{1} wp160810.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1608 OF 2010 Agricultural Produce Market Committee, Mondha, Aurangabad, through its Secretary, Agricultural Produce Market Committee Campus, Mondha, Aurangabad. Petitioner Versus Premchand Phoolchand Phoolpagar, deceased through legal representatives: 1 Sow.Pramila w/o Premchand Phoolpagar 2 Pankaj s/o Premchand Phoolpagar 3 Gautam s/o Premchand Phoolpagar 4 Mrs.Bharti w/o Sandeep Jain Respondents Mr.S.V.Adwant, advocate for the petitioner. Mr.L.D.Vakil, advocate for Respondents. CORAM : R.M.BORDE, JJ. DATE : 28 th January, 2011 PER COURT: 1 In a suit presented in the year 1989 seeking decree of specific performance of contract, an application came to be presented at Exhibit-163 by the defendant seeking permission to {2} wp160810.odt amend the written statement and the said application has been turned down by the trial Court in view of the order passed on 01.02.2010, which order is subjected to challenge in this petition. 2 It is not disputed that issues in the matter are framed long back and suit is posted for evidence. The defendant had also, on more than one occasion, during continuance of the suit, presented applications seeking amendment to the written statement and those were considered favourably by the trial Court. One of such applications, tendered by the defendant, seeking amendment to the written statement, was turned down by the trial Court in view of the order dated 15.10.2010 and said order was subjected to challenge in Writ Petition No.4 of 2009. This Court, while dealing with the said writ petition, has permitted the defendant to amend the written statement, however, while disposing of the writ petition, has made following observations: “While opposing the application for amendment a grievance is made by the plaintiff that application is presented with malafide intention of delaying and protracting the proceedings. It is further noted in the say that dates for cross examination were fixed not only as per the convenience of the defendants but also as per the convenience of the defendants lawyer on the ground that he is not able to attend the Court due to engagement in the High Court. It is contended that on most of the dates the Advocate for the defendant has made a {3} wp160810.odt submission before the Honourable Court that he will complete the cross examination on next date and when adjournments were granted the defendants lawyer did not attend the Court and at the last moment sought adjournment. It is also noted that during the span of nine months 46 dates were fixed for hearing and only on one occasion at the instance of plaintiff adjournment was sought and on all occasions at the instance of defendants lawyer the matter was posted on next date and still the defendants did not complete the cross examination. In this view of the matter, it is contended by the plaintiff that the application apparently filed at belated stage and with a view to protract the litigation. I do not propose to go into the correctness or otherwise of the contentions raised by the plaintiff in paragraph No.2 of the say presented. However, fact remains there are directions issued by this Court as well as Apex Court for expeditious disposal of the matter. In such circumstances, I am of the opinion that further directions need to be issued for expeditious disposal of the suit. The parties appearing before me agreed that no unnecessary adjournment would be sought and they will cooperate to full extend in disposal of the matter by the trial Court. The trial Court shall prescribe the hearing of the matter on day to day basis and shall complete recording of the evidence within span of four months from today.” 3 In view of the observations referred to above, I am convinced that the application tendered by the defendant is not bona fide one and is an attempt to protract the litigation. The trial {4} wp160810.odt Court has rightly turned down the application. In exercise of powers conferred under Article 227 of the Constitution, no interference is called for. 4 It would be advantageous to refer to the observations made by the Apex Court in a recent pronouncement in the matter of Shalini Shyam Shetty & another Vs. Rajendra Shankar Patil, reported in 2010 (7) SCALE 428. In para 62 of the judgment, the Apex Court has prescribed following principles on the exercise of High Court’s jurisdiction under Article 227 of the Constitution of India: “(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 {5} wp160810.odt 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 Waryan Singh (supra) and the principles in Waryan 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. {6} wp160810.odt (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 {7} wp160810.odt 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.” It would also be appropriate to refer to paragraphs no. 78 to 81 from the said judgment: “78 However, this Court unfortunately {8} wp160810.odt discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases High Courts, in a routine manner, entertain petition under Article 227 over such disputes and such petitions are treated as writ petitions. 79 We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown, that a private individual is acting in collusion with a statutory authority. 80 We may also observe that in some High Courts there is tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev (supra) and in view of the recent amendment to Section 115 of the Civil Procedure Code by Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 of CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding High Court’s power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must {9} wp160810.odt follow the regime of law. 81 As a result of frequent interference by Hon’ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice.” 5 Considering the ratio laid down by the Apex Court in the aforesaid judgment, petition does not deserve any consideration and same stands dismissed. R.M.BORDE JUDGE adb/wp160810