- (1.) BY the instant writ petitions, the petitioner/tenant has called in question the order dated 21.03.2012 passed by learned Additional District Judge, (Fast Track), No.2, Bikaner in Civil Misc. Appeal No.43/09- Babu Khan Vs. Girdhari Lal, whereby the learned court below has rejected the applications filed by the petitioner-tenant under Order 41 Rule 27 and under Order 6 Rule 17 & S. 151 CPC, 1908.
(2.) HAVING heard learned counsel for the petitioner-tenant- defendant, this Court does not find force in the present writ petition. By the impugned order dated 21.03.2012, the learned Additional District Judge, (Fast Track), No.2, Bikaner, rejected the applications filed by the petitioner-tenant under Order 41 Rule 27 and under Order 6 Rule 17 and Section 151 CPC while observing that bonafide need of landlord is to be seen on the date of filing of eviction suit and subsequently development (publication of alleged advertisement seeking to let out the shop in question by the respondent/plaintiff), if any, taken place, would not come to rescue the defendant-tenant and the applications were accordingly rejected. In support of his contentions, learned counsel for the petitioner placed reliance on Apex Court's decision in the case of Jai Prakash Gupta (Dead) through LRs. Vs. Riyazhamad & Anr. reported in (2009) 10 SCC 197.
(3.) THE grievance raised in the present writ petitions by the tenant under Article 227 of the Constitution of India is that the Appellate Rent Tribunal ought to have decided these applications under Order 41 Rule 27 and Order 6 Rule 17 CPC only at the stage of final disposal of the appeal and not before it. This contention of the learned counsel for the petitioner-defendant Mr. Manoj Bhandari, is not tenable at all because under Order 41 Rule 27 CPC the words "may allow" has been used; and such additional evidence to be taken on record, the order is necessarily a discretionary one and rejection of such application by the learned Appellate Rent Tribunal on the basis of aforesaid reasons, cannot be faulted at all. Such discretionary order does not require any interference by this Court under Article 227 of the Constitution of India, the scope of which is very limited in view of recent Supreme Court decision delivered in the case of Shyam Shetty & Anr. Vs. Rajendra Shankar Patil reported in 2010 AIR SCW 6387. The Hon'ble Supreme Court in the case of Shalini Shyam Shetty (surpa), has held as under: - "62. 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 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 have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 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 v. Union of India and Ors. 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 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. 63. In the facts of the present case we find that the petition has been entertained as a writ petition in a dispute between landlord and tenant amongst private parties. 64. It is well settled that a writ petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226 , High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform." ;