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Court abstains from interfering on finding no error apparent on the face of record under the garb of Article 227

IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P.(C) No.4854 of 2017

Shyam Sunder Saw @ Shyam Sunder Sao, s/o Nathuni @ Nathu Sao, r/o Tisri, PO & PS Tisri, District Giridih……. Plaintiff/Petitioner

Versus

1. Manoj Yadav,
2. Prakash Yadav, Both 1 & 2 s/o Late Parmeshwar Yadav
3. Sripati Yadav, s/o Late Satyendra Yadav.
4. Ramdeo Yadav, s/o Late Thanu Yadav
All r/o Dalpathdih, PO & PS Tisri, district Giridih……. Defendants/ Respondents

CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

For the Petitioner : Mr. Yogesh Modi, Advocate
For the Respondents : Mr. Prabhash Ch. Sinha, Advocate

05/Dated 04th February, 2019

1. This writ petition is under Article 227 of the Constitution of India wherein order dated 30th May, 2017 passed in title suit No.53 of 2014 by Senior Division, Civil Judge, Giridih is under challenge whereby and whereunder the application filed under Order VI Rule 17 seeking therein prayer to allow the plaintiff to make amendment in the plaint to the fact as stipulated under schedule to the petition under Order VI Rule 17 (Annexure-3) which having been rejected, this writ petition has been filed invoking the revisional jurisdiction of this Court conferred under Article 227 of the Constitution of India.

2. The brief facts of the case of the petitioner is that a suit has been filed for declaration of right and title over the suit property as would be evident from the copy of the plaint annexed as Annexure-1.

3. It is evident that the defendants have appeared and filed written statements as would be evident from Annexure-2 annexed to the writ petition. At that stage, a petition under Order VI Rule 17 has been filed for incorporating at paragraph 14 of the plaint to the effect that “during the pendency of the suit the defendant on the strength lathials and messeles man encroached suit land and constructed house over the portion of the suit land illegally which is liable to be removed by the process of the court.”

4. The trial Court after taking into consideration the fact that the suit is for declaration of right and title over the land in question and if the aforesaid amendment would be allowed, the nature of the suit will be changed since the amendment sought for was in the nature of seeking a direction for removing the defendant from the aforesaid land. The trial Court has further taken into consideration that the fact about the said encroachment was within the knowledge of the plaintiff since it has been referred in the plaint and therefore the said amendment application has been rejected.

5. Learned counsel for the petitioner submits that the trial Court has not considered the fact that if the aforesaid amendment would be allowed, the nature of the suit will not be changed rather in order to avoid the multiplicity of the proceedings, the aforesaid amendment ought to have been allowed.

6. Mr. Prabhash Ch. Sinha has put his appearance to represent the respondents who has opposed the impugned order by submitting that the fact about the said encroachment cannot be said to be subsequent to filing of the plaint rather considered that the said fact was known to the petitioner at the time of filing of the plaint but no such prayer has been made, and therefore, the Court after taking into consideration the stage of the trial since the written statements have already been filed therefore, has not allowed the said amendment since the prayer made in the said amendment is quite different to that of the prayer made in the plaint. In view thereof, it has been submitted that no interference needs to be made by this Court under its extraordinary jurisdiction conferred under Article 227 of the Constitution of India.

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7. Having heard the learned counsel for the parties and on appreciating their rival submission it is evident that the petitioner/plaintiff has filed title suit for declaration of right and title over the property in question, in which the respondents/defendants have appeared and filed written statements.

8. The petitioner/plaintiff has filed an application under Order VI Rule 17 read with Section 151 of the Civil Procedure Code seeking therein to incorporate the amendment in the plaint to be inserted after paragraph 14 as per the schedule made in the petition filed under Order VI Rule 17 as quoted hereinabove.

9. The Court after taking into consideration the scope of the Order VI Rule 17 has considered the fact that the suit is for declaration of right and title on the basis of a registered deed of sale and now the petitioner is willing to incorporate in the plaint the encroachment over the suit land and its removal, therefore, this court after considering the fact that the nature of the suit will be changed, has rejected the plaint.

10. This Court sitting under Article 227 of the Constitution of India under which the revisable power has been conferred, which is to look into the legality and proprietory and the High Court can interfere if there is error apparent on the face of record or the order is without jurisdiction or beyond jurisdiction as has been held in the judgment rendered by Hon’ble Apex Court in the case of Shalini Shyam Shetty vs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 has been pleased to lay down therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Hon’ble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee, reported in AIR 1951 Calcutta 193, wherein it has been laid down that Article 227 of the Constitution of India does not vest the High Court with limit less power which may be exercised at the Court’s discretion to remove the hardship of particular decisions. The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the High Court’s power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner.

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11.The power of superintendence is not to be exercised unless there has been:-

(a) An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or
(b) gross abuse of jurisdiction or
(c) an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals.
12. Further, in the aforesaid judgment of the Hon’ble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, reported in (1991) 3 SCC 141 wherein it has been laid down that in exercise of jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to.

13.The Hon’ble Apex Court has made it clear that except to this limited extent the High Court has no jurisdiction to interfere with the finding of facts.

14. Further, the judgment rendered by the Hon’ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice.

15. It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appeallable. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields. Another distinction between these two jurisdictions is that under Article 226 the High Court normal annuls or quashes an order or proceedings but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made.

16.It has further been laid down regarding the powers to be exercised by the High Court under Article 227 of the Constitution of India. The High Court, in exercise of its jurisdiction of superintendence, can interfere in order only to keep the tribunals and courts subordinate to it within the bounds of its authority, in order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested with them and by not declining to exercise the jurisdiction which is vested in them. Apart from that, High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

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17. In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

18.This Court before looking into the legality and proprietory of the order impugned has also gone across the provision of Order VI Rule 17 of the C.P.C. which speaks as follows:-

“17. Amendment of pleadings.–The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”
19.It is thus, evident that Order VI Rule 17 submits that the amendment if sought for is to be allowed subject to condition that the nature of suit is not to be changed or the prayer made is subject to the period of limitation and it is to be allowed in order to avoid multiplicity of proceedings.

20.This Court has examined the factual aspect involved in this case in the light of the Order VI Rule 17 as also the power conferred to this Court under Article 227 of the Constitution of India and has found that the suit has been filed for declaration of right and title on the basis of its purchase through a registered deed of sale.

In the plaint, the petitioner has made a reference of the encroachment by the defendant and when the defendants have appeared and filed their written statements, the aforesaid application has been filed seeking the aforesaid amendment.

21.The question here will be that the petitioner is concerned only with respect to the removal of the encroachment, if that be so, the petitioner should have made an application for getting an injunction but not to add as ground of declaration of right and title, therefore, the trial Court has found that the prayer made in the suit which is for declaration of right and title and subsequent thereto, the prayer has been made for removal of encroachment that is quite different to each other, and hence, come to the conclusion that the nature of suit will change and accordingly has rejected the said application.

22.In the considered view of this Court and looking into the scope of Order VI Rule 17 and also the scope of Article 227 of the Constitution of India, the order needs no interference since there is no error apparent on the face of record.

23.In view thereof, this writ petition fails and is dismissed.

(Sujit Narayan Prasad, J.)

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