ff !!Ll!i:l:liil ^ •^ \ ,^^/ ^•^^ SWGiE BENCHf '%.--""" ^"IN THE HIGH COURT OF CHHAmSGARH AT BILASPUR W. P. (2271 No. /2011 Petitioner (DefendantNo.l) Resnondeats (PlaintiffNo.l) Versus -/ 1. Akram Khan, S/o Late Abdul Karirn Aged about 62 years; R/o Nayapara, near Masjid, Tehsil 85 District- Raipu:' (CG) Gulain Kadar Khan, aged about 47 years; , (PlaintiffNo.2) (Plaintiff No.3) (Plaintiff No.4) (Plaintiff No.5) ^. 2. Gulam Dastagir Khan, aged about 42 years; ^ 3. Gulam Arif Khan, aged about 37 years; All S/o Late Gulam Usman Khan, ^ 4. Smt. Shabnam Begum, W/o Salim Khan 8s D/o Late Gulam Usinan Khan, aged about 45 years; -5. Ku. Bilkees Begum, D/o Late Gulam Usman Khan, aged about 43 years; (Plaintiff No.6) (Defendant No.2) 6. Ku. Shabana Begum, D/o Late Gulain Khan, aged about 41 years; All R/o village-Urla, Tehsil-Abhanpur, District-Raipur (C.G.) 7. State of Chhattisgarh, Through: Collector, Distt.-Raipur (C.C ^ (Defendant No.3) 8. Mohd. Aslam Khan, S/o Mohd. Akram Khan, R/o near Nayapara Masjid, Nayapara, Tehsil 8s District-Raipur (C.G.) WRIT PETITIQNJJNDER^RTICLE 227 OFTHE CONSTITUTION OF INDIA ^;'^:^^ s'i.3:S^;^:^; HIGH COURT PF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Ju^tjce^Prashant Kumar Mishra Petitioner Resp^ndents Writ Petition (227) No.2340 of 2011 Akram Khan versus Gulam Kadar Khan and others Present: Shri Adil Minhaj, counsel for the petitioner. Ms. S-unita Jain, Panel Lawyer for the State/respondent No.7. Writ Petition ynderArticle 227 of_the_Const[tytipn _of India ORAL ORDER (Passedon3rdMay,2011) Heard on admission. 2. -The triai Court has allowed plaintiffs' prayer for amendment in the plaint. 3. The plaintiffs have filed the suit for declaration of title and permanent injunction. In the said suit, defendant No.l/petitioner has pieaded that he has title to the suit property on the strength of oral Hiba and thereafter on the basis of memorandum of Hiba recorded on 30-12-1997 executed by late Hasmat Bi in favour of his son. 4. Written statement was fited in June, 2010 and thereafter application for amendmentin the plaint was moved in August, 2010 inter al/a proposing to plead fhat there is no existence of any oral Hiba or that the memorandum of Hiba recorded on 30-12-1997 does not bear the thumb impression of Hasmat Bi. "-^^l., \ '•••!;> iiKlSSIS ?^?^^?l?^]r^'^?^^f- 5. Learned counsel appearing for the petitioner would submit that the plaintiffs are raising inconsistent plea and the said facts proposed to be pleaded were well within the knowledge of the plaintiffs and yet in the originally filed plaint such pleadings were not made which demonstrates mala fide intention on the part of the plaintiffs. It has been submitted that no explanation has been offered in the application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (hencefori:h 'the Code') as to why the pleadings, sought to be amended, were not made earlier. 6. It is further argued that in the original plaint, the plaintiffs have claimed title by raising a plea of Benami transaction and the present proposed amendment is raising a contrary plea of raising a claim of inheritance through the person in whose name the property was purchased. 7. Law with regard to consideration of prayer for amending the pleadings in a case where proviso to Order 6 Rule 17 of the Code is not applicable is well settled by the Hon'ble Supreme Court in catena of decisions. It is settled law that a plaintiff can be permitted to raise alternative or even an inconsistent plea. The only rider is that a party to the suit is not permitted to withdraw an admission by,. way of making an amendment in the pleadings or that an apparently time barred claim is not permitted to be raised. 8. In the present .case, issues have not been framed, therefore, proviso to Order 6 Rule 17 of the Code has no application, and :— -^2?!a;-£Hfi£>3£date°-^— - 5° ;il» moreover, the defendant No.l/petitioner is also entitled to make consequential amendment in answer to the amended plaint. 9. In view of the above, this Court does not find any error in the trial Court's exercise of jurisdiction under Order 6 Rule 17 of the Code by permitting the plaintiffs to amend the plaint when the trial has notyet begun. 10. In Celina Coelho Pereira (Ms) and others vs. Ulhas Mahabaleshwar Kholkar and others, (2010) 1 SCC 217, the Hon'ble Supreme Court has discussed about the scope of interference under Article 227 of the Constitution of India. Rele^/ant paragraphs 30, 31 and 32 ofthe report are extracted hereunder: "30. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta, (1975) 1 SCC 858 this Court held: (SCC p. 865, para 7) "7. ... 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." 31. In State v. /Vaiyb? Sandhu, (2003) 6 SCC 641 : 2003 SCC (Cn') 1545 this Court explained the power of the High Court underArticle 227 thus: (SCC pp. 656-57, para 28) "28. Thus the law is that Article 227 of the Constitution of India gives the High Court the power . of superintendence over all courts and tribunals throughout the terntories in relation to which it exercises jurisdiction. This jurisdict/on cannot be 1/mited qr fettered by any Act of the State ~—~—-^ Legislature. The supervisory jurisdiction extends to i keeping the subordinate tribunals wifhin the limits of :"s yl .,.,-sSSSS B» their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be usecf, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an orderofthe High Court, such a source ofpower, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. Furthec, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the juhsdiction under Article 227 could not be 'exercised 'as the cloak ofan appeal in disguise'." 32. The aforesaid two decisions and few other decisions, namely, Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, (1986) 4 SCC 447, State of Maharashtra v. Milind, (2001) 1 SCC 4 : 2001 SCC (L&S) 117 and Ranjeet Singh v. Ravi Prakash, (2004) 3 SCC 682 came to be considered by this Court in Shamshad Ahmad v. Tilak Raj Bajaj, (2008) 9 SCC 1 and this Court held: (Tilak Raj case, (2008) 9 SCC 1, SCC pp. 10-11, para 38) ."38, Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and tribunals throughout the terhtories in ; relation to which it exercises jurisdicfion, such li, ^ i.ss!, S' powers must be exercised within the limits of law. The poweris supervisory in nature. The High Court cfoes not act as a court of appeal ora court of error. It can neither review nor reappreciate, nor reweigh the ev/dence upon which determination of a subordinate court or inferior thbunal purports to be based or to correct errors of fact or even of law and to substitute its own dec/s/on for that of the inferior court or tribunal. The powers are required to be exercised most spahngly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits oflaw." 11. Applying the law settled by the Hon'ble Supreme Court in relation to the scope of interference in a petition under Article 227 of the Constitution of India, this Court finds that the petitioner has not been able to make out a case worth interference in the impugned order passed by the trial Court. The petitioner shall be entitled to and can make consequential amendment by moving an appropriate application before the trial Court. 12. With the aforesaid observation, the instant writ petition stands dismissed. Sd//- Prashant Kumar Mishra Judge Gopai