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Judgment
Anand Byrareddy, J.—The appeal coming on for admission, the learned counsel for the appellant was heard at length. The appellant was the plaintiff before the trial court. The suit was for partition and separate possession of the suit properties. The plaintiff was claiming one-fourth share in the suit properties.
The defendants 1 to 3, on entering appearance had filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908, (hereinafter referred to as ''CPC'', for short). The primary contention in the application was that there was a partition effected under a registered partition deed dated 12.1.2006, to which the plaintiff was a party and that she had received monies in lieu of a share in the suit properties and since the partition deed had not been questioned, the suit was not maintainable.
The court below, however, rejected the application on the footing that the plaintiff had denied the validity of the deed, by its order dated 25.2.2010. The same was challenged by way of a writ petition in W.P. No. 17084/2010. The same was allowed and the application filed under Order VII Rule 11 CPC was also allowed, by an order dated 6.9.2010. The trial court in turn has placed on record the order passed in the writ petition and has drawn up a decree in terms thereof. It is that which is under challenge in the present appeal.
Apart from the grounds raised in the appeal - it was contended that the rejection of the application under Order VII Rule 11 CPC, was at best capable of being challenged by way of a Revision Petition, invoking Section 115 of the CPC. The respondents however, having invoked Article 227 of the Constitution of India and this court having exercised its power of superintendence, in its writ jurisdiction, was irregular and results in a miscarriage of justice.
Reliance is placed on several authorities to substantiate the contention that the court below having framed issues, simultaneously with the dismissal of the application under Order VII Rule 11, proceeding on the basis of the pleadings of the parties - and hence interest of justice required a full fledged adjudication of all the issues, including the validity of the partition deed dated 12.1.2006 - the rejection of the plaint has hence resulted in a miscarriage of justice. As the challenge to the decree has been stymied even before the decree could be drawn up by the trial court.
It is to be noted that the court below has only given effect to the order passed by this court in its writ jurisdiction. That order has attained finality.
The present appeal being entertained would in effect require this bench to reverse the order of a co-ordinate bench in its writ jurisdiction. This would result in an impropriety.
In this regard, the following passage from the decision of the Apex Court in the case of Surya Dev Rai Vs. Ram Chander Rai and Others, is relevant. Especially point No. (6) and (7) thereto.
Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:
(1) Amendment by Act 46 of 1999 with effect from 1.7.2002 in Section 115 of the CPC cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.
Hence, in the light of the above circumstance the present appeal is rejected as not maintainable.