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Ram Roop and ors. Vs. Bishwa Nath and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. No. 237 of 1953
Judge
Reported inAIR1958All456
ActsConstitution of India - Articles 226 and 227; Code of Civil Procedure (CPC) - Sections 115
AppellantRam Roop and ors.
RespondentBishwa Nath and ors.
Appellant AdvocateSatish Chandra, Adv.
Respondent AdvocateK.M. Sinha, Adv.
DispositionApplication dismissed
Excerpt:
constitution - principles relating to scope of article 227 - article 227 of constitution of india - the superintendence referred in article 227 includes judicial superintendence - power conferred is wide but not unlimited - power is discretionary and relief not a matter of right - based on same principles as article 226 - wider as sometimes high court can issue directions not available under article 226. - - under that section, however, the revisional powers could be exercised only if the subordinate court appeared to have exercised jurisdiction, not vested in it or to have failed to exercise a jurisdiction so vested in it. in 1935, the government of india act, 1915 was replaced by the government of india act, 1935. section 224 of the new act took the place of section 107 of the old.....a.p. srivastava, j. 1. this is an application under article 227 of the constitution read with section 115 of the code of civil procedure.2. on 29th february 1952, the opposite parties filed a suit in the court of the munsif of mirzapur claiming possession over the plots mentioned in the plaint. the allegations with which the opposite parties came were these: the land in dispute was lying parti before 1356f. there were many self-grown trees on it on 26th february 1949, the zamindar of the village granted a patta in respect of the land in favour of the opposite parties and they entered into possession of the same.they themselves planted some trees on the land also. having deposited ten times the rent they obtained a bhumidhari sanad in respect of the land. when they started building.....
Judgment:

A.P. Srivastava, J.

1. This is an application under Article 227 of the Constitution read with Section 115 of the Code of Civil Procedure.

2. On 29th February 1952, the opposite parties filed a suit in the Court of the Munsif of Mirzapur claiming possession over the plots mentioned in the plaint. The allegations with which the opposite parties came were these: The land in dispute was lying parti before 1356F. There were many self-grown trees on it On 26th February 1949, the zamindar of the village granted a patta in respect of the land in favour of the opposite parties and they entered into possession of the same.

They themselves planted some trees on the land also. Having deposited ten times the rent they obtained a Bhumidhari Sanad in respect of the land. When they started building constructions on it, the fact was resented by the petitioners who in collusion with the patwari had got the land entered in the papers in their own names. With the object of making the opposite parties give up the land the petitioners started litigation in respect of it and at first launched criminal proceedings.

The opposite parties then filed a suit in the revenue Court under Section 59 of the Tenancy Act claiming a declaration that they were the tenants of the land. The suit was decreed by the trial Court but was dismissed on appeal on the ground that as the opposite parties who befere the plaintiffs were not in actual possession they could not be granted a declaration in view of the proviso to Section 42 of the Specific Relief Act.

The suit out of which the present application has arisen was then filed in the Munsifs Court and the opposite parties claimed possesion over the land. The petitioners who were the defendants contested the suit on various grounds. They pleaded inter alia that the land in dispute was really a grove of which they had been in possession for the last 32 years and they had also their constructions on it. They also pleaded that the suit was not triable by the civil Court and that it was barred by limitation.

The munsif framed several issues in the case, one of them being whether the suit was not cognizable by the civil Court. He took up this issue as a preliminary issue and decided it in the negative. He then fixed a date for the hearing and disposal of the other issues in the case. The petitioners then filed the present application and prayed that the order of the learned Munsif be set aside as the view taken by him on the question of jurisdictionwas erroneous.

The petition came up before Mr. Justice V.D. Bhargava and it was urged on behalf of the opposite parties that the decision was on a preliminary issue framed in the case and as no case had been decided no application under Section 115 was entertainable. They also urged that in the circumstances of the case the relief prayed for by the petitioners could not be granted to them even under Article 227 of theConstitution.

In support of (sic) Buddhoo Lal v. Mewa Sam, 19 All LJ 558: (AIR 1921 All 1) (FB) (A), which had been approved by a Full Bench of this Court in Ram Richpal Singh v. Daya Nand Sarup : AIR1955All309 . In support of the latter contention reliance was placed on the cases reported in Har Saran Dass v. Mukandi Lal : AIR1951All514 , and the State of Uttar Pradesh v. Abdul Aziz : AIR1955All673 .

The learned counsel for the petitioner conceded that as the case had not been finally decided the impugned order could not be revised under Section 115 of the Code of Civil Procedure. He strenuously urged however that as the Munsif had really no jurisdiction to try the suit and had assumed a jurisdiction not vested in him this Court should interfere under Article 227 of the Constitution and quash his order.

The learned counsel questioned (he correctness of the two decisions relating to the scope of Article 227 relied upon by the opposite parties and pointed out that the decisions were not in consonance with a series of decisions of this Court beginning with the Full Bench case of Tej Ram v. Harsukh, ILR 1 All 101 (E), and ending with Firm Stint Lal Mahadeo Prasad v. Kedar Nath : AIR1935All519 .

Mr. Justice Bhargava felt that 'as the point is of frequent occurrence and the Courts often decide the question of jurisdiction as a preliminary issue an authoritative pronouncement of at least a Bench of two Judges or a Full Bench is necessary on the question that if only the issue of jurisdiction of the Court is decided whether this Court should under its powers under Article 227 of the Constitution interfere if the decision of the Court below seems to be incorrect'. The case has come up before us for decision as a result of his reference.

3. The first clause of Article 227 of the Constitution confers on every High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. If the history of this matter is looked into it will be found that this power of superintendence was conferred first on the High Courts established in the Presidency Towns of India by Section 15 of the Indian High Courts Act, also known as Charter Act, passed by the Parliament in 1861 (24 & 25 Vic. C. 104).

The opening words of Section 15 are 'Each of the High Courts established under this Act shall have superintendence over all Courts which may be subject to its appellate jurisdiction.'' In the Civil Procedure Code of 1859 which was in force at that time there was no provision for the exercise of a reyisional power by the High Courts. By Section 35 of Act 23 of 1861 the Sudder Courts were empowered 'to call for the records of any case decided in appeal by a subordinate Court in which no further appeal lay when the subordinate Court appeared to have exercised a jurisdiction not vested in it.'

In the Code which was enacted in 1877, provision was made for the first time for the exercise of revisional powers in Section 622 of the Code. Under that section, however, the revisional powers could be exercised only if the subordinate Court appeared to have exercised jurisdiction, not vested in it or to have failed to exercise a jurisdiction so vested in it.

There was no provision in the section eorresponding to the present Clause (c) of Section 115 of the Code of Civil Procedure of 1908. When the Government of India Act of 1915 was enacted, Section 107 of that Act conferred on all High Courts the power of superintendence over all subordinate Courts. A question then arose whether the power of superintendence conferred by that section included judicial superintendence or was confined to administrative superintendence only.

The term superintendence was interpreted by the Courts to include both administrative and judicial superintendence and the provision was therefore utilised when a proper case arose for revising those orders which were not found to be covered by Section 115 of the Code of Civil Procedure or Section 439 of the Code of Criminal Procedure.

In 1935, the Government of India Act, 1915 was replaced by the Government of India Act, 1935. Section 224 of the new Act took the place of Section 107 of the Old Act with this difference that Sub-section (2) of Section 224 clearly provided 'nothing in this section shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to an appeal or revision'.

Thus the judicial superintendence which the High Court exercised under Section 107 of the Old Act was expressly taken away, (See Bal Krishna v. Emperor, AIR 1933 Bom 1 (SB) (G)). Article 227 of the Constitution has been enacted in place of Section 224 of the Government of India Act of 1935. But it is noticeable that there is no provision in it corresponding to subsection (2) of Section 224 of the Act of 1935. When a question was raised whether the superintendence referred to in Article 227 included judicial superintendence it was answered in the affirmative. Thus, in the case of Waryam Singh v. Amar Nath : [1954]1SCR565 , it was laid down

'This significant omission has been regarded by all High Courts in India before whom this question has arisen as having restored to the High Court the power of judicial superintendence it had under Section 15 of the High Courts Act, 1861 and Section 107 of the Government of India Act, 1915. See the cases referred to in Motilal v. State : AIR1952All963 . Our attention has not been drawn to any case which has taken a different view and as at present advised we see no reason to take a different view.'

Tliis view was confirmed later in Hari Vishnu Kamath v. Ahmad Ishaque : [1955]1SCR1104 . After, these pronouncements by the Supreme Court it can no longer be maintained that the power of superintendence conferred by Article 227 is confined to administrative matters and does not include judicial superintendence.

4. While rejecting the contention that the power of superintendence conferred by Article 227 was only administrative the Supreme Court had observed in Waryam Singh's case (H):

'Further, the preponderance of judicial opinion in India was that Section 107 which was similar in terms to Section 15 of the High Courts Act, 1861, gave a power of judicial superintendence to the High Courts apart from and independently of the provisions of other law conferring revisional jurisdiction on the High Courts.'

The learned counsel for the petitioner laid emphasis on this observation and urged that if the power of superintendence was judicial and was independent of the provisions of other laws conferring revisional jurisdiction this Court should exercise its powers under Article 227 irrespective of the application or otherwise of Section 115 of the Civil Procedure Code.

His argument was that if it was fonnd that the Court had assumed jurisdiction which it did not possess, but the order was not revisable under Section 115 because no case had been decided, the order should be quashed under Article 227 as otherwise the provision would become useless and nugatory. He went on to contend that if the cases of : AIR1951All514 and : AIR1955All673 , meant to lay down that this powers under Article 227 were to be exercised only where the revisional powers under Section 115 could be exercised and not otherwise, the cases had not been correctly decided, and the point should be referred to a Full Bench in order to have the matter authoritatively determined.

5. The power of superintendence which the High Courts possess under Article 227 of the Constitution is certainly administrative as well as judicial. It may also be conceded that so far as civil matters are concerned it exists apart from and independent of the provision of Section 115 of the Code of Civil Procedure. If therefore the Court feels that the circumstances of the case really call for interference it can exercise that power even if the case falls outside the scope of Section 115. That does not however mean that the power can be invoked or exercised in all cases which, it is found, cannot be brought within the purview of Section 115.

6. The question what is the true scope of Article 227 and in what cases the power conferred by the Article should be exercised has come up for consideration in this Court in several cases. The first to which reference need be made is that of : AIR1951All514 . In that case a suit had been filed at Bulandshahr and the property in dispute included some which was situated in Mussoorie.

The defendant raised the plea that the Munsif of Bulandshahr had no jurisdiction to try the suit. The contention did not find favour with the munsif. The defendant then approached the High Court and prayed that under Article 227 of the Constitution the decision of the munsif should be reversed. This request was turned down with the remark

'The power given under Articles 226 and 227 of the Constitution should, we are clearly of opinion, be restricted to interference in cases of gross dereliction of duty for which no other remedy is available and which would have serious consequences if not remedied. It cannot be seriously urged that any gross consequences would follow if the suit is tried at Bulandshahr and not at Mussoorie........'

The Court therefore refused to interfere.

7. In Pambhi v. State : AIR1952All526 , the applicants had been convicted under Ss. 323 and 504, I. P. C. by a Panchayati Adalat and had unsuccessfully filed a revision before the Sub-divisional Magistrate. They then moved the High Court under Article 227 for setting aside their conviction. Relying upon the earlier case ef Jhakri Kewat v. Ram Naresh : AIR1935All514 , decided with reference to Section 107 of the Government of India Act, 1935 Misra, J., refused to interfere and observed:

'The superintendence referred to in Article 227 does not invest the High Court with an unlimited prerogative to interfere in cases where a wrong decision has been arrived at either in fact or in law and the powers contained therein must be restricted to cases of grave dereliction of duty and flagrant abuse of any fundamental principles of law. The right to obtain relief under it depends further on the conditions that no other remedy is available to the applicant and the remedying of the wrong is essential in order to prevent very serious results :

8. In Shitab Singh v. Suraj Bali : AIR1952All750 , an allotment order in respect of certain agricultural land which had been made under Section 3 of the Land Utilization Act (Act 5 ef 1948) was sought to be cancelled under Article 227. Misra and Beg, JJ., refused to interfere and relying on the earlier decision in Pambhi v. State (K), laid down :

'The superintendence referred to under Article 227 of the Constitution does not invest the High Court with an unlimited prerogative to interfere in cases where a wrong decision bad been arrived at by judicial or quasi-judicial tribunals either on fact or on the questions of law.'

9. In Jodhey v. State : AIR1952All788 , the applicant had been convicted by a Panchayati Adalat under Section 160 of the Indian Penal Code and having failed to have the conviction set aside by the Sub-divisional Magistrate approached the High Court under Article 227 of the Constitution, Beg, J., allowed the petition and in doing so observed :

'A reading of the entire Article 227 of the Constitution of India in the light of the antecedent law on the subject leads one to the irresistible conclusion that the purpose of the Constitution makers was to make the High Court responsible for the entire administration of justice & to vest in the High Court an unlimited reserve of judicial power which could be brought into play at any time that the High Court considered it necessary to draw upon the same.

Springing as it does from the Constitution, which is the parent of all Acts and statutes in India, the fact that the judgment or order of a Court or tribunal has been made final by an Act or the fact that the body performing judicial functions is a special tribunal constituted under a statute cannot be set up as a bar to the exercise of this power by the High Court.

The prohibited area is to be found within the four corners of the Constitution itself and nowhere else. The fact that these unlimited powers arc vested in the High Court should, however, make the High Court more cautious in their exercise. The self-imposed limits of these powers are established and laid down by the High Courts themselves. These powers cannot be exercised unless there has been an unwarranted assumption of jurisdiction not possessed by Courts or a gross abuse of jurisdiction possessed by them or an unjustifiable refusal to exercise a jurisdiction vested in them by law.

The High Court may also be moved to act under it when there has been a flagrant abuse of the elementary principles of justice or a manifest error of law patent on the face of the record or an outrageous miscarriage of justice. But the High Court will not be justified in converting itself into a Court of appeal and subverting findings of fact by a minute scrutiny of evidence or interfering with the discretionary orders of Court. Further, this power should not be exercised, if there is some other remedy open to a party. Above all, this is a power possessed by the Court and is to be exercised at its discretion and cannot be claimed as a matter of right by any party.'

10. In : AIR1952All963 , also a decision of a Panchayati Adalat was sought to be assailed under Article 227 before a Division Bench consisting of Sapru and Agarwala, JJ. Agarwala J. was of the view that the superintendence referred to under Article 227 included judicial superintendence and as the impugned decision contravened elementary principles of natural justice he decided to quash it,

Sapru, J. agreed to the order though h0 was inclined to think that the power of superintendence conferred by Article 227 included judicial superintendence only to a limited extent and wa.s meant 'only to see whether a Court or Tribunal has acted within its bounds or not.'

11. In Premwati v. Satyawati Jain : AIR1953All55 , an auction sale was questioned and it was found that the order sought to be impugned was neither appealable nor revisable. The learned counsel for the judgment-debtor, therefore, invoked the powers of the Court under Article 227 of the Constitution. The request was, however, declined wish the remark:

'It was frankly conceded by the learned counsel for the applicant that if no injury is caused to the interest of his client by the defective sale proclamation which had been issued, he will be entitled to seek relief after the sale has been held under Order 21, Rule 90, C. P. C. If any relief in respect of an injury can be claimed by another provision of law this Court would not exercise its jurisdiction under Article 227 of the Constitution to grant such a relief.'

12. In Rama Shanker Lal v. State of Uttar Pradesh : AIR1953All347 , an Irregularity had been committed by a Panchayati Adalat. Agarwala, J. refused to interfere because it did not affect the merits of the case.

13. In Brij Narain v. Ram Dayal : AIR1954All8 , Mr. Justice Randhir Singh set aside under Article 227 of the Constitution a conviction by a Panchayati Adalat for an offence which was not triable by that Adalat, and had therefore been made without jurisdiction.

14. In Ashtbhuja Singh v. Board of Revenue : AIR1954All521 , V. Bhargava, J. refused to interfere with the decision of the Board of Revenue because it was not shown that the Board had exercised a jurisdiction not vested in it or had failed to exercise a jurisdiction vested in it.

15. In Bhagirathi v. The State : AIR1955All113 , a Full Bench of this Court had before it the question whether the decision of a Panchayati Adalat could be quashed under Art, 227 of the Constitution on the ground that the constitution of the Bench which decided the case was defective. The Court refused to interfere. Malik, C.J. and Mukerji, J. based their decision on the ground that

'Though Article 227 can be said to be not merely administrative superintendence the power of superintendence conferred by Article 227, must be exercised most sparingly and in only appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors.'

Desai, J. based his decision on a narrower ground which was that Article 227 could be utilised only in co-operation with, or ancillary to, a writ of certiorari, mandamus or prohibition and as no application for such writ had been filed no relief could be granted under Article 227.

16. Relying upon this case another Full Bench consisting of Malik, C. J., Agarwala and V. Bhargava, JJ. in Lachmi v. Somaroo : AIR1955All122 , refused to set aside the decision of a Panchayati Adalat on the ground that the provisions of Section 49 had been contravened. It was held that the point raised did not go to the root of the jurisdiction of the Bench and as the objection to the constitution of the Bench had not been raised at the appropriate stage the powers of the High Court under Article 227 could not be invoked.

17. Following its own earlier decision in Bhagirathi v. The State (S), the same Full Bench in Mata Bhikh v. Baii Nath : AIR1955All249 , held that though the constitution of a Bench of the Panchayati Adalat was illegal and the illegality could not be waived yet the order of the Panchayati Adalat could not be quashed under Article 227 of the Constitution.

18. In Triloki Singh v. Returning Officer, Lucknow : AIR1955All536 , a candidate for election to the Lok Sabha wanted a direction to be issued under Art, 227 of the Constitution to the Returning Officer prohibiting him from following a particular course in connection with the counting of votes. It was held by Kidwai, J. that as the applicant had another remedy inasmuch as he could get the proper relief by means of an election petition the power of the Court under Article 227, could not be exercised in his favour.

19. In : AIR1955All673 , a suit for damages had been filed against the State Government for breach of contract. The defendants wanted the suit to be stayed under Section 34 of the Indian Arbitration Act and said in the same application that the suit was not maintain able under Section 32 of that Act. When they were asked to elect whether the application was to be treated under Section 32 or under Section 34, they elected that it be treated as one under Section 34. That application was considered and dismissed. The Court held that the arbitration clause relied upon by the defendants did not apply to the matter in dispute in the case, and therefore directed the suit to proceed. Against that order the defendants filed an appeal before the High Court. They however found that the order was neither appealable nor revisable and therefore requested the Court to interfere with the order under Article 227 of the Constitution. The Court refused to exercise its powers under Article 227 on the ground that in doing so it would 'in effect, be extending the provisions of Section 115 to cases which do not come within the ambit of that section. The consequences of such a course would be not only to prolong the time taken in hearing such a suit but would introduce an element of uncertainty in the administration of justice which it is most desirable to avoid'. In that case Mootham, C.J., observed :

'The Courts' powers of superintendence are exercised primarily through Section 115 of the Civil P. C. and Article 226 of the Constitution and it appears to me that Article 227, confers upon it supplementary power not differing substantially in content but exercisable in cases to which those provisions are not appropriate, as for example, to correct the arbitrary decision of a Rent Controller (as in Waryam Singh's case (H)) or to issue directions to an Election Tribunal : [1955]1SCR1104 .

The duty of this Court is to ensure that subordinate Courts and tribunals keep within the bounds of their authority. It is not its duty in the exercise of its powers of superintendence to correct mere errors of fact or law unless the latter are apparent on the face of the record and there is no adequate alternative remedy. Nor in my opinion should it so exercise its power of superintendence as to effect an alteration in the judicial system the maintenance of which it should be its object to uphold.'

20. It is urged in this case that the scope of Article 227 was unnecessarily narrowed down or restricted. The contention is that there was really no justification for the view that the scope of Article 227 was the same as that of Section 115 of the C. P. Code so that if a case was not covered by the latter section no interference could be made even under the former provision. This criticism of the decision does not appear to be well founded and shows that theobservations of the learned Chief Justice have not been correctly appreciated. It WHS nowhere laid down in that case that the scope of Article 227 was identical with that of Section 115 of the Code of Civil Procedure. It was also not laid down that the Court would necessarily refuse to interfere under Article 227 simply because the case was not covered by Section 115. On the contrary it was expressly observed that 'Courts' powers of superintendence are exercised primarily through Section 115 of the Code and Article 226 of the Constitution and it appears to me that Art, 227 confers upon it supplementary power not differing substantially in content but exercisable in cases to which these provisions are not appropriate.' The decision which was sought to be impugned in that case was not appealable or revisable but was in respect of an interlocutory matter and could be questioned at the appropriate stage when an appeal was filed against the final decree. It was for that reason that the Court refused to interfere with it in the exercise of its powers under Article 227.

21. In Vidya Ram v. Munsif Fatehabad, 1956 All LJ 525 (WX), a suit had been filed for a declaration that the plaintiff was the Bhumidar of certain plots. One of the pleas raised by the defendants was that they were Asamis of the land. They requested the Munsif to remit an issue on the point relating to tenancy to the Revenue Court for decision under Section 388-B of the U. P. Zamindari Abolition and Land Reforms Act. This request of theirs was turned down and they approached this Court under Article 227 of the Constitution for interference. The application was rejected with the remark that

'Article 227 of the Constitution does not appear to abrogate the ordinary law. Where a remedy is provided under the ordinary law to a party he cannot invoke the provisions of Art, 227 of the Constitution to set right a certain mistake which has been committed by a Court. Article 227 is applicable only to those eases where the ordinary law does not provide remedy to a party and if the order of a Court is allowed to stand it is likely to cause grave injustice to the party against whom such anorder has been made.'

22. The view taken in the cases above-Mentioned is in no way in conflict with the view taken about the scope of Section 15 of the Indian High Court Act, or Section 107 of the Government of India Act, 1915 on which reliance is placed by the learned counsel for the applicant.

23. Thus in the Full Bench case of ILR 1 All 101 (E), a sale had been set aside at the instance of a judgment-debtor on a ground not provided by law. The auction-purchaser them moved the High Court under Section 15 of the Indian High Court Act (24 and 25 Vie. Chap. 104) and wanted the order to be set aside. The Court refused to accede to the request and laid down:

'As we construe the term (superintendence) it would be competent to the High Court in the exercise of its powers of superintendence to direct a subordinate Court to do its duty or to abstain from taking action in matters of which it has not cognizance, but the High Court is not competent in the exercise of this authority to interfere and to set right orders of a subordinate Court on the ground that the order of the subordinate Court has proceeded on an error of law or on an error of fact.'

24. In the matter of the petition of Mathra Prashad is another case reported in the same volume at page 296 -- ILR 1 All 296 (Y). The subordinate Judge had in that case refused to review the decision of his predecessor on the ground that he had no right to interfere with the decision of his predecessor-in-chief. When the High Court was moved to interfere under Section 15 of the Indian High Courts Act, it felt that

'It is obvious that the subordinate Judgehas misconceived the duty imposed on him',and 'has obviously failed to perform its duty,and there is no remedy by appeal.'

It therefore directed the Subordinate Judge to reconsider the application presented to him and to deal with it as if a review was sought of a decree which he had himself passed.

25. In Muhammad Suleman Khan v. Fatima, ILR 9 All 104 (Z), the Subordinate Judge had amended a decree and it was contended that he had no power to make the amendment. The High Court was therefore moved under Section 15 of the Indian High Courts Act for interference. The question 'Whether there resides in, this Court a power of judicial superintendence over the subordinate Courts, which enables it to entertain judicially applications for revision or interference with the orders of such subordinate Courts' was referred to a Full Bench. The answer given was :

'It is competent to the High Court, in the exercise of its power of superintendence to direct a subordinate Court to do its duty or to abstain from taking action in matters of which it has no cognizance; but the High Court is not competent, in the exercise of this authority, to interfere with and set right the orders of a subordinate Court on the ground that the order of the subordinate Court has proceeded on an error of law or on an error of fact. The High Court's power to direct a subordinate Court to do his duty is not limited to cases in which such Judge declines to hear or determine a suit or application within his jurisdiction.'

26. In Abdullah v. Salaru, ILR 18 All 4 (Z1), a partnership had been dissolved and accounts had been settled. An executable decree had however not been passed and the Court when required to pass such a decree refused to do so. No decree having been passed no appeal could be filed. The aggrieved party thereupon moved the High Court for interference and invoked its powers of superintendence under Section 15 of the High Courts Act. The application was allowed and it was held that the case was of an extraordinary nature and as the Subordinate Court had signally failed to do its duty and there had not been any patent neglect on the part of the petitioner, it was a fit case in which a direction should be issued to the subordinate Court to do its duty and to complete the case according to law.

27. In Kadhori v. Emperor, AIR 1919 All 46 (Z2), the High Court interfered under Section 107 of the Government of India Act, 1915 with the orders passed by a Munsif because it felt that it was an order with which the High Court was bound to interfere.

28. In : AIR1935All514 , Kendal, J. was requested to interfere under Section 107 of the Government of India Act, 1915 with an order passed in a suit under the Agra Tenancy Act which was neither appealable to nor revisable by the High Court. He refused to interfere and laid down :

'It is the duty of the High Court under Section 107 of the Government of India Act to enforce and not to ignore the provisions of the Agra Tenancy Act and if the High Court were to interfere with such matters under Section 107, it would indeed be introducing a precedent full of inconvenience and uncertainty in the decision of the future cases.'

29. In : AIR1935All519 , the High Court had issued certain directions to a munsif but he had not carried them out. The High Court was moved to interfere and it was held that under the provisions of Section 107 of the Government of India Act, 1915, the High Court had power and jurisdiction to see that the orders of the High Court are carried out. As the Munsif had not carried out the directions given by the High Court and had purported to act in. a different manner his order was set aside.

30. In Mukund Lal v. Gaya Prasad : AIR1935All599 , a Full Bench consisting of Sulaiman, C. J., Niamatullah and Rachhpal Singh, JJ. had before it a case in which a party had not been allowed to put certain questions to a witness and wanted the Court to interfere. It was found that the case was not covered either by Section 115 or Section 151 of the Civil Procedure Code and the jurisdiction of the Court under Section 107 of the Government of India Act was invoked. It was however held following the earlier cases of ILR 1 All 101 (FB) (E); 1LR 9 All 104 (Z) and Adya Saran Singh v. Jagannath, AIR 1924 All 561 (Z4), that the order objected to was at the worst 'wrong in law' and the power of superintendence vesting in the High Court under Section 107 was not intended to authorise that Court to interfere with or set right the order of a subordinate Court on the ground that such order had proceeded on an error of law or an error of fact.

31. After the Government of India Act, 1915 had been repealed by the Government of India Act, 1935 and the judicial power of superintendence of the High Court had been expressly taken away, whenever the High Court felt that some order had been passed by a subordinate Court which had resulted in manifest injustice it interfered in the exercise of its inherent jurisdiction under Section 151 of the Code. The cases of Mohd. Yasin Khan v. Mst. Hansa Bibi, AIR 1935 Oudh 461 (Z5) and Mian Tej Singh v. Sardar Daljit Singh, ILR 1949 All 109 (26), may be referred to as instances of the exercise of that power.

32. The view taken fay this Court in respect of the scope of Article 227 appears to he in consonance with the views of some of the other High Courts too. For instance, the Calcutta High Court in Manmoth Nath v. Emperor : AIR1933Cal132 , held with reference to Section 107 of the Government of India Act of 1951:

'The general superintendence which this Court has over all decisions subject to appeal is a duty to keep them within the bounds of their authority, to see that what their duty requires and that they do it in a legal manner. It does not involve the responsibility for the correctness of their decisions either in fact or in law.'

33. The same view was reiterated witk reference to Article 227 of the Constitution by a Special Bench of that Court in the case of Dalmia Jain Airways Ltd. v. Sukumar Mukerji : AIR1951Cal193 and again in Haripada Dutt v. Ananta Mandal : AIR1952Cal526 . In a recent case of Kedar Nath Sanyal v. S.K. Ghosh, 61 Cal WN 789 (Zip), it was laid down that Article 227 of the Constitution can be invoked only in those cases where there is no remedy open to a person complaining of a* order.

34. The Madras High Court is of the same view as appears from the observations of Ramaswami, J., In re Annamalai Mudaliar : AIR1953Mad362 . In a more recent case of Bisalakshi Amma v. Anjaneyalu Chetty : (1957)2MLJ387 , Rajagopalan, J. laid down :

'The jurisdiction vested in the High Court by Article 227 of the Constitution of India is a very limited one. The principles which would apply in deciding whether a writ of certiorari could issue under Article 226 of the Constitution will equally apply to cases of revision under Article 227. A mere erroneous decision, with nothing more, is not enough to attract the jurisdiction under the said Article.'

35. The Supreme Court has confirmed this line of decision by observing in : [1954]1SCR565 :

'This power of superintendence conferred by Article 227 is, as pointed out by Harries, C. J., in : AIR1951Cal193 , to be exercised most sparingly and only in appropriate case in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors.'

In that case the Judicial Commissioner of Himachal Pradesh had interfered because the controller under the Punjab Urban Rent Restriction Act had declined to do what was incumbent upon him to do under the provisions of the law though he had realised the legal position. The Supreme Court upheld the view taken by the Judicial Commissioner.

36. The principles relating to the scope and applicability of Article 227 of the Constitution which emerge from a consideration of the cases discussed above appear to be these :

1. The superintendence referred to in Article 227 of the Constitution includes judicial superintendence.

2. The power conferred by the Article is wide but not unlimited. The exercise of the power is discretionary and relief under the Article cannot be claimed as a matter of right. The principles regulating the exercise of the power are generally speaking the same as the principles on which writs can be issued under Article 226 but in a sense the power under Article 227 is wider as the High Court can sometimes issue directions in the exercise of that power which it could not do under Article 226.

3. The power under the Article can be exercised even in those cases in which no appeal or revision lies in the High Court.

4. The power should not ordinarily be exercised if any other remedy is available to the aggrieved party even though the pursuing of that remedy may involve some inconvenience or delay.

5. The power should not be used to correct mere errors of fact or law. Error of law may include a wrong decision on a question of jurisdiction.

6. The power is to be used sparingly only in appropriate cases in which the conscience of the Court is pricked and it feels that immediate interference is called for as it is necessary to keep the Subordinate Courts or Tribunals within their bound or to prevent some outrageous miscarriage of justice and grave results would follow if the power is not exercised. Whether a particular case is of this kind or not will depend on its own facts and circumstances. Such cases cannot obviously be exhaustively catalogued.

37. It follows from the above principles that if this case is found to be an appropriate one it is certainly open to this Court to interfere with the order which the applicants seek to challenge. The mere fact that the order was not revisable under Section 115 will not be sufficient to prevent the exercise of the powers of this Court under Article 227 of the Constitution. The applicants cannot, however, say that this Court is bound to interfere simply because a question of jurisdiction has been wrongly decided. Even if it be conceded that the decision of the learned munsif on the question of jurisdiction is erroneous in law, as is contended by the applicants, it is obvious that it will be open to the applicants to question its correctness in appeal if the case is ultimately decided against them. The case has no extraordinary features of its own which can attract the application of Article 227. There is no question of miscarriage of justice or gross dereliction of duty, It is also not a case where it is necessary to keep the Munsif within his bounds. He had jurisdiction to deal with the case and on the question whether the suit was triable by them or not he had jurisdiction to arrive at a right as well as a wrong decision. It is therefore not a case which calls for interference in the exercise of this Court's powers under Article 227.

38. The learned counsel placed before us the history of the dispute between the parties and pointed out that the suit in the Munsifs Court had been filed after the parties had litigated in the criminal as well as the revenue Court. He also tried to assail the decision of the learned Munsif on merits. The case does not appear to be different in any way from most of the cases relating to disputes about land which are fought in the Courts of this State, and the learned counsel could not point out any special feature of the case on account of which it could be felt that the applicants were, particularly entitled to relief in the present application. We do not think it is necessary to consider the decision of the Munsif on merits as in doing so we will be anticipating the decision on the question which will be arrived at in the usual course of the appeal. Learned counsel has therefore not been able to satisfy us that this is a case in which we should interfere at this stage.

39. The application should in our opinion fail. It is therefore dismissed with costs.


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