Karnataka High Court
Mohammed Haji And Anr vs Gulam Mohammed And Ors on 24 January, 2022
Bench: E.S.Indiresh
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE E.S.INDIRESH
WRIT PETITION No.201381 OF 2019 (GM CPC)
BETWEEN:
1. MOHAMMED HAJI
S/O MOHAMMED HUSSAIN
AGE:ABOUT 56 YEARS, OCC:AGRICULTURE,
R/O MUDGAL VILLAGE, TQ.LINGASUGUR,
DIST.RAICHUR-584 101.
2. MOHAMMED USMAN S/O MOHAMMED HUSSAIN
AGE:ABOUT 50 YEARS, OCC:AGRICULTURE,
R/O BADIBASE, SINDHANUR, TQ.SINDHANUR,
DIST.RAICHUR-584 101.
... PETITIONERS
(BY SRI B K HIREMATH, ADVOCATE)
AND:
1. GULAM MOHAMMED
S/O MOHAMMED HUSSAIN,
AGE:ABOUT 62 YEARS, OCC:MEDICAL SHOP
BUSINESS, R/O PRASHANT NAGAR, SINDHANUR,
TQ.SINDHANUR, DIST.RAICHUR-584 101.
2. SMT.FATIMA BEE W/O ABDUL AZIZ
AGE:ABOUT 58 YEARS, OCC:JOINT DIRECTOR,
EDUCAION DEPARTMENT, KALABURAGI-585 101.
2
3. SHAEEN W/O MOHAMMED RASOOL
AGE:ABOUT 25 YEARS, OCC:HOUSEHOLD, R/O
PRASHANT NAGAR, SINDHANUR, TQ.SINDHANUR,
DIST.RAICHUR-584 101.
4. MEHABOOB HUSSAIN S/O MOHAMMED HUSSAIN
AGE:ABOUT 52 YEARS, OCC:AGRICULTURE, R/O
BADIBASE, SINDHANUR, TQ.SINDHANUR,
DIST.RAICHUR-584 101.
5. SHAHANAZ BEGUM W/O MOHAMMED
YOUSUFUDDIN MADANI
AGE:ABOUT 45 YEARS, OCC:GOVT. TEACHER AT
SIYA TALAB, RAICHUR-584 101.
6. KHAJA MOHIUDDIN S/O MOHAMMED HUSSAIN
AGE:ABOUT 44 YEARS, OCC:AGRICULTURE, R/O
BADIBASE, SINDHANUR, TQ.SINDHANUR,
DIST.RAICHUR-584101.
7. PARVEEN SULTAN W/O ABDUL
AGE:ABOUT 42 YEARS, OCC:TEACHER,
GOVERNMENT URDU SCHOOL,
JEWARGI, TQ.JEWARGI, DIST.KALABURAGI-585310.
... RESPONDENTS
(BY SRI, MAHANTESH PATIL ADVOCATE FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO a) WRIT OF CERTIORARI QUASHING THE IMPUGNED
ORDER PASSED BY SENIOR CIVIL JUDGE AND JMFC AT
SINDHANUR VIDE ANNEXURE-G DATED-31.01.2019 IN
3
O.S.NO.176/2016 ON I.A.NO.20 IN THE INTEREST OF
JUSTICE AND EQUITY AND ETC.,
THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:-
ORDER
Though this writ petition is listed for Orders, by the
consent of the parties, it is taken up for final disposal.
2. Heard the learned counsel appearing for the
parties.
3. The petitioners have challenged the order
dated 31.01.2019 passed by the Senior Civil Judge &
JMFC, Sindhanur on IA.No.20 in OS No.176/2016. Perusal
of the writ papers would indicate that the petitioners are
the defendants 1 and 5 in the above suit. Plaintiff has filed
a suit for declaration and permanent injunction. 5th
defendant has filed an application to delete Issue Nos.2 to
4 and frame additional issues. The trial Court has already
framed the Issues pertaining to the establishment of
right/ownership in respect of the suit schedule property.
In view of the fact that the suit is one for declaration of the
title, therefore, the finding recorded by trial Court at
paragraph 9 of its order is just and proper. Therefore, I do
not find any material irregularity in the impugned order
dated 31.01.2019 passed by the Senior Civil Judge &
JMFC, Sindhanur on IA.No.20 in OS.No.176 of 2016.
4. The Hon'ble Supreme Court while adverting to
scope of Article 227 of the Constitution of India, in the
case of RADHESHYAM AND ANOTHER v. CHHABINATH AND
OTHERS reported in (2009)5 SCC 616 held as follows:
"Under Article 227 of the Constitution, the
High Court does not issue a writ of certiorari.
Article 227 of the Constitution vests the High
Courts with a power of superintendence which is to
be sparingly exercised to keep tribunals and courts
within the bounds of their authority. Under Article
227, orders of both civil and criminal courts can be
examined only in very exceptional cases when
manifest miscarriage of justice has been
occasioned. Such power, however, is not to be
exercised to correct a mistake of fact and of law."
5. The said aspect of the matter was also
considered by the Hon'ble Supreme Court in the case of
JAISINGH AND OTHERS v. MUNICIPAL CORPORATION OF
DELHI AND ANOTHER reported in (2010)9 SCC 385. It is
held as follows:
"The High Court under Article 227 of the
Constitution of India, has the jurisdiction to
ensure that all subordinate courts as well as
statutory or quasi-judicial tribunals, exercise
the powers vested in them, within the bounds
of their authority. The High Court has the
power and the jurisdiction to ensure that they
act in accordance with the well-established
principles of law."
It is further held that:
"It can not be exercised like a "bull in a
china shop", to correct all errors of judgment of a
court, or tribunal, acting within the limits of its
jurisdiction. This correctional jurisdiction can be
exercised in cases where orders have been passed
in grave dereliction of duty or in flagrant abuse of
fundamental principles of law or justice. "
6. The question relating to exercise of jurisdiction
conferred on the High Court under Article 227 of the
Constitution of India had come up before the Hon'ble
Supreme Court in the case of DR. KAZIMUNNISA (DEAD)
BY LEGAL REPRESENTATIVE v. ZAKIA SULTANA (DEAD) BY
LEGAL REPRESENTATIVE AND OTHERS reported in
(2018)11 SCC 208, wherein the Hon'ble Supreme Court
has held as follows:
"The High Court should have decided the
matter by keeping in view the scope and ambit of
Article 227 of the Constitution of India for its
exercise as explained by the Supreme Court
consistently in a series of decisions. The High
Court while reversing the findings of the Special
Court decided the writ petition under Article 227
like a first appellate court by appreciating the
entire evidence little realizing that the jurisdiction
of the High Court while deciding the writ petition
under Article 227 is not akin to an appeal and nor
can it decide the writ petition like an appellate
court."
7. It is settled principle of law that the power of
superintendence conferred by Article 227 of the
Constitution of India is to be exercised more 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. In a catena of decisions by the
Hon'ble Supreme Court, it is held that the High Court,
could not, in the guise of exercising its jurisdiction under
Article 227 of the Constitution of India, convert itself into a
court of Appeal when the legislature has not conferred the
right of appeal.
8. The Hon'ble Supreme Court in the case of
MOHD. INAM VS. SANJAY KUMAR SINGHAL AND OTHERS
reported in AIR 2020 SC 3433, has held that the High
Court should be slow while exercising the power under
Article 227 of the Constitution of India. At paragraph 32 of
the judgment, the Hon'ble Supreme Court has held as
under:
"32. It is well-settled principle of law,
that in the guise of exercising jurisdiction
under Article 227 of the Constitution of India,
the High Court cannot convert itself into a
Court of appeal. It is equally well-settled, that
the supervisory jurisdiction extends to keeping
the subordinate tribunals within the limits of
their authority and seeing that they obey the
law. It has been held, that though the powers
under Article 227 are wide, they must be
exercised sparingly and only to keep
subordinate courts and Tribunals within the
bounds of their authority and not to correct
mere errors."
In accordance with the judgments of the Hon'ble
Apex Court referred supra, the writ petition is dismissed
as devoid of merits.
Sd/-
JUDGE
SB
