Surender Kumar Alias Sylindri … vs State Of H.P. And Others on 16 October, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No. 455 of 2017
Date of decision: 16.10.2017

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Surender Kumar alias Sylindri Baba …Petitioner

Versus
State of H.P. and others. …Respondents

Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting?1 No

For the Petitioner: Mr. G. R. Palsra, Advocate.

For the Respondents: r Nemo.

Tarlok Singh Chauhan J. (Oral).

The petitioner being aggrieved by the orders passed by the

learned Courts below declining to grant interim injunction in his favour has

filed the instant petition by invoking Article 227 of the Constitution of India.

2. The petitioner/plaintiff has filed a suit for declaration and

injunction against the respondents/defendants and alongwith the suit an

application under Order 39 Rules 1 2 CPC was filed for grant of interim

injunction restraining the respondents/defendants from causing interference in

the so called legal vested right of the plaintiff, who claims himself to be ‘Pujari’

of ‘Baba Mahamrityunjaya’ temple situated on the land as detailed in paras 1

and 2 of the plaint. The land is alleged to be in joint ownership of respondent

No.4 alongwith other co-sharers. It is claimed that one hut (Kutiya) had been

constructed by the predecessor-in-interest of the petitioner and is now being

used by him as a ‘Pujari’. The respondents through revenue agency got the

suit land inspected and in the report so submitted it was admitted that the

petitioner is a ‘Pujari’ of the temple. On 14.4.2016 the respondents started

causing interference over the suit land on the plea that the temple had been

taken over by the Government, but even then the petitioner being in settled

Whet her t he r epor t er s of t he l ocal paper s may be al l owed t o see t he Judgment ? Yes.

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possession could not have been dispossessed save and except in

accordance with law.

3. The respondents contested the suit as also the application

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wherein it was averred that the petitioner had encroached upon the land

comprised in Khasra No. 217/1. It was further averred that the petitioner had

no right, title or interest over the said temple. The other respondents also

denied the petitioner’s claim and averred that he was the stranger who had

snatched the keys of the temple from one Dharam Pal. The fact that there

being a hut over the suit land etc. was denied.

4. As observed earlier, the learned trial Court dismissed the

application filed by the petitioner for interim injunction and the appeal filed

against the said order was also dismissed by the learned first appellate Court.

It is against both these orders that the instant petition has been filed by the

petitioner on various grounds as taken in the memo of the petition.

I have heard Mr. G.R. Palsra, Advocate, learned counsel for the

petitioner and have gone through the material placed on record.

5. 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

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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.

6. 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.”

7. 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.

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8. 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.”

9.

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.”

10. 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

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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.”

11. 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”.

[

12. 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.”

13. 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

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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.

16. 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.

42. 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.”

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14. The factors required to be borne in mind while granting or

refusing injunction have been lucidly considered by a Hon’ble Division Bench

of this Court in LPA No. 4002 of 2013 titled Sarvjeet Singh (deceased)

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through LRs Simranjeet Singh and others vs. Punjab and Sind Bank,

decided on 13.5.2014 and the relevant observations reads thus:

“17. Before we deal with the merits of the case, it is profitable to
discuss that while making an order under Order 39 Rules 1 2 of
the CPC, Court has to keep in mind three principles, as under:

(i) Prima-facie case;

(ii) balance of convenience; and

(ii) irreparable loss and injury.

18. All the three principles, which are required for making an order
in terms of Order 39 Rules 1 2 of the CPC, are in favour of the
plaintiff-respondent. The question is, whether it is the same

property, description of which has been given in OMP No. 360/2003,
or somewhat different property.

**** **** ****

25. Applicant has to carve out that he/she has a prima-facie case,

balance of convenience lies in his/her favour and in case restraint
order is not made, he/she will suffer irreparable loss and injury. It is

necessary to give details of the law laid down by the Apex Court and
the Hon’ble High Courts and Privy Council while discussing the
mandate of Order 39 Rules 1 2 of the CPC. The Hon’ble Supreme
Court in cases titled as Manohar Lal Chopra versus Rai Bahadur
Rao Raja Seth Hiralal , reported in AIR 1962 SC, 527, Hari Shankar
and others versus Satya Prakash and another, reported in AIR 1982
Rajasthan 183, M. Gurudas others versus Rasaranjan others,
reported in 2006 AIR SCW 4773, Skyline Education Institute (Pvt.)
Ltd. versus S.L. Vaswani another, reported in 2010 AIR SCW 628,
Kashi Nath Samsthan and another versus Shrimad Sudhindra
Thirtha Swamy and another, reported in (2010) 1 SCC 689, Super
Cassettes Industries Ltd. versus Music Broadcast Pvt. Ltd., reported
in 2012 AIR SCW 2915, Jehal Tanti others versus Nageshwar
Singh (D) thr. LRs, reported in 2013 AIR SCW 2854 and Mohd.
Mehtab Khan and others versus Khushnuma Ibrahim Khan and
others, reported in (2013) 9 SCC 221, has discussed all the three
principles.

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26. It is apt to reproduce paras 19 22 of M. Gurudas’ judgment,
supra, herein:

“19. While considering an application for injunction, it is well-

.

settled, the courts would pass an order thereupon having regard to:

(i) Prima facie

(ii) Balance of convenience

(iii) Irreparable injury.

22. 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 and Another v. Prahlad Singh and Others (1992) 1 SCC 719,
United Commercial Bank v. Bank of India and Others (1981) 2 SCC 766,

Gujarat Bottling Co. Ltd. and Others v. Coca Cola Co. and Others (1995)
5 SCC 545,
Bina Murlidhar Hemdev and Others v. Kanhaiyalal Lokram

Hemdev and Others (1999) 5 SCC 222 and Transmission Corpn. of A.P.
Ltd (supra)]”

27.The Hon’ble apex Court in Super Cassettes Industries’ case,

supra, in paras 50 51 held as under:

“50. Therefore, the jurisdiction and authority of only the
Tribunals, but also the Courts are structured by the statutory
grants and limitations.

51. However, both the grant as well as the limitations could be
either express or implied from the scheme of a particular
enactment. The considerations relevant for ascertaining whether
there is an implied grant of such powers, as can be culled out
from the various judgments relied upon by the learned counsel
appearing in these matters, which have been taken not of by my
learned brother Justice Kabir, appear to be; (1) need to preserve
status quo with respect to the subject matter of the dispute in
order to enable the party, which eventually succeeds in the
litigation, to enjoy the fruits of the success; and (2) need to
preserve the parties themselves a consideration, which weighed
heavily with this Court in implying such powers in favour of the

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Magistrates while exercising the jurisdiction under Section 125
of the Code of Criminal Procedure.”

28. The Apex Court in another case titled Best Sellers Retail (India)

.

Private Ltd. versus Aditya Birla Nuvo Ltd. and others, reported in

(2012) 6 SCC 792, also held that the plaintiff has not only to show
prima facie case, but also has to carve out a case for grant of relief

by disclosing and indicating that all the said three principles not only
exist but co-exist. It is apt to reproduce para 29 of the judgment,
supra, herein:-

“29. Yet, the settled principle of law is that even where prima facie
case is in favour of the plaintiff, the Court will refuse temporary
injunction if the injury suffered by the plaintiff on account of refusal

of temporary injunction was not irreparable.”

29. Recently, the apex Court has developed another principle and
has held that while granting or :refusing interim relief, during the
pendency of the suit, in terms of provisions of Order 39 Rules 1 2

of the CPC, the conduct of the parties is also of vital importance.
The Apex Court in Dalpat Kumar and another versus Prahlad Singh

and others, reported in AIR 1993 SC 276,M/s Gujrat Bottling Co.
Ltd. others versus Coca Cola Company and others, reported in

AIR 1995 SC 2372, Mandali Ranganna others etc. versus T.
Ramachandra others, reported in 2008 AIR SCW 3817 and

Makers Development Services Private Ltd. versus M. Visvesvaraya
Industrial Research and Development Centre, reported in (2012) 1
SCC 735 has held that in addition to three principles, the Court has
also to take into consideration the conduct of the parties.

30. It is profitable to reproduce para 18 of Mandali’s judgment,
supra, herein:

“18. While considering an application for grant of injunction, the
Court will not only take into consideration the basic elements in
relation threreto viz., existence of a prima facie case, balance of
convenience and irreparable injury, it must also take into
consideration the conduct of the parties. Grant of injunction is an
equitable relief. A person who had kept quiet for a long time and
allowed another to deal with the properties exclusively, ordinarily
would not be entitled to an order of injunction. The Court will not
interfere only because the property is a very valuable one. We are
not however, oblivious of the fact that grant or refusal of injunction

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has serious consequence depending upon the nature thereof. The
Courts dealing with such matters must make all endeavours to
protect the interest of the parties. For the said purpose, application
of mind on the part of the Courts is imperative. Contentions raised

.

by the parties must be determined objectively.”

31. The apex Court in Makers Development’s’ case, supra, in para

11 held, as under:

“11 .It is settled law that while passing an interim order of injunction
under Order XXXIX Rules 1 and 2
of the Code of Civil Procedure,

1908, the Court is required to consider three basic principles,
namely, a) prima facie case, b) balance of convenience and
inconvenience and c) irreparable loss and injury. In addition to the

above mentioned three basic principles, a court, while granting

injunction must also take into consideration the conduct of the
parties.”

15. From the aforesaid exposition of law, it can be taken to be well

settled that while considering an application for grant of injunction, the Court

will not only take into consideration the existence of a primafacie case,

balance of convenience, irreparable loss and or injury, but would also take

into consideration the conduct of the parties. After all, grant of injunction is an

equitable relief. It is also to be judged that grant or refusal of injunction has

serious consequences depending upon the nature of the case. The existence

of a primafacie case is not to be confused with primafacie title, which can only

be ascertained on the basis of the evidence at the time of trial. Satisfaction

that there is a primafacie case by itself cannot be the only sole ground to

grant injunction. A duty is cast on the Court to satisfy itself as to whether on

account of non-interference by the Court at that stage would result in

irreparable injury to the parties seeking the relief and it must be established

that there is no other remedy available to that party except one relating to

grant of injunction. The injury complained of should not be confused with

possibility of physical injury but the injury must be with material one which

cannot be adequately compensated by way of damages. That apart,

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the Court is to weigh the balance of convenience and inconvenience.

Therefore, the Court while granting or refusing injunction, must exercise

judicial discretion to find out the substantial mischief or injury which is likely to

.

be caused to the parties, if the injunction is refused and compare it with the

likelihood of injury to the other side if the injunction is granted. It is only

thereafter that the Court will then either grant injunction or refuse the same.

16. Bearing in mind the aforesaid principles, it would be noticed that

the specific case of the petitioner is that he is a ‘Pujari’ of the temple.

However, surprising he has not produced any record or material by which it

can be primafacie established that as to how the petitioner came to be

appointed as Pujari and who appointed him as such. Normally, a Pujari is

appointed on hereditary basis or by way of an order passed by the competent

person/authority. In this case, both of these conditions are lacking and,

therefore, in absence of the either, the learned Courts below have committed

no error as it seems that the petitioner is only a self styled Pujari of the said

temple.

17. In view of the aforesaid discussion, there is no merit in this

petition and the same is dismissed in limine.

(Tarlok Singh Chauhan),
Judge
16th October, 2017.

(GR)

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