1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. CIVIL WRIT PETITION No.14013/2009 Gajanand Sharma & Anr. Vs. Addl.Civil Judge No.2, Jaipur District & Ors. DATE OF ORDER ::: NOVEMBER 9TH, 2009 P R E S E N T HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Shri Sunil Kumar Sharma, for the petitioners BY THE COURT : 1. ` Heard learned counsel for the petitioner. 2. The petitioners have preferred this writ petition challenging the impugned orders dated 20th August, 2009 passed by Addl.Civil Judge (Jr.Div.) No.2, Jaipur District, Jaipur, whereby their application under Section 151 C.P.C. for allowing them to raise construction over disputed property has been dismissed and another order dated 30th September, 2009 whereby their another application under Section 151 C.P.C. to reconsider their request for raising construction has been dismissed. 3. The plaintiff-petitioners filed a suit for declaration and permanent 2 injunction in the trial court along with an application for temporary injunction. After hearing both the parties, the learned trial court passed an order on 5.1.2007 for maintaining status quo by both the parties on the disputed property during the pendency of the suit. The plaintiffs moved the present application on 17th July, 2009 to allow them to repair and reconstruction over disputed property and for raising permanent construction of latrine and bathroom over it. The application was contested by opposite party. 4. The trial court rejected the said application vide order dated 20th August, 2009 observing that order dated 5th January, 2007 to maintain status quo, till the disposal of the suit was passed, after hearing both the parties, it was also directed that so far as prayer regarding declaration as to who is the owner of the property in dispute will be decided at the time of final disposal after adducing evidence by both the parties. The trial court has observed that in case the present application is allowed, then there will be a change in the property in dispute, which may 3 affect the rights of the defendants. The plaintiffs filed second application under section 151 C.P.C. on 4th September,2009 to the effect that in the earlier order it was observed that the affidavit in support of application and photos were not filed, which have now been filed, therefore, the matter may again be heard. The trial court rejected the said application vide order dated 30th September, 2009 observing that in the earlier order there was no condition or observation that plaintiff has not filed an affidavit in support of the application or photos. Being aggrieved with the same, the present writ petition has been preferred. 5. The submissions of the learned counsel for the petitioners is that in the facts and circumstances of the case the repairing and reconstruction of the house and permanent construction of the latrine and bathroom were necessary, therefore, the application should have been allowed but the same has wrongly been rejected by the trial court. Therefore, the impugned orders are liable to be set aside. 6. I have considered the submissions of the learned counsel for the petitioners in 4 the light of reasons assigned by the trial court in the impugned order for rejecting the application of the plaintiff- petitioners. The reasons assigned by the trial court in rejecting the application appears to be perfectly legal and justified. The order of status quo was passed after hearing both the parties. Therefore, the prayer of plaintiffs could not have been allowed for permanent construction, which may change the shape of the property itself. I do not find any illegality or perversity in the orders passed by the trial court so as to interfere with the same while exercising powers under Article 227 of the Constitution of India. 7. In Babhutmal Raichand Oswal Vs. Laxmibai R. Tarte and Another – AIR 1975 SC 1297, the Hon'ble Apex Court, while considering the scope of Article 227 of the Constitution of India, held that the power of superintendence of High Court under Article 227 of the Constitution of India being extraordinary is to be exercised most sparingly and only in appropriate cases. This power, as in the case of certiorari jurisdiction, cannot be invoked to correct 5 an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts. The High Court cannot, while exercising jurisdiction under Article 227 of the Constitution of India, interfere with findings of fact recorded by the subordinate court or tribunal. Its 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 re- appreciating evidence. 8. In view of above discussion, I do not find any merit in the writ petition and the same is accordingly dismissed in limine. (Narendra Kumar Jain), J. BKS/