- (1.) INSTANT writ petition has been filed by the petitioner defendant challenging the order dated 09.02.2011 passed by Civil Judge (J.D.) Jodhpur in Civil Original Case No. 193/2011 by which the application filed by the petitioner defendant seeking stay of further proceedings in the suit was dismissed.
(2.) LEARNED counsel for the petitioner vehemently argued that respondent plaintiff filed the suit for injunction against the petitioner defendant and as per averments, in the plaint, it is stated by the plaintiff that she is having one plot situated in village Mandore for which the Urban Improvement Trust, Jodhpur issued patta in the regularization scheme on 20.10.2002. During pendency of the suit, the said patta was challenged by the petitioner defendant before the Divisional Commissioner by way of filing an appeal. The Divisional Commissioner allowed the appeal on 18.03.2008 and set aside the patta granted in favour of plaintiff respondent against which plaintiff respondent preferred a revision before the Board of Revenue, Ajmer which is still pending. The petitioner defendant moved an application before the trial court that plaintiff has filed the suit on the basis of so called patta issued in her favour. But the said patta stands cancelled by the Divisional Commissioner, Jodhpur and revision is pending before the Board of Revenue, therefore, further proceedings in the suit may be stayed during pendency of the revision petition before the Board of Revenue. Learned trial court rejected the application for the reason that under Section 10 of CPC, the subject matter of suit and revision petition pending before the Board of Revenue are not similar. Learned counsel for the petitioner invited my attention towards judgment of this Court reported in AIR 1984 Raj. 34 'M/s Harshamal Shivbux Vs. M/s Ramkishan Das Sagarmal and others' and submits that as per said judgment, the trial court is required to stay the proceedings till adjudication by the Board of Revenue in the revision petition filed by the plaintiff. After hearing learned counsel for the petitioner, I have perused Section 10 of CPC, in my considered opinion, the cancellation of patta during pendency of the revision petition before the Board of Revenue filed by the plaintiff respondent cannot be a ground to stay proceedings in the suit pending in the Civil Court because the question validity of patta upon which plaintiff filed suit is under consideration before the Board of Revenue and in the case cited by learned counsel for the petitioner, the matter was finally decided with regard to insolvency by the Mombay High Court, therefore, the judgment cited by learned counsel for the petitioner rendered in case of M/s Harshamal Shivbus Vs. M/s Ramkishan Das Sagarmal and others is not applicable to the present facts and circumstances of the case. The trial court cannot be compelled by the defendant to stay the proceedings because in separate proceedings, the patta in question was set aside but against the said order, appeal is pending before the Board of Revenue meaning thereby the validity of patta is still under adjudication. In the case of 'Shalini Shyam Shetty and Anr. Vs. Rajendra Shankar Patil' reproted in (2010) 8 SCC 329, the Hon'ble Supreme Court laid down parameters for interference after curtailing the right of revision by legislature. The following parameters are laid down for interference under Article 227 of the Constitution of India :- "49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, 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 their authority'. (f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) 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. (i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) 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. (m) 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 High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.
(3.) WHILE following the above adjudication and upon the facts and circumstances of the present case, I am not inclined to exercise power under Article 227 of the Constitution of India because the order passed by the trial court is perfectly justified. In this view of matter, the writ petition filed under Article 227 of the Constitution of India is hereby dismissed.;