// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.8302/2008 Chiman Lal Jhunjhunuwala S/o Shri late Shri Jawaharmal Jhunjhunuwala Versus Babu Lal Modi S/o Bhuramal Modi and Others Date of Order ::: 29.08.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Naveen Dhuwan, Counsel for petitioner #### By the Court:- Heard learned counsel for the petitioner. The plaintiff-petitioner filed a suit for eviction against the defendant-respondents which was decreed by the trial court. Being aggrieved with the same, the defendants preferred an appeal before the first appellate court along- with the application for stay. The first appellate court directed to serve the respondent through his Advocate, who was appearing in the trial court on his behalf. The counsel for plaintiff appeared before the first appellate court and filed an application that he has not been appointed as counsel for the plaintiff in appeal therefore, notices issued to him should be cancelled. The trial court, vide its order dated 26th July, 2008, rejected the application but issued notice directly to the plaintiff- // 2 // respondent, and also passed interim stay order staying the execution of the eviction-decree passed by the trial court. Being aggrieved with the said order, the plaintiff has preferred this writ petition. The learned counsel for the petitioner contended that as per the provisions of the CPC, the notice of appeal could not have been served on the counsel, who was appearing in the trial court on behalf of the plaintiff, therefore, the trial court committed an illegality in issuing the notice to his counsel and further committed an illegality in rejecting the application filed by his counsel to the effect that he has no instruction in the matter. He further contended that the first appellate court committed an illegality in passing the interim stay order, which is liable to be set-aside by this Court. I have considered the submissions of the learned counsel for the parties. After amendment in the CPC, there is a provision to serve the notice of appeal through the counsel appearing in the trial court also. So far as the present case is concerned, now the first appellate court has already issued notice to the plaintiff-respondent directly, therefore, I do not find any illegality in the order passed by the first appellate court in this regard. So far as the interim stay order passed by the // 3 // first appellate court is concerned, it was within its jurisdiction and discretion and I do not find any illegality, perversity or jurisdictional error in it so as to interfere with the same. The Hon'ble Supreme Court in Babhutmal Raichand Oswal Vs. Laxmibai R. Tarte – AIR 1975 SC 1297, held that the High Court cannot, while exercising jurisdiction under Article 227, interfere with finding of fact recorded by the subordinate court or tribunal. It's function is limited to seeing that the subordinate court or tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and re-appreciating it. The Hon'ble Supreme Court in Mohd. Yunus Vs. Mohd. Mustaqim – AIR 1984 SC 38 , held that in exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. In view of the above, there is no merit in this writ petition and the same is accordingly dismissed. (Narendra Kumar Jain) J. //Jaiman//