Banesingh vs Navalsingh

S.C. Sharma, J—The petitioner who is the defendant, before this Court has filed this present petition being aggrieved by the order dated 09/04/2015 passed in Civil Suit No. 86-A/2011.

The facts of the case reveal that plaintiff/respondent No. 1 has filed the civil suit on 11/05/2010 claiming permanent injunction, and later on, prayer for possession was also incorporated. Written statement was also filed. Order sheet reveals that the case was fixed for final hearing. An application was preferred under section 45 read with section 65 of the Evidence Act for referring the documents Ex.-D/2 to a hand writing expert. The aforesaid application has been rejected.

The contention of learned counsel for the petitioner is that the aforesaid document was in relation to some family partition and therefore, it was necessary for referring it to hand writing expert, however, the Court has rejected the aforesaid application.

The trial Court has observed, in the earlier order sheets, that the issue relating to admissibility of the document shall be decided at the time of final hearing and in those circumstances, the trial Court has rejected the application preferred under section 45 read with section 65 of the Evidence Act.

Learned counsel for the petitioner has placed reliance upon the judgment delivered in the case of Asharam and Another Vs. Suraj Singh Baghel and Others, AIR 2011 MP 284 : (2011) ILR (MP) 684 : (2011) 1 MPHT 174 : (2011) 1 MPLJ 624 , where it has been held that the application could not have been rejected, merely because, it was filed at the stage of final hearing and his contention is that in the light of the aforesaid judgment, the application should have been allowed in all fairness. He has also placed reliance upon the judgment delivered in the case of Hansa Industries Pvt. Ltd. and Others Vs. Kidarsons Industries Pvt. Ltd., AIR 2007 SC 18 : (2006) 134 CompCas 1 : (2006) 9 JT 100 : (2006) 10 SCALE 170 : (2006) 8 SCC 531 : (2006) 72 SCL 117 : (2006) 7 SCR 235 Supp . Para 13 of this judgment reads as under:

"This Court held that courts have leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The principles were concretized and succinctly reduced to the following propositions:-

"(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;

(3) The family arrangement may be even oral in which case no registration is necessary;

(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17(2) (sic) (Section 17(1)(b)?) of the Registration Act and is, therefore, not compulsorily registrable;

(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld, and the Courts will find no difficulty in giving assent to the same;

(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."

Keeping in view the aforesaid judgments, as the issue regarding admissibility of the document is yet to be decided by the trial Court, in the considered opinion of this Court, the trial Court was justified in rejecting the application as it was preferred at the fag end of the trial. The civil suit is pending since 2010. The application was preferred at the fag end of the trial in the year 2015.

Not only this, in case the trial Court has rightly arrived at a conclusion regarding admissibility of the document, the trial Court can certainly refer the document to hand writing expert at the time of delivery of the judgment and therefore, in the considered opinion of this Court, the trial Court was justified in arriving at the conclusion that the application was preferred only with a view to delay the final disposal of the civil suit. This Court does not find any ground to interfere with the impugned order as it does not suffer from any perversity or jurisdictional error.

The apex court in the case of Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, (2011) 1 CTC 854 : (2010) 7 JT 529 : (2011) 1 RCR(Rent) 1 : (2010) 7 SCALE 428 : (2010) 8 SCC 329 : (2010) 8 SCR 836 : (2010) AIRSCW 6387 held as under:-

"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 and others, AIR 1997 SC 1125 : (1997) 83 CLT 815 : (1997) 92 ELT 318 : (1997) 228 ITR 725 : (1997) 3 JT 589 : (1997) 3 SCALE 40 : (1997) 3 SCC 261 : (1997) SCC(L&S) 577 : (1997) 2 SCR 1186 : (1997) 105 STC 618 : (1997) AIRSCW 1345 : (1997) 3 Supreme 147 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."

In light of the aforesaid judgment as there is no patent illegality committed by the trial court and the order passed by the trial court does not suffer from any jurisdictional error, this court does not find any reason to interfere with the order dated 09/04/2015. Accordingly, admission is declined.

The trial Court is directed to decide the civil suit as expeditiously as possible within a period of three months from the date of receipt of certified copy of this order. Parties to appear before the trial Court on 26th October, 2015 as the suit is at the stage of final hearing.

No order as to costs.

Certified copy as per rules.