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Rajendra vs Archana on 26 March, 2018

HIGH COURT OF MADHYA PRADESH: BENCH AT
INDORE
M.P. No.1550/2018
(Rajendra Vs. State of M.P.)

Indore, dated 26.03.2018

Parties through their counsel.

The petitioner before this Court has filed this present petition
being aggrieved by the order dated 24/01/2018 passed in Case
No.1390/2016 by the 1st Additional Principal Judge, Family Court,
Indore.

The facts of the case reveal that the present petitioner who is
serving in the Department of Home Guard has filed a divorce
petition against his wife. The facts also reveal that the wife was
receiving Rs.1,000/- per month towards maintenance and the same
has been enhanced to Rs.2,000/- per month.

The order passed by the trial Court reveals that the trial Court
has granted interim maintenance to the tune of Rs.2,000/- per month
and for each and every date of hearing Rs.800/- has been granted as
traveling allowance, as the wife is required to attend the hearing at
Indore. She is coming from Multai District Betul and in those
circumstances, Rs.800/- per hearing has been granted to the wife.
Not only this one time cost of litigation has been granted as
Rs.15,000/-.

Learned counsel for the petitioner has argued before this
Court that Rs.15,000/- is on other higher side.

This Court has carefully gone through the order passed by the
trial Court, the trial Court has granted interim maintenance on an
application preferred under Section 24 of the Hindu Marriage Act
and the same is to the tune of Rs. 2,000/- per month, which is
certainly not on the higher side. The sum of Rs.8,00/-, as a lady has
to come all the way from Betul, is also not on the higher side.

In the considered opinion of this Court, so far as the cost of
litigation is concerned, for engaging a counsel for defending the wife
only a sum of Rs.15,000/- has been granted. The order passed by the
trial Court does not suffer from any perversity.

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.

(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 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 neither suffers from any jurisdictional error nor from any
perversity, this Court does not find any reason to interfere with the
order dated 24/01/2018.

Resultantly, the present petition stands dismissed.
Certified copy as per rules.

(S. C. Sharma)
Judge

vibha
Digitally signed by Vibha
Pachori
Date: 2018.03.27 16:07:32
+05’30’

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