Laxminarayan Tiwari vs Smt. Sandhya and Others

Hon. Shri Justice Sujoy Paul

By invoking the jurisdiction of this Court under Article 227 of the Constitution, the petitioner has challenged the order dated 11.07.2012, whereby his application u/s 151 CPC is rejected by the Court below. The petitioner preferred the said application stating that the Trial Court by order dated 28.06.2010 in Case No. 13-A/2010 directed the defendants to vacate the shop and handover the possession to Sanjay Agrawal. It is stated that present petitioner has not been given proper hearing and opportunity to defend himself in the said case. It is further alleged that notice is not served on the petitioner in the said case. Another ground raised is that petitioner is running his business of cold drinks and S.T.D.-P.C.O. and he be not evicted. It is further stated in the said application that if the petitioner is evicted, it will be difficult for him to survive. On the basis of aforesaid factual backdrop, it is stated that since application under Order 9 Rule 13 of CPC is filed against the judgment and decree dated 28.06.2010/01.07.2010, till decision of the said application, the execution proceedings be stayed.

Shri N.K. Gupta, learned counsel for the petitioner, submits that the Court below has erred in rejecting the said application and in the fitness of things, the Court below should have stayed it_till finalisation/decision of the application preferred under Order 9 Rule 13 for setting aside the judgment/decree.

Shri D.D. Bansal, learned counsel for the other side, supported the order passed by the Court below and submits that the Court below has not erred in passing the said order. He submits that the judgment and decree was assailed by other co-defendants and tenancy was joint. Once the notices were served on other co-defendants in a joint tenancy, judgment and decree become final against everybody.

I have heard the learned counsel for the parties and perused the record.

The Court below has rejected the said application on the ground that when judgment and decree was passed, the petitioner was exparte. Before High Court despite service of notice he remained absent. The petitioner in his application preferred under Order 21 Rule 106 has admitted this position. The Court below further opined that the judgment and decree dated 28.06.2010 is affirmed by the first and second appellate courts. On the basis of aforesaid, it was held by the Court below that execution proceedings cannot be stayed.

It is not in dispute that judgment and decree passed by the Trial Court is confirmed till High Court. His application under Order 9 Rule 13 of CPC is pending, which will be dealt with by the Court below in accordance with law. However, there is no right to stop the proceedings by preferring an application u/s 151 of CPC on the ground that Order 9 Rule 13 of CPC application is pending. The petitioner has not chosen to challenge the fact in this petition that in appellate stage against the judgment and decree, he was served and still did not appear in the proceedings. It is also not in dispute that tenancy was joint. In this factual backdrop, I do not find any infirmity in the order passed by the Court below. The Court below in its discretion has disallowed the said application. It cannot be said to be an illegal order or an order passed without jurisdiction. Scope of interference under Article 227 of the Constitution is limited. Interference can be made if the order is without jurisdiction, suffers from serious procedural irregularity or impropriety or shown to be perverse in nature. Even a wrong order is not liable to be interfered with under Article 227 of the Constitution. The basic purpose to exercise this jurisdiction is to keep the courts below within the bounds of their authority and not for exercising powers like an Appellate Court. Interference should be made sparingly in public interest and not for granting relief in individual cases. Borrowing the words from the judgment of Supreme Court, it is profitable to mention that this Court cannot exercise its powers as routine as an Appellate Court on a drop of hat. This view was taken by the Supreme Court in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, The relevant portion of the said judgment 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 analysis, in my opinion, the Court below has given plausible reasons. Another view is possible is not a ground for interference. Thus, as per "litmus test" laid down in Shalini Shyam Shetty (supra), I find no ingredients in this petition, which warrants interference under Article 227 of the Constitution.

Petition sans substance and is hereby dismissed. No costs.