Basavaraj @ Basanagouda S/O ... vs The Executive Engineer And Ors
2022 Latest Caselaw 673 Kant

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         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 14TH DAY OF JANUARY, 2022

                       BEFORE

       THE HON'BLE MR.JUSTICE E.S.INDIRESH


     WRIT PETITION No. 201992 OF 2021 (GM CPC)

BETWEEN:

BASAVARAJ @ BASANAGOUDA
S/O NANAGOUDA PATIL
AGE. 40 YEARS,
OCC. AGRICULTURIST,
R/O. KORALLI,
TQ. SINDAGI,
DIST. VIJAYAPURA-586 101.

                                      ... PETITIONER
(BY SRI MANVENDRA REDDY, ADVOCATE)

AND:

1.     THE EXECUTIVE ENGINEER
       DIVISION NO.4, ALMEL,
       TQ. SINDAGI,
       DIST. VIJAYAPURA-586 101.

2.     THE ASST. EXECUTIVE ENGINEER
       FIC SUB DIVISION NO.13,
       RAMPUR,
       TQ. SINDAGI,
       DIST. VIJAYAPURA-586 101.

3.     BASANAGOUDA SHIVAMURTAYYA PATIL
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     DEAD BY LR
     SAHEBGOUDA S/O BASANAGOUDA PATIL
     AGE. 76 YEARS,
     OCC. RETIRED TEACHER,
     R/O. KORALLI,
     NOW RESIDING AT TADKAL,
     TQ. ALAND, DIST. KALABURAGI-585 302.

4.   SHIVANGOUDA S/O BASANAGOUDA PATIL
     AGE. 61 YEARS,
     OCC. PRIVATE TEACHER,
     R/O. KORALLI,
     NOW RESIDING AT H.NO. 1.867.1,
     VENKATESHWAR COLONY,
     KALABURAGI,
     DIST. KALABURAGI-585 102.

5.   RUDRAGOUDA S/O BASANAGOUDA PATIL
     AGE. 59 YEARS,
     OCC. EMPLOYEE,
     R/O. KORALLI,
     NOW RESIDING SIDDESHWAR HEAD OFFICE,
     VIJAYAPURA-586 101.
                                ... RESPONDENTS

(BY SRI KRUPA SAGAR PATAIL, ADVOCATE
    FOR R1 AND R2
    SRI D.P. AMBEKAR, ADVOCATE FOR R3 TO R5)


     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO 1) ISSUE A
WRIT IN THE NATURE OF THE CERTIORARI THEREBY
QUASHING / SET ASIDE THE IMPUGNED ORDER ON I.A.
NO. XV DATED 19.08.2021 PASSED BY THE ADDL. CIVIL
JUDGE AND JMFC AT SINDAGI, VIDE ANNEXURE-G AND
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THEREBY ALLOW THE SAID IA. IN THE INTEREST OF
JUSTICE AND EQUITY AND ETC.,


      THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-

                          ORDER

I have heard Sri. Manvendra Reddy, learned counsel

appearing for the petitioner and Sri Kurpa Sagar Patil,

learned counsel appearing for the respondents 1 and 2 and

Sri D P Ambekar, learned counsel appearing for the

respondent No.5.

2. The petitioner is the plaintiff in OS No.187 of

2015 before the trial Court. Petitioner has filed suit seeking

permanent injunction against the respondent /defendants.

The petitioner has filed an application in IA.XV under Order

26 Rule 9 of Code of Civil Procedure, seeking appointment

of Court Commissioner to inspect the suit property of the

petitioner/plaintiff. Perusal of the writ papers would

indicate that the plaintiff has adduced evidence and

marked 9 documents. Further, the plaintiff examined two

independent witnesses as PW2 and PW3 and produced the

photographs as Exs.P4 to P8. In catena of decisions of this

Court, it is well settled principle of law that the applicant

cannot seek appointment of the Court Commissioner for

collection of evidence and in that view of the matter, the

finding recorded by trial Court at paragraph 10 of its order

is just and proper and does not call for any interference in

this writ petition.

3. 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."

4. 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. "

5. 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."

6. 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.

7. 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."

8. 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