IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.19971 of 2010 Bhasha Nand Prasad Versus Upendra Mahto & Ors ----------- 11. 21.07.2011. Heard the learned counsel for the petitioner and the learned counsel appearing on behalf of the respondent No.7. (2) This writ application has been filed by the plaintiff-petitioner against the order dated 15.03.2007 as contained in Annexure’1’ passed by Munsif, Khagria in Title Suit No.16 of 2006 whereby the learned Court below allowed the application under Order 1 Rule 10 of the Code of Civil Procedure filed by the respondent No.7 for being added as party in the said Title Suit No.16 of 2006. (3) The learned counsel for the petitioner submitted that the suit is mortgage suit and, therefore, in the mortgage suit, the respondent No.7 could not have been added as party by the Court below because he is claiming independent title over the suit property which have been purchased by the petitioner from the heirs of mortgager and the suit has been filed for redemption of the said mortgage against the mortgagee. The respondent Nos.1 to 6 are the heirs of the mortgager. The learned counsel further submitted that in mortgage suit, a person who claim independent title cannot be added as party because question of title 2 cannot be decided in mortgage suit. The learned counsel relied upon A.I.R. 1964 Patna 44 Lakshmi Narayan Vs. Ganga Mahto and 2008 (10) Supreme Court cases 708 Ramesh Chandra Patnayak Vs. Ghumendra Kumar and submitted that respondent No.7 is not at all necessary party in the mortgage suit. (4) On the other hand, the learned counsel appearing on behalf of the respondent No.7 submitted that considering all the aspects of the matter, the learned Court below has exercised a jurisdiction vested in it by law under the provision of order 1 Rule 10 of the Code of Civil Procedure. The exercise of power under the said provision is a discretionary power vested in the Court. The learned counsel submitted that in view of Order 34 Rule 1 of the Code of Civil Procedure, any person who has an interest in the property mortgaged is necessary party and, therefore, the learned Court below has exercised a jurisdiction vested in it by law. In such view of the matter, the impugned order needs no interference. (5) From perusal of the decision Lakshmi Narayan (Supra), it appears that in that case, this Court considering order 34 Rule 1 read with Section 151 of the code of Civil Procedure held that a person who has got conflict interest with the defendant is not a necessary party. In the present case at our hand, it is not the case. The respondent No.7 is not claiming 3 conflict interest to her husband. (6) So far 2008 (10) Supreme Court cases 708 is concerned, in that case, it was a suit for specific performance of contract wherein the Hon’ble Supreme Court held that a subsequent purchaser is not necessary party. (7) In a case reported in 2003 (6) Supreme Court cases, Surya Dev Rai Vs. Ram Chander Rai & Ors., the Hon’ble Supreme Court has held at paragraph 38 clause 4, 5, 7 and 8 as follows : “(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being 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 in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law , and (ii) a grave injustice or gross failure of justice has occasioned thereby. (7) 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 conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would 4 obstruct the smooth flow and/ or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the list. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a Court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.” (8) The same view has been reiterated by the Apex Court again in 2011 (3) P.L.J.R.46 Supreme Court, Kokkanda B. Poondacha & Ors. Vs. K. D. Ganapathi & Anr. vide paragraph 8, 9 and 10. (9) In view of the above settled principle of law, it cannot be said that the learned Court blow exercised a jurisdiction by assuming jurisdiction where there is none or that he exercised beyond his jurisdiction. It cannot also be said that he exercised a jurisdiction in a manner not permitted by law. As stated above, the Apex Court has held that the supervisory jurisdiction under Article 227 of the Constitution of India is exercised for keeping the subordinate Courts within bounds of their jurisdiction. It has also been held that the supervisory jurisdiction is not available to correct mere error of fact or law unless the error is manifest and apparent on the face of the proceeding and when it is based on clear ignorance or utter disregard of the provisions of law and grave injustice or gross failure of justice has occasioned 5 thereby. In the present case, merely, the learned Court below exercised discretionary jurisdiction vested in it by law under Order 1 Rule 10 of the C.P.C. Therefore, the submission of the learned counsel that the question raised by the respondent No.7 regarding her title cannot be gone into in mortgage suit is concerned, this is a matter to be considered by the Court below at the time of final hearing of the suit. At this stage, so far this submission is concerned, I find no force. (10) In view of my above discussion, I find no merit in this writ application and accordingly, it is dismissed. Sanjeev/- (Mungeshwar Sahoo,J.)