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Mohammad Maksood vs Smt. Shahin on 20 July, 2018

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

Misc. Petition No.175/2018
(Mohd. Maqsud Anr. Vs. Smt. Shahin Ors.)
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Indore, dated 20/07/2018

Ms. Sushma Sharma, learned counsel for the petitioners.

Mr. Sachin Parmar, learned counsel for the respondents.

The petitioners before this Court have filed present petition

being aggrieved by order dated 03/11/2017 passed by III Additional

District Judge, Dr. Ambedkar Nagar (Mhow), Distt. Indore in Case

No.15/2017.

The facts of the case reveal that the petitioners before this

Court, who are grand parents of two minor children namely Mustafa

and Ku. Mansha, have filed a case under the Guardian and Wards

Act,1890 claiming custody of minor children.

During the pendency of the case, an application was

preferred under Section 151 of the Code of Civil Procedure, 1908

and a prayer was made that the minor children should be permitted

to meet the grand parents. The application was opposed by the

mother, who is a widow and it was stated by the mother of those

minor children that when the husband was alive, both the petitioners

before this Court have thrown out the entire family out of the house

and later on the husband also expired and it is the widow who is

looking after the minor children for last 3-4 years and for the last 3-4

years, the present petitioners have not taken care to know the

condition of the minor children of the widow.
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

Misc. Petition No.175/2018
(Mohd. Maqsud Anr. Vs. Smt. Shahin Ors.)
-2-

The trial Court as statements are yet to be recorded in the

matter, has declined the prayer of the petitioners. In the considered

opinion of this Court, keeping in view the peculiar facts and

circumstances of the case, at this juncture, this Court does not find

any reason to interfere with the order dated 03/11/2017. The order

passed by the trial Court does not suffer from perversity nor any

jurisdiction error.

The apex court in the case of Shalini Shyam Shetty Vs.

Rajendra Shankar Patil reported in 2010 (8) SCC 329 in paragraph

49 held as under:-

“49. On an analysis of the aforesaid decisions of this Court, the
following principles on the exercise of High Court’s jurisdiction
under Article 227 of the Constitution may be formulated:

(a) A petition under Article 226 of the Constitution is different
from a petition under Article 227. The mode of exercise of power by
High Court under these two Articles is also different.

(b) In any event, a petition under Article 227 cannot be called a
writ petition. The history of the conferment of writ jurisdiction on
High Courts is substantially different from the history of conferment
of the power of Superintendence on the High Courts under Article
227 and have been discussed above.

(c) High Courts cannot, on the drop of a hat, in exercise of its
power of superintendence under Article 227 of the Constitution,
interfere with the orders of tribunals or Courts inferior to it. Nor can
it, in exercise of this power, act as a Court of appeal over the
orders of Court or tribunal subordinate to it. In cases where an
alternative statutory mode of redressal has been provided, that
would also operate as a restrain on the exercise of this power by
the High Court.

(d) The parameters of interference by High Courts in exercise
of its power of superintendence have been repeatedly laid down by
this Court. In this regard the High Court must be guided by the
principles laid down by the Constitution Bench of this Court in
Waryam Singh (supra) and the principles in Waryam Singh (supra)
have been repeatedly followed by subsequent Constitution
Benches and various other decisions of this Court.

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

Misc. Petition No.175/2018
(Mohd. Maqsud Anr. Vs. Smt. Shahin Ors.)
-3-

(e) According to the ratio in Waryam Singh (supra), followed in
subsequent cases, 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 their authority’.

(f) In order to ensure that law is followed by such tribunals and
Courts by exercising jurisdiction which is vested in them and by not
declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court
can interfere in exercise of its power of superintendence when
there has been a patent perversity in the orders of 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.

(h) 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.

(i) High Court’s power of superintendence under Article 227
cannot be curtailed by any statute. It has been declared a part of
the basic structure of the Constitution by the Constitution Bench of
this Court in the case of L. Chandra Kumar vs. Union of India
others, reported in (1997) 3 SCC 261 and therefore abridgement
by a Constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather
cognate provision, like Section 115 of the Civil Procedure Code by
the Civil Procedure Code (Amendment) Act, 1999 does not and
cannot cut down the ambit of High Court’s power under Article 227.
At the same time, it must be remembered that such statutory
amendment does not correspondingly expand the High Court’s
jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on
equitable principle. In an appropriate case, the power can be
exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power
of the High Court under Article 227, it transpires that the main
object of this Article is to keep strict administrative and judicial
control by the High Court on the administration of justice within its
territory.

(m) The object of superintendence, both administrative and
judicial, is to maintain efficiency, smooth and orderly functioning of
the entire machinery of justice in such a way as it does not bring it
into any disrepute. The power of interference under this Article 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.

(n) This reserve and exceptional power of judicial intervention is
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

Misc. Petition No.175/2018
(Mohd. Maqsud Anr. Vs. Smt. Shahin Ors.)
-4-

not to be exercised just for grant of relief in individual cases but
should be directed for promotion of public confidence in the
administration of justice in the larger public interest whereas Article
226 is meant for protection of individual grievance. Therefore, the
power under Article 227 may be unfettered but its exercise is
subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be
counter-productive and will divest this extraordinary power of its
strength and vitality.”

In light of the aforesaid judgment as no patent illegality has

been committed by the trial Court and the order passed by the trial

court does not suffer from any jurisdictional error, this court does not

find any reason to interfere with the order dated 03/11/2017.

No order as to costs. Certified copy as per rules.

(S. C. SHARMA)
JUDGE
Tej

Digitally signed by
Tej Prakash Vyas
Date: 2018.07.20
15:23:58 +05’30’

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