner
Through: Mr. Ishan Sanghi and Mr.
Aashish Prasad, Advs.
versus
PRAVEEN SHARMA & ORS. ..... Respondents
Through: Mr. Praveen Suri, Adv.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
J U D G M E N T (ORAL)
% 27.05.2022
1. This petition, under Article 227 of the Constitution of India,
assails an order dated 12th April, 2022, passed by the learned Principal
District & Sessions Judge (―the learned Pr. D & SJ‖) in Misc. No.
187/2022 (Praveen Sharma & Anr. v. Chander Prabha & Ors).
2. By the said order, the learned Pr. D & SJ has transferred CS
516/2021 (Chander Prabha Mahajan v. Shri Charanjit Lal Wason &
Ors.) from the Court in which it was pending to the Court in which CS
448/2021 (Praveen Sharma & Anr. v. Chander Prabha) was
pending.
3. Chander Prabha, the plaintiff in CS 516/2021 and the defendant
in CS 448/2021, assails the order, invoking, for the purpose, the
jurisdiction vested in this Court by Article 227 of the Constitution of
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:01.06.2022
18:27:57
India.
Facts
4. The learned Pr. D & SJ has transferred CS 516/2021 to the
Court which was hearing CS 448/2021 on the ground that the parties
to the suit property in dispute between them were the same.
5. Stricto sensu, this observation is not wholly correct as the
defendants in CS 516/2021 (Shri Charanjit Lal Wason & Ors.) are
not parties in CS 448/2021. Praveen Sharma, the plaintiff in CS
448/2021 was also, originally, not a party in CS 516/2021, but Mr.
Suri, learned Counsel for Praveen Sharma, submits that, subsequently,
he was impleaded by the petitioner in CS 516/2021 by moving an
application under Order I Rule 10 of the Code of Civil Procedure,
1908 (CPC).
6. Section 24(b) of the CPC does not, however, envisage identity
of parties in the two proceedings as a determining, or even a
governing, factor for exercise of jurisdiction, by the District Court for
transfer of proceedings from one Court to another:
―24. General power of transfer and withdrawal.
(1) On the application of any of the parties and after
notice to the parties and after hearing such of them as
desired to be heard, or of its own motion without such
notice, the High Court or the District Court may at any
stage
(a) transfer any suit, appeal or other
proceeding pending before it for trial or disposal
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:01.06.2022
18:27:57
to any Court subordinate to it and competent to
try or dispose of the same, or
(b) withdraw any suit, appeal or other
proceeding pending in any Court subordinate to
it, and
(i) try or dispose of the same; or
(ii) transfer the same for trial or
disposal to any Court subordinate to it
and competent to try or dispose of the
same; or
(iii) retransfer the same for trial or
disposal to the Court from which it was
withdrawn.‖
7. Section 24 does not, therefore, require that, for a suit to be
transferred from the Court hearing it to the Court which is seized of a
connected matter, the parties in both the proceedings must be the
same.
8. There is no dispute about the fact that the property forming
subject matter of controversy in CS 448/2021 and CS 516/2021 was
the same, i.e. the second floor of the property bearing No. 662/3-A
Shivaji Gali, Pandit Park, Krishna Nagar, New Delhi-110051
(hereinafter referred to as ―the suit property‖).
CS 448/2021 (Praveen Sharma & Anr. v. Chander Prabha)
9. CS 448/2021 (Praveen Sharma & Anr. v. Chander Prabha)
was filed earlier in point of time. Praveen Sharma and the second
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:01.06.2022
18:27:57
plaintiff therein, Onkar Singh, claimed to be absolute owners of the
second floor of the suit property, having purchased the property from
Charanjit Lal Wason, Defendant 1 in CS 516/2021. Charanjit Lal
Wason's title, enabling him to sell the property to Praveen Sharma,
was claimed to arise from a relinquishment deed, dated 19 th
November, 2020, executed by one Shanti Devi, the original owner of
the suit property and the sister of Charanjit Lal Wason.
10. Praveen Sharma claimed to have let out the suit property to
Chander Prabha and his wife vide an agreement dated 5th September,
2016. Praveen Sharma contended, in his suit, that the period for which
the suit property had been let out to Chander Prabha had expired on 4 th
March, 2019, whereafter Chander Prabha was continuing in
possession of the suit property as an unauthorised occupant. As
Chander Prabha, allegedly, failed to vacate the property despite legal
notices issued by Praveen Sharma, and was also, allegedly, in default
of charges payable in respect of the suit property, Praveen Sharma, in
CS 448/2021, sought a decree of possession against Chander Prabha,
as well as damages, mesne profits, and an injunction restraining
Chander Prabha from creating any third party interest in respect of the
suit property.
CS 516/2021( Chander Prabha Mahajan v.Chranjit Lal Wason
&Ors.)
11. Chander Prabha, in the suit instituted by her (CS 516/2021),
claimed to be a lawful tenant of the suit property. This, clearly, is
contrary to the case set up Praveen Sharma in CS 448/2021, in which
Praveen Sharma contended that, after expiry of the tenancy of
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:01.06.2022
18:27:57
Chander Prabha, she continued to occupy the suit property as an
unauthorised occupant. Chander Prabha, in her suit, claimed to have
taken the suit property on lease from Charanjit Lal Wason and others,
the defendants in the said suit. This, again, was contrary to the stand of
Praveen Sharma in CS 448/2021, in which Praveen Sharma claimed to
have legally obtained ownership of the property consequent to a
relinquishment deed executed by the legal representatives of Shanti
Devi and to have let out the property subsequently to Chander Prabha.
12. The case set up by Chander Prabha in CS 516/2021 was that
Charanjit Lal Wason and others, to whom she claimed to have
attorned, were not allowing her to continue in peaceful possession of
the suit property, and had also sought to disconnect the electricity and
water connections.
13. Predicated on these allegations, CS 516/2021 sought the
following prayers:
―It is therefore, most respectfully prayed that this Hon'ble
Court may be pleased to: -
a. pass a decree of permanent injunction in favor
of the Plaintiff and against the Defendants thereby,
restraining them, their associates, friends, relatives,
agents etc. from disconnecting the supply of electricity
and water from the suit property bearing No. 662/3-A,
46, 2nd Floor, Shivaji Gali, Pandit Park, Krishna Nagar,
Delhi-110051 shown in site plan attached herewith the
plaint;
b. pass a decree of permanent injunction in favor
of the Plaintiff and against the Defendants thereby
restraining the defendants. their associates, friends,
relatives, agents etc. from illegally dispossessing the
plaintiff and her family members from the suit property
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:01.06.2022
18:27:57
bearing No. 662/3-A, Upper 2nd Floor, Shivaji Gali,
Pandit Park, Krishna Nagar, Delhi-110051, shown in
site plan attached herewith the plaint without following
due process of law;‖
c. pass a decree of permanent injunction in favor
of the Plaintiff and against the Defendants thereby
restraining them, their associates, friends, relatives,
agents etc. from causing trouble and nuisance to the
plaintiff and her family members to live in peace and
harmony;
d. pass a decree of permanent injunction in favor
of the Plaintiff and against the Defendants thereby
restraining them, their associates, friends, relatives,
agents etc. from creating hindrance, difficulty and
obstructions in installation of CCTV Camera by the
plaintiff inside and outside Suit Property bearing No.
662/3-A, 46, 2nd Floor Shivaji Gali, Pandit Park,
Krishna Nagar, Delhi-110051, shown in site plan
attached herewith the plaint for safety purpose;
e. pass a decree of mandatory injunction' in favor
of the plaintiff and against the defendants thereby
directing the defendants in change the focus of CCTV
Camera of defendants which is covering the part of
internal portion of suit property bearing No. 662/3-A,
46, 2nd Floor Shivaji Gali, Pandit Park, Krishna Nagar,
Delhi-110051, shown in site plan attached herewith the
plaint to protect the privacy of plaintiff and her family
members;
f. pass a decree of mandatory injunction in favor
of the plaintiff and against the defendants thereby
directing the defendants to remove their lock from the
MCB Box of the Suit Property hearing No. 662/3-A,
46, 2nd Floor Shivaji Gali, Pandit Park, Krishna Nagar,
Delhi-110051 and allowing the plaintiff to put her lock
on the MCB Box;
g. pass a decree of mandatory injunction in favor
of the plaintiff and against the defendants thereby
directing the defendants to allow the plaintiff to inspect
the water tank, pipeline and water alarm system
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:01.06.2022
18:27:57
pertaining to the suit property being 662/3-A, 46, 2nd
Floor Shivaji Gali, Pandit Park, Krishna Nagar, Delhi-
110051;
h. pass a decree of mandatory injunction in favor
of the plaintiff and against the defendants thereby
directing the defendants to make the lift operative for
the suit property;
i. pass a decree of mandatory injunction in favor
of the plaintiff and against the defendants thereby
directing the defendants to repair or replace the, lock of
main gate of suit property or alternatively the plaintiff
be allowed to affix a fresh door with proper lock
system to the main gate of the suit property at the cost
of defendants.
J. cost of the Suit may also be awarded; and
k. pass such other and further relief(s)·as this
Hon'ble Court may deem fit and proper in the facts and
circumstances of the present case in favour of the
plaintiff and against the Defendants.‖
Comparison
14. Clearly, there are conflicting facts pleaded in CS 516/2021 and
CS 448/2021, even in respect of the owner of the property as well as
the landlord to whom Chander Prabha had attorned as a tenant.
According to Praveen Sharma, Chander Prabha was the tenant of
Praveen Sharma and Onkar Singh, and, consequent to expiry of the
tenancy by efflux of time on 4th March, 2019 , was continuing in
occupation of the suit property as an unauthorised occupant. Chander
Prabha, in her suit, on the other hand, claimed to be a lawful tenant in
respect of the suit property, and to have attorned, in that regard, to
Charanjit Lal Wason. There is no averment, in CS 516/2021 filed by
Chander Prabha, of her having ever become a tenant under Praveen
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:01.06.2022
18:27:57
Sharma.
15. Clearly, therefore, the learned Pr. D & SJ is correct in his
finding that, if the two suits are permitted to be tried by two different
Courts, conflicting findings of fact may arise.
16. Even otherwise, where two suits claim rights in respect of the
same property, it is wholesome that they be tried by one Court. It is
not possible to predict the orders, interlocutory or final, that either
Court may come to pass during the proceedings in the said suits and,
therefore, the facts overlap, the suit property in respect of which rights
were claimed is the same and the pleadings in the suits are mutually
conflicting or irreconcilable, they ought, in the interests of justice, to
be tried by one Court.
17. It cannot be said, therefore, that, in the exercise of jurisdiction
vested in him by Section 24 of CPC, by learned Pr. D & SJ while
passing the impugned order dated 12th April, 2022 was erroneous.
18. Mr. Ishan Sanghi, learned Counsel for the petitioner, has placed
reliance on a judgment of a learned Single Judge of the High Court of
Karnataka in B S Bhagavan Singh v Smt. Sharada Bai1.
19. The learned Single Judge, in that case, was concerned with an
order transferring a suit from one Court to another and directing
clubbing of the suits with the proceedings pending in the latter Court.
AIR 1990 Kar 222
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:01.06.2022
18:27:57
20. The paragraph from the said order - which is merely of six
paras - on which Mr. Sanghi seeks to place reliance, reads thus:
―4. It is submitted that O.S. No. 24 of 1982 is at an
advanced stage of hearing in as much as the plaintiff has
closed her case for evidence and the defendants have also led
their evidence. The effect of clubbing the two cases together
would be that the plaintiff in the latter suit will insist upon his
right to cross-examine all witnesses who have already been
examined. That would undoubtedly lead to confusion and
more delay. That cannot be denied. But the question is when
two or more suits are liable to be clubbed together for
convenience and just disposal, is it because the parties are
common or is it because the subject-matter of the suit is
common or is it because the cause of action from which the
suits have arisen are common? It is possible in a given set of
cases the said factors may be present and in some other given
cases, only one or the other factors may be present. On the
facts stated, Sharada Bai never impleaded Nagaraj as the
defendant who could question her title in O.S. No. 24 of 1982.
Therefore, in that suit, she disclosed no cause of action
against Nagaraj but only against the present revision
petitioners who are arrayed as defendants in that suit if that
suit does not disclose any cause of action against Nagaraj.
Merely because Nagaraj has disclosed a cause of action not
only against Sharada Bai but also against the defendants in
his latter suit, it cannot be said that he should have his suit
adjudicated along with the cause of action disclosed by
Sharada Bai . He has to lead independent evidence to prove
his title as he is the plaintiff in O.S. No. 44 of 1987. He
cannot depend upon either the weakness of the case of the
plaintiff in O.S. No. 24 of 1982 or on the weakness of the
defence of the defendants in O.S. No. 24 of 1982 to
substantiate his title.‖
21. A reading of the brief order in B S Bhagavan Singh1, passed by
the learned Single Judge of Karnatka, does not reveal the details of the
facts of the two suits. Para 4, on which Mr. Sanghi seeks to place
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:01.06.2022
18:27:57
reliance, indicates that the learned Single Judge was of the view that,
merely because the cause of action in the two suits was directed
against the same party, there was no right vested by the plaintiff to
seek adjudication of the suits by one Court.
22. Per contra, the facts of the present case as stated hereinabove
clearly disclose that the issues in controversy in CS 448/2021 and CS
516/2021 overlap, conflicting rights have been claimed, conflicting
assertions have been made and the possibility of conflicting decisions
arising, were the suits to be tried by different courts, cannot be
ignored.
23. As such, the judgment in B S Bhagavan Singh1 would not
apply to the present case.
24. Even otherwise, Section 24 of CPC does not incorporate any
statutory fetters or proscriptions on the exercise, by the learned Pr. D
& SJ, of his discretion thereunder. The impugned order is, therefore,
fundamentally discretionary in nature. Apropos the scope of
interference with discretionary orders, the Supreme Court has, in
Wander Ltd. v. Antox India (P) Ltd.2, held thus:
―14. The appeals before the Division Bench were against the
exercise of discretion by the Single Judge. In such appeals,
the Appellate Court will not interfere with the exercise of
discretion of the court of first instance and substitute its own
discretion except where the discretion has been shown to have
been exercised arbitrarily, or capriciously or perversely or
where the court had ignored the settled principles of law
regulating grant or refusal of interlocutory injunctions. An
appeal against exercise of discretion is said to be an appeal on
1990 Supp SCC 727
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:01.06.2022
18:27:57
principle. Appellate Court will not reassess the material and
seek to reach a conclusion different from the one reached by
the court below if the one reached by the court was reasonably
possible on the material. The appellate court would normally
not be justified in interfering with the exercise of discretion
under appeal solely on the ground that if it had considered the
matter at the trial stage it would have come to a contrary
conclusion. If the discretion has been exercised by the Trial
Court reasonably and in a judicial manner the fact that the
appellate court would have taken a different view may not
justify interference with the trial court's exercise of discretion.
After referring to these principles Gajendragadkar, J. in
Printers (Mysore) Private Ltd. v. Pothan Joseph3 said :
―... These principles are well established, but as has
been observed by Viscount Simon in Charles Osention
& Co. v. Johnston the law as to the reversal by a court
of appeal of an order made by a judge below in the
exercise of his discretion is well established, and any
difficulty that arises is due only to the application of
well settled principles in an individual case.‖
The appellate judgment does not seem to defer to this
principle.‖
25. Wander2 was a case in which the scope of interference with
discretionary orders was examined by the Supreme Court in the
context of appellate jurisdiction. On a sliding scale, the scope of
interference of the Court before whom a challenge to a decision of a
hierarchically lower forum is brought would decrease, from appellate,
to revisional, to the power of judicial review under Article 226, to
supervisory jurisdiction under Article 227 of the Constitution of India,
the last being the most restricted.
26. A Court exercising appellate jurisdiction has, axiomatically, all
(1960) 3 SCR 713
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:01.06.2022
18:27:57
the powers which vest in the Court trying a suit, as an appeal is,
classically, a continuation of the proceedings in the suit. The powers
of a revisional Court, under Section 115 of the CPC or under any other
cognate provision in any other statue, would be less than that of the
power of an appellate court but would, nonetheless, extend to
interfering with the order if it is found to not have been passed legally
or properly. The power of a writ court exercising certiorari
jurisdiction under Article 226 would be still further circumscribed and
one may, in this context, refer to the following passages from Syed
Yakoob v. K.S. Radhakrishnan4.
―7. The question about the limits of the jurisdiction of
High Courts in issuing a writ of certiorari under Article
226 has been frequently considered by this Court and
the true legal position in that behalf is no longer in
doubt. A writ of certiorari can be issued for correcting
errors of jurisdiction committed by inferior courts or
tribunals: these are cases where orders are passed by
inferior courts or tribunals without jurisdiction, or is in
excess of it, or as a result of failure to exercise
jurisdiction. A writ can similarly be issued where in
exercise of jurisdiction conferred on it, the Court or
Tribunal acts illegally or properly, as for instance, it
decides a question without giving an opportunity, be
heard to the party affected by the order, or where the
procedure adopted in dealing with the dispute is
opposed to principles of natural justice. There is,
however, no doubt that the jurisdiction to issue a writ
of certiorari is a supervisory jurisdiction and the Court
exercising it is not entitled to act as an appellate Court.
This limitation necessarily means that findings of fact
reached by the inferior Court or Tribunal as result of
the appreciation of evidence cannot be reopened or
questioned in writ proceedings. An error of law which
is apparent on the face of the record can be corrected
(1964) 5 SCR 64.
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:01.06.2022
18:27:57
by a writ, but not an error of fact, however grave it
may appear to be. In regard to a finding of fact
recorded by the Tribunal, a writ of certiorari can be
issued if it is shown that in recording the said finding,
the Tribunal had erroneously refused to admit
admissible and material evidence, or had erroneously
admitted inadmissible evidence which has influenced
the impugned finding. Similarly, if a finding of fact is
based on no evidence, that would be regarded as an
error of law which can be corrected by a writ of
certiorari. In dealing with this category of cases,
however, we must always bear in mind that a finding
of fact recorded by the Tribunal cannot be challenged
in proceedings for a writ of certiorari on the ground
that the relevant and material evidence adduced before
the Tribunal was insufficient or inadequate to sustain
the impugned finding. The adequacy or sufficiency of
evidence led on a point and the inference of fact to be
drawn from the said finding are within the exclusive
jurisdiction of the Tribunal, and the said points cannot
be agitated before a writ Court. It is within these limits
that the jurisdiction conferred on the High Courts
under Article 226 to issue a writ of certiorari can be
legitimately exercised. (vide Hari Vishnu Kamath v.
Syed Ahmad Ishaque5, Nagandra Nath Bora v.
Commissioner of Hills Division and Appeals Assam6
and Kaushalya Devi v. Bachittar Singh7).
8. It is, of course, not easy to define or adequately
describe what an error of law apparent on the face of
the record means. What can be corrected by a writ has
to be an error of law; hut it must be such an error of
law as can be regarded as one which is apparent on the
face of the record. Where it is manifest or clear that the
conclusion of law recorded by an inferior Court or
Tribunal is based on an obvious mis-interpretation of
the relevant statutory provision, or sometimes in
ignorance of it, or may be, even in disregard of it, or is
expressly founded on reasons which are wrong in law,
the said conclusion can be corrected by a writ of
AIR 1955 SC 233
AIR 1958 SC 398
AIR 1960 SC 1168
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:01.06.2022
18:27:57
certiorari. In all these cases, the impugned conclusion
should be so plainly inconsistent with the relevant
statutory provision that no difficulty is experienced by
the High Court in holding that the said error of law is
apparent on the face of the record. It may also be that
in some cases, the impugned error of law may not be
obvious or patent on the face of the record as such and
the Court may need an argument to discover the said
error; but there can be no doubt that what can be
corrected by a writ of certiorari is an error of law and
the said error must, on the whole, be of such a
character as would satisfy the test that it is an error of
law apparent on the face of the record. If a statutory
provision is reasonably capable of two constructions
and one construction has been adopted by the inferior
Court or Tribunal, its conclusion may not necessarily
or always be open to correction by a writ of certiorari.
In our opinion, it is neither possible nor desirable to
attempt either to define or to describe adequately all
cases of errors which can be appropriately described as
errors of law apparent on the face of the record.
Whether or not an impugned error is an error of law
and an error of law which is apparent on the face of the
record, must always depend upon the facts and
circumstances of each case and upon the nature and
scope of the legal provision which is alleged to have
been misconstrued or contravened.‖
27. The power of a Court exercising Article 227 jurisdiction is the
most constricted, of the aforesaid four jurisdictions. Apropos the
jurisdiction of an Article 227 court, a three Judges Bench of the
Supreme Court has, in Sadhana Lodh v. National Insurance Co.
Ltd8., held thus:
―7. The supervisory jurisdiction conferred on the High
Courts under Article 227 of the Constitution is confined
only to see whether an inferior court or tribunal has
proceeded within its parameters and not to correct an error
apparent on the face of the record, much less of an error of
(2003) 3 SSC 524
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:01.06.2022
18:27:57
law. In exercising the supervisory power under Article 227
of the Constitution, the High Court does not act as an
appellate court or the tribunal. It is also not permissible to
a High Court on a petition filed under Article 227 of the
Constitution to review or reweigh the evidence upon which
the inferior court or tribunal purports to have passed the
order or to correct errors of law in the decision.‖
(Emphasis Supplied)
28. In Ibrat Faizan v. Omaxe Buildhome Pvt. Ltd.9 ,rendered
earlier in this month the Supreme Court, in para 28, again underscored
the restricted nature of jurisdiction vested by Article 227, thus:
―The scope and ambit of jurisdiction of Article 227 of the
Constitution has been explained by this Court in the case of
Estralla Rubber v. Dass Estate (P) Ltd10., which has been
consistently followed by this Court (see the recent decision of
this Court in the case of Garment Craft v. Prakash Chand
Goel11). Therefore, while exercising the powers under Article
227 of the Constitution, the High Court has to act within the
parameters to exercise the powers under Article 227 of the
Constitution. It goes without saying that even while
considering the grant of interim stay/relief in a writ petition
under Article 227 of the Constitution of India, the High Court
has to bear in mind the limited jurisdiction of superintendence
under Article 227 of the Constitution. Therefore, while
granting any interim stay/relief in a writ petition under Article
227 of the Constitution against an order passed by the
National Commission, the same shall always be subject to the
rigour of the powers to be exercised under Article 227 of the
Constitution of India.‖
29. In the aforesaid passage from Omaxe Buildhome Pvt. Ltd9, the
Supreme Court has relied on its earlier decisions in Estralla Rubber v.
Dass Estate (P) Ltd10 and Garment Craft v. Prakash Chand Goel11.
2022 SCC Online SC 620
(2001) 8 SCC 97
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:01.06.2022
18:27:57
The relevant passages from Estralla Rubber10 and Garment Craft11
may also, therefore, be reproduced thus:
Estralla Rubber
―7. This Court in Ahmedabad Mfg. & Calico Ptg. Co. Ltd.
v. Ram Tahel Ramnand12 in para 12 has stated that the power
under Article 227 of the Constitution is intended to be used
sparingly and only in appropriate cases, for the purpose of
keeping the subordinate courts and tribunals within the
bounds of their authority and, not for correcting mere errors.
Reference also has been made in this regard to the case
Waryam Singh v. Amarnath13. This Court in Bathutmal
Raichand Oswal v. Laxmibai R. Tarte14 has observed that
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
and that the High Court in exercising its jurisdiction under
Article 227 cannot convert itself into a court of appeal when
the legislature has not conferred a right of appeal. Judged by
these pronounced principles, the High Court clearly exceeded
its jurisdiction under Article 227 in passing the impugned
order.
(Emphasis Supplied)
Garment Craft
15. Having heard the counsel for the parties, we are clearly
of the view that the impugned order [Prakash Chand
Goel v. Garment Craft15] is contrary to law and cannot be
sustained for several reasons, but primarily for deviation from
the limited jurisdiction exercised by the High Court under
Article 227 of the Constitution of India. The High Court
exercising supervisory jurisdiction does not act as a court of
first appeal to reappreciate, reweigh the evidence or facts
upon which the determination under challenge is based.
Supervisory jurisdiction is not to correct every error of fact or
2022 SCC OnLine SC 29
AIR 1972 SC 1598
AIR 1954 SC 215
AIR 1975 SC 1297
2019 SCC OnLine Del 11943
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:01.06.2022
18:27:57
even a legal flaw when the final finding is justified or can be
supported. The High Court is not to substitute its own
decision on facts and conclusion, for that of the inferior court
or tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar
Kholkar16] The jurisdiction exercised is in the nature of
correctional jurisdiction to set right grave dereliction of duty
or flagrant abuse, violation of fundamental principles of law
or justice. The power under Article 227 is exercised sparingly
in appropriate cases, like when there is no evidence at all to
justify, or the finding is so perverse that no reasonable person
can possibly come to such a conclusion that the court or
tribunal has come to. It is axiomatic that such discretionary
relief must be exercised to ensure there is no miscarriage of
justice.
16. Explaining the scope of jurisdiction under Article 227,
this Court in Estralla Rubber v. Dass Estate (P) Ltd10 has
observed : (SCC pp. 101-102, para 6)
―6. The scope and ambit of exercise of power and
jurisdiction by a High Court under Article 227 of the
Constitution of India is examined and explained in a
number of decisions of this Court. The exercise of
power under this article involves a duty on the High
Court to keep inferior courts and tribunals within the
bounds of their authority and to see that they do the
duty expected or required of them in a legal manner.
The High Court is not vested with any unlimited
prerogative to correct all kinds of hardship or wrong
decisions made within the limits of the jurisdiction of
the subordinate courts or tribunals. Exercise of this
power and interfering with the orders of the courts or
tribunals is restricted to cases of serious dereliction of
duty and flagrant violation of fundamental principles
of law or justice, where if the High Court does not
interfere, a grave injustice remains uncorrected. It is
also well settled that the High Court while acting under
this Article cannot exercise its power as an appellate
court or substitute its own judgment in place of that of
the subordinate court to correct an error, which is not
apparent on the face of the record. The High Court can
set aside or ignore the findings of facts of an inferior
(2010) 1 SCC 217
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:01.06.2022
18:27:57
court or tribunal, if there is no evidence at all to justify
or the finding is so perverse, that no reasonable person
can possibly come to such a conclusion, which the
court or tribunal has come to.‖
(Emphasis Supplied)
30. To the same effect are the following words from paras 14 to 16
of the report in Puri Investments v. Young Friends and Co.,17 which
read thus:
―14. In the case before us, occupation of a portion of the
subject-premises by the three doctors stands admitted. What
has been argued by the learned counsel for the appellant is
that once the Tribunal had arrived at a finding on fact based
on the principles of law, which have been enunciated by this
Court, and reflected in the aforesaid passages quoted from
the three authorities, the interference by the High Court
under Article 227 of the Constitution of India was
unwarranted. To persuade us to sustain the High Court's
order, learned counsel appearing for the respondents has
emphasized that full control over the premises was never
ceded to the medical practitioners and the entry and exit to
the premises in question remained under exclusive control of
the respondent(s)-tenant. This is the main defence of the
tenant. We have considered the submissions of the
respective counsel and also gone through the decisions of the
fact-finding fora and also that of the High Court. At this
stage, we cannot revisit the factual aspects of the dispute.
Nor can we re-appreciate evidence to assess the quality
thereof, which has been considered by the two fact-finding
fora. The view of the forum of first instance was reversed by
the Appellate Tribunal. The High Court was conscious of the
restrictive nature of jurisdiction under Article 227 of the
Constitution of India. In the judgment under appeal, it has
been recorded that it could not subject the decision of the
appellate forum in a manner which would project as if it was
sitting in appeal. It proceeded, on such observation being
made, to opine that it was the duty of the supervisory Court
to interdict if it was found that findings of the appellate
forum were perverse. Three situations were spelt out in the
judgment under appeal as to when a finding on facts or
2022 SCC Online SC 283
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:01.06.2022
18:27:57
questions of law would be perverse. These are: --
(i) Erroneous on account of non-consideration of
material evidence, or
(ii) Being conclusions which are contrary to the
evidence, or
(iii) Based on inferences that are impermissible in
law.
15. We are in agreement with the High Court's
enunciation of the principles of law on scope of interference
by the supervisory Court on decisions of the fact-finding
forum. But having gone through the decisions of the two
stages of fact-finding by the statutory fora, we are of the
view that there was overstepping of this boundary by the
supervisory Court. In its exercise of scrutinizing the
evidence to find out if any of the three aforesaid conditions
were breached, there was re-appreciation of evidence itself
by the supervisory Court.‖
31. Clearly, therefore, the Court, exercising jurisdiction under
Article 227 of the Constitution of India, is even proscribed from
entering into the correctness of the impugned order. The jurisdiction
is purely supervisory in nature. The Court is concerned more with the
Court which passed the order than with the order passed by the Court.
So long as the Court passing the order has acted within the legitimate
boundaries of its jurisdiction, and the order does not suffer from any
such infirmity as calls for supervisory correction, the Article 227
Court would hold its hands.
32. Even more restricted would the said jurisdiction be, when the
order, as in the present case, is discretionary in nature, exercised under
a provision which does not contain any delimiting proscriptions.
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:01.06.2022
18:27:57
33. Viewed thus, and even otherwise on merits, I find no reason to
interfere with the impugned order dated 12th April, 2022, passed by
the learned Pr. D & SJ in Misc. No. 187/2022 (Praveen Sharma &
Anr. v. Chander Prabha & Ors).
34. The order is upheld.
35. The petition is accordingly dismissed in limine with no order as
to costs. Miscellaneous Applications also stand disposed of.
C. HARI SHANKAR, J.
MAY 27, 2022
dsn
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:01.06.2022
18:27:57
