Mahila Gulab Bai (dead) through LRs Satish Kumar and Another vs Jagdish Rawat and Others

Sujoy Paul, J.—By invoking jurisdiction of this Court under Article 227 of the Constitution, petitioners have called in question the legality, validity and propriety of the order dated 18.05.2013 passed in case No. COS 118-A/2003 by 1st Civil Judge Class-I, Guna.

Facts of the case:--

The petitioners are legal representatives of the original plaintiff Mahila Gulab Bai (hereinafter called ''original plaintiff''). The original suit was filed by Gulab Bai, copy of the plaint is filed as Annexure P/2. Suit for declaration and permanent injunction was filed by Gulab Bai praying that the judgment and decree be passed declaring her Bhooswami and in possession of suit land. It is further prayed that the defendant No. 1 be restrained from interfering into the possession of the plaintiff and he be restrained from selling the land in question. Cost was also prayed by Mahila Gulab Bai.

During the pendency of the suit Gulab Bai expired. Present petitioners are legal representatives of Gulab Bai. Present Petitioners were substituted as legal heir before the Court below. Thereafter, they filed an application under Order 6 Rule 17 C.P.C. (Annexure P/3) on 04.09.2012. This application was considered by the Court below and was partly disallowed by the impugned order. The order to the extent application under Order 6 Rule 17 C.P.C. is disallowed by order dated 18.05.2013, is called in question in the present petition.

Contentions:

Shri D.D. Bansal, learned counsel for the petitioner submits that amendment is clarificatory in nature. Once petitioners are permitted to be substituted as legal representatives, they have right to put forth their own case which may be little different than the case of the original plaintiff. He submits that amendment was necessary for lawful adjudication of the controversy and the Court below has erred in rejecting the same. In support of this contention, he relied on Vidyawati Vs. Man Mohan and others, . He also relied on the recent judgment of Supreme Court reported in Abdul Rehman and Another Vs. Mohd. Ruldu and Others, . By taking this Court to the pleadings of the original plaint and that of proposed by way of amendment, it is contended that amendment should have been allowed by the Court below.

Shri Shishir Saxena, learned counsel for the respondents No. 2, 5, 6 & 7 supported the stand of Shri D.D. Bansal. Shri N.K. Gupta, learned counsel for the respondent No. 1 opposed the petition and supported the order passed by the Court below. Shri Gupta submits that the amendment cannot be allowed because it will change the nature of the case. It will cause great prejudice to the respondent No. 1 and therefore, amendment is rightly disallowed by the Court below.

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

Findings:

The original plaintiff, Gulab Bai, in the plaint stated that family settlement was written on 25.11.1997. Original plaintiff had put her thumb impression in the said settlement. As per the said settlement, agricultural land of Gram Kusmoda was distributed out of total land which was initially in the name of Jagdish and Ramesh. Seven Bigha and ten Biswa of land came in the share of Ramesh and remaining Seven Bigha and ten Biswa came in the share of Jagdish. This land in the share of Jagdish was written in the settlement in the name of original plaintiff. By way of amendment, it is contended by present petitioners that the property in question is undivided Hindu family property. Jagdish without the consent of family had sold certain property and therefore, such sale deeds are liable to be set aside. Thus, by way of amendment, it is prayed that the petitioners be given possession of the said land.

It is not in dispute that amendment is filed at pre-trial stage. In that event, amendment needs to be dealt with without the impediment of proviso to O.6 R.17 C.P.C. The Apex Court in Abdul Rehman (supra) has held that it is to be seen whether proposed amendment would alter the claim/cause of action of the plaint. It was held that for this purpose, original plaint and the amendment are required to be examined in juxtaposition. The Court below has partly disallowed the amendment application. It was held that if amendment is allowed, it will change the nature of the case/cause of action.

In the considered opinion of this Court, if the pleadings of original plaintiff in the suit are examined in juxtaposition to the proposed amendment, it will be clear that by way of amendment the present petitioners intended to introduce a new case. No doubt, right to sue continues in favour of the petitioner, but by way of amendment, they cannot be permitted to alter the basic structure of the plaint and make out a new case altogether. If it is permitted, it will cause prejudice to the other side.

In Mahendra Gupta Vs. Mohd. Yunus, this Court held that proposed amendment, if allowed, would cause any prejudice to either side which cannot be compensated in terms of money, amendment should be disallowed. It is further held that amendment cannot be allowed when it is barred by time. In the present case, the present petitioners have made an attempt to make out a new case by changing the entire foundation of the original plaint filed by the original plaintiff. This will cause great prejudice to the other side. In addition, pleading in the amendment application that sale deeds are liable to be set aside may be hit by limitation. In the peculiar facts and circumstances, the judgment of Vidyawati (supra) cited by Shri Bansal has no application.

In view of aforesaid discussion, I am unable to hold that the amendment proposed was only to clarify the situation or to strengthen the pleadings. On the contrary, the petitioners have made an attempt to introduce a new case which was totally different than the case set up by original plaintiff. This cannot be permitted under the garb of amendment. If law permits, needless to mention, petitioners may file appropriate fresh proceedings before the Court of competent jurisdiction for the same.

Thus, in the opinion of this Court, the Court below has taken a plausible view. The scope of interference under Article 227 of the Constitution is limited. The Apex Court in Surya Dev Rai Vs. Ram Chander Rai and Others, held as under:--

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the 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.

(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 above said 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 there against and entertaining a petition invoking certiorari or supervisory jurisdiction of 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.

In Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, the Apex Court held as under:--

(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 39 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 40 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 41 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 CPC by the 42 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 43 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 44 divest this extraordinary power of its strength and vitality.

By applying the principle of para 4, 6 and 7 enunciated in Surya Dev Rai (supra) coupled with the principle laid down in the Shalini Shyam Shetty (supra) in the considered opinion of this Court, there is no jurisdictional error in the order impugned. The Court below has taken a plausible view. There is no patent legal error which is self evident. Another view is possible, is not a ground for interference, even wrong order need not to be interfered with as a matter of course. (para 49(h) of Shalini Shyam Shetty).

I find no ingredient which warrants interference of this Court under Article 227 of the Constitution. Petition is merit-less and is hereby dismissed.