2003 Supreme(Raj) 703

Supreme Court
Honble R.C. LAHOTI & ASHOK BHAN, JJ.
Surya Dev Rai - Appellant
Versus
Ram Chander Rai & Ors. - Respondents
D.B. Civil Appeal No. 6110 of 2003
Decided On : August 07, 2003

Headnote:(a) C.P.C., Sec. 115 as amended by Amendment Act No. 46 of 1999 w.e.f. 1.7.2002 and Constitution of India Art. 226 & 227 – Scope of Judicial review – Whether an aggrieved person is completely deprived of remedy of Judicial review, if he has lost at the hands of the original Court and the Appellate Court though a case of gross failure of justice having been occasined ? – Held – By amendment revisional jurisdiction of High Court Curtailed u/Sec. 115 C.P.C. but it does not take away the Constitutional jurisdiction of High Court u/Art. 226 & 227. (Paras 28, 31 to 33)(b) C.P.C., Order 39, Rule 1 & 2 and Constitution of India, Art. 226 – Exclusion of remedy of revision by the C.P.C., Amendment Act No. 46 of 1999 – Scope and explanation of Amendment Act – Suit for injunction – Inter locutory order – Remedy of revision before High Court not available – Interlocutory order can be challenged under writ jurisdiction. (Paras 36 to 39)(c) Constitution of India, Art. 226 and 227 – Writ of Certiorari – Difference between Art. 226 and 227 – Writ u/Art. 226 relates to exeercise of original jurisdiction whereas proceedings u/Art. 227 are supervisory in nature – High Court have power of superintendence over all inferior Courts and Tribunals – Held – High Court is competent to annul or quash the proceedings or in appropriate cases may substitute its own decision.

       The curtailment of revisional jurisdiction of the High Court does not take away-and could not have taken away-the constitutional jurisdiction of the High Court to issue a writ of certiorari to a Civil Court nor the power of Superintendence conferred on the High Court u/Art. 227 of the Constitution is taken away or whittled down. The power exists, untrammelled by the amendment in Sec. 115 of the CPC, and is available to be exercised subject to rules of self-discipline and practice which are well settled. (Para 33)

       ``(1) Amendment by Act. No. 46 of 1999 with effect from 1.7.2002 in Sec. 115 of Code of Civil Procedure cannot band does not affect in any manner the jurisdiction of the High Court u/Art.226 and 227 of the Constitution.

       (2) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

       (3) Certiorari, u/Art. 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate Court is found to have acted-(i) without jurisdiction-by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction-by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

       (4) supervisory jurisdiction u/Art. 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

       (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied:(i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

       (6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning Where two inference are reasonably possible and the subordinate Court has chosen to take one view the error cannot be called gross or patent.

       (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate case where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above-said two jurisdiction is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and the error though calling for correcting is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

       (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (Para 37)

       ``(i) That the powers conferred on the High Court u/art. 227 of the Constitution cannot, in any way, be curtailed by the provisions of the Code of Criminal Procedure;

       (ii) the scope of interference by the High Court u/Art. 227 is restricted. The power of Superintendence conferred by Art. 227 is to be exercised 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;

       (iii) that the power of judicial interference u/Art. 227 of the Constitution is not greater than the power u/Art. 226 of the Constitution;

       (iv) that the power of Superintendence u/Art. 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; the High court cannot, in exercise of its jurisdiction u/Art. 227, convert itself into a Court of Appeal. (Para 26)