Madhya Pradesh High Court
Deceased Smt. Gangesh Kumari Kak W/O ... vs The State Of Madhya Pradesh on 4 March, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 4 th OF MARCH, 2024
MISC. PETITION No. 1035 of 2024
BETWEEN:-
1. DECEASED SMT. GANGESH KUMARI KAK W/O
COL. ANIL KAK (RETD) THROUGH LRS. COL. ANIL
KAK S/O LATE COL. BRIJENDRA NATH KAK,
AGED ABOUT 76 YEARS, OCCUPATION: SELF
EMPLOYED 64/67, DHAR KOTHI, INDORE
(MADHYA PRADESH)
2. DECEASED SMT. GANGESH KUMARI KAK W/O
COL. ANIL KAK (RETD) THROUGH LRS. SHRI
ARJUN KAK S/O COL. ANIL KAK (RETD.), AGED
ABOUT 37 YEARS, OCCUPATION: SELF EMPLOYED
64/67, DHAR KOTHI INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAKESH KUMAR LAAD, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH PRINCIPAL
SECRETARY MINISTRY OF FINANCE ROOM NO.
212 (SECOND FLOOR) VALLABH BHAWAN,
MANTRALAYA, BHOPAL (MADHYA PRADESH)
2. INSPECTOR GENERAL OF REGISTRATION OFFICE
OF THE INSPECTOR GENERAL OF REGISTRATION
AND SUPERINTENDENT OF STAMPS PANJIYAN
BHAWAN 35-A, ARERA HILLS, BEHIND DISTRICT
COURT BHOPAL (MADHYA PRADESH)
3. THE DISTRICT REGISTRAR OFFICE OF THE
REGISTRAR INDORE (MADHYA PRADESH)
4. THE SUB REGISTRAR OFFICE OF THE
REGISTRAR, INDORE (MADHYA PRADESH)
5. JOINT DIRECTOR TOWN AND COUNTRY
PLANNING PRESS COMPLEX, INDORE (MADHYA
PRADESH)
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 05-03-2024
18:51:28
2
6. JAGAT BINGLEY S/O SHRI RAVINDRA BINGLEY
BUNGLOW NO. 12 PRAGATI PRK COLONY,
BICHOLI MARDANA INDORE (MADHYA
PRADESH)
7. ASHISH DALVI S/O DR. PRABHAKAR GOVINDRAO
DALVI 204, BHASKAR APARTMENT MANISPURI,
SAKET, INDORE (MADHYA PRADESH)
8. SUSHRI SHARDA RAJE HOLKAR D/O LATE HH
TUKOJIRAO HOLKAR 48, DASHAHARA MAIDAN,
ANNAPURNA ROAD, INDORE (MADHYA
PRADESH)
9. SHRI VIJAYENDRA S/O SHRI FATEH SINGH RAO
GHATGE, AGED ABOUT 65 YEARS, OCCUPATION:
SELF EMPLOYED VIJAY NIWAS OLD PALASIA,
INDORE (MADHYA PRADESH)
10. SUSHRI SUSHILA RAJE HOLKAR D/O LATE H H
TUKOJIRAO HOLKAR 49, DASHHARA MAIDAN
ANNAPURA ROAD, INDORE (MADHYA PRADESH)
11. M/S M.S.D. DEVELOPERS SHAGUN ARCADE, A.B.
ROAD, INDORE (MADHYA PRADESH)
.....RESPONDENTS
(STATE BY SHRI SUDARSHAN JOSHI, GOVERNMENT ADVOCATE ON
ADVANCE COPY)
This petition coming on for admission this day, th e court passed the
following:
ORDER
The petitioners have filed the present petition under Article 227 of the
Constitution of India being aggrieved by the order dated 25.01.2024 passed by
the XXIX Additional District Judge, Indore, whereby the application filed by the
plaintiffs under Order VIII Rule 10 of the Code of Civil Procedure, 1908 has
been dismissed.
02. Draped in brevity, the relevant facts are that the petitioners / plaintiff
filed a suit against the defendants, in which defendant was impleaded on
24.03.2018. He initially filed a reply to the application under Order XXXIX
Rules 1 & 2 of the CPC but did not file any written statement. However, he
filed a written statement on 16.12.2023 and on the same day, the Court has
taken the written statement on record and framed the additional issues.
03. Thereafter, the plaintiffs filed an application under Order VIII Rule 10
of the CPC that written statement filed by defendant No.10 has wrongly been
taken on record as no application for condonation of delay was filed along with
the said application. The learned Court has rejected the application by the
impugned order by observing that from 2018 till filing of the written statement,
no substantial progress has taken place in the suit, therefore, written statement
has rightly be taken on record, hence, rejected the application filed under Order
VIII Rule 10 of the CPC. Hence, the present petition is before this Court.
04. Learned counsel for the petitioners submits that defendant No.10
ought to have filed an application for condonation of delay with explanation for
non-filing of the written statement for 68 months. He filed a reply to the
application under Order XXXIX Rule 1 & 2 of the CPC and at that time, he
could file a written statement, therefore, he is having no valid explanation for
non-filing of the written statement for 68 months. In support of the aforesaid
contention, learned counsel has placed reliance upon couple of judgment
delivered by the Apex Court in the cases of Atcom Technologies Limited v/s
Y.A. Chunawala And Company & Others reported in (2018) 6 SCC 639
a n d SCG Contracts (India) Private Limited v/s K.S. Chamankar
Infrastructure Private Limited & Others reported in (2019) 12 SCC 210, in
which the Apex Court has held that the Court should be careful in condoning
the delay in filing the written statement, which is filed beyond the period of 90
days. Though the provisions of Order VIII Rule 10 of the CPC are procedural
in nature and that would not mean that the defendant has right to take as much
as time he wants for filing the written statement without giving convincing and
cogent reason for the delay and the High Court has to condone it mechanically.
Heard.
05. Although there is a delay of 68 months in filing the written statement
by defendant No.10, but the Court has not mechanically condoned the delay
and taken the written statement on record. The Court has observed that from
2018 till filing of the written statement, there is no substantial progress in the
suit. The plaintiff and defendant No.10 expired during this period and most of
the time consumed for bringing their LRs on record. The Court has also
observed that for two years Court's proceedings were held up because of
COVID - 19 Pandemic.
06. Even otherwise, written statement has already been taken on record
and additional issues have also been framed. The petitioners / plaintiffs have
failed to explain that by filing a written statement at belated stage, the
proceedings of the civil suit are liable to be taken back at the stage of framing of
issue or evidence etc. After taking written statement on record, the Court will
certainly proceed ahead, hence, no prejudice is going to be caused to the
plaintiffs by taking written statement on record even after 90 days. Even
otherwise, the copy of plaint, written statement and issues have not been filed to
examine whether non-filing of written statement by the defendant No.10 within
time would have undue benefitted to him. No case for inteference with the
impugned order is made out by this Court in exercise of power conferred under
Article 227 of the Constitution of India.
07. The Apex Court in the case of Shalini Shyam Shetty v/s Rajendra
Shankar Patil reported in (2010) 8 SCC 329 in paragraph 49 has held thus:-
"49. On an analysis of the aforesaid decisions of this Court, the following
principles on the exercise of High Court's jurisdiction under Article 227
of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a
petition under Article 227. The mode of exercise of power by High Court
under these two Articles is also different.
( b) In any event, a petition under Article 227 cannot be called a writ
petition. The history of the conferment of writ jurisdiction on High
Courts is substantially different from the history of conferment of the
power of Superintendence on the High Courts under Article 227 and have
been discussed above.
(c) High Courts cannot, on the drop of a hat, in exercise of its power of
superintendence under Article 227 of the Constitution, interfere with the
orders of tribunals or Courts inferior to it. Nor can it, in exercise of this
power, act as a Court of appeal over the orders of Court or tribunal
subordinate to it. In cases where an alternative statutory mode of
redressal has been provided, that would also operate as a restrain on the
exercise of this power by the High Court.
( d) The parameters of interference by High Courts in exercise of its
power of superintendence have been repeatedly laid down by this Court.
In this regard the High Court must be guided by the principles laid down
by the Constitution Bench of this Court in Waryam Singh (supra) and the
principles in Waryam Singh (supra) have been repeatedly followed by
subsequent Constitution Benches and various other decisions of this
Court.
( e ) According to the ratio in Waryam Singh (supra), followed in
subsequent cases, 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 their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by
exercising jurisdiction which is vested in them and by not declining to
exercise the jurisdiction which is vested in them.
( g) Apart from the situations pointed in (e) and (f), High Court can
interfere in exercise of its power of superintendence when there has been
a patent perversity in the orders of 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.
( h ) 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.
(i) High Court's power of superintendence under Article 227 cannot be
curtailed by any statute. It has been declared a part of the basic structure
of the Constitution by the Constitution Bench of this Court in the case of
L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC
261 and therefore abridgement by a Constitutional amendment is also
very doubtful.
( j ) It may be true that a statutory amendment of a rather cognate
provision, like Section 115 of the Civil Procedure Code by the Civil
Procedure Code (Amendment) Act, 1999 does not and cannot cut down
the ambit of High Court's power under Article 227. At the same time, it
must be remembered that such statutory amendment does not
correspondingly expand the High Court's jurisdiction of superintendence
under Article 227.
( k) The power is discretionary and has to be exercised on equitable
principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High
Court under Article 227, it transpires that the main object of this Article
is to keep strict administrative and judicial control by the High Court on
the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to
maintain efficiency, smooth and orderly functioning of the entire
machinery of justice in such a way as it does not bring it into any
disrepute. The power of interference under this Article is to be kept to
the minimum to ensure that the wheel of justice does not come to a halt
and the fountain of justice remains pure and unpolluted in order to
maintain public confidence in the functioning of the tribunals and Courts
subordinate to High Court.
(n) This reserve and exceptional power of judicial intervention is not to
be exercised just for grant of relief in individual cases but should be
directed for promotion of public confidence in the administration of
justice in the larger public interest whereas Article 226 is meant for
protection of individual grievance. Therefore, the power under Article
227 may be unfettered but its exercise is subject to high degree of
judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counter-
productive and will divest this extraordinary power of its strength and
vitality."
0 8 . In light of the aforesaid judgment as no patent illegality has been
committed by the Court below and the order passed by the Court below neither
suffers from any jurisdictional error nor from any perversity, this Court does
not find any reason to interfere with impugned order.
09. In view of the above, Miscellaneous Petition stands dismissed.
(VIVEK RUSIA)
JUDGE
Ravi
