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Andhra Pradesh High Court
Judges : V.V.S.RAO
Penta Urmila - Appellant
Versus
Karukola Kumaraswamy - Respondent
CRP.No.5828/04
Decided On : 12-13-04
Advocates Appeared :
Mr. P. Veera Reddy,Mr.Kowturu Vinaya Kumar
Art227 of Constitution - Scope and object - Stated - Every error committed by Court subordinate to High Court not amenable to supervisory jurisdiction under Art227 - Power under Art227 is intended to avoid miscarriage of justice by improper exercise of jurisdiction which primarily does not vest in lower Courts - When scope of Sec115 CPC has been drastically whittle down by Parliament by resorting to liberal approach under Art227, High Court cannot introduce appellate/revisional intervention at interlocutory stage of suit
In suit for permanent injunction vital and important issue is whether plaintiff is in possession of suit schedule land and whether there was attempt by defendant to interfere with such possession of plaintiff - It is not permissible for plaintiff to invoke Or26, R9 which is intended for different purpose - If at that stage Advocate-Commissioner files report it would certainly amounts to introducing additional evidence which is ordinarily not permissible unless proper application is made under Or41, R27 - Appointment of Advocate-Commissioner by appellate Judge - Improper - Impugned order, set aside - CRP, allowed
Certainly. Based on the provided legal document, here are the key points:
The case involves a Civil Revision Petition filed against an appellate order appointing an Advocate-Commissioner to localize the suit schedule property with reference to revenue records and FMB, which was challenged as an improper exercise of jurisdiction at an interlocutory stage (!) .
The appellate court's order was criticized for amounting to the collection of evidence, which is generally not permissible during an appeal for a suit for permanent injunction, especially without proper application under relevant procedural rules (!) .
The scope of jurisdiction under Article 227 of the Constitution is limited to preventing miscarriage of justice caused by improper exercise of jurisdiction by subordinate courts; it does not extend to correcting every error made at the interlocutory stage (!) (!) .
The exercise of jurisdiction under Article 227 is discretionary and must be approached with caution, balancing the need to prevent injustice against the risk of unnecessary interference in interlocutory proceedings (!) (!) .
The court emphasized that in a suit for permanent injunction, the core issue is possession and interference thereof. Introducing additional evidence through appointment of an Advocate-Commissioner at the appellate stage without proper grounds constitutes an improper exercise of jurisdiction (!) (!) .
The order appointing the Advocate-Commissioner was set aside because it was found to be an improper exercise of jurisdiction, and the petition was allowed with no costs (!) .
The overall principle is that appellate courts should exercise restraint in intervening during interlocutory stages unless there is clear justification, to avoid miscarriage of justice and preserve procedural integrity (!) (!) .
If you need a specific legal analysis or advice based on these points, please let me know.
( 1 ) RESPONDENTS 1 to 6 herein along with another person filed a suit being O. S. No. 105 of 1988 on the file of the Court of junior Civil Judge, Palasa, for permanent injunction to restrain defendants 1 to 31, in any manner interfering with the possession of the plaintiffs in respect of agricultural lands comprised in S. Nos. 232-2a1/b, 232-2a2/a, 232-1b, 232-2a1/c, 232-2a2/b, 232-1c. The suit was opposed by defendants who were in possession of the land in S. No. 232/ 7 which was adjacent to suit schedule lands the trial Court by judgment dt. 31-12-2001 dismissed the suit disbelieving the version of the plaintiffs. Aggrieved by the same, plaintiffs filed regular first appeal being A. S. No. 15 of 2002 on the file of the Court of senior Civil Judge, Sompet. When the appeal suit was coming up for arguments, plaintiffs/appellants filed IA No. 87 of 2004 under Order XXVI Rule 9 of Code of Civil procedure, 1908 (CPC) for appointment of advocate Commissioner to localize the plaint schedule property and the property in S. No. 232/7 with reference to Field measurement Book (FMB) and other revenue records. This application was opposed by the defendants/respondents. Overruling objections, the learned Appellate judge by impugned order dt. 9-9-2004 appointed Advocate Commissioner as prayed for directing him to take assistance of mandal Surveyor, give prior notice to both parties and submit a report. Aggrieved by this, the legal representatives of eighth defendant, who came on record as respondents 2, 4, 5, 7 and 8 in the appoal, filed present Civil Revision Petition under article 227 of the Constitution of India.
( 2 ) LEARNED Counsel for the petitioners, sri P. Veera Reddy, submits that the impugned order amounts to collection of evidence which is not permissible in a suit for injunction at the appellate stage. He would urge that new and additional evidence is sought to be procured by the plaintiffs after lapse of sixteen years and therefore orders of the learned Senior Civil Judge suffer from grave error apparent on the face of the record, requiring correction in the proceedings under Article 227 of the constitution of India. Per contra, learned counsel for respondents 1 to 6, Sri Kouturu vinaya Kumar submits that plaintiffs filed an application only for verification of the features of the suit schedule property and property claimed by the defendants, with reference to FMB and revenue records and the same does not amount to collecting evidence. Therefore, he would urge that the order of the learned Senior Civil Judge does not in any manner cause prejudice to the petitioners.
( 3 ) IT is now well settled that by catena of decisions of the Supreme Court every error committed by a Court subordinate to High court is not amenable to supervisory jurisdiction under Artice 227 of the constitution of India. The power under article 227 of the Constitution of India is intended to avoid miscarriage of justice by improper exercise of jurisdiction by subordinate Courts or exercise of jurisdiction which primarily does not vest in lower courts. In Surya Dev v. Ram Chander Rai the Supreme Court considered the scope of article 227 of the Constitution of India in the background of amendments to CPC in 1999 and 2002. While laying down general principles in relation to exercise of jurisdiction under Article 227, the Supreme court observed. . . . Not less than often, the High Court would be faced with a dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self-restraint and not to intervene because the error of jurisdiction thougr committed is yet capable of being taken care of and corrected at a later stage and the wrung done, if any, would be set right and rights and equities adjusted in appeal or re
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