WPMS/1109/2021
2021 Latest Caselaw 3140 UK

IN THE HIGH COURT OF UTTARAKHAND
                     AT NAINITAL
        ON THE 17TH DAY OF AUGUST, 2021
                            BEFORE:
 HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


    WRIT PETITION (M/S) No. 1109 of 2021

BETWEEN:

Dheeraj Nautiyal & others.                       ..........Petitioners
       (By Mr. Lalit Samant, Advocate)

AND:
Sri Chandan Singh & another.                     ....Respondents
       (By Mr. Ankit Shah, Advocate for respondent no. 1 and
       Mr. Ramji Srivastava, Advocate for respondent no. 2)


                           JUDGMENT

According to the petitioners, respondent no.1 filed a suit for permanent injunction against the petitioners in the Court of Civil Judge (Junior Division), Vikas Nagar, Dehradun, which is registered as Original Suit No. 92 of 2020. Alongwith the said suit, respondent no. 1 had also filed a temporary injunction application. Learned trial Court had issued notices to the defendants and had granted temporary injunction in favour of respondent no. 1. Thereafter, on 25.01.2021, learned trial Court dismissed the 6C2 application filed by respondent no. 1 under Order 39 Rule 1 & 2 C.P.C. Against the order dated 25.01.2021, respondent no. 1 filed Misc. Civil Appeal No. 03 of 2021. The learned Additional District Judge, Vikas Nagar, Dehradun vide order dated 07.04.2021 has allowed the Appeal of respondent no. 1 and has

set aside the order dated 25.01.2021 and directed the parties to maintain status quo. Thus, feeling aggrieved, petitioners have approached this Court.

2. It is well settled by now that while exercising power under Article 227 of the Constitution, this Court is not supposed to re- appreciate facts. The scope is limited to an enquiry as to the existence of some perversity or grave error in the order passed by Court or Tribunal that would call for rectification, as observed by Hon'ble Supreme Court in India Pipe Fitting Co. Vs. Fakruddin M.A. Baker and another, reported in (1977) 4 SCC 587. Paragraph no.5 of the said judgment is reproduced below:

"5. The limitation of the High Court while exercising power under Article 227 of the Constitution is well-settled. Power under Article 227 is one of judicial superintendence and cannot be exercised to upset conclusions of facts however erroneous those may be. It is well-settled and perhaps too late in the day to refer to the decision of the Constitution Bench of this Court in Waryam Singh v. Amarnath where the principles have been clearly laid down as follows:

"This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee to be exercised most 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."

The same view was reiterated by another Constitution Bench of this Court in Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, Assam. Even recently in Bathutmal Raichand Oswal v. Laxmibai R. Tarta dealing with a litigation between a landlord and tenant under Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, this Court relying on its earlier decisions observed as follows:

"If an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari it should follow a fortiori that it is not subject to

correction by the High Court in the exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the Legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts."

3. Learned Court below has dealt with the matter in great detail and has considered the relevant factors, namely, prima facie case, balance of convenience and irreparable injury while allowing the appeal and exercising its discretion in favour of the plaintiff.

4. Having regard to the facts & circumstances of the case, this Court finds no reason to interfere with the discretionary order impugned in the writ petition while exercising supervisory jurisdiction under Article 227 of the Constitution.

5. Accordingly, the writ petition fails and is dismissed. However, having regard to the peculiar facts & circumstances of the case, learned trial Court is requested to make endeavor to hear and decide Original Suit No. 92 of 2020 as early as possible, preferably within a period of one year from the date of production of certified copy of this order. It is made clear that any unnecessary adjournment shall be avoided.

(MANOJ KUMAR TIWARI, J.) Arpan