Heard Sri Rakesh Pande, learned Advocate on behalf of the petitioners and Sri Jawahar Lal Gupta, the respondent no. 1/1 in person, who also appears on behalf of the respondent nos. 1/2 to 1/6.
By means of the present petition, the order dated 15.2.2018 passed by the Additional District Judge, Court No. 3, Shahjahanpur, dismissing Civil Appeal No. 96 of 1997 [Brij Bhushan Lal Gupta (since deceased) and another vs. Dr. Brij Mohal Lal Gupta (since deceased) and others] and the judgment and order dated 2.8.1997 passed by the Additional Civil Judge (Senior Division), Shahjahanpur in Original Suit No. 388 of 1987 (Dr. Brij Mohan Lal Gupta vs. Sri Brij Bhushan Lal Gupta), are under challenge.
By means of the order dated 2.8.1997 in Original Suit No. 388 of 1987, under Section 14 of the Arbitration Act, 1940 (In short as "the Act, 1940"), the arbitration award (paper no. 3-Ka) dated 31.10.1987 has been made Rule of the Court, rejecting the objection of the petitioner no. 1 namely Sri Brij Bhushan Lal Gupta.
The order dated 15.2.2018 has been passed in the appeal namely Civil Appeal No. 96 of 1997, which has been preferred by the petitioner no. 1 before the District Judge, under Section 30/33 of the Act, 1940, which is pari materia with Section 34 of the Arbitration and Conciliation Act, 1996 (In short as "the Act, 1996"), seeking to set aside the arbitration award dated 31.10.1987.
A revision against the order dated 2.8.1997 rejecting the objections of the petitioner has also been filed named as Revision No. 53 of 1997. The order dated 15.2.2018 is a composite order for dismissal of both the aforesaid appeal and revision.
Sri Jawahar Lal Gupta, the respondent no. 1/1, who has appeared in person, raised preliminary objection as to the entertainability of the present petition under Article 227 of the Constitution of India with the aid of Section 39(2) of the Arbitration Act, 1940, which provides that no second appeal shall lie from an order passed in appeal against the order to set aside the arbitral award under Section 30/33 of the Arbitration Act, 1940 but the challenge can be made in appeal before the Supreme Court.
It is contended that the petition under Article 227 of the Constitution of India is not maintainable in view of the statutory remedy available to the petitioner to assail the order in appeal before the Apex Court. The remedy of second appeal against the arbitration appeal has been specifically taken away by Section 39(2) of the Arbitration Act, 1940.
In view of the said prohibition, it would not be open for the High Court to examine the correctness of the order of the civil court on merits by invoking supervisory powers under Article 227 of the Constitution of India. The constitutional remedy under Article 227 cannot be invoked in lieu of a statutory remedy of appeal to challenge the correctness or merits of the order of the first appellate court.
Reliance is placed upon the judgment of the Apex Court in Nivedita Sharma vs. Cellular Operators Association of India1 to assert that the extraordinary remedy under Articles 226 and 227 of the Constitution of India cannot be invoked by an aggrieved person, if an effective alternative remedy is available to him or the statute concerned contains a mechanism for redressal of grievances.
Reliance has also been placed upon the judgment of the Apex Court in Commissioner Of Income Tax & Ors vs. Chhabil Dass Agarwal2 to substantiate the said assertion.
It is contended that the Apex court therein has laid down the principles of non-entertainment of petitions under the writ jurisdiction by the High Court when an efficacious alternative remedy is available. However, the rule of alternative remedy is not a rigid rule but is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. The Court, in extraordinary circumstances, may exercise the power of writ jurisdiction, if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted.
It is contended that the same principle applies to invocation of extraordinary supervisory jurisdiction conferred upon the High Court under Article 227 of the Constitution of India. He vehemently submits that the power of superintendence of the High Court under Article 227 cannot be invoked to interfere with the findings of fact of the subordinate court like a Court of appeal. An error of fact even though apparent on the face of the record cannot be corrected by the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India. The High Court cannot, in the guise of exercising its jurisdiction under Article 227 of the Constitution, convert itself into a Court of appeal. The High Court has no power to reappreciate evidence under Article 227 of the Constitution. The proceedings under Article 227 cannot be invoked as a substitute to the statutory remedy. A wrong decision is not open to interference in exercise of jurisdiction under this Article unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate courts and tribunals resulting in grave injustice to the aggrieved party. The extraordinary power under Article 227 of the Constitution are conferred upon the High Court to keep the subordinate courts within the bounds of their jurisdiction and is exercisable where the subordinate court has assigned a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have.
To substantiate these points, reference has also been made to the judgments of the Apex Court in Babhutmal Raichand Oswal vs. Laxmibai R Tarte & others3, State of Orissa and another vs. Muralidhar Jena4, Ouseph Mathai and others vs. Abdul Khadir5, Radhey Shyam and another vs. Chhabi Nath and others6, Subba and another vs. Debiya and another7 and Jagir Singh vs. Ranbir Singh and another8 .
Learned counsel for the petitioner, in rebuttal, of said preliminary objection submits that the constitutional remedy under Article 227 of the Constitution of India provided to the petitioner cannot be taken away on the ground that he can approach alternative statutory forum to assail the order impugned. The submission is that the bar of the remedy of second appeal imposed under Section 39(2) of the Arbitration Act, 1940 before the High Court cannot be construed to mean that no petition under Article 227 of the Constitution would lie. The bar of statutory remedy by a state enactment cannot be taken as a bar against the constitutional remedy.
To press this point, reliance is placed on the observations made by the Apex Court in paragraph '14' of the report in Jogendrasinhji Vijaysinghji vs. State of Gujarat and others9 which reads as under:-
"14. Recently, in Radhey Shyam & Anr. v. Chhabi Nath & Ors.[22], a three- Judge Bench while dealing with the correctness of the law laid down by a two-Judge Bench, as there was a reference by a Division Bench expressing its doubt about the ratio laid down in Surya Dev Rai v. Ram Chander Rai and others[23] that judicial orders passed by the Civil Court can be examined and then corrected/reversed by the writ court under Article 226 in exercise of its power under writ of certiorari, speaking through one of us (Adarsh Kumar Goel, J.), referred to number of judgments including some of the decisions we have cited hereinabove and reproduced the opinion expressed in Sadhana Lodh v. National Insurance Co. Ltd.[24], which is to the following effect:-
"6. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance Co. Ltd. v. Nicolletta Rohtagi[25]). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. (emphasis added by the counsel for the petitioner) As a matter of illustration, where a trial court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 CPC, in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State Legislature has barred a remedy of filing a revision petition before the High Court under Section 115 CPC, no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of the High Court under Article 226 of the Constitution."
With the observations noted therein it is contended that the question therein raised whether the petition under Article 227 would lie after state enactment whereby the revisional power of the High Court under Section 115 CPC has been expressly barred or not was considered in the light of the observations in Surya Dev Rai vs. Ram Chander Rai and others10 and while answering the said question, it was held that the said amendment in Section 115 of the Code of Civil Procedure does not affect, in any manner, the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
The submission is that a petition under Article 227 of the Constitution cannot be thrown on the ground that the jurisdiction of the High Court in second appeal is barred under Section 39(2) of the Act, 1940 and the appeal against the order of the First Appellate Court challenging the arbitration award, would lie in the Apex Court, only.
On the said submission, a pointed query was made by the Court as to the grounds, on which the order dated 15.2.2018 passed in appeal under Section 30/33 of the Act, 1940, is being challenged in the present petition.
The grounds as narrated by the learned counsel for the petitioner are relevant to be noted hereunder:-
(i) whether the arbitrators have misconducted by ignoring the material evidence and the first appellate Court below has ignored this aspect resulting in failure in exercise of the jurisdiction conferred on it;
(ii) whether the admission of the petitioner, which is the basis of the award can be treated as an admission, when in fact the properties in suit with regard to which admission was made, was not subject matter of the partition suit;
(iii) whether the Court below has failed to exercise jurisdiction by ignoring the declaration under Section 229B of U.P.Z.A.&L.R. Act in favour of the petitioner with respect to the disputed plot while holding the parties to be share holders thereof;
(iv) whether the court below has failed to exercise jurisdiction in ignoring the sale deed dated 2.10.1964 transferring the entire property to Brij Bhushan Lal Gupta, the predecessor-in-interest of the petitioner no. 1/1 and the sale deed dated 31.12.1966 executed by Brij Bhushan Gupta in favour of his brother namely Dr. Brij Mohan Lal, the predecessor-in-interest of the opposite party, whereunder a very small portion of the property purchased in the year 1964 by the aforesaid sale deed, was transferred to his brother, who has wrongly been held to be equal share holder of the property;
(v) whether the finding recorded by the First Appellate Court can be sustained in the eyes of law;
(vi) whether the Arbitrator has misconducted himself in passing the award and the Court below has committed a jurisdictional error in ignoring the said plea.
(vii) Lastly, it is contended that the award settles fresh right in favour of the parties and, therefore, it is required to be registered and the Court below has failed to exercise its jurisdiction in treating the same as pre-existing rights which cannot be read into the award. The order dated 2.8.1997 making it Rule of the Court is in ignorance of Section 17 of the Registration Act.
All these objections taken by the petitioner to challenge the order of the appellate court and the arbitration award are on the merits of the arbitration award and the appellate order. None of them fall for enquiry within the scope of supervisory jurisdiction under Article 227 of the Constitution. The grounds taken by the petitioner to assail the arbitration award and the appellate order refusing to set aside the arbitration award would require a detail enquiry into the matter in hand and may also require reappreciation of evidence before the Arbitrator and the first appellate court, which is not permitted under Article 227 of the Constitution.
The Apex Court has put words of caution again and again directing the High Courts to remain careful in exercising supervisory jurisdiction under this Article. It has been held repeatedly that the power under Article 227 may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the Court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction. The power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The error of fact or of law is open to correction only if two requirements are satisfied (i) error is manifest and apparent on the face of the proceeding such as when it is based on clear ignorance or utter disregard of the provisions of law, (ii) the grave injustice or gross failure of justice has occasioned thereby. A patent error which is self-evident i.e. which can be demonstrated without involving any lengthy or complicated arguments or a long drawn process of reasoning, can be corrected and in appropriate cases, the High Court, while exercising supervisory jurisdiction, may even substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made. However, the supervisory jurisdiction cannot be used to substitute the view taken by the subordinate court ordinarily when the error cannot be called gross or patent. The High Court cannot turn into a Court of Appeal.
Reference may be made to the judgment of the Apex Court in Radhey Shyam (supra) and Surya Dev Rai (supra).
In paragraph '25' of the judgment in Surya Dev Rai (supra), the Apex Court has said that the enquiry into the entertainability of the petition under Article 227 within the scope of the power of the High Court is necessary in order to safeguard against a mere appellate or revisional jurisdiction being exercised in the garb of exercise of supervisory jurisdiction under this Article. The Courts have devised self-imposed rule of discipline on their power which they refused to exercise when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved. So long as an error is capable of being corrected by a superior court in exercise of appellate or revisional jurisdiction, it would be sound exercise of discretion on the part of the High Court to refuse to exercise power of superintendence under this Article. The relevant observations in paragraph '25' of the said report are to be reproduced as under:-
"25. In order to safeguard against a mere appellate or revisional jurisdiction being exercised in the garb of exercise of supervisory jurisdiction under Article 227 of the Constitution, the courts have devised self-imposed rules of discipline on their power. Supervisory jurisdiction may be refused to be exercised when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved. The High Court may have regard to legislative policy formulated on experience and expressed by enactments where the Legislature in exercise of its wisdom has deliberately chosen certain orders and proceedings to be kept away from exercise of appellate and revisional jurisdiction in the hope of accelerating the conclusion of the proceedings and avoiding delay and procrastination which is occasioned by subjecting every order at every stage of proceedings to judicial review by way of appeal or revision xxxxxxxxxx."
There cannot be a doubt to the legal position that the jurisdiction under Article 227 of the Constitution cannot be limited or fettered by any act of the legislature, the supervisory jurisdiction is wide and can be used to meet the ends of justice even to interfere at the interlocutory stage of the proceedings. The Constitution Bench in L. Chandra Kumar Vs. Union of India & Ors., reported in (1997) 3 SCC 261 has said that the power of judicial review under Article 226 and the power of superintendence conferred by Article 227 of the Constitution is part of the basic structure of the Constitution, forming its integral and essential feature which cannot be tempered, much less taken away even by the constitutional amendment, not to speak of a parliamentary resolution.
However, the fact remains that such a power conferred upon the High Court has to be exercised with great care and caution and in a given case, it has to decide whether to exercise it or not. The discretion conferred upon the High Court is to be exercised in a judicial manner and under the garb of the supervisory jurisdiction, it cannot indulge in making an enquiry into the evidence on record so as to interfere in the order of the subordinate courts and tribunals by taking a different view, when no case of failure of exercise of jurisdiction or grave injustice or failure of justice has been made out. It is not permitted for the High Court to convert itself into a court of appeal to examine the records of the subordinate courts and tribunals to take another view on the same set of evidence/record and to correct every error of fact or law. The constitutional power of superintendence conferred upon the High Court under Article 227 has to be sparingly used and cannot be confused as substitute of a statutory remedy.
Lastly, it would not be place to mention here that in a matter in Mahanagar Telephone Nigam Limited vs. Applied Electronics Limited11 arising out of Arbitration and Conciliation Act, 1996, taking note of Section 5 of the 1996, the Apex Court has held that the said provision has been brought by the legislature for a definite purpose so as to exclude path for judicial intervention. The Arbitration Act is a complete Code and the legislature in its own wisdom has intentionally brought Section 5 in the Arbitration Act, 1996 to underline the stress on the minimal intervention of the court and in view of concept of dispute resolution under the law of arbitration. It was held therein that as the Act, 1996 has not provided Code of Civil Procedure to be applicable and hence cross objections in an appeal preferred under Section 37 of the Act, 1996, would not be maintainable.
To press the said point, the Apex Court has referred the majority judgment of the Apex Court in SBP & Co. vs. Patel Engineering Ltd. and another12, which has dealt with the power of the High Court under Articles 226 or 227 of the Constitution to interfere at the stage of arbitration in the context of the scheme of the Arbitration Act, 1996.
The relevant observations in SBP & Co. vs. Patel Engineering Ltd. (supra) are reproduced as under:-
"45. It is seen that some High Courts have proceeded on the basis that any order passed by an arbitral tribunal during arbitration, would be capable of being challenged under Article 226 or 227 of the Constitution of India. We see no warrant for such an approach. Section 37 makes certain orders of the arbitral tribunal appealable. Under Section 34, the aggrieved party has an avenue for ventilating his grievances against the award including any in-between orders that might have been passed by the arbitral tribunal acting under Section 16 of the Act. The party aggrieved by any order of the arbitral tribunal, unless has a right of appeal under Section 37 of the Act, has to wait until the award is passed by the Tribunal. This appears to be the scheme of the Act. The arbitral tribunal is after all, the creature of a contract between the parties, the arbitration agreement, even though if the occasion arises, the Chief Justice may constitute it based on the contract between the parties. But that would not alter the status of the arbitral tribunal. It will still be a forum chosen by the parties by agreement. We, therefore, disapprove of the stand adopted by some of the High Courts that any order passed by the arbitral tribunal is capable of being corrected by the High Court under Article 226 or 227 of the Constitution of India. Such an intervention by the High Courts is not permissible.
46. The object of minimizing judicial intervention while the matter is in the process of being arbitrated upon, will certainly be defeated if the High Court could be approached under Article 227 of the Constitution of India or under Article 226 of the Constitution of India against every order made by the arbitral tribunal. Therefore, it is necessary to indicate that once the arbitration has commenced in the arbitral tribunal, parties have to wait until the award is pronounced unless, of course, a right of appeal is available to them under Section 37 of the Act even at an earlier stage."
Having considered all aspects of the matter i.e. the jurisdiction to interfere in an arbitral award and the appellate order passed by the Court under Section 33 of the Act, 1940 as also the limits on the power of superintendence under Article 227 of the Constitution of India, this Court finds that the arbitral award and the appellate order refusing to set aside the arbitral award, on the grounds taken by the petitioner herein, are not open for scrutiny within the scope of power under Article 227 of the Constitution of India and this Court cannot enter into the merits of the controversy, more so, in view of the remedy available to the petitioner to assail these orders before the Apex court.
The present petition, therefore, cannot be entertained so as to invoke supervisory jurisdiction of the High Court and is, accordingly, dismissed.