Article 227; Syed Mohammad Abbas Vs. Bibi Sajda Khatoon [Patna High Court, 22-07-2016]

Constitution of India – Article 227 – Proper identification of petition – Whether procedures prescribed under Code of Civil Procedure would apply to the petition under Article 227 of the Constitution of India, whenever matter is against the order passed by Civil Court? – Whether Article 120, 121 of the Limitation will be applicable while considering substitution relating to petition under Article 227 of the Constitution? – question referred to the Division Bench.

Article 227 of the Constitution


IN THE HIGH COURT OF JUDICATURE AT PATNA

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI

22-07-2016

Civil Writ Jurisdiction Case No.12179 of 2012

1. Syed Mohammad Abbas S/O Syed Aley Imam Resident Of Village Rampur Bariya Tola Allehpur, P.O. Rampur Bariya, P.S. Kesarya, District East Champran.

2. Aklima Khatoon W/O Md. Sattar D/O Late Syed Aley Imam Resident Of Village Rampur Bariya Tola Allehpur, P.O. Rampur Bariya, P.S. Kesarya, District East Champran.

3. Motahra Khatoon W/O Late Syed Md. Taiyab Resident Of Village Rampur Bariya Tola Allehpur, P.O. Rampur Bariya, P.S. Kesarya, District East Champran.

…. …. Petitioner/s Versus

1. Bibi Sajda Khatoon W/O Late Syed Abdul Majeed & D/O Late Syed Aley Imam Resident Of Village Darwa, P.S. Harsiddhi, P.O. Harsiddhi, District East Champaran.

Appearance : For the Petitioner/s : Mr. Raghwanand, Advocate For the Respondent/s : Mr. Waliur Rahman, Amicus Curiae

ORDER

A poignant question arose during course of hearing over I.A. No.9101/2014 relating to applicability of Article 120, 121 of the Limitation Act, while considering prayer of substitution concerning a petition preferred under Article 227 of the Constitution.

2. I.A. No. 9101/2014 has been filed on 09.12.2014 on account of death of petitioner no.1, Syed Mohammad Abbas on 06.03.2014 as well as death of petitioner no.2, Aklima Khatoon on 05.07.2014(wrongly mentioned as 05.07.2013) leaving behind the petitioners, Ejaz Ahmad, Imteyaz Ahmad, sons of petitioner no.1, as only legal heirs.

3. It has been submitted on behalf of the petitioner that a petition under Article 227 of the Constitution of India is a “writ petition” wherein no limitation is found prescribed for the purpose of substitution and in likewise manner, it has also been submitted that no question of abatement does survive. Further, elaborating his submission, the learned counsel for the petitioner submitted that writ is a constitutional power inherently possesses by the High Court for efficacious remedy. That happens to be the reason behind that no procedure has been prescribed for entertaining a writ. The High Court on its own or in an alternative, on the prayer made by an individual could exercise the power of superintendence in order to adjudicate upon the propriety of the order passed by the Civil Courts. If such inherent power is allowed to be circumvented by the law of procedure, then in that event, its purpose will be frustrated.

4. It has also been submitted that the aforesaid theme has elaborately been considered in AIR 1996 SC 1092 wherein it has been held that no such provision could be allowed to intervene during exercise of writ jurisdiction, however, a rule of caution has been given that it should not be kept pending for infinite period.

For that purpose, it has been held that Court could stick to the time so prescribed for the purpose of substitution in terms of Order 22 CPC read with Article 120 of the Limitation Act, but during consideration, delay if any, should not be viewed adverse in terms thereof. However, with regard to abatement it has been completely ruled out. Learned counsel for the petitioner also referred 1978 PLJR 659 wherein while dealing with revisional power, the period of Limitation for substitution has completely been brushed aside.

Consequent thereupon, it has been submitted that I.A. No.9101/2014 be allowed.

5. The importance of Article 227 of the Constitution of India now-a-days has been highlighted on account of some sort of stringent clause having been inserted in Section 115 of the CPC barricading the power of revision. Though usually, when there happens to be a petition under the heading of writ, it connotes in casual way Article 226 as well as 227 of the Constitution of India.

However, the Hon’ble Apex Court had distinguished that Article 226 was not at all available whenever there happens to be order of the Civil Courts under challenge and so, it has been segregated and then, Article 227 of the Constitution of India has alone been found enforceable, as remedial provision. Apart from this, the Hon’ble Apex Court had an occasion to perceive ambit and scope of Article 226 as well as article 227 of the Constitution of India, and held that both two are independent to each other, commanding two distinct sphare.

6. In

Shalini Shyam Shetty v. Rajendra Shankar Patil as reported in (2010)8 SCC 329

wherein distinction in between Article 226 and 227 of the constitution has been laid down after considering previous judicial pronouncements and further observed as follows:-

49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court’s jurisdiction under Article 227of the Constitution may be formulated:

(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, the High 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