Shri Devmani vs Khem Raj & Ors.

This petition under Article 227 of the Constitution of India takes exception to the order passed by the learned District Judge, Mandi, whereby, he allowed the appeal filed by the respondents and set aside the order of status quo that had been passed by the learned Trial Court.

The controversy between the parties is in respect of land measuring 0-9-3 bighas bearing Khasra Nos. 19, 121 and 123 situated at Mauza Chail/51, Tehsil Chachiot, District Mandi, H.P. The plaintiff/ petitioner has filed the suit for declaration with permanent injunction against the defendants/respondents alleging that the land measuring 0-13-15 bighas comprised in Khewat Khatauni No. 19/33, Khasra Nos. 209, 212 and 226 situated in Mauza Chail/51, Tehsil Chachiot, District Mandi was previously recorded in the ownership of petitioner and respondents No. 4 to 6 and others. Consolidation started in the year 1989-90 and under the consolidation scheme a Consolidation Committee was appointed of which respondent No. 3 was elected President. Respondents No. 1 and 2 are the sons of respondent No. 3 and on 6.3.1992, the respondents in connivance with the Consolidation Authorities filed separate application for partition of land and the Consolidation Officer without the consent and without even hearing the petitioner and respondents No. 4 to 6 effected partition vide order dated 8.6.1992. While doing so he ignored the actual physical and joint possession of the parties and wrongly clubbed the land of Khewat No. 19/33 measuring 0-13-15 bighas with the other joint land of parties of which respondents No. 1 and 2 were neither the co-owner nor in possession thereof. As a result of this, the suit land was wrongly allotted to respondents No. 1 and 2. It was further alleged that suit land was still in actual physical possession of the petitioner and respondents No. 4 to 6 exclusively and the same had not been delivered to respondents No. 1 and 2 by the Consolidation Authorities till date. Accordingly, the petitioner filed the suit for declaration that the order dated 8.6.1992 passed in partition application No. 57/92 by the Consolidation Officer, Sundernagar, was wrong, illegal and void and not in conformity with the provisions of H.P. Holdings (Prevention of Fragmentation and Consolidation) Act, 1971 (for short the Act). Similarly, order dated 24.9.1997 passed by the Additional Director, Consolidation of Holdings H.P., in Revision Petition No. 17/94 was wrong, illegal, null and void and not binding upon the petitioner and respondents No. 4 to 6 and the revenue entries showing respondents No. 1 and 2 as owner in possession of the suit land be declared illegal, null & void with further prayer to restrain respondents No. 1 to 3 from forcibly occupying the shares of petitioner and respondents No. 4 and 5 of the suit land and from changing its nature etc. The plaint was accompanied by an application under Order 39 Rules 1 & 2 read with Section 151 C.P.C., wherein, temporary injunction was sought against respondents No. 1 to 3 from raising any construction, changing the nature of the suit land and from dispossessing and alienating or creating any charge thereupon till the disposal of the suit.

The suit as well as application was opposed by respondents No. 1 to 3, who filed joint written statement raising preliminary objections regarding jurisdiction, limitation, maintainability, estoppels and non-joinder etc. On merit, it was averred that the Consolidation Authority had carried out the partition proceedings in accordance with the prescribed procedure that too after hearing all the interested parties including the petitioner and as per the Consolidation Scheme, keeping in view the entitlement, convenience and wishes of the parties, the partition was effected in a fair, transparent and equitable manner and was accepted and acted upon by all the parties concerned and, therefore, the same could not now be questioned at the whims and fancies of the petitioner that too after a lapse of 22 years. The respondents denied that the petitioner and respondent No. 4 were in joint owner in possession of the suit land. As per them, prior to the consolidation the suit land was in possession of respondent No. 3 and respondents No. 1 and 2 being the sons and family members of respondent No. 3, were enjoying it as exclusive owner in possession with respondent No. 3. The order dated 8.6.1992 was passed by the Consolidation Officer with the consent of the petitioner and respondents No. 4 to 6. Lastly, it was averred that respondents No. 1 and 2 were in exclusive owner in possession of the suit land.

Respondent No. 4 contested the suit by filing separate written statement in which he denied the averments made in the plaint. As per him, a family settlement has taken place between all the brothers i.e. petitioner and respondents No. 4 to 6 on 28.8.1992 and as per that settlement, all the brothers were enjoying their share separately and the instant suit had been filed by the petitioner just because of greed and to harass the respondents.

The application came up for consideration before the learned trial Court on18.12.2015 and he allowed the application and directed the parties to maintain status quo qua nature, possession, alienation and creation of any charges over the suit land till the disposal of the suit. However, on appeal being filed against the said decision before the learned District Judge, Mandi, the order so passed by the learned trial Court was ordered to be set aside and the application filed by the petitioner came to be dismissed. It is against the decision of the first appellate Court that the petitioner has now filed the instant petition on the ground that the findings so recorded by the learned first appellate Court are perverse and therefore deserves to be set aside. I have heard learned counsel for the parties and have gone through the record of the case.

The first and foremost question that arises for consideration is as to what is precisely the scope of judicial intervention in such like matters. It is well settled that the High Court can exercise jurisdiction under Article 227 when the orders passed by the learned Court below is vitiated by an error, which is manifest and apparent on the face of the proceedings, i.e. when it is based on clear ignorance or utter disregard of the proposition of law and a grave injustice or gross failure of justice has occasioned thereby. The supervisory jurisdiction is wide and used to improve the ends of justice. The power must however be exercised sparingly only to keep the subordinate courts and tribunals within the bounds of their authority. Power is neither available to be exercised to correct mere errors (whether on the facts or laws), nor is it a cloak of an appeal in disguise. The supervisory powers of revision under Article 227 cast an obligation on the High Court to keep the inferior courts and tribunals within their bounds and erroneous decision may not be accorded for exercise of jurisdiction under Article 227 of the Constitution of India, unless the error is referable to the Court or there is dereliction of duty or flagrant abuse of power by the subordinate courts and tribunals resulting in grave injustice to any party, therefore, the scope of interference in proceedings under Article 227 of the Constitution is limited and the power conferred thereunder has to be exercised within certain parameters.

In Waryam Singh and another vs. Amarnath and another, AIR 1954 SC 45, the Hon''ble Supreme Court observed:

"This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in "Dalmia Jain Airways Ltd. vs. Sukumar Mukherjee", AIR 1951 CAL 193 (SB) 1 (B), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors."

In Bathutmal Raichand Oswal vs. Laxmibai R. Tarta, AIR 1975 SC 1297, the Hon''ble Supreme Court again reaffirmed that the power of superintendence of the High Court under Article 227 being extraordinary was to be exercised most sparingly and only in appropriate cases. The Hon''ble Supreme Court speaking through Bhagwati J. as his Lordship then was observed thus:

"If an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory power as a Court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a Court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate Court or tribunal final on facts".

The Hon''ble Supreme Court in the case of Bathutmal (supra) approved the dictum of Morris L. J. in Res v. Northumberland Compensation Appellate Tribunal, 1952 All England Reports 122.

In Laxmikant Revchand Bhojwani and another vs. Pratapsing Mohansing Pardeshi Deceased through his heirs and legal representatives, JT 1995 (7) SCC 400, the Hon''ble Supreme Court observed:

"The High Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes."

In State of Maharashtra vs. Milind & Others, 2001 (1) SCC 4, the Hon''ble Supreme Court observed:

"The power of the High Court under Article 227 of the Constitution of India, while exercising the power of judicial review against an order of inferior tribunal being supervisory and not appellate, the High Court would be justified in interfering with the conclusion of the tribunal, only when it records a finding that the inferior tribunal''s conclusion is based upon exclusion of some admissible evidence or consideration of some inadmissible evidence or the inferior tribunal has no jurisdiction at all or that the finding is such, which no reasonable man could arrive at, on the materials on record."

Again in State vs. Navjot Sandhu (2003) 6 SCC 641, the Hon''ble Supreme Court observed as under:

"Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However, the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised as the cloak of an appeal in disguise."

In Mohammed Yusuf vs. Faij Mohammad and others, 2009 (1) Scale 71, the Hon''ble Supreme Court held as under:

"The jurisdiction of the High Court under Article 226 & 227 of the Constitution is limited. It could have set aside the orders passed by the learned trial Court and revisional Court only on limited ground, namely, illegality, irrationality and procedural impropriety".

In State of West Bengal and others vs. Samar Kumar Sarkar, JT 2009 (11) SC 258, the Hon''ble Supreme Court held as under:

"10. Under Article 227, the High Court has been given power of superintendence both in judicial as well as administrative matters over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. It is in order to indicate the plentitude of the power conferred upon the High Court with respect to Courts and the Tribunals of every kind that the Constitution conferred the power of superintendence on the High Court. The power of superintendence conferred upon the High Court is not as extensive as the power conferred upon it by Article 226 of the Constitution. Thus, ordinarily it will be open to the High Court, in exercise of the power of superintendence only to consider whether there is error of jurisdiction in the decision of the Court or the Tribunal subject to its superintendence."

In Jai Singh and others vs. Municipal Corporation of Delhi and others (2010) 9 SCC 385, the Hon''ble Supreme Court in paras 15, 16 and 42 of the judgment held as under:

"15. We have anxiously considered the submissions of the learned counsel. Before we consider the factual and legal issues involved herein, we may notice certain well recognized principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this Article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognized constraints. It can not be exercised like a ''bull in a china shop'', to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.

The High Court cannot lightly or liberally act as an appellate court and re-appreciate the evidence. Generally, it can not substitute its own conclusions for the conclusions reached by the courts below or the statutory/quasi judicial tribunals. The power to re-appreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice.

Undoubtedly, the High Court has the power to reach injustice whenever, wherever found. The scope and ambit of Article 227 of the Constitution of India had been discussed in the case of The Estralla Rubber Vs. Dass Estate (P) Ltd., [(2001) 8 SCC 97] wherein it was observed as follows:

"The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."

The factors required to be borne in mind while granting or refusing injunction have been succinctly dealt with by the Hon''ble Supreme Court in M.Gurudas and others versus Rasaranjan and others (2006) 8 SCC 367 in the following manner:-

"18.While considering an application for injunction, it is well- settled, the courts would pass an order thereupon having regard to:

(i) Prima facie case

(ii) Balance of convenience

(iii) Irreparable injury.

A finding on ''prima facie case'' would be a finding of fact. However, while arriving at such finding of fact, the court not only must arrive at a conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist. There may be a debate as has been sought to be raised by Dr. Rajeev Dhawan that the decision of House of Lords in American Cyanamid v. Ethicon Ltd. (1975) 1 All ER 504 would have no application in a case of this nature as was opined by this Court in Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd.(1999) 7 SCC 1 and S.M. Dyechem Ltd. v. Cadbury (India) Ltd. (2000) 5 SCC 573, but we are not persuaded to delve thereinto.

We may only notice that the decisions of this Court in Colgate Palmolive (supra) and S.M. Dyechem Ltd (supra) relate to intellectual property rights. The question, however, has been taken into consideration by a Bench of this Court in Transmission Corpn. of A.P. Ltd. v. Lanco Kondapalli Power (P) Ltd. (2006) 1 SCC 540 stating: (SCC pp. 552-53, paras 36-40)

"36.The Respondent, therefore, has raised triable issues. What would constitute triable issues has succinctly been dealt with by the House of Lords in its well-known decision in American Cyanamid Co. v. Ethicon Ltd.(1975)1 All ER 504 holding: ( All ER p.510 c-d)

''Your Lordships should in my view take this opportunity of declaring that there is no such rule. The use of such expression as ''a probability'', ''a prima facie case'', or ''a strong prima facie case'' in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief. The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried.''

It was further observed (All ER pp.511 b-c & 511j)

''Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo. If the defendant is enjoined temporarily from doing something that he has not done before, the only effect of the interlocutory injunction in the event of his succeeding at the trial is to postpone the date at which he is able to embark on a course of action which he has not previously found it necessary to undertake; whereas to interrupt him in the conduct of an established enterprise would cause much greater inconvenience to him since he would have to start again to establish it in the event of his succeeding at the trial.

* * *

The factors which he took into consideration, and in my view properly, were that Ethicon''s sutures XLG were not yet on the market; so that had no business which would be brought to a stop by the injunction; no factories would be closed and no workpeople would be thrown out of work. They held a dominant position in the United Kingdom market for absorbable surgical sutures and adopted an aggressive sales policy.''

37.We are, however, not oblivious of the subsequent development of law both in England as well as in this jurisdiction. The Chancery Division in Series 5 Software v. Clarke (1996) 1 All ER 853] opined: (All ER p.864 c-e)

''In many cases before American Cyanamid the prospect of success was one of the important factors taken into account in assessing the balance of convenience. The courts would be less willing to subject the plaintiff to the risk of irrecoverable loss which would befall him if an interlocutory injunction was refused in those cases where it thought he was likely to win at the trial than in those cases where it thought he was likely to lose. The assessment of the prospects of success therefore was an important factor in deciding whether the court should exercise its discretion to grant interlocutory relief. It is this consideration which American Cyanamid is said to have prohibited in all but the most exceptional case. So it is necessary to consider with some care what was said in the House of Lords on this issue.''

In Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd. (1999) 7 SCC 1, this Court observed that Laddie, J. in Series 5 Software (supra) had been able to resolve the issue without any departure from the true perspective of the judgment in American Cyanamid. In that case, however, this Court was considering a matter under Monopolies and Restrictive Trade Practices Act, 1969.

39.In S.M. Dyechem Ltd. v. Cadbury (India) Ltd. (2000) 5 SCC 573, Jagannadha Rao, J. in a case arising under Trade and Merchandise Marks Act, 1958 reiterated the same principle stating that even the comparative strength and weaknesses of the parties may be a subject matter of consideration for the purpose of grant of injunction in trade mark matters stating : (SCC p.591, para 21)

''21.....Therefore, in trademark matters, it is now necessary to go into the question of "comparable strength" of the cases of either party, apart from balance of convenience. Point 4 is decided accordingly.''

40.The said decisions were noticed yet again in a case involving infringement of trade mark in Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd.(2001) 5 SCC 73."

While considering the question of granting an order of injunction one way or the other, evidently, the court, apart from finding out a prima facie case, would consider the question in regard to the balance of convenience of the parties as also irreparable injury which might be suffered by the plaintiffs if the prayer for injunction is to be refused. The contention of the plaintiffs must be bona fide. The question sought to be tried must be a serious question and not only on a mere triable issue.(See Dorab Cawasji Warden v. Coomi Sorab Warden and Others , (1990) 2 SCC 117, Dalpat Kumar v. Prahlad Singh(1992) 1 SCC 719, United Commercial Bank v. Bank of India (1981) 2 SCC 766, Gujarat Bottling Co. Ltd. v. Coca Cola Co. (1995) 5 SCC 545, Bina Murlidhar Hemdev v. Kanhaiyalal Lokram Hemdev (1999) 5 SCC 222 and Transmission Corpn. of A.P. Ltd (supra)."

Having set out the legal position, I now proceed to determine the merits of the lis.

It would be noticed that the learned trial Court was unnecessarily swayed by the mere fact that since the petitioner had filed a suit, therefore, the subject matter in dispute was required to be preserved till the final conclusion and then proceeded to pass an impugned order as would be evidently clear from para-11 thereof which reads as under:-

"There are contentions and rival contentions of both the parties raised against each other which need determination of the Court. Keeping in view the facts and circumstances of the case and to preserve the subject matter in dispute till the final conclusion of the matter in hand, both the parties are directed to maintain status quo qua, nature, possession, alienation and creating any charge over the suit land till final disposal of the main suit. However, observations made hereinabove shall remain confined to the disposal of this application and shall have no bearing on the merits of this case. The application stand disposed of. Be tagged with main case file after due completion."

Whereas the learned first appellate Court was not swayed by such consideration. The petitioner had filed the suit only on 18.7.2014 whereas the orders sought to be assailed therein had been passed by the Consolidation Officer, Sundernagar on 8.6.1992. Notably, the petitioner had assailed the aforesaid order before the Additional Director, Consolidation of Holdings, H.P. by filing an appeal, which was dismissed on 24.9.1997. Thereafter, the petitioner assailed the aforesaid order by filing CWP No. 1449 of 1996 before this Court but the same was withdrawn on 19.9.2001. The silence on the part of the petitioner in not disclosing and mentioning this fact in the suit turns tables against him. After all a person approaching the Court must come with clean hands.

That apart, admittedly the order passed by the Additional Director, Consolidation of Holdings, have for the time being, attained finality, therefore, in such circumstances there was no occasion for the learned trial Court to have passed an order of status quo, which to my mind, has been rightly reversed by the learned first appellate Court. The petitioner has failed to carve out a prima facie case in his favour and has therefore rightly been declined the relief of injunction by the learned first appellate Court. Such findings do not suffer from any illegality, infirmity much less perversity so as to call for interference by this Court in exercise of its powers under Article 227 of the Constitution of India.

In consequenti, there is no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending applications, if any, also stand disposed of.