Court No. - 18
Case :- MATTERS UNDER ARTICLE 227 No. - 5033 of 2018 Petitioner :- Suresh Chandra @ Ramesh Chandra And 3 Others Respondent :- Additional District Judge, Court No.6 Bareilly And 3 Others Counsel for Petitioner :- Kshitij Shailendra Counsel for Respondent :- Shams Tabrez Ali Hon'ble Mahesh Chandra Tripathi,J. Heard learned counsel for the parties.
The plaintiff-petitioners are before this Court assailing the validity of the order dated 12.4.2018 passed by the Addl. District Judge, Court No.6, Bareilly in Misc. Civil Appeal No.13 of 2018 (Laiq Ahmad & Ors. v. Suresh Chandra @ Ramesh Chandra & Ors.) whereby the order dated 27.1.2018 passed by Civil Judge (JD), Baheri, Barelli had been set aside by which the latter court had allowed the injunction application (paper no.6Ga) filed by the plaintiff-petitioners in Original Suit No.38 of 2016.
Learned counsel for the petitioners submits that the appellate court had misunderstood the law relating to grant of temporary injunction. The same are well settled by Hon'ble the Apex Court in Anand Prasad Agarwalla v. Tarkeshwar Prasad & Ors., AIR 2001 SC 2367; Barak Upatyaka D.U. Karmachari Sanstha, (2009) 5 SCC 694; S.M. Dyechem Ltd. v. M/s Cadbury (India) Ltd., 2000 AIR (SC) 2114; Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd., 1999 AIR (SC) 3105. So far as mutation matter is concerned, merely because the entries were reversed, there was nothing on record to demonstrate that names of defendants were recorded in the revenue record. Rather by reversing the entry at one point of time, the name of vendor of the petitioner's father was recorded. The said entry could not be read in favour of the defendant-respondents. As such it is sought to be contended that during the pendency of civil litigation, nature, character and possession over the suit property should be protected and preserved. The findings recorded by the appellate court to the effect that the plaintiff- petitioners have not approached the court below with clean hands is totally perverse inasmuch as there was no basis for arriving at the said conclusion except that a suit for cancellation of sale deed is pending consideration and as such order impugned is liable to be set aside and till the disposal of the suit in question parties may be directed to maintain status quo qua the suit property.
On the other hand, Shri Shams Tabrez Ali, learned counsel for the defendant-respondents has vehemently opposed the writ petition and submitted that categorical finding of fact has been recorded by the appellate court that the plaintiff-petitioners had not approached to the court below with clean hands as admittedly the suit for cancellation of sale deed was pending consideration and it is wrong to say that the said suit was for different purpose, wherein even the injunction was sought for and moreover it was paramount responsibility of the litigant to approach the court with clean hands. The appellate court had rightly proceeded to consider that the plaintiff-petitioners do not have prima facie case, balance of convenience and irreparable loss in their favour and as such there is no infirmity or illegality in the order impugned.
The Court has proceeded to examine the record in question and find that learned counsel for the petitioners could not point out any manifest error apparent on the face of record in the impugned order so as to justify interference by this Court in extra ordinary jurisdiction under Article 227 of the Constitution of India.
The court below has recorded categorical 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 D. N. Banerji Vs. P. R. Mukherjee 1953 SC 58 Hon'ble Supreme Court said:
"Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 of the Constitution to interfere."
A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 and made following observations at p. 571 :
"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, 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".
The Constitution Bench of Apex Court in Nagendra Nath Bora and Another v. Commissioner of Hills Division and Appeals, Assam & Others AIR 1958 SC 398 settled that power under Article 227 is limited to seeing that the courts below function within the limit of its authority or jurisdiction.
Hon'ble Apex Court had an occasion to examine this aspect of the matter in the case of Mohd. Yunus v. Mohd. Mustaqim & Others (1983) 4 SCC 566 in which Hon'ble Apex Court observed that the supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority," and not to correct an error apparent on the face of the record, much less an error of law. For this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision."
The said view has also been reiterated by the Apex Court in Laxmikant Revchand Bhojwani & Another v. Pratapsing Mohansingh Pardeshi (1995) 6 SCC 576 and the Apex Court had again cautioned that the High Court under Article 227 of the Constitution 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.
A three-Judge Bench of Hon'ble Apex Court in Rena Drego (Mrs.) v. Lalchand Soni & Others (1998) 3 SCC 341 again abundantly made it clear that the High Court cannot interfere with the findings of fact recorded by the subordinate court or the tribunal while exercising its jurisdiction under Article 227. Its function is limited to seeing that the subordinate court or the tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and re- appreciating it.
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 order impugned in this writ petition.
The writ petition sans merit and is accordingly dismissed.
Order Date :- 30.7.2018 SP/