Court No. - 18
Case :- MATTERS UNDER ARTICLE 227 No. - 5921 of 2018 Petitioner :- Anwar Misal Zaidi Respondent :- Nazam Ali And 5 Others Counsel for Petitioner :- Shrinath,Shashi Prakash Rai Counsel for Respondent :- Pankaj Srivastava Hon'ble Mahesh Chandra Tripathi,J. Heard learned counsel for the parties.
The plaintiff-petitioner is before this Court assailing the order dated 20.02.2018 passed by Civil Judge (JD), Ghazipur in Misc. Case No.87 of 2017 (in Original Suit No.33/2014) as well as order dated 05.07.2018 passed by District Judge, Ghazipur in revision numbered as Misc. Case No.227/2018 (Anwar Misal Jaidi v. Nazam Ali & Ors.).
The record in question reflects that the mother of the petitioner namely Late Rahmat Bibi filed Original Suit No.33/2014 before Civil Judge (JD), Ghazipur against the father of the respondent (Ist Set) Late Nawab Syed Ali Asad through his power of attorney Shri Tazadar Hussain for permanent and prohibitory injunction and also prayed for non-interference in the suit property. In the said proceeding it appears that parties entered into compromise on 5.9.2014. It has been averred in the writ petition that the compromise deed was produced before the Civil Judge (JD), Ghazipur on 10.09.2014. On behalf of plaintiff-petitioner Anwar Misal Jaidi signed as her power of attorney and on defendant's side Sri Tazadar Hussain singed being the power of attorney of Late Syed Ali Ashad. Finally the Civil Judge (JD), Ghazipur decided the aforesaid suit on 15.9.2014 in terms of the compromise dated 10.09.2014 and accordingly decree was passed.
Consequently, the plaintiff-Smt. Rahmat Bibi filed Suit No.48 of 2015 under Section 33/39 L.R. Act before the Sub Divisional Magistrate, Ghazipur and sought for the entries in the revenue record in pursuance of the order and decree dated 15.9.2014 passed by Civil Judge (JD). During the pendency of the Suit No.48 of 2015 the plaintiff i.e. mother of the petitioner died and the petitioner and his three brothers were incorporated as legal representatives of the plaintiff in record. On 31.10.2017 the Addl. Sub Divisional Magistrate, Ghazipur rectified the record as per the order dated 15.9.2014 passed by the Civil Judge. On 10.11.2017 the name of legal heirs of Smt. Rahmat Bibi was recorded in Khatauni. On 27.11.2017 the respondent (Ist Set) filed restoration application under Section 201 L.R. Act before the Addl. Sub Divisional Magistrate, Ghazipur against the order dated 31.10.2017.
On 05.12.2017 the respondent (Ist set) through his power of attorney Rajdeo Singh Yadav filed restoration application in Original Suit No.33 of 2014 against dead person i.e. Smt. Rahmat Bibi though it is alleged that they were fully aware about the fact that Smt. Rahmat Bibi died and her legal representatives were entered on the record. The restoration application dated 5.12.2017 under order 9 Rule 13 CPC was registered as Misc. Case No.87 of 2017 before the Civil Judge (JD), Ghazipur. Since the respondent (Ist set) filed restoration application against a dead person, hence, he sought amendment in the restoration application. On 20.2.2018 the Civil Judge allowed the amendment application under Order 6 Rule 17 CPC. Aggrieved with the same the petitioner filed revision, which was also rejected by the District Judge, Gahzipur on 5.7.2018 on the pretext that the revision has been filed against an interlocutory order, hence, it is not maintainable.
Learned counsel for the petitioner could not point out any manifest error apparent on the face of record in the impugned orders so as to justify interference by this Court in extra ordinary jurisdiction under Article 227 of the Constitution of India.
Both the Courts below have recorded concurrent findings of fact and unless these findings are shown perverse or contrary to record resulting in grave injustice to petitioner, in writ jurisdiction under Article 227, this Court exercising restricted and narrow jurisdiction would not be justified in interfering with the same.
In supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority.
This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes.
In Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil (2010) 8 SCC 329, the Apex Court said that power of interference under Article 227 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. The above authority has been cited and followed in Kokkanda B. Poondacha and others Vs. K.D. Ganapathi and another AIR 2011 SC 1353 and Bandaru Satyanarayana Vs. Imandi Anasuya (2011) 12 SCC 650.
In Abdul Razak (D) through Lrs. & others Vs. Mangesh Rajaram Wagle and others (2010) 2 SCC 432, Apex Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction.
In T.G.N. Kumar Vs. State of Kerala and others (2011) 2 SCC 772, the Court said that power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority.
In Commandant, 22nd Battalion, CRPF and others Vs. Surinder Kumar (2011) 10 SCC 244, Apex Court referring to its earlier decision in Union of India Vs. R.K. Sharma (2001) 9 SCC 592 observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227.
Similar view has also been taken in Oriental Insurance Co. Ltd. Agra (M/s) vs. Kishore Kapoor, 2003 (2) ARC 639 and in Maksood Ali vs. Prescribed Authority/City Magistrate, Bulandshahr and 2 others, Writ C No.8609 of 2018 decided on 15.3.2018. Hon'ble the Apex Court in Dr. Kazimunnisa (Dead) by L.R. vs. Zakia Sultana (Dead) by L.R. & ors, Civil Appeal Nos.18783-18784 of 2017 decided on 15.11.2017 has observed in para-36 as under:-
"36) Lastly, we find that the High Court while reversing the findings of the Special Court decided the writ petition under Article 227 like a first Appellate Court by appreciating the entire evidence little realizing that the jurisdiction of the High Court while deciding the writ Petition under Article 227 is not akin to appeal and nor it can decide the writ petition like an Appellate Court."
In view thereof, I find no justification warranting interference with the orders impugned in this writ petition.
The writ petition sans merit and is accordingly dismissed. However, restoration application in question under Order 9 Rule 13 CPC may be decided on its own merits in accordance with law expeditiously.
Order Date :- 21.8.2018 SP/