Sucheta And Anr vs Suresh And Ors
2022 Latest Caselaw 741 Kant

                             1




          IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

     DATED THIS THE 17TH DAY OF JANUARY, 2022

                          BEFORE

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


     WRIT PETITION No.201516/2018 (GM-CPC)

BETWEEN:

1.     Sucheta W/o Basavaraj Honalli
       Age: 50 Years, Occ: Agriculture & Household
       R/o Saraswatipuram, Kusnoor Road
       Kalaburagi-585 102

2.     Padanabha S/o Devaraj Kulkarni
       Age: 51 Years, Occ: Agriculture
       R/o C/o G.P. Vaidya, "Pandurang Krupa"
       Annemma Nagar Sedam Road
       Kalaburagi-585 102
                                           ... Petitioners

(By Sri Gurubasava C. Nayak, Advocate for
    Sri Ramachandra K., Advocate)

AND:

1.     Suresh S/o Sitaram Rathod
       Age: 46 Years, Occ: Agriculture
       R/o Srinivas Saradagi
       Tq. & Dist. Kalaburagi-585 102

2.     Kasanu S/o Shankaru Rathod
       Age: 50 Years, Occ: Agriculture
       R/o Srinivas Saradagi
                               2




      Tq. & Dist. Kalaburagi-585 102

3.    Dhansingh S/o Ghemu Rathod
      Age: 56 Years, Occ: Agriculture
      R/o Srinivas Saradagi
      Tq. & Dist. Kalaburagi-585 102

4.    Gangaram S/o Ghemu Rathod
      Age: 48 Years, Occ: Agriculture
      R/o Srinivas Saradagi
      Tq. & Dist. Kalaburagi-585 102

5.    Ratanabai W/o Ghemu Rathod
      Age: 51 Years, Occ: Agriculture
      R/o Srinivas Saradagi
      Tq. & Dist. Kalaburagi-585 102

                                            ... Respondents
(Served)

      This writ petition is filed under Articles 226 and 227
of Constitution of India, praying to issue an order or writ in
the nature of certiorari quashing impugned order on I.A.
dated 13.04.2018 passed in O.S.No.141/2012 by the
learned III Addl. Senior Civil Judge, Kalaburagi vide
Annexure-G and consequently reject the application.

      This petition coming on for orders, this day, the
Court made the following:-


                          ORDER

In this writ petition, the petitioners have challenged

the order dated 13.04.2018 in O.S.No.141/2012 passed by

the III Addl. Senior Civil Judge, Kalaburagi.

2. The plaintiffs have filed the suit for the relief of

declaration with consequential reliefs. Defendants entered

appearance and filed written statement. The plaintiffs have

filed application under Order VI Rule 17 of Code of Civil

Procedure and sought to implead the defendant Nos.4 and

5 (petitioners herein in this writ petition) on the ground

that the defendant Nos.4 and 5 are the purchasers of the

suit schedule properties. The said application was resisted

by the parties and the trial Court after considering the

material on record by order dated 13.04.2018, allowed the

application filed by the plaintiff under Order VI Rule 17 of

Code of Civil Procedure with cost of Rs.200/- and

permitted the plaintiffs to carry out amendment and

directed the defendants to file written statement, if any.

Being aggrieved by the same, the respondent Nos.4 and 5

have presented this writ petition.

3. I have heard Sri Gurubasava C. Nayak, learned

counsel appearing for the petitioners.

4. Respondents are served and remained un-

represented.

5. Learned counsel Sri Gurubasava C. Nayak

contended that the trial Court committed error in allowing

the application made by the plaintiffs after lapse of two

years and therefore he contended that the impugned order

passed by the trial Court suffers from infirmity.

6. Heard learned counsel for the petitioners. The

suit filed by the plaintiffs is for declaration with

consequential relief. It is the case of the plaintiffs that

pursuant to filing of the suit, they came to know that the

defendant Nos.4 and 5 are the purchasers of the suit

schedule properties and their presence is required to

adjudicate the suit on merits and accordingly the trial

Court allowed the application with costs. The said findings

is just and proper in order to adjudicate the suit effectively

and to decree the suit looking into relief sought for and

therefore, I do not find merit in the submission made by

the learned counsel for the petitioner.

7. 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."

8. 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."

9. 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. "

10. 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."

11. 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.

12. 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."

13. Taking into consideration the fact that the

defendant Nos.4 and 5 are the purchasers and in order to

adjudicate the suit, the presence of defendant Nos.4 and 5

is required and therefore the contentions raised by the

learned counsel for the petitioners cannot be accepted. It

is also made clear that the proposed amendment will not

change the nature of the suit and the defendant Nos.4 and

5 (petitioners herein) are also have been given opportunity

to file additional written statement, if any. In that view of

the matter and taking into note of the law declared by the

Hon'ble Apex Court referred supra, and I do not find any

acceptable ground to interfere with the well reasoned order

passed by the trial Court.

Accordingly, the writ petition is dismissed.

Sd/-

JUDGE BL