- (1.) CHALLENGE in this writ petition is to the order dated 29.5.2012 passed by the learned Additional District Judge, Abu Road, District Sirohi (for short 'the appellate court' hereinafter), whereby the appellate court has dismissed the application filed by the petitioner-applicant-judgment-debtor under Order 39 Rule 1 and 2 read with section 151 CPC.
(2.) BACKGROUND facts in a nutshell is that respondent- Deva Ram and Smt. Tarawati filed a suit for eviction and possession; and claimed that house of Ward No.17 is in their ownership. Thereafter, petitioner-Smt. Sharda filed a written statement and denied the contention raised in the suit of plaintiff. After filing of the written statement, on 08th October, 2003, petitioner's counsel pleaded no instructions in suit before the Civil Judge (Jr.Division), Abu Road (for short 'the trial court'). Thereafter, on 02.8.2006, an application for setting aside the exparte proceeding was filed and the same was allowed by the trial court. Thereafter, again on 11.02.2009, counsel for the petitioner pleaded no instructions in the suit and the trial court has decreed the suit exparte on 06.4.2011. The petitioner has filed an application before the trial court under Order 9 Rule 13 CPC for setting aside the exparte decree passed by the trial court in Civil Suit No.63/98 dated 06.4.2011 and the same was dismissed by the trial court vide order dated 16.4.2012. Aggrieved by the order dated 16.4.2012 passed by the trial court, the petitioner has filed an appeal along with an application under Order 39 Rule 1 and 2 read with section 151 CPC before the appellate court, which came to be rejected vide order impugned dated 29.05.2012. Against that order, this writ petition has been preferred by the petitioner with the prayer that by an appropriate writ, order or directions, the impugned order dated 29.5.2012 (Annexure-5) passed by the appellate court in Civil Misc. Case No.52/2012 may kindly be quashed and set aside; and pending the petition, if any order is passed or any action is taken against the petitioner prejudicial to his interest, the same may kindly be quashed and set aside. It is contended by the learned counsel for the petitioner that the impugned order dated 29.5.2012 rejecting the application under Order 39 Rule 1 and 2 read with section 151 CPC is per se illegal, arbitrary and contrary to material on record; the trial court did not consider the relevant facts viz. prima facie case, irreparable loss and balance of convenience. It is further contended by the learned counsel for the petitioner that the impugned order has been passed on the ground that petitioner's counsel has pleaded no instructions, whereas petitioner's counsel neither informed about the same to the petitioner nor served any notice upon the petitioner. I have heard the learned counsel for the petitioner and perused the order impugned dated 29.05.2011. I have scanned through all the relevant documents placed on record. The learned trial court vide order impugned dated 29.05.2011 has observed as under:
(3.) IN the judgment rendered in case of Shalini Shyam Shetty & Anr. vs. Rajendra Shankar Patil, (2010) 8 SCC 329, the Hon'ble Apex Court elaborately considered the scope of interference under Article 227 of the Constitution. In the said judgment, the Hon'ble Supreme Court held that the High Court can interefere 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 or where there has been a gross and manifest failure of justice or the basic principle of natural justice have been flouted. In exercise of 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. The power is discretionary and has to be exercised on equitable principle. On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. The object of superintendence, both administrative and judicial is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the Tribunals and Courts subordinate to the High Court. The power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline. An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary powers of its strength and vitality. Looking to the facts and circumstances of the case, without going into the merits of the case because the appeal is still pending before the appellate court, I do not find any substance in the submissions made by the learned counsel for the petitioner and I am of the considered opinion that the order impugned dated 29.05.2012 passed by the learned Additional District Judge, Abu Road, District Sirohi in Civil Misc. Case No.52/2012, in the facts and circumstances of this case, does not suffer from any error, illegality or infirmity warranting interference by this Court in its supervisory jurisdiction under Article 227 of the Constitution of India. In the result, this writ petition fails and is hereby dismissed in limine. There shall be no order as to costs. The learned lower court is directed to decide the appeal expeditiously. ;