Delhi High Court
Harish Kumar vs Inder Mohan Nagpal on 22 September, 2022
$~54
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 996/2022, CM 41489/2022 & CM 41490/22
HARISH KUMAR ..... Petitioner
Through: Mr. Anunaya Mehta, Adv.
versus
INDER MOHAN NAGPAL ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT (ORAL)
% 22.09.2022
1. This petition under Article 227 of the Constitution of India
assails order dated 9th June 2022, passed by the learned Additional
Rent Controller (―the learned ARC‖) in Case No. E-36/2019 (Inder
Mohan Nagpal v. Harish Kumar). The learned ARC has, by the
impugned order, adjudicated an application filed by the petitioner, as the
respondent in the aforesaid eviction petition, under Order VII Rule 111
read with Order I Rule 10(2)2 of the Code of Civil Procedure, 1908
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 and that refusal to extend such time
would cause grave injustice to the plaintiff.
10. Suit in name of wrong plaintiff. -
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(2) Court may strike out or add parties. - The Court may at any stage of the proceedings,
either upon or without the application of either party, and on such terms as may appear to the Court
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(CPC). The learned ARC, in one breath, has rejected the petitioner's
application both under Order VII Rule 11 as well as Order I Rule 10(2)
of the CPC.
2. As the recital hereinafter would make apparent, while this Court
does not find any cause to interfere with the decision of the learned
ARC, insofar as it rejects the petitioner's prayer under Order VII Rule
11 of the CPC, no conscious application of mind to the petitioner's
prayer under Order I Rule 10(2) of the CPC appears to have been
accorded by the learned ARC. As such, the impugned order, to the
extent it rejects the petitioner's application under Order I Rule 10(2)
of the CPC, would be required to be set aside, as it is unsupported by
any reason whatsoever.
3. I proceed, therefore, to examine the impugned order, insofar as
it deals with the petitioner's prayer for rejection of the eviction
petition instituted by the respondent, under Order VII Rule 11 of the
CPC.
4. The eviction petition E-36/2019, wherein the impugned order
has come to be passed, was preferred under Clause (e) of the proviso
to Section 14(1)3 [hereinafter ―Section 14(1)(e)‖] of the Delhi Rent
to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be
struck out, and that the name of any person who ought to have been joined, whether as plaintiff or
defendant, or whose presence before the Court may be necessary in order to enable the Court
effectually and completely to adjudicate upon and settle all the questions involved in the suit, be
added.
14. Protection of tenant against eviction. -
(1) Notwithstanding anything to the contrary contained in any other law or contract, no order
or decree for the recovery of possession of any premises shall be made by any court or Controller in
favour of the landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, make an
order for the recovery of possession of the premises on one or more of the following grounds only,
namely:-
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Control Act 1958 (―the DRC Act‖). The respondent, as the petitioner
in the eviction petition, claimed to be owner/landlord of the property
situated at Shop 1/151, forming part of Building No.147 to 155 Ward
No. 1, Ganga Auto Market, Punja Sharif Chowk, Ganda Nala Bazar,
Kashmere Gate, Delhi-110006 (―the tenanted premises‖, hereinafter).
The petition averred that the aforesaid shop had been let out to the
petitioner Harish Kumar as a tenant and that the respondent was in
possession only of one small Shop No. I-152/12, admeasuring 5' x 10'
and a storage godown on the first floor of the building no. 147 to 155.
The area of which the respondent was in possession was stated to be
insufficient to cater to the needs of the respondent and his son. The
respondent, therefore, averred, in the eviction petition, that he was in
need of the shop on the ground floor of the aforesaid property, for
which reason he sought eviction of the petitioner therefrom.
5. Consequent to issuance of notice in the aforesaid eviction
petition, the petitioner applied under Section 25B(4)4 of the DRC Act
for leave to defend the eviction petition.
*****
(e) that the premises let for residential purposes are required bona fide by the
landlord for occupation as a residence for himself or for any member of his family
dependent on him, if he is the owner thereof, or for any person for whose benefit the
premises are held and that the landlord or such person has no other reasonably suitably
residential accommodation;
Explanation. - For the purposes of this clause ―premises let for residential
purposes‖ include any premises which having been let for use as a residence are, without
the consent of the landlord, used incidentally for commercial or other purposes;
25-B. Special procedure for the disposal of applications for eviction on the ground of bona fide
requirement. -
*****
(4) The tenant on whom the summons is duly served (whether in the ordinary way or by
registered post) in the form specified in the Third Schedule shall not contest the prayer for eviction
from the premises unless he files an affidavit stating the grounds on which he seeks to contest the
application for eviction and obtains leave from the Controller as hereinafter provided; and in default
of his appearance in pursuance of the summons or his obtaining such leave, the statement made by
the landlord in the application for eviction shall be deemed to be admitted by the tenant and the
applicant shall be entitled to an order for eviction on the ground aforesaid.
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6. Prior to grant of leave to defend, the petitioner filed an
application under Order VII Rule 11 read with Order I Rule 10(2) of
the CPC, which has come to be dismissed by the learned ARC vide
order dated 9th June 2022, under challenge in the present petition.
7. In his application, the petitioner alleged that the respondent was
not the absolute owner of the tenanted premises, as the property, in
which the shop was located, was under ownership of several co-
owners, of which the respondent was but one. It was sought to be
contended that a single co-owner could not have filed the eviction
petition, seeking to evict the tenant therefrom, unless shares of the co-
owners were determined by partition prior thereto. Else, such an
eviction petition would require the consent of all other co-owners in
the property.
8. The petitioner also relied, in his application, on cognate
proceedings in CS (OS) 2274/2012, filed by the respondent in respect
of the subject property, seeking partition thereof, in which the other
co-owners are stated to have propounded a will to assert their rights in
opposition to the said suit. If the contents of the will were to be
perused, the application suggested that, quite possibly, the respondent
would have no share in the suit property in question and could not,
therefore, have maintained the eviction petition at all.
9. The application of the petitioner, therefore, sought dismissal of
the eviction petition instituted by the respondent under Order VII Rule
11 of the CPC and, in the alternative, pleaded that all co-owners of the
property in which the tenanted premises are situate, be impleaded as
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parties in the eviction petition.
10. To support the submission that one co-owner could not, in the
absence of consent of other co-owners, file an eviction petition in
respect of the property, the petitioner relied upon the decision of the
Supreme Court in Mangal Builders and Enterprises Ltd. v.
Williamson Magor & Company Ltd.5
11. The learned ARC has, as already noted, rejected the petitioner's
application by the order dated 9th June 2022, under challenge in the
present petition.
12. The learned ARC has held, relying on the judgment of this
Court in Man Singh @ Mannu v. Mohd. Ibrahim & Anr.6, which, in
turn, relied on the judgment of the Supreme Court in India Umbrella
Manufacturing Co. v. Bhagbandei Agarwalla7, that it was
permissible for one co-owner to file a suit for eviction of a tenant, as,
applying the doctrine of agency, consent of the other co-owners would
be presumed. As such, the learned ARC has held that no objection
having been tendered by the other co-owners, the eviction petition was
maintainable. The judgment in Mangal Builders5, on which the
petitioner sought to rely, was distinguished on the ground that, in that
case, the defendant was a non-consenting co-owner. Inasmuch as
there was no opposition of any co-owner, to the eviction petition, the
learned ARC held that the eviction petition was maintainable.
13. Mr. Anunaya Mehta, learned Counsel for the petitioner, submits
MANU/SC/1857/2007
2012 SCC OnLine Del 2375
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that as the very title of the respondent in respect of the tenanted
premises was in question in CS(OS) 2274/2012, it was not open to the
learned ARC to treat the eviction petition filed by the respondent as
maintainable. At the very least, submits Mr. Mehta, the learned ARC
ought to have exercised the jurisdiction vested in him by Order XII
Rule 6 of the CPC, as the record of CS (OS) 2274/2012 contained
admissions, on the part of the respondent, which would result in the
respondent's eviction petition being liable to be thrown out at the
threshold.
14. When this matter was listed last on 21st September 2022, this
Court had queried, of Mr Mehta, whether the learned ARC could have
relied on any material other than the assertions in the plaint filed by
the respondent while adjudicating on the petitioner's application under
Order VII Rule 11. Mr Mehta had submitted that the Court was
required, in a case such as this, to travel outside the plaint, even while
adjudicating on the respondent's application under Order VII Rule 11
by invoking, suo motu, Order XII Rule 6 of the CPC. Mr Mehta was
given an opportunity to cite decisions in support of his submission.
He relies, today, on the judgments of Division Benches of this court in
Keshav Chander Thakur v. Krishan Chander8 and Suraj Munjal v.
Chandan Munjal9, as well as the judgment of a learned coordinate
Single Bench of this Court in Asha Khanna v. Pankaj Khanna10.
Analysis
2004 (3) SCC 178
2014 (211) DLT 149
2019 (257) DLT 597
2015 (217) DLT 614
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15. Insofar as Order VII Rule 11 is concerned, it is settled law, over
a period of decades, that, while examining an application under Order
VII Rule 11, the Court is entitled to examine only the averments in the
plaint and nothing beyond that. One may refer, in this context, to the
following passages from the decision of the Supreme Court in
Raghwendra Sharan Singh v. Ram Prasanna11:
―6.7. In Sopan Sukhdeo Sable v. Charity Commr.12, in
paras 11 and 12, this Court has observed as under:
―11. In ITC Ltd. v. Debts Recovery Appellate
Tribunal13, it was held that the basic question to be
decided while dealing with an application filed under
Order 7 Rule 11 of the Code is whether a real cause of
action has been set out in the plaint or something
purely illusory has been stated with a view to get out
of Order 7 Rule 11 of the Code.
12. The trial court must remember that if on a
meaningful and not formal reading of the plaint it is
manifestly vexatious and meritless in the sense of not
disclosing a clear right to sue, it should exercise the
power under Order 7 Rule 11 of the Code taking care
to see that the ground mentioned therein is fulfilled. If
clever drafting has created the illusion of a cause of
action, it has to be nipped in the bud at the first
hearing by examining the party searchingly under
Order 10 of the Code. (See T. Arivandandam v. T.V.
Satyapal14)‖
6.8. In Madanuri Sri Rama Chandra Murthy v. Syed
Jalal15, this Court has observed and held as under:
(2020) 16 SCC 601
(2004) 3 SCC 137
(1998) 2 SCC 70
(1977) 4 SCC 467
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(2017) 13 SCC 174
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―7. The plaint can be rejected under Order 7 Rule
11 if conditions enumerated in the said provision are
fulfilled. It is needless to observe that the power under
Order 7 Rule 11 CPC can be exercised by the court at
any stage of the suit. The relevant facts which need to
be looked into for deciding the application are the
averments of the plaint only. If on an entire and
meaningful reading of the plaint, it is found that the
suit is manifestly vexatious and meritless in the sense
of not disclosing any right to sue, the court should
exercise power under Order 7 Rule 11 CPC. Since the
power conferred on the court to terminate civil action
at the threshold is drastic, the conditions enumerated
under Order 7 Rule 11 CPC to the exercise of power
of rejection of plaint have to be strictly adhered to.
The averments of the plaint have to be read as a
whole to find out whether the averments disclose a
cause of action or whether the suit is barred by any
law. It is needless to observe that the question as to
whether the suit is barred by any law, would always
depend upon the facts and circumstances of each case.
The averments in the written statement as well as the
contentions of the defendant are wholly immaterial
while considering the prayer of the defendant for
rejection of the plaint. Even when the allegations
made in the plaint are taken to be correct as a whole
on their face value, if they show that the suit is barred
by any law, or do not disclose cause of action, the
application for rejection of plaint can be entertained
and the power under Order 7 Rule 11 CPC can be
exercised. If clever drafting of the plaint has created
the illusion of a cause of action, the court will nip it in
the bud at the earliest so that bogus litigation will end
at the earlier stage.‖
16. In Urvashiben v. Krishnakant Manuprasad Trivedi16, it was
held that ―for the purpose of deciding application filed under Order
VII Rule 11 only averments stated in the plaint alone can be looked
into, merits and demerits of the matter and the allegations by the
(2019) 13 SCC 372
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parties cannot be gone into‖. There is a litany of similar authorities,
including Kamala v K. T. Eashwara Sa17 and Vaish Aggarwal
Panchayat v. Inder Kumar18.
17. This position is especially underscored, in respect of clauses (a)
and (d) of Order VII Rule 11, even from the words employed by the
statute. Clause (a) requires the plaint to be rejected ―where it does not
disclose a cause of action‖. The disclosure or non-disclosure,
therefore, has to be in the plaint, and the plaint alone. Clause (d),
similarly, requires the plaint to be rejected ―where the suit appears
from the statement in the plaint to be barred by any law‖. Again, what
is relevant is ―the statement in the plaint‖. Whether, therefore, the
defendant relies on clause (a) or (d) of Order VII Rule 11, he has to
restrict his examination to the averments in the plaint, and in the
plaint alone.
18. That said, while thus scanning the plaint, the Court should be
mindful to subject the plaint to careful scrutiny. The entirety of the
plaint is to be seen, and a holistic approach adopted. Equally, the
Court should not allowe its discretion to be swayed by ―artful
drafting‖ of the plaint, aimed at creating a smokescreen of a cause of
action, where none exists, or embellishing a plaint which is actually
barred by law by clever averments or interpolations which may seem
to indicate to the contrary.
19. Applying these principles, it is clear, from a reading of the
(2008) 12 SCC 661
AIR 2015 SC 3357
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averments in the eviction petition instituted by the respondent against
the petitioner that a clear cause of action to institute the eviction
petition exists therein. The respondent claims to be the landlord in
respect of the tenanted property, in which the petitioner is a tenant.
The respondent also claims that he is in need of the shop occupied by
the petitioner being located on the ground floor, as his son is
unemployed and the respondent has a shop only on the first floor of he
property. Irrespective of whether these averments make out, or do not
make out, a case for eviction under clause (e) of the proviso to Section
14(1) of the DRC Act, they clearly indicate the existence of a cause of
action for instituting an eviction petition.
20. There is no reference, in the eviction petition, to the respondent
being one of several co-owners in respect of the property in which the
tenanted premises were situated. The Court, exercising jurisdiction
under Order VII Rule 7 of the CPC cannot, therefore, take that fact
into consideration, while exercising such jurisdiction. Even if, the
learned ARC had not returned any finding on the said submission, no
fault could have been found with the decision of the learned ARC and
these are averments beyond the pale of the eviction petition.
Arguments advanced by the petitioner, as the respondent in the
eviction petition or in the application for leave to defend, are alien to
Order VII Rule 11 of the CPC or to the exercise of jurisdiction
envisaged by the said provision.
21. I advert, now, to the decisions cited by Mr. Mehta.
22. Keshav Chander Thakur8
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22.1 Keshav Chander Thakur and the other appellants, in this case,
filed a suit seeking partition of two properties, situated at B-11,
Krishna Niwas, West End Colony, New Delhi and 245A, Puran Nagar,
Jammu (Tawi), Jammu and Kashmir. The respondents in the appeal,
who were also the respondents in the partition suit were, along with
appellants, alleged each to have 1/7th share in the two properties.
22.2 Respondent 1 before the learned ADJ who rendered the
aforesaid decision, alleged gross suppression of material facts by
Keshav Chander Thakur and the other appellant/plaintiff. On the basis
of the said averments, it was alleged, in the written statement filed by
the respondents-defendants, that the suit was barred by res judicata,
limitation and want of appropriate court fee. It was also alleged that
the Court had no jurisdiction to entertain the suit.
22.3 Respondent 1 before the learned ADJ also filed an application
under Order VII Rule 11 for rejection of the plaint, which was allowed
by the learned Single Judge vide order dated 24 th May 2013, which
formed subject matter of challenge in the appeal before the Division
Bench instituted by Keshav Chander Thakur and another, as the
plaintiffs in the suit.
23. It is not necessary to enter into the details and facts of the said
case. Suffice it to reproduce para 38 of the report in the said decision,
read thus:
―38. We concur with the view of the learned Single Judge.
However, we may like to note that the learned Single Judge
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has exercised powers under Order VII Rule 11 CPC while
rejecting the plaint. The scope of exercise of powers under
Order VII Rule 11 CPC is limited by the contours of the
provision. While exercising those powers what has to be
seen is only the averments in the plaint and the documents
filed alongwith the plaint. The defence as taken in the
written statement is not to be gone into for the said
purpose. To that extent, the judgment of the learned Single
Judge may suffer from an infirmity. However, in our view
given the nature of pleadings and admitted documents on
record and the extensive arguments advanced by the
parties on the issues discussed herein, this was a fit case
for the Court to exercise powers under Order XII Rule 6
CPC where the Court has powers to suo moto pass a
judgment. There is no requirement in Order XII Rule 6
CPC for filing of a formal application. The Court can on its
own motion without any application by a party proceed to
pass a decree on admissions as stated in Order XII Rule 6
CPC. Order XII Rule 6(i) CPC reads as follows:-
"6. Judgment on admissions.- (1) Where
admissions of fact have been made either in the
pleading or otherwise, whether orally or in writing,
the Court may at any stage of the suit, either on the
application of any party or of its own motion and
without waiting for the determination of any other
question between the parties, make such order or
give such judgment as it may thing fit, having
regard to such admissions."
In our view based on the pleadings and documents placed
on record by the parties there are clear admissions of fact
which warrant passing of the order of dismissal of the
plaint.‖
24. The italicized portion in para 38 of the report in Keshav
Chander Thakur8, if anything, would militate against the submissions
advanced by Mr. Mehta. The Division Bench has clearly held that the
decision of the learned Single Judge, to the extent that it travelled
outside the peripheries of the plaint instituted by Keshav Chander
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Thakur and other plaintiff while adjudicating the application filed by
the respondents under Order VII Rule 11, ―suffered from an
infirmity‖. Nonetheless, the Division Bench deemed it appropriate not
to interfere with the decision of the learned Single Judge ―given the
nature of pleadings and admitted documents on record and the
extensive arguments advanced by the parties on the issues discussed‖.
In view thereof, the Division Bench opined that it was fit case for the
Court to exercise the powers under Order XII Rule 6 of the CPC and
to pass a judgment in exercise of such powers.
Suraj Munjal9
25. This decision again arises out of a suit for partition, declaration
and injunction. The appellant Suraj Munjal, as the plaintiff in the suit,
claimed a right in HUF property to the extent of 1/3 rd share. The
recital of facts in the judgment does not indicate that any application
had been filed before the learned Single Judge in that case, either
Order VII Rule 11 or Order XII Rule 6 of the CPC. Para 5 of the
report states that the learned Single Judge, ―by invoking the principles
underlying Order VII Rule 11 read with Order XII Rule 6 of the CPC‖
rejected the plaint insofar as the claim of HUF property was
concerned.
26. Reliance was placed, by Suraj Munjal, the appellant before the
Division Bench, on the judgments in Sejal Glass Ltd. v. Navilan
Merchants Pvt Ltd19and Satya Pal Gupta v. Sudhir Kumar Gupta20,
I (2018) SLT 80
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The Division Bench adverting to the reliance on the said decisions
observed thus in para 10 of the report:
―10. Insofar the judgments in the case of Sejal Glass Ltd.19
and Satya Pal Gupta20 are concerned, the said judgments
were with regard to application filed under Order 7 Rule 11
unlike the case in hand where the learned Single Judge has
invoked the principles underlying Order 7 Rule 11 read
with Order 12 Rule 6 CPC.‖
As such, it is clear that the Division Bench distinguished a judgement
rendered under Order VII Rule 11 alone, with one rendered under
Order VII Rule 11 read with Order XII Rule 6 of the CPC.
27. The third decision on which Mr. Mehta relies is of the learned
Single Judge of this Court in Asha Khanna10. Para 16 of the said
decision holds as under:
―16. It is trite law that in an application under Order VII
Rule 11 CPC only averments in the plaint can be looked into
and the defence cannot be looked into. However, it is also
well-settled that even if the scope of exercise of jurisdiction
under Order VII Rule 11 CPC is limited in view of the
nature of the pleadings and admitted documents, the Court
can exercise suo-moto power under Order XII Rule 6 CPC
without a formal application on this count and pass a
judgment on admissions.‖
After proceeding, in para 16 of the report, to rely on the judgment of
the Division Bench in Keshav Chander Thakur8, the learned Single
Judge proceeds to observe, in para 17 of the report, that even if the
Court did not exercise jurisdiction under Order VII Rule 11 of the
CPC, ―it can still exercise its jurisdiction under Order XII Rule 6 of
230 (2016) DLT 73
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the CPC‖.
28. All that emerges, at the highest, from the afore-cited decisions,
is that, in an appropriate case, the Court may be empowered to suo
moto exercise jurisdiction under Order XII Rule 6 of the CPC, if there
were admitted facts outside the plaint which warranted its dismissal.
They do not mandate, by any stretch of imagination, as a principle of
law, that, in every case where an application under Order VII Rule 11
is filed by a defendant, seeking rejection of a plaint, the Court must
travel outside the peripheries of the plaint and examine other
documents to ferret out a case for dismissing the plaint by exercise of
suo motu jurisdiction under Order XII Rule 6 of the CPC. Suo motu
exercise of jurisdiction is always a matter of discretion, and can never
be a matter of compulsion. Indeed, if such the position that Mr Mehta
seeks to advocate were to be treated as representing the inexorable
legal position, it may well result in diluting the law, enunciated over a
long line of decisions, to the effect that, while exercising jurisdiction
under Order VII Rule 11 of the CPC, a Court cannot travel outside the
averments in the plaint.
29. Keshav Chander Thakur8 was a case in which while deciding
an application under Order VII Rule 11 of the CPC, the learned Single
Judge travelled outside the plaint and allowed the application. The
Division Bench of this Court categorically held that this approach was
infirm. Nonetheless, given the fact that there were admissions on
record and that excessive arguments had been advanced on the aspect,
the Division Bench expressed the view that, as it was open for the
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Court to suo moto exercise jurisdiction under Order XII Rule 6 of the
CPC, no case for interference with the decisions of the learned Single
Judge existed. Suraj Munjal9 specifically distinguished a situation in
which the powers were being exercised on an application under Order
VII Rule 11 of the CPC, with a situation in which the Court suo moto
exercised powers under Order VII Rule 11 read with Order XII Rule 6
of the CPC. That judgment, in fact, clearly supports the proposition
that, while exercising powers under Order VII Rule 11 of the CPC, the
Court does not travel outside the averments contained in the plaint.
To the same effect is the statement of law contained in para 16 of the
report in Asha Khanna10, which proceeds to rely on Keshav Chander
Thakur8, which has already been dealt with hereinabove.
Scope of jurisdiction under Article 227
30. This Court, in the present case, is exercising jurisdiction under
Article 227 of the Constitution of India. While exercising jurisdiction
under Article 227, the Court is not even expected to go into whether
the decision of the Court below is correct or incorrect, factually or
legally. The statement of law in the following passage from Sadhana
Lodh v. National Insurance Co. Ltd.21 clearly enunciates the legal
position:
―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 law. In
(2003) 3 SSC 524
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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)
31. In its recent decision in Ibrat Faizan v. Omaxe Buildhome Pvt.
Ltd.22, the Supreme Court has again reiterated the limited parameters
of Article 227 jurisdiction in para 28 of the report thus:
―28. 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) Ltd.23, which
has been consistently followed by this Court (see the
recent decision of this Court in the case of Garment Craft
v. Prakash Chand Goel24). 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.‖
32. The following passage from the judgments in Estralla Rubber
v. Dass Estate (P) Ltd23 and Garment Craft v. Prakash Chand Goel24,
on which the Supreme Court places reliance in the afore-extracted
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(2001) 8 SCC 97
2022 SCC OnLine SC 29
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para 28 of the report in Ibrat Faizan22, again recapitulate the legal
position regarding Article 227:
Estralla Rubber23
―7. This Court in Ahmedabad Mfg. & Calico Ptg. Co. Ltd.
v. Ram Tahel Ramnand25 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. Amarnath26. This Court in Bathutmal
Raichand Oswal v. Laxmibai R. Tarte27 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.
*****
Garment Craft24
15. Having heard the counsel for the parties, we are clearly
of the view that the impugned order [Prakash Chand
Goel v. Garment Craft28] 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.
AIR 1972 SC 1598
AIR 1954 SC 215
AIR 1975 SC 1297
2019 SCC OnLine Del 11943
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Supervisory jurisdiction is not to correct every error of fact or
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
Kholkar29] 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) Ltd23 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
(2010) 1 SCC 217
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set aside or ignore the findings of facts of an inferior
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.‖
33. To the same effect are the following words in paras 14 to 16 of
the report in Puri Investments v. Young Friends and Co.30:
―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
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judgment under appeal as to when a finding on facts or
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.
16. In our opinion, the High Court in exercise of its
jurisdiction under Article 227 of the Constitution of India
in the judgment under appeal had gone deep into the factual
arena to disagree with the final fact-finding forum. ......‖
34. The submissions of Mr. Mehta entirely revolve around the
power that, according to him, the learned ARC could have exercised
suo moto by invoking Order XII Rule 6 of the CPC. There is no
mandate in law requiring the learned ARC to exercise any such power.
The fact that the learned ARC may not have chosen to exercise suo
moto power under Order XII Rule 6 of the CPC cannot, by any stretch
of imagination, constitute a legitimate ground for an Article 227 Court
to interfere with the decision of the learned ARC.
35. The learned ARC has, in keeping that the settled law in respect
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of Order VII Rule 11 of the CPC, restricted himself to the averments
in the eviction petition filed by the respondent. Those averments
clearly indicate that the eviction petition was maintainable. The
petitioner would have every chance to contest the eviction petition on
all the grounds that have been sought to be urged in the present
petition, but those grounds could not have constituted a legitimate
basis to reject the eviction petition outright under Order VII Rule 11 of
the CPC. It is made clear that the grounds urged in the application
under Order VII Rule 11 of the CPC, as well as in the present petition
would remain open to be urged by the petitioner during the course of
trial in the eviction petition.
36. No occasion, therefore, arises in this Court to interfere with the
impugned order dated 9th June 2022 of the learned ARC, insofar as it
dismisses the petitioner's application under Order VII Rule 11 of the
CPC. To that extent, therefore, the impugned order is upheld.
37. However, the impugned order has rejected the petitioner's
application Order I Rule 10 of the CPC without any reasons
whatsoever.
38. To the extent of the alternative prayer in the petitioner's
application under Order I Rule 10 of the CPC, therefore, the
application is remanded to the learned ARC for consideration
regarding the submissions of the petitioner predicated on Order I Rule
10 of the CPC.
39. This petition stands disposed of in the aforesaid terms with no
orders as to costs. Pending applications, if any, do not survive for
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consideration and are also, therefore, stand disposed of.
C.HARI SHANKAR, J
SEPTEMBER 22, 2022
r.bararia
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