Manjur Mian @ Md. Manjur Alam vs Ahdil Mian
2024 Latest Caselaw 312 Jhar

Jharkhand High Court

Manjur Mian @ Md. Manjur Alam vs Ahdil Mian on 12 January, 2024

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad

                             1

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  C.M.P. No.692 of 2023
                                       ------

Manjur Mian @ Md. Manjur Alam, aged about 62 years son of Late Safir Mian .... .... Petitioner Versus

1. Ahdil Mian

2. Akhtar Ali

3. Md. Mukhtar

4. Md. Jabbar

5. Amrul Khatoon

6. Sakina Khatoon

7. Hasina Khatoon

8. Manira Khatoon

9. Bhikari Mian .... .... Plaintiffs/Respondents

CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Petitioner : Mr. P.K. Mukhopadhyay, Advocate Mr. S.K. Murtty, Advocate For the Respondents : Mr. Bhaiya V. Kumar, Advocate

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05/Dated: 12.01.2024

1. This petition under Article 227 of the Constitution of India, is

directed against the order dated 26.04.2023 passed by the Addl.

Munsif-XX, Giridih in Original Suit No.167 of 1999, whereby and

whereunder, the amendment petition filed under Order VI Rule 17 of

the CPC seeking amendment in the plaint, has been allowed.

2. The brief fact of the case as per the pleading made in the

petition, which requires to be enumerated, which reads as under:-

3. It is the case of the petitioner that petitioner is one of the

defendants of the Original Suit No. 167 of 1999 and on receipt of

notice had appeared in this case and filed written statement jointly

with the other defendants stating therein that the defendants are

having right, title, interest and possession over the suit property and

plaintiffs have no knowledge of the lands in question and the

plaintiffs are claiming the lands by virtue of the forged paper and

hence, the defendants prayed for dismissal of the suit and also

stating therein that the present suit is barred by law of limitation and

adverse possession and the suit is also barred under sections 34

and 42 of the Specific Relief Act and State is also necessary party in

the present suit.

4. The value of the suit property is not less than Rs10 lacs and as

such, the trial court has got no pecuniary jurisdiction to try the

present suit because the plaintiffs have shown the suit land in

schedule 'C' and 'D' very cleverly only with a view to save the court

fee but if the entire contents of the plaint, will be perused, it is clear

that plaintiffs want to get the declaration for schedule 'A' lands, i.e.,

for an area of 8.40 acres and also for schedule 'B' lands for an area

of 2 acres. The lands of the defendants, an area of 9.65 acres, which

is the settled lands of the sons of Ahali Mian and also the settled

lands of the sons of Sizman Mian by virtue of Bhudan Parcha, which

was made in the year of 1956. Sons of Ahali Mian got 3.25 acres of

land from Bhudan Purcha and sons of Sizman Mian got 6.40 acres of

land from Bhudan Yagya Committee and both the lands

amalgamated in one block within specific boundary and came in joint

possession over the lands and after settlement the defendants

divided the same into Dhankhets about 36 topras and 7 topras of

tand land and the said tand land is under the process of reclamation

and the said Dhankhets had been converted into two classes of

paddy fields and same can be verified by the appointment of Survey

knowing Commissioner.

5. It is the further case that the present suit has been filed in the

year 1999 and after 21 years the plaintiffs filed a petition under Order

VI Rule 17 C.P.C on 17.02.2020 for amendment of the plaint in

several manner on the ground old CPC was amended on or about

22.06.2002, which came into operation w.e.f. 01.07.2002, hence, the

plaintiffs prayed for several amendments in the plaint.

6. The defendants have also filed rejoinder on 06.07.2022 to the

petition dated 13.02.2020 filed by the plaintiffs under Order VI Rule

17 C.P.C stating therein the aforesaid petition is illegal, not

maintainable and is liable to be rejected.

7. When the suit was filed, plaintiffs had knowledge that in

Zamabandi Cancellation Revision No. 46 of 1996, the learned Court

of Commissioner, North Chhotanagpur Division, Hazaribagh passed

order on 16.08.1999 and set aside the order of learned court of

Additional Collector, Giridih in spite of the plaintiffs did not challenge

the said impugned order. The case is at the final stage and if such

type of time barred amendments will be allowed, it will amount to

reopen the case starting to denovo trial of the suit and nature and

character of the suit will be changed, thereby the defendants prayed

for dismissal of the petition for amendments filed by the plaintiffs

dated 13.02.2020. It is needed to mention here that in the present

Title Suit No. 167 of 1999 witnesses from both sides have already

been examined and case has been fixed for passing final judgment

and as such a stage amendment of the plaint is wholly unwarranted

and illegal.

8. The learned Additional Munsif-XX, Giridih after, hearing the

parties has, however, passed an order dated 26.04.2023 allowing the

petition dated 13.02.2020 filed by the plaintiffs under Order VI Rule

17 C.P.C holding that plaintiff was hereby directed to amend para 18,

19 and 23 of the plaint and add the statement as sought after para

18 and add para 19(1) after para19 & add para 19(2) after the newly

created para 19(1) accordingly and add para 23(a) (i) in para 23 as

per the amendment sought in the petition dated 13.02.2020 within 7

days of this order, hence the present petition.

9. It appears from the pleading that at the time of filing of suit,

certain material information since has not been pleaded, as such, a

petition has been filed under Order VI Rule 17 of CPC for seeking

leave of the court to amend the pleading made therein.

10. It appears from the petition filed under Order VI Rule 17 of

CPC that the following amendment has been sought for which reads

as under:

"i) Learned court may be pleased to allow the plaintiffs to

write following statements after the end of para no.18 of the

plaint, after the words Revision no.46 of 1996 and full stop

as follows:-

Right, title, interest, and possession of the plaintiffs on the

suit land exist and continued and the same cannot be said

have been lost in view of the orders of the commissioner,

Hazaribagh. Defendants did not earn and acquire any right,

title, interest and possession on the suit land in view of the

orders of Commissioner. The orders of Revenue authorities

are not binding on the learned Civil Court. The judgment of

the Civil Court is binding on the Revenue Court.

ii) Learned court may be pleased to allow the plaintiffs to

create a new paragraph no.19(1), after the end of para

no.19 of the plaint, and to allow the plaintiffs to write

following statements, after the words antedated document

and full stop as follows:-

The alleged and so-called Donor named, Smt. Ayan

Kumari, or any other person was never the owner of the

land measuring 9.65 acres in the suit plot and nobody had

donated the aforesaid area of the land in suit plot involved

in this suit, in favour of Bhudan Yagna Committee or to

Acharya Vinoba Bhave. The alleged Donor named, Smt.

Ayan Kumari, never made any written declaration in writing

to the aforesaid alleged Donne at any period. The land is

recorded in the Records of Right as Gair-Majuria Land, the

part of which is Khas whereas, the part is Aam Land, and

no Daan Patra was issued and delivered in favour of

Bhudan Yagna Committee, in respect of the suit land by

anyone, whosoever it may be he/she. There was no

settlement of the land measuring an area of 9.65 acres in

favour of sons of Ahdil Mian and Sizman Mian by means of

Bhudan Parcha, allegedly granted in the year 1956, for

alleged area measuring 9.65 acres.

iii) Learned court may be pleased to allow the plaintiffs to

create paragraph no.19(2), after the end of newly created

para no.19(1) and to allow the plaintiffs to write following

statements as follows:-

No revenue officer had made any publication in the

prescribed manner inviting written objection there to within

the prescribed period of 30 days from the date of

publication. There was no enquiry by any competent

authority regarding the right, title and competency of the

alleged Donor if any to make the alleged Daan Patra. It

was never confirmed by any competent authority. The suit

land was never transferred and vested in the Bhudan

Yagna Committee. None of the defendants was landless

persons during the relevant period.

iv) Learned court may be pleased to allow the plaintiffs to

write following statements in a newly created relief no. A (i)

in para no.23 of the plaint, as follows:-

On adjudication, Decree be passed holding and declaring

that the alleged Bhudan settlement and issuance of alleged

and purported Bhudan Parchas in favour of the ancestors

of the defendants are illegal, void, null & void, nullity, void-

ab-initio, inoperative and the same is not binding on and

upon the plaintiffs."

11. A rejoinder to the said petition has been filed by raising serious

objection on the ground that the said amendment is not fit to be

allowed after such a long delay that too, when the case has been

posted for argument. It has further been submitted that by referring

to the amendment sought to be made in the petition filed under

Order VI Rule 17 while allowing the same, the learned court has not

considered that the very nature of the suit will change.

12. The learned court, while appreciating the argument advanced

on behalf of the parties and taking into consideration the legal

position that in order to determine the real question in controversy

between the parties, amendment can be allowed even before the

pronouncement of judgment and further considering the amendment

sought to be made to be the real controversy for adjudication of the

lis, as such, the petition filed under Order VI Rule 17 of CPC has

been allowed vide order dated 26.04.2023, which is impugned in the

instant petition by invoking the jurisdiction under Article 227 of the

Constitution of India, i.e., under its supervisory jurisdiction.

13. Mr. P.K. Mukhopadhyay, learned counsel for the petitioner

assisted by Mr. S.K. Murtty, has submitted that the learned court has

committed serious error in allowing the petition filed under Order VI

Rule 17 of CPC on the ground that the very settled position so far as

allowing the amendment in the plaint or the written statement is

concerned that the same is not fit to be allowed at the belated stage.

14. Further, such amendment is not fit to be allowed if the nature of

the suit is going to be changed but without appreciating the aforesaid

legal position, the impugned order has been passed, as such, the

instant petition.

15. While on the other hand, Mr. Bhaiya Vishwajeet Kumar, learned

counsel for the plaintiffs/respondents, who is plaintiff to the suit has

defended the impugned order by taking the ground that the

amendment so sought for, cannot be said to be changing the nature

of the suit.

16. Further, the very basic issue for deciding the controversy, that

is the claim of the defendant, the petitioner herein, who is claiming

right, title over the property on the basis of dan patra of settlement of

land which has been claimed to be donated by one Smt. Ayan

Kumari, has been sought to be inserted, since, there is no dan patra

which is best of the knowledge of the plaintiffs.

17. The learned counsel appearing for the plaintiffs-defendants has

submitted that the learned court has considered the settled position

that the amendment can even be allowed to decide the real

controversy even before the pronouncement of the judgment, so

that, the dispute be decided for all time to come with the available

grounds and issues.

18. The learned counsel, based upon the aforesaid ground, has

submitted that the impugned order, as such, cannot be said to suffer

from error.

19. This Court has heard the learned counsel for the parties, gone

across the pleadings and the finding recorded by the learned court in

the impugned order.

20. This Court, before entering into the legality and propriety of the

impugned order, deems it fit and proper to refer the provision of

Order VI Rule 17 of CPC which reads as under:

"17. Amendment of pleadings:- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

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 matter before the commencement of trial."

21. It is evident that the provision as referred above, has been

made to do substantial justice and in case certain things or the

documents could not have been brought on record either in the plaint

or in the written statement, the same can be brought on record by

way of seeking leave from the concerned trial court by filing a petition

under Order VI Rule 17.

22. So far as the position of law regarding allowing the amendment

or rejecting it, is concerned, the law is well settled, as has been held

by the Hon'ble Apex Court in the case of Rajkumar Gurawara vs.

S.K. Sarwagi and Company Private Limited and Anr., (2008) 14

SCC 364, wherein, it has been laid down as under paragraph-18

which reads as under:

"18. Further, it is relevant to point out that in the original suit,

the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order 6 Rule 17 but even on merits his claim is liable to be rejected. All these relevant aspects have been duly considered by the High Court and rightly set aside the order dated 10- 3-2004 of the Additional District Judge."

23. The same view has been reiterated in the judgment rendered

by the Hon'ble Apex Court in Revajeetu Builders and Developers

vs. Narayanaswamy and sons and Ors., (2009) 10 SCC 84.

Relevant paragraph -63 reads as under:

"63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) whether the application for amendment is bona fide or mala fide;

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case;

and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."

24. It appears from the aforesaid judgment that the amendment is

fit to be incorporated in the plaint or in the written statement, save

and except, if the nature of the suit is not going to be changed.

25. Further, if no such amendment is fit to be allowed, if any relief

is being sought for after filing of the suit, which is barred by limitation

and against the said issue, if the suit cannot be filed on the ground of

limitation, such relief cannot be sought for by seeking amendment in

the plaint. Further, the principle is that once the admission is there in

the pleading or written statement, the said statement cannot be

rescinded by filing amendment petition, as has been held by the

Hon'ble Apex Court in the case of Ashutosh Chaturvedi Vrs. Prano

Devi @ Parani Devi & Ors., reported in (2008) 15 SCC 610,

wherein, at paragraph-16, it has been held as under:-

"16. In T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board [(2004) 3 SCC 392] this Court upon taking into consideration its earlier decisions in L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357 : 1957 SCR 438] held that as a rule, the court will decline to allow amendment for a fresh suit on the amended claim if it had become barred by limitation on the date of application. (See also State Bank of Hyderabad v. Town Municipal Council [(2007) 1 SCC 765 : (2006) 13 Scale 332] .)"

26. Likewise, the Hon'ble Apex Court in the case of Revajeetu

Builders and Developers vs. Narayanaswamy and sons and Ors,

(supra), wherein, at paragraph-39, it has been held as under:-

"39. The rule, however, is not a universal one and under certain circumstances, such an amendment may be allowed by the court notwithstanding the law of limitation. The fact that the claim is barred by the law of limitation is but one of the factors to be taken into account by the court in exercising the discretion as to whether the amendment should be allowed or refused, but it does not affect the power of the court if the amendment is required in the interests of justice (see Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393] and Arundhati Mishra v. Ram Charitra Pandey [(1994) 2 SCC 29] )."

27. It is also settled that the amendment can be allowed at any

time of the suit or even it can be allowed at the belated stage,

reference in this regard may be made to the judgment rendered by

the Hon'ble Apex Court in the case of Surender Kumar Sharma

Vrs. Makhan Singh, reported in (2009) 10 SCC 626, wherein, it has

been held at paragraph-5 which reads as under:-

"5. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment

cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment."

28. Likewise, in the case of Mount Mary Enterprises Vrs. Jivratna

Medi Treat Private Limited, reported in (2015) 4 SCC 182, wherein,

at paragraph-7 and 10, it has been held by the Hon'ble Apex Court

which reads as under:-

"7. In our opinion, as per the provisions of Order 6 Rule 17 of the Civil Procedure Code, the amendment application should be normally granted unless by virtue of the amendment nature of the suit is changed or some prejudice is caused to the defendant. In the instant case, the nature of the suit was not to be changed by virtue of granting the amendment application because the suit was for specific performance and initially the property had been valued at Rs 13,50,000 but as the market value of the property was actually Rs 1,20,00,000, the appellant-plaintiff had submitted an application for amendment so as to give the correct value of the suit property in the plaint.

10. With regard to the amendment of the plaint, the following observation has been made by this Court in North Eastern Railway Admn. v. Bhagwan Das [(2008) 8 SCC 511] : (SCC p. 517, para 16)

"16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363 : (1957) 1 SCR 595] which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other

party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs."

29. Further, the most important parameter is to see by the

concerned court while allowing leave that the nature of suit is not

allowed to be changed by allowing the amendment.

30. This Court, is now proceeding to examine the factual aspect

based upon the aforesaid legal position.

31. The admitted case herein as per the argument and pleading

made on behalf of the parties is that a title suit has been filed by the

plaintiffs, who are respondents herein, for declaration of right and

title over the land in question, although, the suit is of the year, 1999.

32. It is further admitted fact that the suit has proceeded and now,

it is at the stage of argument as has been submitted on behalf of the

parties. At the aforesaid stage, a petition under Order VI Rule 17 of

CPC has been filed seeking the amendment, as referred

hereinabove.

33. It is evident that the first amendment sought to be incorporated,

is insertion of the statement after the end of para no.18 of the plaint,

after the words Revision no.46 of 1996 and full stop as follows:

"Right, title, interest and possession of the plaintiffs on the

suit land exist and continued and the same cannot be said

have been lost in view of the orders of the commissioner,

Hazaribgh. Defendants did not earn and acquire any right,

title, interest and possession on the suit land in view of the

orders of Commissioner. The orders of Revenue authorities

are not binding on the learned Civil Court. The judgment of

the Civil Court is binding on the Revenue Court."

34. Further amendment has been sought for to create a new

paragraph no.19(1), after the end of para no.19 of the plaint, and to

allow the plaintiffs to write following statements, after the words

antedated document and full stop as follows:

"The alleged and so-called Donor named, Smt. Ayan Kumari,

or any other person was never the owner of the land

measuring 9.65 acres in the suit plot and nobody had

donated the aforesaid area of the land in suit plot involved in

this suit, in favour of Bhudan Yagna Committee or to Acharya

Vinoba Bhave. The alleged Donor named, Smt. Ayan Kumari,

never made any written declaration in writing to the aforesaid

alleged Donne at any period. The land is recorded in the

Records of Right as Gair-Majuria Land, the part of which is

Khas whereas, the part is Aam Land, and no Daan Patra was

issued and delivered in favour of Bhudan Yagna Committee,

in respect of the suit land by anyone, whosoever it may be

he/she. There was no settlement of the land measuring an

area of 9.65 acres in favour of sons of Ahdil Mian and Sizman

Mian by means of Bhudan Parcha, allegedly granted in the

year 1956, for alleged area measuring 9.65 acres."

35. Further, amendment has been sought for seeking leave to add

new paragraph no.19(2), after the end of newly created para

no.19(1) to the effect as follows:

"No revenue officer had made any publication in the prescribed

manner inviting written objection there to within the prescribed

period of 30 days from the date of publication. There was no

enquiry by any competent authority regarding the right, title and

competency of the alleged Donor if any to make the alleged

Daan Patra. It was never confirmed by any competent authority.

The suit land was never transferred and vested in the Bhudan

Yagna Committee. None of the defendants was landless

persons during the relevant period."

36. Further, amendment has been sought for to add a new relief

no.A(i) in para no.23 of the plaint, as follows:

"On adjudication, Decree be passed holding and

declaring that the alleged Bhudan settlement and issuance of

alleged and purported Bhudan Parchas in favour of the

ancestors of the defendants are illegal, void, null & void, nullity,

void-ab-initio, inoperative and the same is not binding on and

upon the plaintiffs."

37. The first amendment is on the basis of the reference, i.e., right,

title and interest and possession of the plaintiffs on the suit land exist

and the continued and the same cannot be said to have been lost in

view of the orders of the Commissioner, Hazaribagh.

38. It has further been contended that merely because the order

has been passed by the Commissioner, the defendants cannot claim

title over the land in question.

39. According to this Court, such amendment is based upon the

legal position that order passed by the revenue authority cannot be

said to be the basis of declaration of right and title. Although, such

order passed by the revenue authority can only be treated to be an

evidence for consideration of right and title. Therefore, when such

statement is being sought to be made only in order to give a

statement that merely because the order has been passed by the

Commissioner, the same cannot snatch away the right, title, interest

and possession of the petitioner over the property in question, as

such, by seeking leave of the learned trial court for inserting the said

statement after the end of para no.18 of the plaint, according to the

considered view of this Court, cannot be said to be changing the

nature of suit, since, the same will be said to be based upon the

settled position of law.

40. The second and third amendment is based upon the title

having been claimed by the defendant, who is the petitioner herein

on the basis of settlement of land. The statement has been made

that the land which admittedly is part of the Gair-Majurwa and part is

Gair-Majurwa Aam. The claim of settlement is based upon the

aforesaid land donated under the Bhoodan Yagna Act.

41. The statutory provision under the said act is that if the land has

been donated under the Bhoodan Yagna Act, then the same is to be

donated in favour of the newly constituted committee. The committee

is required to issue Daan Patra and then only by way of follow-up

action, the land will be settled by the competent authority.

42. This Court, after going through the said proposed amendment

as under para-19(1) and 19(2), is of the view that the same is also

based upon the legal position, as such, this also cannot be said that

incorporating said amendment will change the nature of the suit,

since, the same is based upon the legal proposition.

43. This Court, having discussed the aforesaid fact and coming

back to the impugned order, is of the view that the learned trial court

has considered the very core of the issue by considering the

relevance of these documents and considering the settled position

that if the document or the statement is required for the adjudication

of the real controversy, then the amendment is to be allowed.

44. This Court, on the basis of the finding given therein, is of the

view that the said finding based upon the reasoning referred

hereinabove, cannot be said to suffer from error.

45. Moreover, this petition has been filed under the provision of Article

227 of the Constitution of India and it is settled position of law that the

High Court sitting under Article 227 of the Constitution of India has got

limited jurisdiction as has been held by the Hon'ble Supreme Court

rendered in the case of Shalini Shyam Shetty Vrs. Rajendra Shankar

Patii, reported in (2010) 8 SCC 329, wherein, the Hon'ble Supreme Court

has laid down therein regarding the scope of Article 227 which relates to

the supervisory powers of the High Courts and by taking aid of the

judgment rendered by the Hon'ble Full Bench of Calcutta High Court in

the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee,

reported in AIR 1951 Calcutta 193, wherein, it has been laid down that

Article 227 of the Constitution of India does not vest the High Court with

limit less power which may be exercised at the court's discretion to

remove the hardship of particular decisions. The power of

superintendence confers power of a known and well recognized character

and should be exercised on those judicial principles which give it its

character. In general words, the High Court's power of superintendence is

a power to keep the subordinate courts within the bounds of the authority,

to see that they do what their duty requires and that they do it in a legal

manner.

i. The power of superintendence is not to be exercised unless there

has been;

(a) An unwarranted assumption of jurisdiction, not vested in a court or

tribunal; or

(b) gross abuse of jurisdiction; or

(c) an unjustifiable refusal to exercise jurisdiction vested in courts or

tribunals.

ii. Further, in the aforesaid judgment the Hon'ble Apex Court has

taken aid of a judgment rendered in the case of Mani Nariman Daruwala

Vrs. Phiroz N. Bhatena, reported in (1991) 3 SCC 141, wherein it has

been laid down that in exercise of jurisdiction under Article 227, the High

Court can set aside or reverse finding of an inferior court or tribunal only

in a case where there is no evidence or where no reasonable person

could possibly have come to the conclusion which the court or tribunal

has come to.

iii. The Hon'ble Apex Court has made it clear that except to this

limited extent the High court has no jurisdiction to interfere with the finding

of facts.

iv. Further, the judgment rendered by the Hon'ble Apex Court in the

case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh

Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the

High Court under Article 227 cannot assume unlimited prerogative to

correct all species of hardship or wrong decisions. Its exercise must be

restricted to grave dereliction of duty and flagrant abuse of fundamental

principles of law and justice.

v. It has been laid down at paragraph 47 of the aforesaid judgment

that the jurisdiction under Article 227 is not original nor is it appellable.

This jurisdiction of superintendence under Article 227 is for both

administrative and judicial superintendence. Therefore, the powers

conferred under Article 226 and 227 are separate and distinct and

operate in different fields. Another distinction between these two

jurisdictions is that under Article 226 the High Court normally annuls or

quashes an order or proceedings but in exercise of its jurisdiction under

Article 227, the High Court, apart from annulling the proceeding, can also

substitute the impugned order by the order which the inferior tribunal

should have made.

vi. It has further been laid down regarding the powers to be

exercised by the High Court under Article 227 of the Constitution of India.

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 its authority, in order to ensure that law is followed by

such tribunals and courts by exercising jurisdiction which is vested with

them and by not declining to exercise the jurisdiction which is vested in

them. Apart from that, 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.

vii. 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.

46. This Court, on the basis of the discussion made hereinabove

as also the legal position as referred above, is of the view that the

order impugned suffers from no error.

47. Accordingly, the instant petition fails and is dismissed.

48. Since, the learned court has granted liberty to the defendant,

petitioner herein, to file additional affidavit, as such, there is no need

to give further observation in this regard.

(Sujit Narayan Prasad, J.)

Rohit/-A.F.R.