Satyanarayan vs Atmaram

S.C. Sharma, J.

Matter Capture before para no.1

The petitioner before this court has filed this present petition being aggrieved by the orders dated 26-9-2014, 14-10-2014 and 18-10-2014 passed by the trial court. The first order dated 26-9-2014 is an order passed on an application preferred under order 6 Rule 17 of CPC. Learned counsel has fairly stated before this court that he is not assailing the validity of the order dated 26-9-2014. Learned counsel has stated before this court that in light of the order passed in Civil Revision No. 238/2014 dated 07-05-2015, no further order as required in respect of the first order dated 26-09-2014. The second order is dated 14-10-2014. Its an order passed on an application preferred under Order VIII Rule 1A of The Code of Civil Procedure, 1908. It has been vehemently argued before this court that the defendant has not filed original copy of the document and, therefore, the trial court could not have allowed the application preferred by the defendant. Order VIII Rule 1A of The Code of Civil Procedure, 1908 reads as under :-

"1A Duty of defendant to produce documents upon which relief is claimed or relied upon by him- (1)Where the defendant bases his defence upon a document or relies upon any document in his possession of power, in support of his defence or claim of rest off or counter claim, he shall enter such document in a list and shall produce it in court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.

(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession of power it is.

(3) A document which ought to be produced in court by the defendant under this rule, but is not so produced shall not, without the leave of the court, be received in evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule, shall apply to documents -

(a) produced for the cross examination of the plaintiff''s witnesses, or

(b) handed over to a witness merely to refresh his memory."

Keeping in view the sub-rule (3), this court is of the considered opinion that the trial court was justified in allowing the aforesaid application and, therefore, the order dated 14-10-2014 does not suffer from perversity nor from jurisdictional error. There is a third order dated 18-10-2014 passed by the trial court on an application preferred by the plaintiff (petitioner) for amending the written statement.

The facts of the case reveal that the plaintiff came up with a case that he has orally purchased the suit property from the defendant. Such type of sale is un-heard off. Prayer was made in the amendment application by the plaintiff that the documents brought on record by order dated 14-10-2014 ie document dated 02-09-1997 is forged and fabricated document and his contention is that amendment was rightly preferred as application preferred under Order VIII Rule 1-A of Code of Civil Procedure, 1908 was allowed on 14-10-2014 only. To this, learned counsel for the respondent defendant has drawn the attention of this court towards the written statement filed on 01-10-2012 in respect of the counter claim preferred by the defendant (owner). In the written statement filed by the respondents, the respondents have referred to special pleading in respect of documents dated 02-09-1997. Meaning thereby the plaintiff was aware about the rent note dated 02-09-1997 right from the year 2012 and he has filed an application for amendment in respect of the aforesaid documents after starting of the evidence before the trial court and, therefore, this court is of the considered opinion that the amendment application has rightly been turned down by the trial court.

Learned counsel for the petitioner has drawn the attention of this court towards the order passed by this court in Surajdeen and Another Vs. Ramlal Baheliya and Others, (2009) 3 MPHT 157 and his contention is that the application was necessary and should have been allowed in light of the aforesaid judgment. This court has carefully gone through the aforesaid judgment. However, the facts are distinguishable. In the present case, plaintiff was aware of the documents right from 2012 and they have filed amendment application after commencement of the trial that too after two years and therefore in the considered opinion of this court orders passed by the trial court dated 14-10-2014 and 18-10-2014 does not suffer from any perversity or from any jurisdictional error. This court is of the considered opinion that the trial court was justified in passing the impugned order.

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 no patent illegality has 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 orders dated 14-01-2015 and 18-10-2014.

The admission is declined.

No order as to costs.

Certified copy as per rules.