Shiv Pratap and Another v. Meena and 5 Others

Court No. - 18 Case :- MATTERS UNDER ARTICLE 227 No. - 5086 of 2023 Petitioner :- Shiv Pratap And Another Respondent :- Meena And 5 Others Counsel for Petitioner :- Shyam Prakash,Upendra Kumar Sagar Hon'ble Saurabh Lavania,J.

¶1Heard learned counsels for the parties.

¶2In view of order proposed to be passed, notice to the private respondent(s) is dispense with.

¶3Under challenge are the order dated 03.08.2023 passed by Additional District Judge Court No. 4, Barabanki and order dated

07.03.2022 passed by the Trial Court, Annexure No. 1 & 2 to the petition, respectively.

¶4By the order dated 07.03.2022, the Trial Court rejected the application preferred by the petitioner under Order 7 Rule 11 C.P.C. (Ga 14). Relevant portion of the order dated 07.03.2022 reads as under: "

ससननवपतनवललकनअवललकनककयनगयन।पतनवललककअवललकनसककवकदतहहकक

दनवनवनदलगणघलषणनतमकवसथनयलवयनदकशहकतसलनयनगयनहह।वसलयतकतनरकक

वनकदनलसस०-1 बहह,

वनदलसस०-2

पलतनववनकदनलसस०-3

पलतलहह।वनकदनलककपकतकक

ममतयसहलगयलहह।वनदलगणवपकतवनदलगणककओरसकपसतसतकवधधवयवसथनओसकन

अवललकनककयन।

दनवकममवनदकनरणसपषहह।जहनसतककलररफकसकनपशनहह

जवनबदनवनआनकपरहलवनदकबनदसककमनधयमसककनणरतककयनजननननयनयलकचतहह।

पकतवनदलजननककलररफकसककआधनरपरदनवनखनररजककयकजनननककयनचननककगयल

हह।पकतवनदलगणदनरनअपनकपनथरननपतममयहनहहबतनयनगयनहहककआदकश

7 कनयम

जन . दल .

ककककसकवकशषकनयमककअसतगरतवनदलकनदनवनवधजरतहह।अतत

उपरलकनसनरआदकश

कनयम

जन . दल .

ककपररधधबहहत

छलरलहलतलहह।दनवकमम

सपष

cause of action

कदखनयनगयनहह।

पलननलनलककमयनसबननमकक

. पल . रकडल

, ए . आई

. आर

. 2012

सस . कल . 2638

ममयहमतवयकककयनगयनहहककयकद

cause of

action

सपषहलतलदनवककलआदकश

कनयम

11 (b)

जन . दल .

खनररजनहहककयनजन

सकतनहह।

इसमनमलकमममनननलयउचचतमनयनयनलयनकयहमतवयकककयनहहकक

पकतवनदलगणदनरनअपनकधलधखतकथनममकदयकगयकअकभकथनयनवनदपतखनररज

करनकककधलयककदयकगयकआवकदनककआधनरपरनहहखनररजककयनजनसकतन।

नयनयनलयकलसममचकवनदपतकलपढननचनकहयकयहपतनलगननकककधलयककककयनयह

वनदहकतसकपकरकरतनहहयननहहऔरयकदयहकरतनहहतलवनदपतनयनयनलयदनरन

आदकश7

कनयम11 जन.दल.

ककअधलनअपनलशककययकनपयलगकरतकहहएखनररज

नहहककयनजनसकतन।

पकतवनदलजनदनरनअभलतकडबलयम.एस.

पसतसतनहहककयन

गयनहह।अततदनवनआदकश7

कनयम11 जन.दल.

ककअधलनखनररजनहहककयनजन

सकतनहह।

जहनसतकममलयनसकनकनपशनहहउसससबसधममआदकश

कनयम

11 (a)

जन . दल . यह

उपबननधतकरतनहहककजहनसअनसतलषकनममलयनसकनकमककयनगयनहहवहनस

नयनयनलयवनदलकलअवसरपदननकरककऐसकममलयनसकनकलठलककरनयकगनवनदलकल

एककननशचतअवधधककअसतगरतममलयनसकनठलककरनकककधलयककनदरशदकगन।नयनयनलय

दनरनकननशचतककगयलअवधधकलबढनयनभलजनसकतनहह।अगरवनदलनयनयनलय

दनरनकननशचतककगयलअवधधयनबढनईगईअवधधककअसतगरतममलयनसकनठलकनहह

करतनतलनयनयनलयवनदपतकलननमसजमरकरदकगन

।इससतरपरदनवककलखनररज

ककयनजननननयनयलकचतकवकदतनहहहलतनहह,

कययककदलवननलबनदममवनदलकनकहत

सवरचचहलतनहहवहMaster of the Suit

हलतनहह।तकनलककरपसकदनवनखनररज

ककयकजननकयलगयनहहहह।अततउपरलकननसनरतथययवपररनसथकतययककदकषगत

पनथरननपतआदकश7

कनयम11

जन०दल०सवलकनरककयकजननकयलगयनहहहह।"

¶5The order dated 07.03.2022 was challenged by the petitioner by means of Civil Revision No. 21/2022 (Shiv Pratap and Others Vs Meena and Others). The Revisional Court namelyAdditional District Judge Court No. 4, Barabanki dismissed the revision vide order dated

03.08.2023. The relevant portion of the same reads as under: "

उपरलकपसनरलकणकनसतनररतकरनकहकतससल०पल०सल०ककआदकश7

कनयम11 कक

पनवधननसससगतहह।

आदकश7

कनयम11 सल०पल०सल०

ककअनसनरवनदपतवहनसपर

ननमसजमरककयनजनयकगन

(क)

जहनसवनदहकतसकपकरनहहकरतन;

(ख)

जहनहदनवनकमतअनसतलषकनममलयनसकनकमककयनगयनहहऔरवनदलममलयनसकन

कलठलककरनकककधलयकअपककतककयकजननकपरउससमयककभलतरजलनयनयनलयमम

कनयतककयनहह,

ऐसनकरनकममअसफलरहतनहह;

(ग)

जहनसदनवनकमतअनसतलषकनममलयनसकनठलकहहककनतसवनदपतअपयनरपसरनमपपत

परधलखनगयनहहऔरवनदलअपककतसरनमपपतककदकनकककधलयकनयनयनलयदनरन

अपककतककयकजननकपरउससमयककभलतरजलनयनयनलयममकनयतककयनहह, ऐसन

करनकममअसफलरहतनहह;

(घ)

जहनसवनदपतकककथनयसकयहपतलतहलतनहहककवनदककसलकवधधदनरनवधजरत हह;

(ङ)

जहनसयहदलपकतययममदनधखलनहहककयनजनतन;

(च)

जहनसवनदलकनयम9

ककउपबनधयकनअनसपनलनकरनकममअसफलरहतनहह।

इसतरहसपषहहककउपरलकदशनओसममहलवनदपतकलआदकश7

कनयम11

सल०पल०सल०ककअधलनननमसजमरककयनजनसकतनहहऔरउसनसथकतममजवनबदनवन

दकखनकककआवशयकतननहहहह।

कवचनरणनयनयनलयदनरनपनररतआदकशकदननसककत07-03-2022

ककपररशललनसक

सपषहहकककवचनरणनयनयनलयदनरनआदकश7

कनयम11

जन०दल०पनथरननपतकन वनसततरणoकरतदoहहएoसपषoरपoसदoउवलजखतoवकयतoगयतoवकoनयतयतलयoककoसमपचदoवद पतoककoपढनतoचतवहएoऔरoयहoपततoलगतनदoकद oजलयदoवकoकयतoयहoवतदहदततकoपकट करततoहoह वकoनहह,oयवदoयहoवतदहदततकoपकटoकरततoहहoतकoवतदoपतoनयतयतलयoदतरत हआददशo7oवनयमo11oजत०दल०oकद oअधलनoअपनलoशवकयोoकतoपयकगoकरतदoहएoखतररज म रनहहoवकयतoजतoसकतत।oमपलयतसकनoकद oसमबसधoमoनयतयतलयoदतरतoयहoवनषकषoवदयतoगयत वकoजहतसoअनत कषoकतoमलप यतसकनoकमoवकयतoगयतoहहoवहतसoनयतयतलयoककoवतदलoकक अवसरoपदतनoकरकद oऐसदoमपलयतसकनoककoठलकoकरतयदगत।oवतदलoककoवनसशचतoअवजधoकद अनतगरतoमपलयतसकनoठलकoकरनदoकद oजलयदoवनदरशoददगत।oनयतयतलयoदतरतoवनसशचतoककoगयल अवजधoककoबढतयतoभलoजतoसकततoह।ह oअगरoवतदलoनयतयतलयoदतरतoवनसशचतoककoगयल अवजधoयतoबढतईoगयलoअवजधoकद oअनतगरतoमपलयतसकनoठलकoनहहoकरततoतकoनयतयतलय वतदoपतoककoनतमसजपरoकरoददगत।oमपलवतदoककoपततवललoकद oपररशललनoसदoसपषoहहoवक इसममoनयतयतलयoदतरतoअभलoनoतकoमपलयतसकनoसमबसधलoवतदवबनदoत ववरवचतoवकयतoगयतoन हलoवनसततरणoवकयतoगयतoहoह औरoआददशo7oवनयमo11(b)&(c)oकद oअधलनoमपलयतसकन कमoहकनतoअथवतoनयतयशतलकoकमoअदतoहकनदoकद oसमबसधoममoवतदलoककoसमयoवदयदoजतनद कद oपशचतततoयवदoउसकद oदतरतoमपलयतसकनoककoसहलoनहहoवकयतoजतततoयतoकमoककटरफकस रककo पपरतo नहहo वकयतo जतततo तभलo वतदoपतo ककo नतमसजपरoकरगद त।oअथतरततo सवपथम र म रनयतयतलयoककoमपलयतसकनoऔरoअदतoवकयदoगयदoककटफकसoकद oसमबसधoमoअपनतoवनषकष ददनतoहoह औरoततपशचतततoहलoवतदoपतoककoनतमसजपरलoकतoआददशoपतररतoवकयतoजतoसकतत, परनततoचपसवकoपसतत oमतमलदoमदoवतदoकतoमपलयतसकनoएवसoअदतoवकयदoगयदoनयतयशतलकoकद समबसधoममoवतदवबनदoनoतकoववरवचतoहहएoहoम नoहलoउनकतoवनसततरणoहहआoहह,oऐसलoससथवतत ममoआददशo7oवनयमo11(b)&(c)oजत०दल०oकद oअधलनoवतदपतoनतमसजपरoनहहoवकयतoजत सकतत। oजहतसoतकoनयतयतलयoकद oकदततजधकतरoकतoसमबसधoहoहo,ooसपषoहoह वकoवतदoवसलयतनतमतoजकo oवकoसव०oरतमसतगरoदतरतoवकयतoगयतoo,ooककoशपनयoघकवषतoकरनदoहदततoपसतत oवकयतoगयत।o oवसलयतनतमतoजकoवकoमपलवतदoककoपततवललoममoकतगजoसoसo.9oooगoहoo,ह ooकद oपररशललनoसदoयहo सपषoहoह वकoरतमसतगरoदतरतoअपनलoकत लoचलoवoअचलoसमपजतoकतoवसलयतनतमत oपवतवतदलoसooस.o1ooवoo2ooकद oपकoममoवकयतoगयतoतथतoवसलयतनतमदoममoहलoमकतकoरतगसतगरo oदतरतoअपनलoआरतजलoo,ooकतशतकतरलoo,ooबतगoएवसoमकतनoकद oसमबसधoममoवसलयतoकरनतoकहतo oगयतo ह।ह oपवतवतदलo दतरतo अपनदo पतथरनतपतo गoo-14 ooममo जकo वकo आददश oo7 ooवनयम oo11o मoजत०दल०oकद oअधलनoदलoगयलoथलoo,ooदफतooo6ooमoयहoअसवकतoहoह वकoनझमललतलoकद oपतसo म रजनपदoलखनऊoमoदकoमकतनoथद।oइसoतरहoसपषoहoह वकoउपरककoरतमसतगरoउफ नझमललतलoकद oदतरतoककoगयलoवसलयतoममoचलoवoअचलoसमपजतoजजसमoम मकतनoएवस oकतशतकतरलoभपवमoदकनकoशतवमलoहoo,म ooकद oसमबसधoममoवनषपतवदतoवकयतoगयतoऔरoवतदoपतoकoद पररशललनoसदoसपषoहoह वकoवतदलoदतरतoबतदoपतoमoम वतदकतरणoएवoस वतसवछतoअनत कषoदकनक हलoसपषoरपoसदoकजथतoवकयदoगयदoह।ह वतदoपतoकद oपररशललनoसदoसपषoहoह वकoवतदoपतoमoम वसलयतoककoधकखदoकतoपररणतमoहकनत एवसo शपनयoहकनतo कहतदo हहएoउसदo शपनयoघकवषतoकरनदo कतo अनत कषoमतसगतo गयतo ह।ह नयतयतलयoकतoकदततजधकतरoवतदकतरणoएवसoवतदoपतoममoयतवचतoअनत कषoकद oआधतरoपर वनधतर रतoहकततoह।ह oवतदoपतoममoअनत कषoवसलयतoशपनयoघकवषतoकरनदoहदततoयतवचतoवकयत गयतoह।ह oवसलयतoचलoवoअचलoसमपजतoएवसoअचलoसमपजतoमoम मकतनoवoकक वषoभपवम दकनकoशतवमलoह,म oकद oसमबसधoममoवनषपतवदतoह।ह oऐसदoमoम समपपणरoवववतवदतoववषयoऐसदoहम जजनoपरoमततoजसववलoनयतयतलयoककoहलoकदततजधकतरoपत्oह।ह ooवनतसनददहoआददशoo7o oवनयमoo11ooसल०पल०सल०oकद oअधलनoमततoइतनतoहलoददखतoजतनतoहहoवकoकयतoवतदoपतoकदo र र मकथनोoसदoयहoदवशतoहकततoहoह वकoदतवतoवकसलoववजधoदतरतoवजजतoह।ह oइसoसमबसधoम वतदपतoकद oपररशललनoसदoसपषoहकoचतकतoहoह वकoवतदoपतoमoम ऐसतoककईoतथयoनहहoआयतoहह जजससदoसपषoरपoसदoयहoवनषकवषरतoहकततoहकoवकoदतवतoवकसलoअजधवनयमoकद oपतववधतनो सदoबतजधतoह।ह oकयोवकoसमपपणरoवतदoपतoकद oपररशललनoसदoसपषoहoह वकoसमपपणरoवववतदoकक ववषयoवसततoकवषoभपवमoएवसoआवतसलयoमकतनoतथतoचलoसमपजतoहoह औरoवसलयतक उपरककoसभलoकद oसमबसधoममoवनषपतवदतoहoह जकoजसववलoनयतयतलयoकद oकदततजधकतरoकद

अनतगरतहह।

पसनरलकणकतनरककओरसककवधधवयवसथन

कमलनपसनदएवसअनय

बननमकमषणकननतपनठकएवसअनय2007 (2) AWC 1764 SC

पसतसतककगयलहह

धजसमममनननलयउचचतमनयनयनलयदनरनयहकवधधकधसदननतपकतपनकदतककयन

गयनहहककजहनसवनदलकनननमरनजसवअकभलकखयममअसककतनहलऔरकवकयकक

आधनरपरककतनकनननमरनजसवअकभलकखयममअसककतहलगयनहलवहनसकवकयपतकक

कनरसतलकरणकनवनदरनजसवनयनयनलयममपलषणलयहलगन,

धसकवलनयनयनलयमम

नहह।

सपषहहककउपरलककवधधवयवसथनकमकषभमकमसकसमबसधधतकवकयकवलकखकक

कनरसतलकरणककसमबसधममहहपरनतसपशनगतमनमलकममवनदलदनरनवसलयतननमन

धजसममचलवअचलसमपधतमयमकननशनकमलहह

,

कलशमनयघलकषतकरनकहकतस

पसतसतककयनगयनहह।

इसकनरणसममननपमवरकमकरनमतहहककतथययकककभनतनकक

कनरणउपरलककवधधवयवसथनपसतसतमनमलकममलनगमनहहहलतल।

कवचनरणनयनयनलय

ककपतनवललककपररशललनसकसपषहहकककवचनरणनयनयनलयदनरनअपनकआदकश

कदननसककत

07-03-2022

ममयहसमपककतककयनहहककवनदपतममवनदहकतसकदशनरयन

गयनहह

,

दनवनअलपममलयनसककतहलननअथवननयनयशसलककमअदनहलननदकशरतनहह

हलतनहह।वनदपतककपररशललनसकसपषहहककयहदकशरतनहहहलतनककवनदककसल

कवधधककपनवधननयसकबनधधतहह।इसतरहसपषहहकककवचनरणनयनयनलयदनरन

पशनगतआदकशपनररतकरतकसमयवनदपतकककथनयएवसपकतवनदलदनरनपसतसत

पनथरननपत

गकककथनयपरकवचनरककयनगयनहह।

अततउपरलककववकचनककआधनरपरनयनयनलयइसमतककहहकककवचनरण

नयनयनलयदनरनपनररतआदकशकदननसककत07-03-2022

कवधधधसदननतयककअनसरप

हह।उसममककसलपकनरककअकनयकमततन,

अवहधनकनकतननहहहहनहलककतनधधकनर

समबसधलकलईतसकरहह।ऐसलनसथकतममआककपतआदकशकदननसककत07-03-2022 मम

हसतककपककयकजननककनकलईआधनरएवसनयनयलकचतकनरणनहहहह।तदनसनर

पसनरलकणकनरसतककयकजननकयलगयहह। आदकश

धसकवलकनगरननलसस. 21/2022

कशवपतनपएवसएकअनयबननममलननआकदकनरसत

ककजनतलहह।कवचनरणनयनयनलय/

धसकवलजज(सल०कड०)

नयनयनलयसस.20,

बनरनबसककदनरनममलवनदसस. 235/2021

मलननआकदबननमकशवपतनपआकदममपनररत

आदकशकदननसक07-03-2022

पसषककयनजनतनहह।

इसकनणरयककपकतककसनथकवचनरणनयनयनलयककपतनवललकवचनरणनयनयनलयकल

वनपसपकषतककजनयक।पसनरलकणपतनवललदनधखलअकभलकखनगनरहल।" .

¶6This petition has been filed under Article 227 of Constitution of India. The scope of petition under Article 227 has already been settled in various pronouncements by the Hon'ble Supreme Court.

¶7In Waryam Singh v. Amarnath, AIR 1954 SC 215, a Constitution Bench of the Hon'ble Supreme Court, after examining the scope of Article 227 of the Constitution, observed as under:-- "This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, 1951 AIR (Cal) 193 to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors."

¶8In Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233, the Hon'ble Supreme Court, in the context of the scope, power and jurisdiction exercised by the High Court, under Articles 226 & 227 of the Constitution of India, observed as under: "20. We are also of opinion that the Election Tribunals are subject to the superintendence of the High Courts under Article 227 of the Constitution, and that that superintendence is both judicial and administrative. That was held by this Court in ''Waryam Singh v. Amarnath', AIR 1954 SC 215 (K) , where it was observed that in this respect Article 227 went further than section 224 of the Government of India Act, 1935, under which the superintendence was purely administrative, and that it restored the position under section 107 of the Government of India Act, 1915. It may also be noted that while in a ''certiorari' under Article 226 the High Court can only annul the decision of the Tribunal, it can, under Article 227, do that, and also issue further directions in the matter. We must accordingly hold that the application of the appellant for a writ of ''certiorari' and for other reliefs was maintainable under Articles 226 and 227 of the Constitution.

¶21Then the question is whether there are proper grounds for the issue of ''certiorari' in the present case. There was considerable argument before us as to the character and scope of the writ of ''certiorari' and the conditions under which it could be issued. The question has been considered by this Court in ''Parry and Co. v.Commercial Employees' Association, Madras', AIR 1952 SC 179 (L):- ''Veerappa Pillai v. Raman and Raman Ltd.' AIR 1952 SC 192 (M); - ''Ebrahim Aboobaker v. Custodian General of Evacuee Property New Delhi' AIR 1952 SC 319 (N), and quite recently in AIR 1954 SC 440 (C). On these authorities, the following propositions may be taken as established: (1) ''Certiorari' will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) ''Certiorari' will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of ''certiorari' acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings or fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy if a superior Court were to re-hear the case on the evidence, and substitute its own findings in ''certiorari." These propositions are well settled and are not in dispute."

¶9In the case of M.L.Sethi Vs. R.P. Kapur, reported in (1972) 2 SCC

¶427The Hon'ble Supreme Court observed as under:- "12. ............ The word "jurisdiction" is a verbal cast of many colours. Jurisdiction originally seems to have had the meaning which Lord Baid ascribed to it in Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147, namely, the entitlement "to enter upon the enquiry in question". If there was an entitlement to enter upon an inquiry into the question, then any subsequent error could only be regarded as an error within the jurisdiction. The best known formulation of this theory is that made byLord Denman in R. v. Bolton, (1841) 1 QB 66. He said that the question of jurisdiction is determinable at the commencement, not at the conclusion of the enquiry. In Anisminde Ltd., (1969) 2 AC 147 Lord Reid said: "But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive". In the same case, Lord Pearce said: "Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an enquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage while engaged on a proper enquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fall to make the inquiry which the Parliament did direct. Any of these things would cause its purported decision to be a nullity." The dicta of the majority of the House of Lords, in the above case would show the extent to which ''lack' and ''excess' of jurisdiction have been assimilated or, in other words, the extent to which we have moved away from the traditional concept of "jurisdiction". The effect of the dicta in that case is to reduce the difference between jurisdictional error and error of law within jurisdiction almost to vanishing point. The practical effect of the decision is that any error of law can be reckoned as jurisdictional. They comes perilously close to saying that there is a jurisdiction if the decision is right in law but none if it is wrong. Almost any misconstruction of a statute can be represented as "basing their decision on a matter with which they have no right to deal", "imposing an unwarranted condition" or "addressing themselves to a wrong question". The majority opinion in the case leaves a Court or Tribunal with virtually no margin of legal error. Whether there is excess of jurisdiction or merely error within jurisdiction can be determined only construing the empowering statute which will give little guidance. It is really a question of how much latitude the Court is prepared to allow in the end it can only be a value judgment (See H.W.R. Wade, "Constitutional and Administrative Aspects of the Anismenic case", Law Quarterly Review, Vol. 85, 1969, P. 198). Why is it that a wrong decision on a question of limitation or res judicata was treated as a jurisdictional error an liable to be interfered with in revision? It is a bit difficult to understand how an erroneous decision on a question of limitation or res judicata would oust the jurisdiction of the Court in the primitive sense of the term and render the decision or a decree embodying the decision a nullity liable to collateral attack. The reason can only be that the error of law was considered as vital by the Court. And there is no yardstick to determine the magnitude of the error other than the opinion of the Court."

¶10In the case of Chandrasekhar Singh Vs. Siya Ram Singh, reported in (1979) 3 SCC 118. The Hon'ble Supreme Court observed as under:- "11. The only other question that remains to be considered is whether an order under Section 146(1B) can be interfered with by the High Court in the exercise of its powers under Article 227 of the Constitution. It is admitted that the powers conferred on the High Court under Art. 227 of the Constitution cannot in any way be curtailed by the provisions of the Criminal Procedure Code. Therefore, the powers of the High Court under Art. 227 of the Constitution can be invoked in spite of the restrictions placed under Section 146(1D) of the Criminal Procedure Code. But the scope of interference by the High Court under Art. 227 is restricted. This Court has repeatedly held that "the power of superintendence conferred by Article 227 is to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors vide 1954 S.C.R. 565 (Waryam Singh v. Amar Nath). In a later decision, (Nagendra Nath Bora v. The Commissioner of Hills Division, and Appeals, Assam, the view was reiterated and it was held that the power of judicial interference under Article 227 of the Constitution are not greater than the power under Article 226 of the Constitution, and that under Art. 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority. In a recent decision, (Babhutmal Raichand Oswal v. Laxmibai R. Tarts (2) this Court reiterated the view stated in the earlier decisions referred to and held that the power of superintendence under Article 227 of the Constitution cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as the Court of appeal and that the High Court cannot in exercise of its jurisdiction under Art. 227 convert itself into a court of appeal."

¶11In Mohd. Yunus v. Mohd. Mustaquim, (1983) 4 SCC 566, Hon'ble Supreme Court held that High Court has very limited scope under Article 227 of the Constitution and even errors of law cannot be corrected in exercise of power of judicial review while exercising such power. The powers can be used sparingly only when High Court comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. It further held that the High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of Tribunal etc. has resulted in grave injustice.

¶12In Rena Drego v. Lalchand Soni, (1998) 3 SCC 341, the Hon'ble Supreme Court has categorically held that the power under Article 227 of the Constitution is of the judicial superintendence which cannot be used to up-set the conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could have ever.

¶13In Baby v. Travancore Devaswom Board, (1998) 8 SCC 310, the Hon'ble Supreme Court has held that even if revisional jurisdiction was not available to the High Court, it still have powers under Article 227 of the Constitution of India to set aside the orders so passed by the Tribunal if the finding of fact arrived at was perverse.

¶14In Ajaib Singh v. Sirhind Co-operative Marketing cum Processing Service Society Ltd.,(1999) 6 SCC 82, the Hon'ble Supreme Court held that High Court is not to substitute its view for the opinion of Authorities/Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution.

¶15The Hon'ble Supreme Court in Shalini Shyam Shetty v.Rajendra Shankar Patil, (2010) 8 SCC 329, culled out the following principles: "(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.

(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 (supra) 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, theHigh Court in 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) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.

(n) This reserve and exceptional power of judicial intervention is 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 grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality."

¶16The Hon'ble Supreme Court in Madras Bar Association v. Union of India, (2014) 10 SCC 1, while dealing with the constitutional validity of the National Tax Tribunal Act, 2005, held Judicial Review, under Articles 226 & 227 of the Constitution of India, to be part of the Basic Structure of the Constitution. Even earlier, in Kartar Singh v. State of Punjab, (1994) 3 SCC 569, the Court had observed as such.

¶17In Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423 while holding that orders of Civil Courts are not amenable to writ jurisdiction under Article 226 of the Constitution of India, it further held that jurisdiction under Article 227 of the Constitution of India was distinct from the jurisdiction under Article 226 of the Constitution of India. To this extent, it also overruled its contrary view in Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675. In para 28 of the judgment in Radhey Shyam's case, Hon'ble Supreme Court observed that: "28. We may also deal with the submission made on behalf of the respondent that the view in Surya Dev Rai stands approved by larger Benches in Shail, Mahendra Saree Emporium and Salem Advocate Bar Assn and on that ground correctness of the said view cannot be gone into by this Bench. In Shail, though reference has been made to Surya Dev Rai, the same is only for the purpose of scope of power under Article 227 as is clear from para 3 of the said judgment. There is no discussion on the issue of maintainability of a petition under Article 226. In Mahendra Saree Emporium, reference to Surya Dev Rai is made in para 9 of the judgment only for the proposition that no subordinate legislation can whittle down the jurisdiction conferred by the Constitution. Similarly, in Salem Bar Assn. in para 40, reference to Surya Dev Rai is for the same purpose. We are, thus, unable to accept the submission of learned counsel for the respondent."

¶18The aforesaid principles stand reiterated by the Hon'ble Supreme Court in Ram Kishan Fauji v.State of Haryana, (2017) 5 SCC 533.

¶19Learned counsel for the petitioner failed to satisfy this Court from the material available on record that what illegality has been committed by the Trial Court as also by the Revisional Court.

¶20Further, this Court, considering the material available on record including the impugned orders quoted above and upon due consideration, this Court finds that the grounds taken by the petitioner for rejection of plaint in the application under Order 7 Rule 11 C.P.C. are not sufficient to attract the provisions of Order 7 Rule 11 C.P.C. and findings recorded by the trial court as also by the revisional court are not perverse. It is for following reasons:

(i) Averments made in the plaint prima facie show a cause of action to file a suit for cancellation of "Will" executed by one Ram Sagar, whereby he excluded the legal heirs of his deceased son Ram Lakhan (father of plaintiff no. 2 & 3 and husband of plaintiff no. 1 ) and bequeathed his all the property in favour of his other two sons namely Shivpratap (defendant no. 1) and Dharmendra (defendant no. 2).

(ii) Civil suit would be maintainable as "Will", in issue, relates to property situated in urban area as also in rural area. This fact has not been refuted.

(iii) It appears from the impugned order dated 03.08.2023 that "Will" is on record as Para No. 9Ga and this fact is also not in dispute.

(iv) Court fee paid is proper, as appear from the impugned orders and this aspect has also not been disputed. Moreover, if case falls under Sub-rule (b) and (c) of Rule 11 of Order 7, the Court before rejecting the plaint under these rules should provide an opportunity to remove the deficiency and in case the plaintiff fails to do so in the time provided the plaint can be rejected.

¶21In view of aforesaid reasons, the petition has no force and is dismissed. Order Date :- 10.10.2023/Mohit Singh/- High Court of Judicature at Allahabad, Lucknow Bench