1. Ashok Kumar Yadav 2. Vijay Yadav @ Vijay Kumar Yadav 3. Jeevlal Yadav v. 1. Dhirendra Narayan Singh 2. Upendra Narayan Singh 3. Sachindra Narayan Singh All sons
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI C.M.P No. 1213 of 2023 --------------- 1. Ashok Kumar Yadav 2. Vijay Yadav @ Vijay Kumar Yadav 3. Jeevlal Yadav @ Jiv Lal Yadav All sons of late Gulli Yadav R/o Village-Jhumri, Po-Karma, PS-Telaiya, District- Koderma 4. Rajesh Kumar Singhania, s/o Bhola Nath Singhania, r/o village-Jhumri Telaiya, PO & PS-Telaiya, Near Purnima Talkies, District-Koderma ........Petitioners Versus 1. Dhirendra Narayan Singh 2. Upendra Narayan Singh 3. Sachindra Narayan Singh All sons of late Chandra Mauleshwar Narayan Singh, r/o village-Padma, PO & PS- Padma, District-Hazaribagh 4. Rajendra Pd. Gupta, s/o late Kali Sao, r/o Village- Jhalpo, Ward No.-8, Jhumri Telaiya, PO and PS-Telaiya, District- Koderma 5. Manoj Kumar Sao s/o Sri Arjun Prasad 6. Manjeet Kumar Singh, s/o Chandradeo Singh Both r/o Addl. Banglow, PO-Jhumri Telaiya, PS-Telaiya, District- Koderma ………….Respondents CORAM: HON'BLE THE ACTING CHIEF JUSTICE For the Petitioners : Mrs. Rashmi Kumar, Advocate Order No.4/Dated: 30th August 2024 This petition under Article 227 of the Constitution of India is directed against the order dated 22nd August 2023 passed by the learned Civil Judge, (Sr. Div.)-I, Koderma in Title Suit No.37 of 2013 by which the petition dated 14th July 2023 for recall of the order dated 26th August 2022 has been allowed with a cost of Rs.4,500/- to be paid to the defendant. Factual Matrix 2. as under: The land of cadastral survey Khata No.26, village-Asna, PS- The brief facts of the case as pleaded in the present petition are Koderma, PS No.245, Pagana Gumo, District-Hazaribag were recorded in the name of Jhagar Gope son of Chhotu Gope under Khewat No. 2 which stood recorded in the name of Dhurup Narayan Singh and others including Babu Chandra Mauleshwar Narayan Singh. It is further pleaded that the aforesaid land of Khata No. 36, Plot No. 1907, 1908, 1909, 1911, 1912, 1927 and 1929 total area being 4.96 acres under Khewat No. situated at village-Asna were given by the then landlord of Dadikala Estate, Padma Kila for the purpose of cultivation and use of the usufructs as naukarana for rendering service to the then land lord and their family members. It is further pleaded that Dadikala Estate was under the management of the Ward and Encumbered Estate and Kumud Bandhu Dutta Roy was the Manager of the said Estate. That Chandra Mauleshwar Narayan Singh, the recorded khewatdar Mahto and Jhaman Mahto sons of Late Jhagar Mahto and Bhikhari Mahto son of Jangal Mahto filed a suit for resumption of the land measuring 4.96 acres bearing Plot No. 36 of the said Village. The
Legal Reasoning
said suit was decreed in terms of compromise arrived between the parties thereto by virtue of the order dated 10th January 1914 and the then landlord came into khas cultivating possession of the said land which became their bakast land. Thereafter, Kumud Bandhu Dutta being the Manager of the said Estate settled the aforesaid mentioned land to one Netram, son of Late Dhalu Ram by virtue of registered deed of settlement dated 14th July 1936 being Deed No. 1525. Again, settlee, namely, Netram executed a Kabuliyat for taking settlement in favour of Kumud Bandhu Dutta Roy by virtue of registered Kabuliyat being Deed No. 1525 dated 14th July 1936. Finally, by the judgment and decree dated 15th February 1944, passed in Resumption Suit No. 196/1941, Chandra Mauleshwar Narayan Singh came into possession and, accordingly, paid rent receipt till 1974. After his death, one of his heirs and legal representative Dhirender Narayan Singh filed Misc. Case No. 18 (II)/2009-10 and rent was accepted. It is further pleaded that the defendant no. 2, 3 and father of defendant nos. 2 to 4 and 6 to 8 and husband of defendant no. 5 are claiming to have purchased a portion of the land mentioned in Schedule-A to the plaint belonging to the plaintiffs from Rajesh Kumar Singhania by virtue of four registered deed of sale. The plaintiff nos. 1, 2 and 3 have given power of attorney to plaintiff no.4 to 6 to sell the aforesaid land by virtue of registered sale deed being Deed No.7642/235 for the year 2010. That the defendants filed written 2 statement on 03rd January 2014 stating that on 30th April 2019, the learned Court below framed eleven issues for deciding the aforementioned title suit filed by the plaintiffs/respondents. Further, the second witness, namely, Kali Charan Mehta was cross-examined on 12th July 2022 being examined till Para-116 and thereafter he did not turn up for completion of his cross- examination in spite of several opportunities being provided to him and neither he has given any explanation nor filed any documents regarding this issue. It is the case of the petitioner that on 14th July 2023 all of sudden plaintiffs/respondents filed a petition before the learned court below in O.S. No. 37/2013 with a prayer to give opportunity to adduce evidence on their behalf and also to exhibit their documents. Thereafter, the defendant/petitioners filed rejoinder on 14th July 2023 stating that plaintiffs/respondents have not intentionally adduced further evidence. After hearing both the parties, the trial court, vide order dated 22nd August 2023 allowed the petition of the plaintiffs/respondents and permitted them to adduce evidence. Being aggrieved, the petitioners approached this Court to assail the order dated 22nd August 2023 of the trial Court which is the subject matter of the instant petition. 3. It is evident from the factual aspects as taken note of by the learned trial Court in the impugned order that the trial Court vide order dated 26th August 2022 has closed the evidence and posted the matter for argument. A petition dated 14th July 2023 has been filed by the plaintiff assigning the reason that the evidence of the plaintiff although has been closed but the witness no.2 needs to be examined since he has partly been cross-examined but, in the meanwhile, he has gone to Christian Medical College, Vellore where he remained while getting his treatment for six months and, therefore, the part cross-examination could not have been conducted which required necessary and, hence, the closure of the plaintiff witness vide order dated 26th August 2022 is required in the suit and for the aforesaid purpose the petition was filed on 14th July 2023 for recall of the order dated 26th August 2022. 3 4. A rejoinder has been filed by the defendants/petitioners wherein a serious objection has been made stating inter alia under which provision the said petition has been filed and further that there is no document in support of getting treatment in the concerned hospital and further the opportunity has already been granted to cross-examine the witness no.2, as such, the petition dated 14th July 2022 is nothing but a frivolous one and the same is fit to be rejected. 5. The learned trial Court has considered the rival contentions of the parties and has recorded a finding that the part cross-examination of witness no.2 is necessary for the end of justice and just decision of the case and as such the evidence of the plaintiff is necessary and accordingly the order dated 26th August 2022 has been recalled subject to payment of a cost of Rs.4,500/- to be paid to the defendant. The plaintiff was further directed
Legal Reasoning
to conclude his evidence within three consecutive dates which is under challenge in the present petition. Submission of the learned counsel for the petitioners: 6. Mrs. Rashmi Kumar, the learned counsel appearing for the petitioners has submitted that the learned trial Court has not appreciated the serious objection raised by filing a rejoinder wherein it has been stated that the petition dated 14th July 2023 is not held to be maintainable in absence of any provision of law. Further, the reason for seeking recall of the said order is the ailment for which the plaintiff was taking treatment in the Christian Medical College, Vellore but there is no document available in the aforesaid petition. The learned counsel based upon the aforesaid ground has submitted that the impugned order, therefore, suffers from error and as such cannot sustain in the eyes of law. It has further been contended that as per the pleadings made in the written statement the petitioners are in the possession of the said suit property. Analysis 7. This Court has heard the learned counsel for the petitioners, gone through the pleadings made in the petition as also the findings recorded by the learned trial Court in the impugned order. 8. The undisputed fact in this case is that in Title Suit being T.S No.37 of 2013 the evidence of the plaintiff has been closed on 26th August 2022. The witness no.2 was cross-examined however partly. After closure 4 of the evidence a petition was filed on behalf of the plaintiff on 14th July 2023 for recall of the order dated 26th August 2022. Reason has been assigned that witness no. 2 was ill and for better treatment went to Christian Medical College, Vellore and could not return for about six months, therefore, a prayer has been made to recall the order dated 26th August 2022 for conclusion of the cross-examination of the witness no.2. The same has been allowed against which the present petition has been filed. 9. The argument as has been advanced on behalf of the petitioners is that there is no provision of law as has been referred in the petition dated 14th July 2023. 10. So far as the aforesaid argument is concerned, this Court is of the view that in absence of any provision under which a petition has been filed before the learned trial Court raising an issue for the purpose of substantive justice and to avoid the hyper technicalities the Court can pass the order after going through the content of the said petition and in the facts of the present case wherein a ground has been taken that if a part cross- examination of the witness no.2 is not allowed to be concluded, then irreparable loss would be caused. 11. The learned trial Court in the aforesaid pretext, if is allowed the said petition by assigning the reason that the same is necessary for the end of justice and just decision of the case which according to considered view of this Court cannot be said to suffer from impropriety, reason being that when a litigant come before the Court, it is not the question only of the concern of the litigant concerned but also it is to be taken into consideration by the concerned Court to adjudicate the issue in order to have the substantive justice in favour of the litigant and then it will mean that the adjudication has been done in the ends of justice and for the just decision of the case although the question of prejudice is required to be considered. 12. So far as the question of prejudice is concerned, this Court is of the view that no prejudice will be said to be caused and even the issue of delay will also not come because the petitioners who are before this Court are the defendants and the suit has set at motion by filing a petition by the plaintiff who has made an application for recall of the order dated 26th August 2022. Even if the delay will be there, it will cause prejudice and 5 suffering to the plaintiff and not to the defendants. The case has been posted for argument but argument has not been started. 13. Therefore, if the learned trial Court has considered the reason of treatment of the plaintiff at Christian Medical College, Vellore which laid the learned trial Court to recall the said order by allowing the plaintiff to conclude the cross-examination within three consecutive dates which will be said to by taking care of the conclusion of the cross-examination so that the matter again be posted for argument. Another ground has been taken that no medical certificate has been appended so far as the undergone treatment at Christian Medical College, Vellore. So far as the issue of not substantive reason of ailment and getting treatment at Christian Medical College, Vellore is concerned, there is no denial of the same as it would appear from the rejoinder. 14. The learned counsel appearing for the petitioners is fair enough to submit that save and except the ground of delay no other ground has been taken in opposition to the petition dated 14th July 2023. However, the argument herein has been advanced with respect to non-submission of any document pertaining to treatment at Christian Medical College, Vellore but this Court since is exercising the power under Article 227 of the Constitution of India and, as such, needs to go through the documents to be seen which is available on the record before the trial Court based upon that the order has been passed. 15. The High Court while exercising the power under Article 227 of the Constitution of India is not required to consider the further document or pleading which is not available with the trial Court reason being that the propriety or impropriety of the order while exercising the power under Article 227 of the Constitution of India is to be seen on the basis of the consideration so made as available said to be apparent on the face of the record. This Court is, therefore, of the view that the learned trial Court has committed no error while allowing the said petition subject to payment of cost of Rs.4,500/- for the end of justice and for just decision of the case. Conclusion 16. Further this Court is conscious with the fact that while exercising the jurisdiction conferred under Article 227 of the Constitution of India where the law is well settled that the legality of the order, which is to be 6 looked into by the Court exercising power under Article 227, need not be interfered with unless the error appears on the face of the record said to be manifest in the nature or the order passed by the concerned Court is without jurisdiction. It is the settled position of law that the jurisdiction of the Court exercising the revisionary jurisdiction, as conferred under Article 227 of the Constitution of India, is very least and the same can only be exercised if there is manifest error or the jurisdictional error. 17. Reference in this regard may be made to the judgment rendered by the Hon’ble Supreme Court in the case of Shalini Shyam Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 wherein, the Hon’ble Supreme Court has laid down 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. 18. 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. i. 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. ii. Further, in the aforesaid judgment the Hon’ble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs. Phiroz 7 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. iii. 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. iv. 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. v. It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appealable. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Article 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. vi. 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 8 or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. vii. 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. 19. In view of the discussions made hereinabove, this Court is of the view that the petitioners have failed to show any error apparent on the face of the order, hence, it is not a case where power conferred to this Court under Article 227 of the Constitution of India under its supervisory jurisdiction is fit to be exercised. 20. This Court, after referring the aforesaid facts based upon the legal position and adverting to the order impugned wherein the trial court has considered the aforesaid aspect of the matter, is of the view that the order impugned needs no interference as it cannot be said to suffer from any illegality. 21. dismissed. Accordingly, the instant Civil Miscellaneous Petition stands (Sujit Narayan Prasad, A.C.J.) Sudhir A.F.R. 9