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Vijay Lakshmi Vs. R.P. Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous (Main) Appeal No. 14 of 1970
Judge
Reported inILR1971Delhi93
ActsConstitution of India - Article 227
AppellantVijay Lakshmi
RespondentR.P. Singh and ors.
Advocates: K.N. Kirpai, Adv
Cases ReferredIn Deota v. Phagnu
Excerpt:
.....sant ram, appearing on behalf of his daughter vijay lakshmi, contended that the order passed by shri nagra, directing the petitioner herein to furnish a surety bond as a condition for the issuance of a voucher of rs, 280.00, as well as the order passed by shri nagra, refusing to accept the surety bond, were both illegal. the learned subordinate judge took the view that the court of shri nagra was an independent court and was in no way subordinate to his court, that the orders of shri nagra, which were challenged by the petitioner herein, were judicial orders passed by the court concerned in the course of judicial proceedings, that the said orders could not, thereforee, be questioned before another court of concurrent jurisdiction, and that the only remedy in such cases was by way of..........stating that the amount may be paid to the petitioner (transferee decree-holder). (3) on 7-3-1969, shri nagra passed an order directing the issuance of a treasury voucher to the petitioner on condition that she furnishes a surely for the amount. on 18-3-1969 the petitioner tendered a surety bond of one rup lal in person and under protest, as there was a. reason for the imposition of the condition. but, the learned subordinate judge did not accept the surety bond so tendered, and directed orally that the surety bond may be filed in the court box in the regular course, along with an application for acceptance of the surety bond. the petitioner complied with the direction on that day itself. it is stated by sant ram that on 20-3-1969, shri nagra directed orally that the petitioner should.....
Judgment:

T.V.R. Tatachari, J.

(1) This petition has been filed by Kumari Vijay Lakshmi under Article 227 of the Constitution and Section 115 and 151 of the Code of Civil Procedure, praying that the order (Annexure D), dated 15-10-1969. passed by Shri R. P. Singh, Subordinate Judge, Delhi, rejecting a plaint filed by the petitioner, maybe quashed, and an appropriate direction be given that the suit be tried and heard on merits. The respondents to the petition are (1) Shri R. P. Singh, Subordinate Judge, Delhi. (2) Union of India, through Ministry of Home Affairs, and (3) Shri M. S. Nagra, Subordinate Judge Ambala. Shri Sant Ram, father of the petitioner appeared and argued the petition on behalf of the petitioner, and Shri B. N. Kirpal. Advocate, appeared for the respondents 1 & 2.

(2) A suit, No. 446/67, was filed by one Virendra Kumar in the court of Shri R. L. Gupta, Subordinate Judge, Delhi, on the basis of a promissory note against one S. Banerji, and the same was decreed. On 8-10-1968, Virendra Kumar assigned the decree to the petitioner Kumari Vijay Lakshmi. The petitioner took out execution of the said decree, and on 24-1-1969, Shri M. S. Nagra, Subordinate Judge (respondent No. 3), in the course of rateable distribution of the assets of the Judgment-Debtor received in his court, adjudged the share of the petitioner. Kumari Vijay Lakshmi, at Rs. 380. He also directed Inc issuance of a cheque in favor of the petitoiner. On 30-1-1969. Shri R. L. Gupta, who passed the decree, sent a Robkar to the court of Shri M. S. Nagra regarding the assignment of the decree in favor of the petitioner. On lst February, 1969, the petitioner applied for the issuance of the cheque. The application was adjourned to 4-2-1962 then to 7-2-1969 and then to 7-3-1969. In the mean-time, on 12-2-1969, the Judgment-Debtor also filed an application stating that the amount may be paid to the petitioner (transferee decree-holder).

(3) On 7-3-1969, Shri Nagra passed an order directing the issuance of a treasury voucher to the petitioner on condition that she furnishes a surely for the amount. On 18-3-1969 the petitioner tendered a surety bond of one Rup Lal in person and under protest, as there was a. reason for the imposition of the condition. But, the learned Subordinate Judge did not accept the surety bond so tendered, and directed orally that the surety bond may be filed in the Court Box in the regular course, along with an application for acceptance of the surety bond. The petitioner complied with the direction on that day itself. It is stated by Sant Ram that on 20-3-1969, Shri Nagra directed orally that the petitioner should produce on 21-3-1969 some proof that, she possessed some immovable properties, and that he (Sant Ram) as General Attorney of the petitioner, produced house tax receipts and other documents relating to a house belonging to the mother of the petitioner. But, the record does not show that such an oral direction was given by Shri Nagra on 20-3-1969. On 21-3-1969, Shri Nagra passed an order as under :-

(4) 'PRESENT: Sant Ram General Attorney of the Decreeholder. Heard.-Court is not satisfied with the financial soundness of the surty. He has not produced any title deeds of his properties and does not mention if he has any property. The surety bond is thereforee rejected as not satisfied.' Thereupon, the petitioner filed a suit No. 202/69. in the court of the Senior Subordinate Judge, Delhi, against Union of India. Delhi Administration, and Shri M. S. Nagra, Subordinate Judge, First Class, Tis, Hazari Courts. Delhi, praying for a mandatory injection directing the defendants to issue an unconditional voucher for Rs. 380.00 which amount was, lying in the court in suit No. 446/67. and also for a direction to the defendants to pay damages of Rs. 290.00 with future interest. On 6-6-1969 notices were issued to the defendants Subsequent ly, the suit. was transferred to the Court of, Shri S. P. Singh. and was to be heard on 1 1-9-1969. On 11-9-1969, defendant No. 1 remained parte, while defendant No. 2 reported that the Administration would not contest the suit. The learned Subordinate Judge directed a fresh notice to defendant No. 3 for 15-10-1969. But, on the same day. the learned Subordinate Judge passed another order stating that summons to defendant No, 3 be not issued. Thus, no summons were sent to Shri Nagra, defendant No. 3. On 15-10-1969, the learned Subordinate Judge asked the Attorney of the petitioner to show how the suit for a mandatory injunction, directing the Court of Shri Nagara to issue a voucher for Rs. 380.00. was maintainable.

(5) Sant Ram, appearing on behalf of his daughter Vijay Lakshmi, contended that the order passed by Shri Nagra, directing the petitioner herein to furnish a surety bond as a condition for the issuance of a voucher of Rs, 280.00, as well as the order passed by Shri Nagra, refusing to accept the surety bond, were both illegal. The learned Subordinate Judge took the view that the Court of Shri Nagra was an independent court and was in no way subordinate to his court, that the orders of Shri Nagra, which were challenged by the petitioner herein, were judicial orders passed by the court concerned in the course of judicial proceedings, that the said orders could not, thereforee, be questioned before another court of concurrent jurisdiction, and that the only remedy in such cases was by way of appeal or revision against the orders complained of and not by a suit such as was filed by the petitioner. herein. The learned Subordinate Judge also considered that in view of the provisions in the Judicial Officers Protection Act, Shri Nagra could not be held liable personally even if the orders complained of were incorrect. In that view, the learned Subordinate Judge passed an Order (Annexure D) on 15.10.1969, rejecting the plaint filed by the petitioner, herein. It is against that order that the petitioner has filed the present petition in this Court.

(6) The impugned order (Annexure D), rejecting the plaint, was a 'decree' in view of the definition in section 2(2) of the Code of Civil Procedure, and was appeasable as such. The petitioner did not file an appeal but chose to file the present petition under Article 227 of the Constitution and sections 115 and 151 of the Code of Civil Procedure, As the petitioner did not appeal against the impugned order. it is not open to him to challenge the said order in this application. filed under the provisions mentioned above However, the facts set out above show that the petitioner was entitled to the amount of Rs. 380.00 and the same was lying in the Court in suit No. 446/63. The said amount was adjudged as the share of the petitioner in the rateable distribution of the assets of the judgment-debtor. Shri M. S. Nagra, in fact, directed the issuance of a treasury voucher to the petitioner. But. he also imposed a condition. that the petitioner should furnish a surety for the said amount. No reason at all was given why it was necessary to require the furnishing of a surety by the petitioner. The Court adjudged the amount as the share of the petitioner, and the judgment-debtor also stated so the court that the amount may be paid to the petitioner. The imposition of the said condition was in the circumstances uncalled for and improper.

(7) The said imposition was indeed a material irregularity in the exercise of jurisdiction by the learned Subordinate Judge. The result of the order was that the amount, which admittedly .belonged to the petitioner. remained unpaid to her. No doubt, the petitioner did not fer any appeal or revision against the said wrong imposition of the condition by the learned Subordinate judge. Yet, the fact remains that by reason of the said wrong order the amount has remained unpaid to the petitioner, and there has been a clear miscarriage of justice. As observed by I. D. Dua, C.J, in Shri Ram v. Smt, Naraini, 1969 Dlt 105, 'any manifest injustice discovered in the proceedings before the subordinate Tribunals and Courts arising from breaches or violations of law deserves to be set right by this Court in the exercise of the supervisory constitutional power' conferred by article 227 of the Constitution. The learned Chief Justice further observed that:

'IT is true that this power has to be exercised with caution and only in cases of grave injustice resulting from serious errors of law, and also that if such injustice is shown to this Court. Then, in my opinion, this Court would be failing in its constitutional duty decline to set right the wrong done to an aggrieved party'

In Deota v. Phagnu, 1969 Plr 244, V. S. Deshpande J. observed as follow :-

'THIS Court, thereforee, has the power and duty of superintendence and control over him (Compensation Officer) under Article 227 of the Constitution. This superintendence and control can be exercised even though the appeal to the learned District Judge was barred by time. There is no rule of limitation fixed for preferring of an application under Article 227. Much less can there be a period of limitation for the court to act suo motu under Article 227. The generally accepted rule is that a party has to go to the Court as expeditiously as possible. The mere fact that technically Phagnu was late by a few days in filing the appeal to the District Judge may he a bar to that appeal under the Limitation Act, but it is not a bar in the way of this Court to give him relief under Article 227 of the Constitution.'

(8) On the facts and the circumstances of the present case, I consider it necessary to set right the irregular exercise of jurisdiction by Shri M. S. Nagra in imposing the condition that the petitioner should furnish a surety. I, thereforee, set aside the order of Shri M.S. Nagra, dated 7.3.1969, in so far as it imposed a condition that the petitioner should furnish a surety for the amount of Rs. 380.00. The petitioner is given liberty to file a formal application in suit No. 446/67 in the concerned Subordinate Judge's Court, Delhi, for the issuance of an unconditional treasury voucher in her favor for the sum of Rs. 380.00 which is lying in deposit in the said suit, and the aforesaid Court is directed to take the said application on record and pass necessary orders thereon in accordance with law. This petition is disposed of accordingly. As respondents Nos. 1 and 2, though represented by a counsel, did not contest this petition, I make no order as to the costs of this petition.


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