1 6735.11-wp IN THE HIGH COURT OF JUDICATURE AT BOMBAY. APPELLATE JURISDICTION. WRIT PETITION NO. 6735 OF 2011 Shri Janardhan Nivrutti Shinde. ... Petitioner. V/s. Shri Shrirang Bapu Shinde and others. ... Respondents. Vishwanath Talkute for the petitioner. CORAM: R.M.BORDE, J. DATED : 20th August 2011. P.C. : The petitioner/ original plaintiff is raising exception to the interlocutory order passed below Exh.24 in Regular Civil Appeal No. 195/2001 by the Principal District Judge, Satara dated 22nd July 2011, whereby the learned Principal District Judge allowed the application presented by the original respondent/ respondents before the appellate Court seeking permission to lead additional evidence and directed the trial Judge to record evidence and tender papers to the appellate Court. The operative part of the order passed by learned Principal District Judge reads thus: “1) Application is allowed. 2) Respondent (defendant) is permitted to lead additional documentary and oral evidence, 2 6735.11-wp restricted with the will dated 20.11.1978, alleged to be executed by Shri Nivrutti Shinde. 3) 2nd Jt.CJJD, Satara, is directed to take the evidence of the witness, pertaining to the disputed will of Shri Nivrutti Shinde and send it to this office, within period of one month, from the date of communication of this order . 4) Defendant is at liberty to file original will before the trial Court or defendant may apply before the trial Court, for permission to lead secondary evidence, if permissible under law. 5) Parties are directed to appear before 2nd Jt.CJJD, Satara, on 29th July, 2011, for taking further steps in the matter. Both the parties are directed that they should not apply for adjournments, before the trial Court and shall co­ operate the trial Court to record the evidence on day­today basis. 6) Record and proceeding be immediately sent to 2nd Jt.CJJD, Satara, for recording additional evidence. 7) Trial Court be informed accordingly.” 2. Initially, the suit was presented by the plaintiff/ appellant before the first appellate Court being Regular Civil Suit No.231/1992 claiming perpetual injunction. However, subsequently, after lapse of about 15 years, the plaintiff prayed for amendment and claimed for decree of partition and separate possession of ½ share in the suit property, which was permitted. The said suit presented by the plaintiff/ petitioner herein was dismissed by the trial Court. The plaintiff then 3 6735.11-wp approached the first appellate Court by presenting appeal being Regular Civil Appeal No.195/2011, which is stated to be pending. 3. During the earlier round of litigation, the first appellate Court, while disposing of the appeal, directed remand of the matter to the trial Court. Order of remand passed by the first appellate Court was the subject matter of challenge in the appeal filed before this Court being Appeal from Order No.942/2010 and this Court after hearing the arguments of both parties was pleased to set aside the order of remand in view of the judgment dated 23rd March 2011. This Court while allowing the appeal, observed in para­8 of the judgment as quoted hereunder: 8 Suffice it to say that considering the fact that none of the parties had applied for leading additional evidence, the order of remand was completely unwarranted and the same will have to be set aside. As far as Rule 27 of Order XLI of the said Code is concerned, even the respondents in the appeal an take recourse to the said provision and therefore, in the pending appeal, the respondents can always take out appropriate application which is bound to be considered by the Appellate Court in accordance with law. As observed earlier, even if a case is made out for leading additional evidence, in every case the Appellate Court need not pass an order of remand. As indicated earlier apart from passing an order of remand, various options are available to the Appellate Court. Hence Appeal must succeed. 4. After remittance of the matter to the first appellate Court, an application was tendered by the defendants seeking leave of the 4 6735.11-wp Court to lead additional evidence under order 41 rule 27 of C.P.C. It appear that the first appellate Court on perusal of the application and after hearing the parties concerned, directed the trial Court to record additional evidence in consonance with the application tendered by th defendants and for such limited purpose transmitted the papers to the trial Court. 5. Having perused the impugned order passed by the trial Court as well as the order passed by this Court in A.O.No.942/2010, in my opinion, the directives issued by the first appellate Court in respect of recording of the evidence are perfectly in consonance with the observations made by this Court while disposing of appeal from order. 6. The counsel appearing for the petitioner/ original plaintiff seeks leave to place reliance on the judgment in the case of N.Kamalam v. Ayyasamy, (2001) 7 SCC 503 and Smt.Pramod Kumari Bhatia v. Om Prakash Bhatia, (1980) 1 SCC 412. I have gone through the judgments cited at bar and I am of the opinion that the facts giving rise to the judgments and the observations made by the Apex Court are totally different and, as such, the ratio laid down by the Apex Court is not attracted to the facts and circumstances of the present case. 7. In my opinion, the first appellate Court has exercised its discretion and directed recording of evidence in pursuance to the application tendered by the original defendants and remitted the papers back to the trial Court for limited purpose. The decision rendered on the application, by the first appellate Court is in 5 6735.11-wp consonance with the directives issued by this Court while disposing of A.O.No.942/2010. The powers exercisable under Article 227 of the Constitution of India are to be exercised to meet the ends of justice and in consonance with the principles laid down by the Apex Court in the case of Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329; wherein the Apex Court has observed as under: “49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) ..... ..... ..... (b) ..... ..... ..... (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 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 Waryam Singh AIR 1954 SC 215 and the principles in Waryam 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 6 6735.11-wp 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. (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) to (o) ..... ..... .....” 8. For the reasons recorded above, in my opinion, the writ petition presented by the petitioner/ original plaintiff does not call for interference. Writ petition is, therefore, dismissed. (R.M.BORDE, J.)