Smt. Asha Devi v. Marwari Panchayati Dharamshala

Haridwar, alleging that the Petitioner, Smt. Asha Devi, was a licensee in respect of a portion of the Dharamshala property.

2. The Petitioner contested the suit and filed her written statement. After recording evidence and hearing the parties, the learned Civil Judge dismissed the suit by judgment and decree dated 25.02.2002, holding inter alia against the Respondent on Issue Nos. 2 and 4 relating to ownership and management of the property.

3. Aggrieved, the Respondent preferred Civil Appeal No. 19 of 2002 before the District Judge, Haridwar. The appeal was heard and decided by the Additional District Judge, VI, Haridwar, who dismissed the appeal by judgment and decree dated 19.04.2011.

4. While dismissing the appeal, the lower appellate court reversed the trial court’s findings on Issue Nos. 2 and 4, holding that the disputed property belonged to and was managed by the Respondent. Writ Petition No. (M/S) 1338 of 2011, “Smt. Asha DeviVsMarwari Panchayati Dharamshala” 1 Ashish Naithani J.

5. The Petitioner, apprehending that such adverse findings may operate as res judicata in future proceedings, has approached this Court under Article 227 of the Constitution, seeking to set aside the findings of the lower appellate court on Issue Nos. 2 and 4.

6. Learned Counsel for the Petitioner contended that although the lower appellate court dismissed the appeal filed by the Respondent, it nonetheless reversed the findings recorded by the trial court on Issue Nos. 2 and 4, which related to ownership and management of the disputed property. It is urged that the decree of dismissal was already in favour of the Petitioner, and therefore, there was no occasion for the appellate court to have recorded contrary findings on such issues.

7. It was further submitted that the findings so recorded are wholly unnecessary for the purpose of deciding the appeal, and being adverse to the Petitioner, they create a serious prejudice against her inasmuch as such findings may operate as res judicata in any subsequent proceedings between the parties. The Petitioner, despite having succeeded in the appeal, is thus placed in a disadvantageous position without any fault of her own.

8. It was also contended that there is no statutory remedy available to the Petitioner to question the correctness of the adverse findings, as no appeal lies against a decree which has been passed in her favour. In the absence of any alternative efficacious remedy, the Petitioner is compelled to invoke the supervisory jurisdiction of this Court under Article 227 of the Constitution of India to prevent miscarriage of justice.

9. Learned Counsel lastly urged that the findings recorded by the lower appellate court are contrary to the material on record and bad in law, and therefore, liable to be set aside in exercise of the extraordinary jurisdiction of this Court.

10. Learned Counsel appearing for the Respondent raised a preliminary objection to the maintainability of the writ petition. It was submitted that the Respondent itself had earlier preferred Second Appeal No. 67 of 2011 before Writ Petition No. (M/S) 1338 of 2011, “Smt. Asha DeviVsMarwari Panchayati Dharamshala” 2 Ashish Naithani J. this Court, challenging the judgment and decree dated 19.04.2011, and in that appeal, the Petitioner herein had also filed cross-objections, which were duly taken on record by order dated 21.08.2014. The said Second Appeal, however, was subsequently withdrawn by the Respondent on 20.05.2019.

11. On the strength of the above, it was contended that the present petition amounts to a collateral challenge to the very same findings, and once the statutory remedy of second appeal has been withdrawn, the matter must be treated as having attained finality. The supervisory jurisdiction under Article 227, it is argued, cannot be resorted to in such circumstances.

12. It was also submitted that the supervisory jurisdiction of this Court is limited in scope, and cannot be exercised to correct mere findings when the ultimate decree passed by the appellate court was in favour of the Petitioner herself. The learned Counsel emphasized that since the appeal of the Respondent was dismissed, the decree of the trial court stands confirmed, and no interference is warranted.

13. The record demonstrates that the respondent instituted Civil Suit No. 70 of 1990 seeking relief in respect of the Dharamshala property. The trial court dismissed the suit by judgment dated 25.02.2002, recording findings on Issue Nos. 2 and 4 against the respondent. In appeal, Civil Appeal No. 19 of 2002, the learned Additional District Judge, VI, Haridwar, while dismissing the appeal on 19.04.2011, reversed the trial court’s findings on those two issues and held in favour of the respondent on ownership and management.

14. The grievance of the petitioner is confined to the observations on Issue Nos. 2 and 4. It is not in dispute that the decree of the appellate court was ultimately in her favour, the suit of the respondent having been dismissed at all stages. The objection of the petitioner is, therefore, not directed against any operative part of the decree but only against certain findings recorded by the appellate court.

15. It is a settled principle of law that a writ petition under Article 227 of the Constitution is maintainable only where a party is aggrieved by an order Writ Petition No. (M/S) 1338 of 2011, “Smt. Asha DeviVsMarwari Panchayati Dharamshala” 3 Ashish Naithani J. which results in grave miscarriage of justice or jurisdictional error. Supervisory jurisdiction is not an appellate jurisdiction. The Supreme Court in Waryam Singh v. Amarnath and later in Radhey Shyam v. Chhabi Nath has clarified that this power is to be exercised sparingly and cannot be invoked to correct mere errors of fact or law unless they go to the root of jurisdiction.

16. The petitioner’s sole grievance is that the adverse findings may operate as res judicata in future proceedings. However, the law on this point is clear. Only those findings which are necessary for the decision of the case and form the basis of the decree will operate as res judicata. Any incidental or surplus finding does not bind the parties in subsequent litigation. The Supreme Court in Sajjadanashin Sayed Md. B.E. Edr. v. Musa Dadabhai Ummer has categorically held that collateral or superfluous findings do not have the effect of res judicata. Thus, the apprehension of the petitioner that she would be prejudiced in future proceedings is unfounded.

17. The scheme of the Code of Civil Procedure further provides that a successful party who is aggrieved by an adverse finding has the remedy of filing cross-objections in appeal under Order XLI Rule 22 CPC. In the present case, it is admitted that in Second Appeal No. 67 of 2011 preferred by the respondent, the petitioner had filed cross-objections which were taken on record by this Court on 21.08.2014. Though the said appeal was subsequently withdrawn on 20.05.2019, the availability of the cross-objection remedy demonstrates that the Code itself provides for a structured method to challenge adverse findings.

18. The Petitioner, therefore, had a clear remedy available and cannot invoke the extraordinary supervisory jurisdiction merely because respondent withdrew its second appeal. The law does not permit this Court to reopen findings in the guise of Article 227 when the decree itself is entirely in favour of the petitioner.

19. Even otherwise, the jurisdiction under Article 227 is not intended to be exercised to strike down every adverse observation which does not affect Writ Petition No. (M/S) 1338 of 2011, “Smt. Asha DeviVsMarwari Panchayati Dharamshala” 4 Ashish Naithani J. the final decree. The principle of judicial discipline demands that the High Court does not convert itself into a court of appeal over findings that have no operative consequence. The petitioner’s position remains unaffected: the respondent’s suit has been dismissed by both courts below, and that dismissal stands undisturbed.

20. This Court is, therefore, of the considered view that no interference is called for in exercise of supervisory jurisdiction. The impugned findings, even if erroneous, do not alter the operative decree, and they do not create a binding bar by way of res judicata in subsequent proceedings. The apprehension expressed by the petitioner is misconceived, and the writ petition does not disclose any ground for interference. ORDER For the reasons recorded above, this Court finds no ground to exercise supervisory jurisdiction under Article 227 of the Constitution. The decree of dismissal passed by the courts below stands in favour of the Petitioner, and the apprehension of prejudice on account of certain observations in the impugned judgment is unfounded in law. The writ petition is accordingly dismissed. There shall be no order as to costs. (Ashish Naithani J.) SB SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c24b5aa08b09 c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A542D7FF0A9BE D00E67B5283D205F18FE29BDF5DD9, cn=SHIKSHA BINJOLA Writ Petition No. (M/S) 1338 of 2011, “Smt. Asha DeviVsMarwari Panchayati Dharamshala” 5 Ashish Naithani J.