1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No.9602/2008 S.B. Civil Misc. Stay Application No.1906/2008 (Ram Babu Swami & Others Versus Phool Chand & Others) Date of Order :: 1st September,2009 PRESENT HON'BLE SHRI JUSTICE NARENDRA KUMAR JAIN Shri Vijay Kumar Sharma, counsel for the petitioner(s) Shri Deepak Sharma for Shri R.N. Sharma, for the respondents BY THE COURT: At the request of learned counsel for the parties, the arguments were heard and writ petition is being disposed of finally. The petitioners have preferred this writ petition challenging the impugned order dated 15th July, 2008 passed by the Additional District Judge (Fast Track) No.2, Jaipur District, Jaipur in Civil Suit No. 83/2007, whereby their application under Section 151 CPC to consolidate their suit with suit no. 123/2007 has been dismissed. The submission of learned counsel for the petitioners is that property in dispute in both the suits is one and same, therefore, both the suits ought to have been consolidated and trial court committed an illegality in 2 rejecting their application to consolidate both the suits for the purpose of adjudication. No one is present on behalf of the plaintiff-respondent despite service of notice. So far as counsel for the respondent no.2 is concerned, he submits that respondent no.2 is the father of the petitioners, who is not a contesting party in the present writ petition and he has no objection in case the writ petition is allowed. I have considered the submissions of learned counsel for the petitioners in the light of reasons assigned by the trial court in the impugned order while rejecting the application of the petitioners. It appears that suit no. 123/2007 was filed by respondent no.1 – Phool Chand against Nathu Ram, father of the petitioners in the trial court on 28th July, 2005 for specific performance of the agreement dated 28th June, 2005, possession and permanent injunction, wherein both the parties have led their evidence and the suit is fixed for final arguments. Subsequently, second suit no. 83/2007 was filed by present petitioners for declaration, cancellation of agreement and permanent injunction in the trial court on 27th February, 2007, which is at preliminary stage. 3 It is relevant to mention that present petitioners filed an application under Order 1 Rule 10 CPC in Civil Suit No. 123/2007 to implead them as a party, but their application was dismissed and they were not impleaded party in the said suit. Being aggrieved with the same, the petitioners filed a writ petition before this Court, but the same was also dismissed vide order dated 2nd May, 2008. Therefore, it is clear that the trial court as well as this Court, both, came to a conclusion that petitioners are not necessary party in earlier suit no. 123/2007 filed for specific performance of the agreement dated 28th June, 2005 etc. The trial court has assigned the reasons for rejecting the application that parties in both the suits are different, nature and prayer of the suit are also different, stage of both the suits are also different, therefore, both the suits cannot be consolidated. Earlier suit is at the stage of final arguments, whereas the subsequent suit is only at preliminary stage. After considering all the facts and circumstances of the case, I am of the view that the trial court has rightly rejected the application of the petitioners. There is no 4 illegality or irregularity or error of jurisdiction in the impugned order, so as to interfere with the impugned order under Article 227 of the Constitution of India. In Babhutmal Raichand Oswal Vs. Laxmibai R. Tarte and Another – AIR 1975 SC 1297, the Hon'ble Apex Court, while considering the scope of Article 227 of the Constitution of India, held that the power of superintendence of High Court under Article 227 of the Constitution of India being extraordinary is to be exercised most sparingly and only in appropriate cases. This power, as in the case of certiorari jurisdiction, cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts. The High Court, cannot, while exercising jurisdiction under Article 227 of the Constitution of India, interferer with findings of fact recorded by the subordinate court or tribunal. Its function is limited to 5 seeing that the subordinate court or tribunal functions within the limits of its authority. It cannot correct mere errors of fact by re- appreciating evidence. In view of above discussions, I do not find any merit in this writ petition and the same is, accordingly, dismissed with no order as to costs. Since the writ petition itself has been dismissed, therefore, the stay application, filed therewith does not survive and the same also stands disposed of. (NARENDRA KUMAR JAIN), J. DK/