Himachal Pradesh High Court

Cmpmo No.574/2024 vs Sham Lal & Ors on 1 October, 2024

2024:HHC:9530

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.574/2024.

Date of Decision: 01st October, 2024. Daulat Ram.

.....Petitioner Versus

Sham Lal & Ors.

....Respondents Coram The Hon'ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1

For the Petitioner: Mr. Gurinder Singh Parmar, Advocate.

For the Respondent: Nemo.

Bipin Chander Negi, Judge (oral).

Present petition has been filed against the impugned

order dated 30.07.2024 passed by the learned Civil Judge,

Court No.1 Amb, District Una, HP in Civil Suit No.344-I-2013.

2. Heard counsel for the petitioner.

3. The petitioner, in the case at hand, is the plaintiff before

the trial Court. Vide the impugned order dated 30.07.2024, an

application filed under Order 6 Rule 17 CPC for amendment of

the plaint has been rejected. The present application had been

filed at the stage, when the matter was listed for cross-

examination of the defendants' witnesses.

4. At the very outset, it would be appropriate to refer to

the proviso to Order 6 Rule 17 CPC, the same is being

reproduced herein below.

Whether reporters of Local Papers may be allowed to see the judgment? Yes

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"Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the mater before the commencement of trial."

5. From a bare perusal of the aforesaid proviso, it is

evident that once the trial has commenced an application for

amendment shall only be allowed if the Court comes to the

conclusion that in spite of due diligence, the party could not

have raised the matter before the commencement of the trial.

6. The case at hand is at the stage of cross-examination of

defendants' witnesses. Issues in the case at hand were framed

on 31.03.2015. The suit was filed prior to the aforesaid date.

Therefore, in the case at hand the trial has commenced. From

a perusal of the application filed under Order 6 Rule 17 CPC

seeking amendment of the plaint, it evident that the

petitioner/plaintiff in the case at hand at the stage of cross-

examining the defendants' witnesses obtained revenue record

qua the suit land.

7. Obtaining of record at this stage speaks volumes for the

diligence exercised by the petitioner/plaintiff in the case at

hand. The revenue record alleged to have been now sought

should have been obtained prior to the institution of the suit.

8. Other than the aforesaid, on a previous occasion in the

year 2019, the petitioner/plaintiff had previously instituted an

application for amendment. No reason has been stated as to

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why present amendments being sought to be made were not

incorporated in the previous amendment sought in the plaint.

9. The present petition has been filed under Article 227 of

the Constitution of India.

Article 227 of the Constitution reads as under:-

"227. Power of superintendence over all courts by the High Court.

(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction.

(2) Without prejudice to the generality of the foregoing provisions, the High Court may--

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision or any law for the time being in force, and shall require the previous approval of the Governor.

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces."

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10. The scope of jurisdiction of High Court under Article 227

of the Constitution has been expounded by the Hon'ble

Supreme Court as under:

(i) In Sadhana Lodh vs. National Insurance Co. Ltd.

& another, (2003)3 SCC 524, it has been held as under:-

"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 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 re- weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision."

(iii) In Garment Craft vs. Prakash Chand Goel, (2022)4

SCC 181, it has been held as under:-

"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order 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 even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute conclusion, for its own that of decision the on facts inferior court and or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 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."

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11. Thus, from the above stated exposition of law, it is clear

that this Court has restrictive and limited jurisdiction to

interfere under Article 227 of the Constitution of India, except

to set right grave dereliction of duty or flagrant abuse or

violation of fundamental principle of law or justice.

12. In the facts and attending circumstances of the case at

hand, the trial Court was well within its jurisdiction in passing

the impugned order dated 30.07.2024. No ground for

interference under Article 227 of the Constitution of India is

made out, in the case at hand.

13. In view of the aforesaid, present petition is dismissed

being devoid of merit and so also the pending application(s), if

any.

(Bipin Chander Negi) Judge 01st October, 2024 (Gaurav Rawat)

DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL

VANDNA PRADESH SHIMLA, Phone=d3b84f3143a60e693f007f9c5e0fe88152 279f1d9f450a0255823cfc38862034, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=3a417623218f5838c6af79de

SHARMA 7dc1906f731266758b23a4f74fad98f0022165e3, CN=VANDNA SHARMA Reason: I have reviewed this document Location: