Jamuna Prasad Saraswat vs Scindia Devsthan Trust and Others

Hon. Shri Justice Sujoy Paul

In this petition filed under Article 227 of the Constitution, the petitioner has challenged the order dated 16.07.2012, whereby his application preferred under Order 11 Rules 12, 14 read with Section 151 of CPC (Annexure P-4) and application preferred under Order 14 Rule 5 of CPC (Annexure P-5) are rejected. The petitioner by filing application under Order 14 Rule 5 of CPC stated that the plaintiff trust is not registered under Madhya Pradesh Public Trust Act and, therefore, the provisions of Madhya Pradesh Accommodation Control Act are not applicable on it. It is stated that no issue is framed in this regard. The Court below has rejected it for various reasons including the reason that an issue is already framed in this regard. Shri Tomar, learned senior counsel submits that issue No. 5 does not specifically deal with the aspects. He submits that the Court below should have either amended the said issue or should have framed an additional issue.

Per Contra, Shri Ankur Mody, learned counsel for the respondents, submits that issue is rightly framed and in view of pleadings of the parties, it will be open for the Court below to deal with the rival contentions while deciding the issue No. 5.

In the considered opinion of this Court, it will be open for the parties to put forth their case and while deciding the issue No. 5 it will be lawful for the Court below to decide whether plaintiff trust is registered under the Madhya Pradesh Public Trust Act and if registered, what is the effect of its registration on applicability of Madhya Pradesh Accommodation Control Act. Apart from this observation, I find no justification in interfering with the order impugned on this issue.

So far, application under Order 11 Rule 12 and 14 is concerned, by preferring said application, the petitioner has stated that certain documents are in possession of the respondents/plaintiffs. As per the averments of the plaint, these documents must be in possession of the plaintiffs which includes original proceedings, minutes book, relevant proposal forms in prescribed form which includes movable and immovable property and other relevant documents. The plaintiff filed reply to this and took a stand that the relevant rent receipt, format of notice, registered receipt, acknowledgment, reply, trust deed and its annexures, trust regulations, trust minutes, appointment letter of Secretary and minutes confirmation are in possession of the trust. No other document is in possession of the trust or his counsel.

Shri Ankur Mody on a specific query by the Bench submits that all these documents have already been filed along with plaint before the Court below. This statement of Shri Modi is not denied by Shri Tomar. Although Court below should have given a finding regarding production of these documents while deciding the application Annexure P-4, since admittedly these documents were already provided to the defendant/petitioner, no interference is warranted on this account against the order passed by the Court below.

Learned senior counsel for the petitioner relied on Shri M.L. Sethi Vs. Shri R.P. Kapur, and 2011 (1) MPLJ 127 (Narendra S/o Chhotelal Gole Vs. Ram Krishn Sharma) in support of the contention that under Order 11 Rule 12 of CPC order for discovery cannot be said to be without jurisdiction, merely because it was passed on an application for discovery not specifying the documents sought to be discovered.

In my considered opinion, the said judgments have no application in the facts and circumstances of this case and in the question involved.

This Court in 1992 MPWN 121 (SN 94) (reported in Toto) (Maganbai (Smt.) Vs. Smt. Kiran) held as under:-

A perusal of the application for discovery made would show that vague and general statements were made and it was said that on whatever documents the applicant was relying should be got discovered. The only ground shown for the discovery was that if discovery was not ordered the applicant will delay the proceedings by filing documents in instalments. If the lower Court in its discretion rejected this application, it cannot be said that it has acted without jurisdiction or it has not exercised its discretion properly.

Apart from this, scope of interference under Article 227 of the Constitution is well defined. If the order passed by the Court below is without jurisdiction, perverse in nature, suffers from any patent palpable procedural irregularity or impropriety, interference can be made. Interference cannot be made as a routine manner on a drop of hat. Another view is possible is not a ground for interference under Article 227 of the Constitution. This view is consistently taken by the Supreme Court in Surya Dev Rai Vs. Ram Chander Rai and Others, and recently followed by Supreme Court in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, In Shalini Shyam Shetty (supra), the Apex Court held as under:-

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 Shalini Shyam Shetty 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 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 CPC by the CPC (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.

On the basis of aforesaid litmus test laid down by the Supreme Court in aforesaid judgments, no interference is warranted. The Court below has dealt with the applications as per the procedure prescribed. There is no perversity pointed out and established. No jurisdictional error is alleged. Court below has given plausible reasons for its conclusions. The relevant documents were already filed before the Court below. Thus, no ingredients on which interference can be made are available in this petition. Petition is disposed of. No costs.