Subbaram v. Additional Civil Judge (Sr.Div.) No.3, District

Shri Mohit Gupta, Counsel for petitioner Shri Azad Ahmed, Counsel for respondent #### By the Court:- Admit. Shri Azad Ahmed, Advocate, appears for the contesting respondent. The other respondents are either formal or Proforma parties, therefore, their service is dispensed with. Heard learned counsel for the parties. This writ petition, on behalf of the non-applicant/defendant is directed against the impugned order dated 6th August, 2008 passed by the trial court whereby the application of the petitioner under Order 8 Rule 1 CPC to take on record one affidavit of Jagdish Kumar Madan has been rejected. The learned counsel for the petitioner submits that the affidavit of Jagdish Prasad Madan was relating to Exhibit-8 // 2 // and 9, whereas this fact has been disputed by the learned counsel for the respondent. The trial court has observed that about 9 adjournments were given to the petitioner in the matter and now the case is fixed for final arguments and in case the said affidavit is allowed to be placed on the record it may amount to delay of proceedings and filling up the lacunae of the case. I have examined the impugned order passed by the trial court in the light of submissions of the learned counsel for the parties and ,after considering the same I do not find any jurisdictional error in the said order so as to interfere with the same under Article 227 of the Constitution. The Hon'ble Supreme Court in Mohd. Yunus Vs. Mohd. Mustaqim – AIR 1984 SC 38 , held that in exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. The Hon'ble Supreme Court in Babhutmal Raichand Oswal Vs. Laxmibai R. Tarte – AIR 1975 SC 1297 , held that the High Court cannot, while exercising jurisdiction under Article 227, interfere with finding of fact recorded by the subordinate court or tribunal. It's function is limited to seeing that the subordinate court or tribunal // 3 // functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and re-appreciating it. In view of the above, I do not find any merit in the writ petition and the same is accordingly dismissed with no order as to costs. (Narendra Kumar Jain) J. //Jaiman//