IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO Nos. 477 and 478 of 2017 Decided on: 19.3.2018 . CMPMO No. 477 of 2018 Mr. [ENTITY] & Ors. Petitioners/defendants Versus [ENTITY] & Anr. Respondents/Plaintiffs CMPMO No. 478 of 2018 Mr. [ENTITY] & Ors. Petitioners/defendants Versus [ENTITY] & Anr. Respondents/Plaintiffs Coram The Hon'ble Mr.Justice [ENTITY], Judge. Whether approved for reporting? No. For the petitioners/: Mr. [ENTITY], Advocate. defendants For the respondent/: Mr. [ENTITY], Advocate. plaintiffs Justice [ENTITY], Judge (oral)
As both these petitions emanate from [CASE NUMBER] instituted by the plaintiffs-respondents, though the orders passed on different date(s), the same were heard together and are being disposed of by a common judgment.
2. Background of the case is that the plaintiffs-respondents filed a suit for damages on account of malacious prosecution. The plaintiffs-respondents closed their evidence on 05.08.2015 and ever since then the case is being listed for the evidence of the defendants-petitioners. However, in the interregnum, the defendants-petitioners filed an application under [SECTION] of the [ACT] (for short the 'Act') which was rejected by the learned trial Court vide order dated 04.07.2017 and form the subject matter .
of [CASE NUMBER]. Since, the defendants-petitioners did not choose to lead further evidence in the matter, the evidence of the defendants-petitioners was closed by the learned trial Court vide order dated 27.07.2017 and form the subject matter of [CASE NUMBER].
I have heard learned Counsel for the parties and have gone through the material placed on record.
3. The power of superintendence conferred by [SECTION] is to be exercised most sparingly and with circumspection that too in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors.
4. In [PRECEDENT], the Hon'ble Supreme Court held as under:
"Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under [SECTION] and [SECTION] of the [ACT] to interfere."
5. In [PRECEDENT], a [ACT] Bench of the Hon'ble Supreme Court has examined the scope of [SECTION] of the [ACT] and observed as under:-
"This power of superintendence conferred by [SECTION] is, as pointed out by [ENTITY], C.J. in [PRECEDENT] to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors."
6. In [PRECEDENT], the Hon'ble Supreme Court held that the High .
Court has very limited scope under [SECTION] of the [ACT] and even errors of law cannot be corrected in exercise of power of judicial review while exercising such power. The powers can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. It was further held that High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of Tribunal etc. has resulted in grave injustice.
7. In [PRECEDENT], the Hon'ble Supreme Court held that interference under [SECTION] of the [ACT], finding of facts recorded by Authority should have found to be perverse or patently erroneous and de hors factual and legal position on record.
8. In [PRECEDENT], the Hon'ble Supreme Court has categorically held that the power under [SECTION] of the [ACT] is of the judicial superintendence which cannot be used to up-set the conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could have ever reached them.
9. Similar reiteration can be found in Chandra Bhushan v.
[PRECEDENT]; [PRECEDENT]; and [PRECEDENT].
10. In [PRECEDENT], wherein the Hon'ble Supreme Court held that power under [SECTION] of the [ACT] is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter conclusion reached by Competent Statutory Authority merely on the ground of insufficiency of evidence.
11. In [PRECEDENT], the Hon'ble Supreme Court held that there is no justification for High Court to substitute its view for the opinion of Authorities/Courts below as the same is not permissible in proceedings under [SECTION] of the [ACT].
12. In [PRECEDENT], the Hon'ble Supreme Court held that the jurisdiction of High Court under [SECTION] of the [ACT] is not appellate but supervisory. It cannot interfere with the finding of facts recorded by Courts below unless there is no evidence to support findings or findings are totally perverse.
13. In Union of India v. Rajendra Prabhu, 2001 (4) SCC .
472, the Hon'ble Supreme Court held that High Court in exercise of its extraordinary powers under [SECTION] of the [ACT], cannot re-appreciate evidence nor it can substitute its subjective opinion in place of findings of Authorities below.
14. In [PRECEDENT], the Hon'ble Supreme Court observed that powers of interference under [SECTION] is to be kept to the minimum to ensure that wheel of justice does not come to a halt and fountain of justice remains pure and unpolluted in order to maintain public confidence in functioning of Tribunals and Courts subordinate to High Court.
15. Similar reiteration can be also found in Kokkanda B. Poondacha and others v. K.D. Ganapathi and another, 2011 AIR (SC) 1353, and [PRECEDENT].
16. In Abdul Razak (D) through Lrs. And others v.
Mangesh Rajaram Wagle and others, 2010 (2) SCC 432, the Hon'ble Supreme Court reminded that while exercising jurisdiction under [SECTION] or [SECTION], High Courts should not act as if they are exercising an appellate jurisdiction.
17. In Commandant, 22nd Battalion, CRPF and others v.
Surinder Kumar 2011 (10) SCC 244, the Hon'ble Supreme Court reiterated that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under [SECTION] or [SECTION].
18. From the aforesaid conspectuous of law, it can conveniently be held that the supervisory jurisdiction under [SECTION] of the [ACT] is exercised for keeping the Subordinate Courts within the bound of the jurisdiction. When a Subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise jurisdiction which it does have or jurisdiction though available is 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 into exercise its supervisory jurisdiction. The supervisory jurisdiction is not available to correct mere errors of fact or law unless the following requirement is satisfied:-
(i) The error is manifest and apparent on the face of the proceedings such as when it is based on ignorance or utter disregard to the provisions of law, and to grave injustice or gross failure of justice has occasioned thereby.
(ii) 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 conscious of the High Court dictates which too act lest gross failure of justice or grave injustice has occasioned.
19. Having set out the legal parameters for exercise of jurisdiction, it would be necessary to advert to the facts of the case.
20. As regards the application moved by the defendants-
petitioners under [SECTION] of the Act, the same was filed by the defendants-petitioners for permission to lead secondary evidence for production of documents i.e. copy of agreement executed on 12.11.2011. It was during the pendency of the appeal in the previous litigation between the parties that an agreement had been executed inter se them in which it was admitted that the plaintiffs -
respondents had withdrawn the suit appeal before the learned District Judge, Mandi. It was further averred that at the time of preparation of the agreement, its original copy was handed over to the plaintiffs-respondents and the second copy thereof was given to the defendants-petitioners. It was in this background that the application for leading secondary evidence was filed on the ground that the compromise deed is absolutely necessary for the proper and just decision of the case.
21. The application was contested by filing reply, wherein preliminary objections regarding maintainability etc. were raised. On merit, it was submitted that the alleged agreement had neither been acted upon between the parties nor the appeal was withdrawn on the basis of the same, as such, the agreement was not relevant in the present proceedings. It was further submitted that the appeal filed by the defendants-petitioners against the judgment and decree of dismissal has been decided by the learned First Appellate Court on merit and as such the defendants were estopped by their acts and conduct to file the present application.
22. That apart, while the plaintiffs-respondents had been .
leading evidence, no suggestion to any of the witnesses had been put-forth qua the alleged agreement and the defendants-
respondents after availing 7-8 opportunities had filed the application to gain more time to lead evidence.
23. The learned trial Court rejected the application by observing that the defendants-petitioners had failed to assign any reason for filing the application despite the plaintiffs-respondents having already closed their evidence in the year, 2015. It was further observed that since the execution of the agreement had been disputed by the plaintiffs-respondents, therefore, defendants-
petitioners were not entitled to lead secondary evidence as a matter of right. Lastly, the application was dismissed as being highly belated and having not been produced despite due diligence.
24. The learned trial Court thereafter proceeded to fix the case for recording of remaining evidence of the defendants-
petitioners as last and final opportunity. However, as noticed above, the defendants-petitioners did not produce any evidence and accordingly its right to do so was closed by the learned trial Court.
25. It was not in dispute that earlier to the filing of the application under [SECTION] of the Act, the defendants-petitioners had availed 6-7 opportunities spanning for a period of 3 years.
Further, it was only when they realised that their evidence may be closed, then the application for leading secondary evidence had been filed. In case, the defendants-petitioners were so serious to introduce the compromise and further in case the said compromise .
was so necessary for just and proper decision of the case, then I see no reason why the defendants-petitioners did not choose to cross-
examine any of the witnesses examined by the plaintiffs-
respondents with regard to this material aspect.
26. Lastly, it cannot be ignored that the document now sought to be produced and proved on record is not admitted by the respondents-plaintiffs rather the execution of the document is contested on the ground that the same was not acted upon.
27. In view of the aforesaid discussion, I do not find any merit in these petitions and the same are dismissed accordingly, leaving the parties to bear their own costs.
([ENTITY]), Judge.
March 19, 2018 [ENTITY]