HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Agpeal No.87 of 2010 ’ \a\\° APPELLANT: Petitioner & Plaintiff Babulal Soni Versus Punai Bai and another RESPONDENTS: Respondents & Defendant JUDGMENT FOR CONSIDERATION / i Sd/— i Dhirendra MiShra Judge HON’BLE SHRI R.N. CHANDRAKAR, J ‘ Sd/- ,_ ’ ‘5ANGANATH CHANDRAKAR Judge 3W .1“ POST FOR JUDGMENT ON 13 OCTOBER, 2010 N¥ i ‘\ It ’ JUDGE” 4 ig,1o.2o1o r ‘ \\~ Sd/- t 2R \ @ HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Appeal No.87 of 2010 Present: Mr. Anoop Majumdar, counsel for the appellant. Ms. Deepali Pandey, Panel Lawyer for the State/respondent No.2. Division Bench: Hon’ble Shri Dhirendra Mishra & Hon’ble Shri R.N. Chandrakar JJ. “—4— JUDGMENT (Delivered on lg? October,2010) The following judgment of the'Court was delivered by Dhirendra Mishra, J. . The appellant filed a suit for specific performance of contract against respondent No.1 with the averments that she executed an agreement to. sell the suit land on 17.3.2003 after receiving advance of Rs.2,46,000/-, however, she is not executing the sale deed in accordance with the agreement. . The defendant denied'the averments in the plaint, including execution of the agreement. Her examination—in-chief was recorded on affidavit under Order 18 Rule 4 of the CPC and her statement was recorded before the r (Court on 12th January,"2010. ln para-13 of her cross-examination by the ‘ 7 plaintiff, she admitted her signature in the agreement of Ex.P—9 at ‘C’ to I C An objection was raised bykthe defendant that the witness could not 2,W\ \w \. APPELLANT: : Babulal Soni S/o Banshilal Soni, aged Petitioner& Plaintiff about 58 years, R/o GE Road, Soni Mill, Rajnandgaon, Distt. Rajnandgaon (CG) Versus RESPONDENTS: 1. Punai Bai, D/o Bhagoli Satnami, aged Respondents about not known, R/o Kaurinbhatha, & Defendant Tahsil and District Rajnandgaon (CG) 2. State of Chhattisgarh, Through the Collector, Rajnandgaon (CG) understand the question regarding her signature on EXP—9 and therefore, she should be re—examined on that point after properly explaining the question because she is an illiterate lady. The trial Court, overruling the objection of the plaintiff, permitted re-examination of the defendant. However, at the request of the plaintiff that he intends to file a revision before the High Court against the above decision of the trial Court, the matter was adjourned and thereafter, the appellant/plaintiff filed the writ petition. The writ petition was dismissed by the learned Single Judge and thereafter, the appellant has preferred the instant appeal against the impugned order. 3. Mr. Anoop Majumdar, learned counsel for the appellant argued that the \ writ petition has been dismissed by the learned Single Judge while exercising powers under Article 227 of the Constitution of lndia whereas the writ petition was filed by the petitioner under Article 226 of the Constitution. The trial Court has permitted re-examination of the defendant only on the ground that she is an illiterate lady, though there was no any specific averment in the written statement or in examination— in-chief or affidavit with respect to denial of signature on the agreement. By permitting re-examination, the defendant has been permitted to fill in the lacuna in her evidence. ’4, Heard learned counsel for the appellant and perused the material available on record. 5. The writ petition has been dismissed by the learned Single Judge with the observation that the trial Court has granted permission for re- t t. examination in exercise of its inherent powers. The trial Court was in a ,, " \\.K better position to appreciate the obtaining circumstances for exercise of q %§‘, discretion so as to afford opportunity to the parties to prove its case in the best possible manner. There is no such paipabie or'manifest error of jurisdiction warranting exercise of jurisdiction under Article 227 of the Constitution and the same cannot be exercised to interfere with the proceedings of the triai Court at interim or interlocutory stage. No prejudice is likely to be caused to the petitioner as in the course of trial, both the parties shall be at liberty to adduce evidence and examine and cross-examine each other’s witnesses. 6. Indisputably, from perusal of the pleadings in the written statement and affidavit of the defendant under Order 18 Rule 4 of the'CPC, it is clear that the defendant has denied execution of any agreement to sell the suit land, as alleged ~in the plaint. ln these circumstances, if the trial Court reaches to a conclusion that an illiterate defendant has admitted her signature over the agreement without properly understanding the question, and accords permission for re-examination of the defendant to clarify the situation, it cannot be construedthat by granting such permission, the trial Court has committed any manifest illegality, which may result in failure of justice. WW 7. The Hon’ble Supreme Court in the matters of Surya Dev Rai Vs. Ram Chander Rai & others reported in (2003) 6 SCC 675, while considering the effect of proviso (1) to Section 115 of the CPC after amendment on the power and jurisdiction of the High Court under Articles 226 & 227 of the Constitution, after referring to its earlier judgments, summed up its conclusion in para—38 ofthe judgment and held thus: 38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder: ’7 (1) xxxx xxxx xxxx (2) xxxx xxxx xxxx (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate couit is found to have acted (I) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction — by overstepping or crossing the limits ofjurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (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. l (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. 8. In the instant case, the onus of proving execution of the agreement by the defendant is on the plaintiff and it is always open to the plaintiff to ’ establish execution of the agreement by the defendant by adducing ‘xrx y \\ positive evidence. lf the trial Court is of the opinion that the witness I \ 5@ could not understand the question for any réason and permits re- examination to the party, who has. examined the witness, the same cannot be termed‘to be an exercise of jurisdiction not vested with the Court. / ‘ _ sai- g,RANGANATH CHANDRAKAR 9. For the aforesaid reasons, we are of the opinion that the trial Court has not committed any illegality, infirmity orjurisdictional error while granting permission for re-examination of the defendant, warranting interference in exercise of jurisdiction under’Article 226 or 227 of the Constitution, and the writ petition has been rightly dismissed by the learned Single Judge. We find no substance in this appeal, the same deserves to be and is, accordingly, dismissed. ”V J ‘ / Sdl- Judge Dhirendra M‘Shra Judi” ’6’ \ \ \ J ?