Goverdhan vs Civil Judge (S.D.) and Others

Veerender Singh Siradhana, J.—The petitioner/defendant, in the instant writ application, has challenged the legality, validity and correctness of the order dated 19th October, 2013 passed by the learned trial Court allowing an application under Order 7 Rule 14 of the Civil Procedure Code (hereinafter referred to as ''CPC'', for short), preferred on behalf of the respondents/plaintiffs subject to payment of cost of Rs. 3,000/- while reserving right of rebuttal to the petitioners/defendants.

Briefly, the essential material facts necessary for appreciation of the controversy raised in the instant writ application are: That the respondents/plaintiffs instituted a civil suit for cancellation of the sale deed and the agreement for sale executed on 26th November, 1996. It is pleaded case of the petitioner/plaintiff Gopal Lal (since deceased) that the registered sale deed was executed by impersonating him (Late Gopal Lal). A criminal complaint has also been lodged for offence under Section 420, 417, 418, 467, 468 and 427 read with 120-B of the Indian Penal Code. The signatures of the respondents/defendants are also stated to be forged on the agreement for sale executed on 28th February, 1979 on a stamp paper of Rs. 5/-. The ''issues'' were settled on 8th January, 2003. On 23rd February, 2011, the respondents/plaintiffs preferred an application under Order 7 Rule 11 CPC read with Section 45 of the Evidence Act, 1872 (hereinafter referred to as ''Act of 1872'', for short). However, since the expert, namely, Ms. Renu Kumari, could not be produced as witness in evidence on account of ill health of Ms. Renu Kumari. Therefore, the respondents/plaintiffs obtained a report from another expert, namely, Shri Dinesh Sethi, on 17th May, 2013 and submitted an application on 22nd May, 2013, seeking permission to produce Dinesh Sethi in evidence. The application was resisted by the petitioner/defendant. The learned Court below taking into consideration the contents of the application and it''s response as well as after hearing the counsel for the parties, allowed the prayer for taking on record the report and permitted the respondents/plaintiffs to lead evidence subject to payment of cost of Rs. 3,000/- and also reserving right of rebuttal to the petitioner/defendant.

The learned counsel for the petitioner/defendant reiterating the contents of the writ application, has vehemently argued that the order dated 19th October, 2013 is per se illegal and the learned Court below committed an error apparent on the face of record while allowing the application under Order 7 Rule 14 CPC read with Section 45 of the Act of 1872. The learned counsel would further urge that the plaintiff having failed to produce Ms. Renu Kumari as she was not prepared to support her report; has made an attempt to fulfill the lacunae by bringing on record another report, from a different handwriting expert in a case, which is pending since long. Further, the application preferred, is an attempt to further delay the proceedings and thus, a gross misuse of procedure and provisions of CPC. The learned counsel stressed that the reasons and facts pleaded for not producing Ms. Renu Kumari as witness on the ground of illness, are totally false and without any factual foundation. Be that as it may, even if, the ground of illness of the expert witness was to be sustained, the witness could be examined on commission in accordance with procedure provided under Order 18 Rule 19 read with Order 26 CPC.

I have heard the learned counsel for the petitioner and perused the materials available on record as well as carefully examined the impugned order dated 19th October, 2013.

The learned trial Court after careful consideration of the facts as detailed out in the application under Order 7 Rule 14 CPC read with Section 45 of the Act of 1872 and it''s response, considered the prayer in the light of the relevant law and opinions of the High Court as well as the Hon''ble Supreme Court.

In the instant case at hand, the fact that the civil suit has been instituted with the pleading to the effect that the agreement for sale, which was the basis for registration of the ''sale deed'' was a forged document. Therefore, adjudication upon the legality, validity and correctness of the ''agreement for sale'', is a real question for determination in the suit proceedings. Further, it is pleaded case of the respondents/plaintiffs that the sale deed was got registered by impersonation.

It is a trite law that a particular fact is to be proved by the person, who asserts. The Hon''ble Supreme Court in the case of Anil Rishi Vs. Gurbaksh Singh, ; held in unequivocal terms that the burden of proving the fact rests on the party who substantially asserts the affirmative issue and not the party who denies it. The said rule may not be universal in its application and there may be exceptions, but the purpose of referring to the principle is that if the plaintiff asserts that the defendant had knowledge of the signatures, it is obligatory on his part to substantiate the same. So also, when fraud, misrepresentation or undue influence, as the case may be, is asserted, the ''burden of proof'' is on the party who asserts.

A three Judges Bench of the Hon''ble Supreme Court in the case of Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another, ; while making a distinction between ''burden of proof'' and ''onus of proof'' observed that ''burden of proof'' lies upon the person, who has to proved a fact and it never shifts whereas ''onus of proof'' shifts. In the instant case at hand, the ''burden of proof'' lies on the respondents/plaintiffs to prove the factum of agreement for sale and registration of sale deed being a fraudulent transaction.

Having considered the facts, circumstances and materials available on record, the irresistible conclusion would be that the respondents/plaintiffs have been rightly permitted to lead evidence in view of specific pleadings in the plaint and assertions made. Moreover, the petitioner/defendant has been adequately compensated by cost and further reserving right of rebuttal to him.

The Hon''ble Supreme Court in case of Abdul Razak (D) through L.Rs. and Others Vs. Mangesh Rajaram Wagle and Others, ; cautioned the High Court to keep in view the limitations of certiorari/supervisory jurisdiction and refrain from deciding the writ petitions filed under Article 226 or petitions/applications filed under Article 227 of the Constitution. In case of Abdul Razak (supra), their Lordships held thus:--

"22. If respondent Nos. 1 and 2 had invoked the High Court''s jurisdiction under Article 226, then the learned Single Judge ought to have considered whether the trial Court committed a jurisdictional error by refusing to strike off the additional written statement filed by the appellants or it was a case of failure on the part of the trial Court to exercise the power vested in it under Order VI Rule 16 CPC or the order under challenge was vitiated by an error of law apparent on the face of the record or there was violation of the rules of natural justice. In either case, the learned Single Judge was also required to consider whether there has been substantial failure of justice or manifest injustice has been caused to respondent Nos. 1 and 2 on account of the trial Court''s refusal to strike off the additional written statement. These are the parameters laid down by this Court in Syed Yakoob Vs. K.S. Radhakrishnan and Others, .

If the petition filed by respondent Nos. 1 and 2 was under Article 227 of the Constitution of India, then the learned Single Judge should have taken note of the often quoted judgment in Surya Dev Rai Vs. Ram Chander Rai and Others, , in which a two-Judge Bench, after threadbare analysis of Articles 226 or 227 of the Constitution and considering large number of judicial precedents on the subject, recorded the following conclusions:

"(1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction--by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction--by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."

Thus, applying the principles aforesaid, it is not at all justified, in the facts of this case, to interfere with an order under the certiorari/supervisory jurisdiction, unless the Court below assumed jurisdiction, which it did not have or has failed to exercise the jurisdiction, which it did have or the jurisdiction, though available, is exercised in a manner not permitted by the law, resulting into failure of the justice or grave injustice. A patent error which can be perceived without any lengthy or complicated arguments or a long drawn process of reasoning, is another ground where such jurisdiction could be invoked.

The Hon''ble Apex Court of the land in a recent pronouncement in the case of Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, , examined the power of the High Court under Articles 226 and 227 of the Constitution. Their Lordships observed that the power to issue writs had undergone a sea change since the commencement of the Constitution from 26th January, 1950. Now, the writs can be issued by the High Courts under Article 226 of the Constitution and by the Hon''ble Supreme Court under Article 32 of the Constitution. According to their Lordships, neither writ petition can be moved under Article 227 of the Constitution nor can a writ be issued under Article 227 of the Constitution. The Hon''ble Supreme Court after a survey of various judgments with reference to exercise of power under Articles 226 and 227 of the Constitution, concluded that the two Articles stand substantially on different footing. While the power conferred to issue writs under Article 226 of the Constitution has been treated to be one during the course of original proceedings whereas the exercise of jurisdiction under Article 227 of the Constitution is neither original nor appellate. Thus, the powers conferred under Article 226 and 227 have been held to be separate and distinct and operate in different fields. The mode of exercise of power by the High Court under Articles 226 and 227 of the Constitution in the case of Shalini Shyam Shetty (supra) has been considered and explained thus:--

"48. The jurisdiction under Article 226 normally is exercised where a party is affected but power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. In fact, the power under Article 226 is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. Jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. In certain cases where there is infringement of fundamental right, the relief under Article 226 of the Constitution can be claimed ex-debito justitiae or as a matter of right. But in cases where the High Court exercises its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claim it as a matter of right. From an order of a Single Judge passed under Article 226, a Letters Patent Appeal or an intra Court Appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Judge of a High Court in exercise of power under Article 227. In almost all High Courts, rules have been framed for regulating the exercise of jurisdiction under Article 226. No such rule appears to have been framed for exercise of High Court''s power under Article 227 possibly to keep such exercise entirely in the domain of the discretion of High Court.

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, 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."

It hardly needs to be reiterated that writ petition is a remedy in a public law against either a State or an instrumentality of a ''State'' within the meaning of Article 12 of the Constitution and therefore, private parties cannot be equated with the ''State'' or the instrumentality of the ''State''. Their Lordships in the case of Shalini Shyam Shetty (supra) have sounded a note of caution while entertaining the petitions under Article 227 of the Constitution in view of law declared in case of Surya Dev Rai Vs. Ram Chander Rai and Others, , holding that even the petition Article 227 of the Constitution cannot be called a writ application. Their Lordships further explaining the scope of exercise of power under Article 227 of the Constitution of India in view of amendment of Section 115 of the Civil Procedure Code, held thus:--

"66. We may also observe that in some High Courts there is tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev (supra) and in view of the recent amendment to Section 115 of the Civil Procedure Code by Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 of CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding High Court''s power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.

As a result of frequent interference by Hon''ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. This Court hopes and trusts that in exercising its power either under Article 226 or 227, Hon''ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest Courts of justice within their jurisdiction will adhere to them strictly."

For the reasons and discussions herein above, I am not inclined to interfere with the impugned order dated 19th October, 2013 passed by the Court below in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.

In the result, the writ application is devoid of any substance and therefore, merits rejection.

Ordered accordingly.

In view of the final adjudication on the writ application, the stay application stands closed.

However, in the facts and circumstances of the case, there shall be no order as to costs.