IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16524 of 2011 Abdullah Farooqui & Anr ……… Petitioners Versus The State Of Bihar & Ors ..…… Respondents --------------------------- 3. 30.09.2011 The State authorities i.e. respondent Nos.1 to 9 are not necessary party. Therefore, their names are deleted. Heard the learned senior counsel Mr. Shyama Prasad Mukharrji appearing on behalf of the petitioners. This writ application has been filed under Article 226 and 227 of the Constitution of India praying therein to issue appropriate order or orders to declare Title Suit No. 60 of 1966/ 161 of 1982 as not maintainable and not tenable in absence of joinder of necessary parties. It is also prayed for declaration that the judgment and decree dated 19.6.1986 has got no force as being obtained by misrepresentation of facts by the plaintiffs and defendants of the said suit. It is also prayed for issuance of an appropriate writ or writs direction or directions setting aside the judgment and decree dated 19.6.1986 passed in Title Appeal No. 144 of 1984 which was confirmed in Second Appeal No. 580 of 1986 by terms of judgment and decree dated 23.4.2002. It is also prayed for issuance of order or orders to recall/review the judgment of second appeal No. 580 of 1986 dated 23.4.2002 as contained in Annexure-8 to this application. The petitioners also 2 prayed for appropriate order or directions holding that the judgment and decree of the courts below affirmed by this Court is obtained by playing fraud and suppression of vital facts of title, ownership and possession. The petitioners also prayed for direction to the revenue authorities to act as per prescribed rule and procedure and also for a direction to hold the judgment and decree passed in Title Appeal No. 144 of 1984 was obtained by playing fraud and misrepresentation of facts and, therefore, is not binding on the petitioners as they were not impleaded as party either by the litigations or by the courts and in the garb of the said judgment the respondent No. 10 cannot threaten to disturb the title and peaceful possession of the petitioners. From perusal of the writ application it appears that the plaintiffs have made the authorities of the State of Bihar including the State of Bihar as respondent Nos. 1 to 9 who were not party in title suit. The plaint has been filed as Annexure-4 to this application. Further from perusal of the plaint and the reliefs claimed in this writ application it is apparent that the dispute is purely and purely individual dispute. From perusal of the plaint it appears that the plaintiff respondent No.10 herein filed the suit for declaration of title on the suit property wherein the defendant of that suit was party. Therefore, it was confined to property 3 dispute between the parties. By this writ application the petitioners are challenging that the said suit was not maintainable in absence of the petitioners as the petitioners are the real owner of the said land. On the basis of this, the petitioners are praying that the judgment passed by the trial court and the appellate court and second appellate court are vitiated and, therefore, the same may be recalled or reviewed. So far Article 226 of the Constitution of India is concerned the Hon’ble Apex Court in the case of Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 SCC 329 has held that a writ petition is a remedy in public law which may be filed by any person but the main respondent should be either the Government, governmental agencies or State or instrumentalities of the State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. The Apex Court has also held that of late there is a growing trend amongst several High Courts to entertain writ petitions in cases of pure property disputes like 4 partition suits, execution of a decree, landlord-tenant dispute and also in a case of money decree. In some cases, the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions. As a result of frequent interference by the High Court disposal of cases by the civil court and criminal courts gets impeded. In that case also the writ application under Article 226 of the Constitution of India was filed. The Apex Court has held that the petitions filed before the High Court was a pure and simple writ petitions. The petition was leveled as writ petition, its pleading categorically sought remedy under Article 226 due to absence of other efficacious remedy. The Apex Court thereafter held so far private dispute with respect to property and suit is concerned, the application under Article 226 is not maintainable. So far Article 227 of the Constitution of India is concerned the Apex Court has held that Article 227 can be invoked by the High Court suo motu as a custodian of justice. An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power on its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle. This reserve and exceptional power of judicial intervention is 5 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 grievances. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline. In the present case, as has been stated above the dispute is regarding property only. The State or State officials who have been made party in this writ application have got no role to play with regard to the individual property dispute between the petitioners and the respondent Nos.10 and 11. In my opinion, therefore, so far Article 226 of the Constitution of India is concerned, it is not applicable. So far Article 227 of the Constitution of India is concerned the Apex Court in the case of Surya Dev Rai Vs. Ram Chander Rai and others reported in (2003) 6 SCC 675 at paragraph 38 clause 4, 5, 6 and 7 has held 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 6 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. (6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent. (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 7 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 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 lis.” In another decision reported in (2010) 9 SCC 385 Jai Singh Vs. Municipal Corporation of Delhi and another the Apex Court reiterated the view taken by the Apex Court earlier and held that the High Court under Article 227 of the Constitution of India has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals exercised the powers vested in them within the bounds of their authorities. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision even in matters where no revision or 8 appeal lies to the High Court. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. Exercise of jurisdiction must be within the well recognized constrains. It cannot be exercised like bull in China shop to correct all errors of judgment of a court or tribunal acting within the limits of its jurisdiction. These views of the Supreme Courts have again been followed in 2011 (3) PLJR 46 SC Kokkanda B. Poondacha & Ors. vs. K.D. Ganapathi & Anr. In the present case, the claim of the petitioners is that in exercise of supervisory jurisdiction under Article 227 of the Constitution of India this Court should review or recall even the judgment passed by this Court in second appellate jurisdiction. It is well settled principles that the judgment of the trial court and the appellate court merged in the Court of second appellate judgment and decree. In my opinion, therefore, this court cannot supervise the judgment and decree under Article 227 of the Constitution of India. In the Code of Civil Procedure, there is specific provision for review or recall of the judgment or decree. The petitioners never approached the remedy available under Code of Civil Procedure. The learned counsel appearing on behalf of the petitioners relied upon AIR 2007 SC 1546 A.V. Papayya Sastry & Ors. Vs. Government of A.P. & 9 Ors. and submitted that if the judgment found to have obtained by playing fraud the High Court can recall the judgment passed by the High Court. So far this jurisdiction is concerned, there is no dispute if it is found that the fraud has been committed on the Court and decree has been obtained the Court can recall the same. The dispute is regarding forum i.e. under which provision the Court can recall the same. In exercise of jurisdiction under Article 227 of the Constitution of India, this Court cannot turn itself as appellate court and reappraise the evidences and give a finding that in fact fraud has been committed. So far the claim that the petitioners were not impleaded as party in the suit or in the appeal or in second appeal is concerned also the petitioners have got efficacious remedy provided under the Code of Civil Procedure but I am afraid that this writ application under Article 226/227 of the Constitution of India is maintainable for the grant of the reliefs they are claiming. It appears that in the decision referred to by the petitioners the High Court exercised jurisdiction under Article 226 of the Constitution of India and thereafter found that fraud was committed and then recall the order passed by the High Court. The said order was challenged before the Apex Court and the Apex Court held that it is well settled principles of law that if any judgment or order is obtained by fraud it cannot be said to be a judgment or order in law. The 10 other decision relied upon by the petitioner i.e. 2007 AIR SCW 1901 Deepa Gourang Murdeshwar Katre vs. Principal, V.A.V. College of Arts. & Ors. is also on the same point. As stated above this principle of law laid down by the Apex Court is concerned there is no dispute. Here in this case at out hand, the dispute is regarding forum whether this writ application is maintainable for the reliefs claimed by the petitioners ? As stated above this Court cannot appreciate the evidences as like of civil court. In writ jurisdiction this Court cannot give a finding that the petitioners were necessary party in the suit and because of their non- joinder the judgment and decree either passed by the trial court or by the appellate court are vitiated. For that the petitioners has only the remedy to approach the civil court. In view of my above discussions, in my opinion, the decisions cited by the learned counsel for the petitioners have got no application in the present case. The petitioners, if so advised, may approach the civil court for the redressal of their grievances. No relief can be granted to the petitioners in this writ application under Article 227 of the Constitution of India. So far Article 226 of the Constitution of India is concerned, it is not maintainable. I therefore, find no merit in this application and accordingly, it is dismissed. S.S. A.F.R. (Mungeshwar Sahoo, J.)