Gauhati High Court
Arun Pathak vs Vijay Sarma on 6 October, 2021
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GAHC010124792021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/71/2021
ARUN PATHAK
S/O LT. JNAN CH. PATHAK, R/O BYE LANE NO. 2 HARBALA PATH
ULUBARI, GUWAHATI 781007, DIST. KAMRUP (M), ASSAM.
VERSUS
VIJAY SARMA
S/O TARAK CHANDRA SARMA, R/O HOUSE NO. 185 (FIRST FLOOR)
MANIRAM DEWAN ROAD, BAMUNIMAIDAM, GUWAHATI 781021, DIST.
KAMRUP (M), ASSAM.
Advocate for the Petitioner : MR. B D DEKA
Advocate for the Respondent : MR. A LAL
BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
ORDER
06.10.2021
Heard the learned senior counsel Mr. K.N. Choudhury, assisted by Mr. B. D. Deka,
Advocate, appearing for the petitioner. Also heard the learned counsel Mr. A.
Devchoudhury, appearing for the respondent.
2. This is an application under Article 227 of the Constitution of India whereby the
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order dated 09.08.2021 passed by the learned Additional District Judge No. 3,
Kamrup (M) at Guwahati in Misc. (J) Case No. 43/2021 arising out of Misc. Appeal No.
49/2021 is put to challenge.
3. The factual matrix giving rise to this application lies within a short campus:- On
21.08.2019, the petitioner had entered into a rent agreement with the respondent in
respect of an area measuring 76 sqft. of the ground floor of one RCC building along
with an additional space of 150 sqft. in the front yard of the aforesaid two storied
RCC building. The monthly rent was fixed at Rs.8,000/- per month. Subsequently, it was
enhanced to Rs.12,000/- per month. The respondent refused to accept the rent for
the month of July, 2021. Therefore, the petitioner deposited the rent in the Court. On
02.07.2021 the petitioner found that his rented premises was under lock and key. He
came to know that the respondent had put the lock in his rented premises. Therefore,
the petitioner filed a suit being Title Suit No. 301/2021 in the Court of the Munsiff No. 3,
Kamrup (M) at Guwahati seeking a declaration of his tenancy, right and an injunction
restraining the respondent from disturbing his peaceful possession of the said
premises. Along with suit, an injunction petition being Misc. (J) Case No.265/2021 was
also filed. The trial Court disposed of the said petition asking the parties to maintain
status quo. Against that order, the petitioner filed a miscellaneous appeal being Misc.
Appeal No. 49/2021. With the aforesaid miscellaneous appeal, petitioner again filed a
petition praying for injunction and this petition was registered as Misc.(J) Case No.
40/2021. The appellate Court while disposed of the said application refused to grant
injunction as prayed for by the petitioner holding that the petitioner is not in
possession of the suit premises.
4. The entire facts can be summarized to the effect that the landlord had
evicted a tenant from the rented premise without due process of law and this is the
story canvassed by the petitioner. On the other hand, the respondent submits that
the petitioner had voluntarily gave up the rented property and handed it over to him.
5. The learned senior counsel Mr. Choudhury submits that without a due process
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of law a tenant in respect of a house was illegally evicted by a landlord.
6. Per contra, Mr. Devchoudhury has taken two pleas. The firstly is that the
petitioner himself had given up tenancy in respect of the rented premises. The
second plea is that under given circumstances of this case the Court should not
exercise its power under Article 227 of the Constitution of India.
7. Mr. Chaudhary has relied upon the following authorities to buttress his
argument--
(i) Samir Sobhan Sanyal v. Tracks Trade (P) Ltd., (1996) 4
SCC 144,
(ii) V. Dhanapal Chettiar v. Yesodai Ammal, (1979) 4 SCC
214,
(iii) Dorab Cawasji Warden v. Coomi Sorab Warden, (1990)
2 SCC 117.
8. In Samir Sobhan Sanyal,s case it was held--
" 6. It would thus be clear that without any decree or order of eviction of the appellant from
the demised premises, he has been unlawfully dispossessed from the premises without any
due process of law. The question, therefore, is: whether he should be allowed to remain in
possession till his application under Order 21, Rules 98 and 99 is adjudicated upon and an
order made. Though the learned counsel for the first respondent and also for the third
respondent, who is one of the transferees from the sixth respondent, sought to contend that
the appellant has no right to remain in possession after the lessee, M/s India Foils Ltd. had
admitted by a resolution that the appellant has no right to remain in possession, we are not
impressed with the arguments. At this stage, we are only concerned with his admitted
possession of the demised premises. What rights would flow from a contract between him
and his employer is a matter to be adjudicated in his application filed under Order 21, Rules
98 and 99, CPC. At this stage, it is premature to go into and record any finding in that behalf.
The learned counsel for the first respondent also repeatedly sought to bring to our notice that
on account of the orders of the Court Officer passed by the High Court the maintenance
cost has been mounting up due to the delay in disposal of the proceedings in various courts.
Even with regard to that, we are not impressed with the same. Since the letter of the law
should strictly be adhered to, we find that high-handed action taken by Respondents 1, 3
and 6 in having the appellant dispossessed without due process of law, cannot be
overlooked nor condoned. The court cannot blink at their unlawful conduct to dispossess the
appellant from the demised property and would say that the status quo be maintained. If the
court gives acceptance to such high-handed action, there will be no respect for rule of law
and unlawful elements would take hold of the due process of law for ransom and it would be
a field day for anarchy. Due process of law would be put to ridicule in the estimate of the
law-abiding citizens and rule of law would remain a mortuary."
9. In V. Dhanapal Chettiarat,s case in page 220, the Supreme Court has held as
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under ---
"8. Before we embark upon a review of some of the decisions of this Court we think it
necessary and advisable to briefly refer to the provisions of some of the State Rent Acts in
support of the observations made by us above that on the question of notice no different
result is possible on the language of any State Act. Section 10 of the Tamil Nadu Rent Act says
: "A tenant shall not be evicted whether in execution of a decree or otherwise except in
accordance with the provisions of this section or Sections 14 to 16." In other words if a case is
made out for his eviction in accordance with the provisions aforesaid, he can be evicted.
Even after the termination of the contractual tenancy under the definition of the landlord in
clause (6) and of the tenant under clause (8) of Section 2 the landlord remains a landlord
and the tenant remains a tenant as clause (8) expressly says that tenant means "a person
continuing in possession after the termination of the tenancy in his favour". Section 3
indicated that no landlord can treat the building to have become vacant by merely
terminating the contractual tenancy as the tenant still lawfully continues in possession of the
premises. The tenancy actually terminates on the passing of the order or decree, for eviction
and the building falls vacant by his actual eviction. The giving of the notice, therefore, is a
mere surplusage and unlike the law under the Transfer of Property Act it does not entitle the
landlord to evict the tenant."
10. In Dorab Cawasji Warden(supra) at page 126 it was held as under--
"15. In one of the earliest cases in Rasul Karim v. Pirubhai Amirbhai [ILR (1914) 38 Bom
381: 16 Bom LR 288: 24 IC 625] , Beaman, J. was of the view that the courts in India have
no power to issue a temporary injunction in a mandatory form but Shah, J. who
constituted a bench in that case did not agree with Beaman, J. in this view. However,
in a later Division Bench judgment in Champsey Bhimji & Co. v. Jamna Flour Mills Co.
Ltd. [(1914) 16 Bom LR 566: 28 IC 121] two learned Judges of the Bombay High Court
took a different view from Beaman, J. and this view is now the prevailing view in the
Bombay High Court. In M. Kandaswami Chetty v. P. Subramania Chetty [ILR (1918) 41
Mad 208: 1917 MWN 501: 41 IC 384] , a Division Bench of Madras High Court held that
courts in India have the power by virtue of Order XXXIX Rule 2 of the Code of Civil
Procedure to issue temporary injunctions in a mandatory form and differed from
Beaman J.'s view accepting the view in Champsey Bhimji & Co. v. Jamna Flour Mills
Co. [(1914) 16 Bom LR 566: 28 IC 121] In Israil v. Shamser Rahman [ILR (1914) 41 Cal 436:
18 CWN 176] , it was held that the High Court was competent to issue an interim
injunction in a mandatory form. It was further held in this case that in granting an interim
injunction what the court had to determine was whether there was a fair and
substantial question to be decided as to what the rights of the parties were and
whether the nature and difficulty of the questions was such that it was proper that the
injunction should be granted until the time for deciding them should arrive. It was
further held that the court should consider as to where the balance of convenience lies
and whether it is desirable that the status quo should be maintained. While accepting
that it is not possible to say that in no circumstances will the courts in India have any
jurisdiction to issue an ad interim injunction of a mandatory character, in Nandan
Pictures Ltd. v. Art Pictures Ltd. [AIR 1956 Cal 428] , a Division Bench was of the view that
if the mandatory injunction is granted at all on an interlocutory application it is granted
only to restore the status quo and not granted to establish a new state of things
differing from the state which existed at the date when the suit was instituted.
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16. The relief of interlocutory mandatory injunctions are thus granted generally to
preserve or restore the status quo of the last non-contested status which preceded the
pending controversy until the final hearing when full relief may be granted or to compel
the undoing of those acts that have been illegally done or the restoration of that which
was wrongfully taken from the party complaining. But since the granting of such an
injunction to a party who fails or would fail to establish his right at the trial may cause
great injustice or irreparable harm to the party against whom it was granted or
alternatively not granting of it to a party who succeeds or would succeed may equally
cause great injustice or irreparable harm, courts have evolved certain guidelines.
Generally stated these guidelines are:
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a
prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which normally cannot be
compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief."
11. Per contra, Mr. Dev Chaudhury has categorized his argument into following
points--
(I) Limited scope for interference under Article 227
(II) Scope of interference by High Court on lower court,s
exercise of discretion,
(III) Confession by counsel,
(IV) Mandatory injunction,
(V) Absence of actual and physical possession of the suit
premise.
(VI) Injunction application is not greater that the main suit.
12. In support of his argument, Mr. Dev Chaudhury has relied upon the following
authorities--
(i) Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010)
8 SCC 329;
(ii) Sadhana Lodh v. National Insurance Co. Ltd., (2003) 3
SCC 524;
(iii) Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan,
(2013) 9 SCC 221;
(iv) Venkatlal G. Pittie v. Bright Bros. (P) Ltd., (1987) 3 SCC
558 ;
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(v) Metro Marins v. Bonus Watch Co. (P) Ltd., (2004) 7 SCC
13. In Shalini Shyam Shetty(supra), Supreme Court has held ---
" 49. On an analysis of the aforesaid decisions of this Court, the following
principles on the exercise of High Court's jurisdiction under Article 227 of the
Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a petition
under Article 227. The mode of exercise of power by the High Court under these
two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition.
The history of the conferment of writ jurisdiction on High Courts is substantially
different from the history of conferment of the power of superintendence on the
High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of
superintendence under Article 227 of the Constitution, interfere with the orders
of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a
court of appeal over the orders of the court or tribunal subordinate to it. In
cases where an alternative statutory mode of redressal has been provided, that
would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of their power of
superintendence have been repeatedly laid down by this Court. In this regard
the High Court must be guided by the principles laid down by the Constitution
Bench of this Court in Waryam Singh [AIR 1954 SC 215] and the principles
in Waryam Singh [AIR 1954 SC 215] have been repeatedly followed by
subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh [AIR 1954 SC 215] , followed in
subsequent cases, the High Court in exercise of its jurisdiction of
superintendence can interfere in order only to keep the tribunals and courts
subordinate to it, "within the bounds of their authority".
(f) In order to ensure that law is followed by such tribunals and courts by
exercising jurisdiction which is vested in them and by not declining to exercise
the jurisdiction which is vested in them.
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(g) Apart from the situations pointed in (e) and (f), High Court can interfere in
exercise of its power of superintendence when there has been a patent
perversity in the orders of the tribunals and courts subordinate to it or where
there has been a gross and manifest failure of justice or the basic principles of
natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to
correct mere errors of law or fact or just because another view than the one
taken by the tribunals or courts subordinate to it, is a possible view. In other
words the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under Article 227 cannot be
curtailed by any statute. It has been declared a part of the basic structure of
the Constitution by the Constitution Bench of this Court in L. Chandra
Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] and therefore
abridgment by a constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like
Section 115 of the Civil Procedure Code by the Civil Procedure Code
(Amendment) Act, 1999 does not and cannot cut down the ambit of High
Court's power under Article 227. At the same time, it must be remembered that
such statutory amendment does not correspondingly expand the High Court's
jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In
an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High
Court under Article 227, it transpires that the main object of this article is to keep
strict administrative and judicial control by the High Court on the administration
of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to
maintain efficiency, smooth and orderly functioning of the entire machinery of
justice in such a way as it does not bring it into any disrepute. The power of
interference under this article is to be kept to the minimum to ensure that the
wheel of justice does not come to a halt and the fountain of justice remains
pure and unpolluted in order to maintain public confidence in the functioning
of the tribunals and courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial intervention is not to be
exercised just for grant of relief in individual cases but should be directed for
promotion of public confidence in the administration of justice in the larger
public interest whereas Article 226 is meant for protection of individual
grievance. Therefore, the power under Article 227 may be unfettered but its
exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counterproductive
and will divest this extraordinary power of its strength and vitality."
14. In Sadhana Lodh,(supra) the Supreme Court has held ----
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
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its parameters and not to correct an error apparent on the face of the record, much less of
an error of 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.
15. In Mohd. Mehtab Khan,s case it was held---
"18. There is yet another dimension to the issues arising in the present appeal.
The interim relief granted to the plaintiffs by the appellate Bench of the High
Court in the present case is a mandatory direction to hand over possession to
the plaintiffs. Grant of mandatory interim relief requires the highest degree of
satisfaction of the court; much higher than a case involving grant of prohibitory
injunction. It is, indeed, a rare power, the governing principles whereof would
hardly require a reiteration inasmuch as the same which had been evolved by
this Court in Dorab Cawasji Warden v. Coomi Sorab Warden [(1990) 2 SCC 117]
has come to be firmly embedded in our jurisprudence.
19. Paras 16 and 17 of the judgment in Dorab Cawasji Warden [(1990) 2 SCC
117] extracted below, may be usefully remembered in this regard: (SCC pp.
126-27).
16. The relief of interlocutory mandatory injunctions are thus granted generally
to preserve or restore the status quo of the last non-contested status which
preceded the pending controversy until the final hearing when full relief may be
granted or to compel the undoing of those acts that have been illegally done
or the restoration of that which was wrongfully taken from the party
complaining. But since the granting of such an injunction to a party who fails or
would fail to establish his right at the trial may cause great injustice or
irreparable harm to the party against whom it was granted or alternatively not
granting of it to a party who succeeds or would succeed may equally cause
great injustice or irreparable harm, courts have evolved certain guidelines.
Generally stated these guidelines are:
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard
than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which normally cannot
be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.
17. Being essentially an equitable relief the grant or refusal of an interlocutory
mandatory injunction shall ultimately rest in the sound judicial discretion of the
court to be exercised in the light of the facts and circumstances in each case.
Though the above guidelines are neither exhaustive nor complete or absolute
rules, and there may be exceptional circumstances needing action, applying
them as prerequisite for the grant or refusal of such injunctions would be a
sound exercise of a judicial discretion.
20.In a situation where the learned trial court on a consideration of the
respective cases of the parties and the documents laid before it was of the
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view that the entitlement of the plaintiffs to an order of interim mandatory
injunction was in serious doubt, the appellate court could not have interfered
with the exercise of discretion by the learned trial Judge unless such exercise
was found to be palpably incorrect or untenable. The reasons that weighed
with the learned trial Judge, as already noticed, according to us, do not
indicate that the view taken is not a possible view. The appellate court,
therefore, should not have substituted its views in the matter merely on the
ground that in its opinion the facts of the case call for a different conclusion.
Such an exercise is not the correct parameter for exercise of jurisdiction while
hearing an appeal against a discretionary order. While we must not be
understood to have said that the appellate court was wrong in its conclusions
what is sought to be emphasised is that as long as the view of the trial court was
a possible view the appellate court should not have interfered with the same
following the virtually settled principles of law in this regard as laid down by this
Court in Wander Ltd. v. Antox India (P) Ltd. [Wander Ltd. v. Antox India (P) Ltd.,
1990 Supp SCC 727]
This extract is taken from Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan,
(2013) 9 SCC 221 : (2013) 4 SCC (Civ) 285 : 2013 SCC OnLine SC 93 at page 230.
21. Para 14 of the aforesaid judgment which is extracted below would
amply sum up the situation: (Wander Ltd. case [Wander Ltd. v. Antox India (P)
Ltd., 1990 Supp SCC 727] , SCC p. 533).
"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 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 that 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) (P)
Ltd. v. Pothan Joseph [AIR 1960 SC 1156 : (1960) 3 SCR 713] : (AIR p. 1159, para
9)
'9. ... These principles are well established; but, as has been observed by
Viscount Simon in Osenton (Charles) & Co. v. Johnston [1942 AC 130 : (1941) 2
All ER 245 (HL)] : (AC p. 138)
"... 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."
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16. In Venkatlal G. Pittie(supra), it was held as under--
"27. Interference by the High Courts under Article 227 of the Constitution must
be within limits. This question has been considered by this Court from time to
time and principles laid down. This Court in Ganpat Ladha v. Sashikant Vishnu
Shinde [(1978) 2 SCC 573 : AIR 1978 SC 955 : (1978) 3 SCR 198] expressed the
view that the High Court commits a gross error in interfering with what was a just
and proper exercise of discretion by the Court of Small Causes, in exercise of its
power under Article 227 of the Constitution. This was unwarranted. The High
Court under Article 227 has a limited jurisdiction. It was held in that case that a
finding as to whether circumstances justified the exercise of discretion or not,
unless clearly perverse and patently unreasonable, was, after all a finding of
fact and it could not be interfered with either under Article 226 or 227 of the
Constitution. If a proper court has come to the conclusion on the examination
of the nature of the structure, the nature of the duration of structure, the
annexation and other relevant factors that the structures were permanent in
nature which were violative of Section 13(1)(b) of the Rent Act as well as
Section 108 clause (p) of Transfer of Property Act and such a finding, is possible,
it cannot be considered to be perverse. In such a situation, the High Court
could not have and should not have interfered.
This extract is taken from Venkatlal G. Pittie v. Bright Bros. (P) Ltd., (1987) 3 SCC
558 at page 570
28. In India Pipe Fitting Co. v. Fakruddin M.A. Baker [(1977) 4 SCC 587 : AIR 1978
SC 45 : (1978) 1 SCR 797] this Court reiterated that the limitation of the court
while exercising power under Article 227 of the Constitution is well settled. Power
under Article 227 is one of judicial superintendence and cannot be exercised to
upset the conclusions of facts, however erroneous these may be. It is possible
that another court may be able to take a different view of the matter by
appreciating the evidence in a different manner, if it determinedly chooses to
do so. That will not be justice administered according to law to which courts are
committed notwithstanding dissertation in season and out of season, about
philosophies. In that case, the court found that the High Court had arrogated to
itself the powers of the appellate court."
17. In Metro Marins (supra), it was held----
"9. Having considered the arguments of the learned counsel for the parties and
having perused the documents produced, we are satisfied that the impugned
order of the appellate court cannot be sustained either on facts or in law. As
noticed by this Court, in the case of Dorab Cawasji Warden v. Coomi Sorab
Warden [(1990) 2 SCC 117] it has held that an interim mandatory injunction can
be granted only in exceptional cases coming within the exceptions noticed in
the said judgment. In our opinion, the case of the respondent herein does not
come under any one of those exceptions and even on facts it is not such a
case which calls for the issuance of an interim mandatory injunction directing
the possession being handed over to the respondent. As observed by the
learned Single Judge the issue whether the plaintiff is entitled to possession is yet
to be decided in the trial court and granting of any interim order directing
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handing over of possession would only mean decreeing the suit even before
trial. Once the possession of the appellant either directly or through his agent
(caretaker) is admitted then the fact that the appellant is not using the said
property for commercial purpose or not using the same for any beneficial
purpose or the appellant has to pay huge amount by way of damages in the
event of he losing the case or the fact that the litigation between the parties is
a luxury litigation are all facts which are irrelevant for changing the status quo in
regard to possession during the pendency of the suit."
18. I have given my anxious consideration to the submissions made by the ld.
Counsels of both sides.
19. Long back on 19.01.1954, a Constitution Bench of the Supreme Court in
Waryam Singh v. Amarnath, AIR 1954 SC 215, gave its view on Article 227 of the
Constitution as follows-
"Re. 2.-- 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 similar in terms to Section 15 of the High Courts
Act, 1861, 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..........".
20. Thereafter, in Nagendra Nath Bora v. Commr. of Hills Division and Appeals, AIR
1958 SC 398 , the Supreme Court has held that--
"41. A Constitution Bench of this Court examined the scope of Article 227 of the
Constitution in the case of Waryam Singh v. Amarnath [(1954) SCR 565] . This
Court, in the course of its judgment, made the following observations at p. 571:
"This power of superintendence conferred by article 227 is, as pointed out by
Harries, C.J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee [AIR (1951) Cal
193] , to be exercised most sparingly and only in appropriate cases in order to
keep the Subordinate Courts within the bounds of their authority and not for
correcting mere errors."
21. It is, thus, clear that the power of judicial interference under Article 227 of the
Constitution with orders of judicial or quasi-judicial authorities, is not greater than the
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power under Article 226 of the Constitution. Under Art 226, the power of interference
may extend to quashing an impugned order on the ground of a mistake apparent on
the face of the record. But under Art, 227 of the Constitution, the power of
interference is limited to examine that the Court/ Tribunal functions within the limits of
its authority. The power under Article 227 of the Constitution of India is a supervisory
jurisdiction for making sure that the subordinate judicial and quashi judicial authorities
act within their authority. The supervisory power under Article 227 cannot be
exercised as an appeal.
22. So far as grant of injunctions under the Code of Civil Procedure is concerned, it
involves exercise of discretion by the Courts. In the case in hand, the lower Courts
refused to grant temporary mandatory injunction. Now, this Court is of the opinion
that the Courts below acted within their lawful jurisdiction. There is no perversity in the
impugned orders as because the subordinate Courts had acted within the bound of
their authority. If at this stage, the power under Article 227 is exercised it would
amount to exercising appellate jurisdiction which the law does not permit. Therefore,
this Court finds that there is no scope for interfering into the impugned order under
Article 227 of the Constitution of India.
23. With the aforesaid observations, the present Civil Revision Petition is dismissed
and disposed of accordingly.
JUDGE
Comparing Assistant
