9911796707
TMI Blog2010 (1) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... terials dumped there. An alternative prayer made by respondent Nos. 1 and 2 was for recovery of possession of suit premises in case it was held that they had already been dispossessed. The substance of the case set up by respondent Nos. 1 and 2 before the trial Court is that the suit premises were let out to their predecessor Shri Rajaram D. Wagle in 1951 by one Jussab Abdul Karim at a monthly rent of ₹ 15/- which was subsequently increased to ₹ 25/-; that the owner-cum-landlord sold the premises to Abdul Kadar Haji Jaffar (grandfather of appellant Nos.2, 3, 4 and 6); that Rajaram D. Wagle died on 29.4.1981 and after his death they have been using the suit premises for parking their cars; that on 5.1.1992, respondent No.3 broke open the lock of the suit premises and dumped his goods i.e., boxes of liquor bottles, but the same were removed by the police on a complaint made by respondent No.1 in that regard; that on 8.1.1992, respondent No. 3 again broke open the lock and forcibly occupied the suit premises and this time the police did not act on the complaint made by them. 4. In his written statement, respondent No.3 not only denied the averments contained in the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... object to this. The appellants pleaded that in the meeting held on 10.4.1990, members of the Family Council unanimously agreed for allotment of the properties and this was approved by the Court vide order dated 26.9.1990. A reference was also made to Special Civil Suit No. 89/99/B filed by appellant Nos. 3, 4 and 6 in the trial Court for grant of permanent injunction on the ground that respondent Nos. 1 and 2 had filed Execution Application No.15/98/A for being put in possession of the suit premises in execution of order dated 17.4.1997 passed in an application for temporary and mandatory injunction. According to the appellants, the trial Court allowed the execution application and the appeal and special leave petition filed by them were dismissed by the High Court and this Court respectively. In the additional written statement, it was also averred that son-in-laws of late Abdul Razak have no right, title or interest in the suit property and, therefore, they cannot be treated as his legal representatives. The impleadment of appellant No.2 was also questioned on the premise that he has no right in the suit property. 9. After filing of the additional written statement, the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder VI Rule 16 and held that respondent Nos. 1 and 2 have not been able to make out a case for striking off the additional written statement. 12. Respondent Nos. 1 and 2 challenged the order of the trial Court in W.P. No. 58/2008. By the impugned order, the learned Single Judge allowed the writ petition and held that the legal representatives of deceased defendant No.2 could have taken a plea which was appropriate to their character as legal representatives, but they were not entitled to take a plea derogatory to the plea already taken. The learned Single Judge further held that the trial Court was not justified in dismissing the application on the ground of delay, which could have been compensated by imposing cost. 13. We have heard learned counsel for the parties. Three questions which merit consideration by this Court are - (i) What is the effect of delay in filing the application by respondent Nos. 1 and 2 for striking off the additional written statement? (ii) Whether the High Court could pass an order for striking off the additional written statement despite the fact that respondent Nos. 1 and 2 failed to make out a case for exercise of power by the court under O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill be delayed if the legal representatives of the deceased defendant are allowed to take the plea based on their title is neither here nor there. It is true that the suit filed by respondent Nos. 1 and 2 is pending for last about 17 years, but there is nothing on record to show that the appellants or their predecessors are responsible for the delay. The death of Abdul Razak was not a predictable event, the happening of which could be averted by the parties or the court. In any case, the appellants cannot be blamed for the delay, if any, in the trial of the case. As a matter of fact, respondent Nos. 1 and 2 have delayed the proceedings for over two years by filing frivolous application for striking off the additional written statement which, as mentioned above, was taken on record in March, 2004. Re: (ii): 15. Order VI Rule 16 CPC which empowers the Court to strike out the pleadings reads thus: Striking out pleadings. - The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading-- (a) which may be unnecessary, scandalous, frivolous or vexatious, or (b) which may tend to prejudice, embarrass or delay the fair trial of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the order passed by the High Court deleting paragraphs 11, 12 and 13(a) from the election petition filed by the appellant was questioned before this Court on the ground that the case does not fall within the ambit of Order VI Rule 16. This Court first held that the provisions of Order VI Rule 16 CPC are applicable to election petitions. The Court then referred to the earlier judgments in Roop Lal Sathi v. Nachhattar Singh Gill (1982) 3 SCC 487, K.K. Modi v. K.N. Modi (1998) 3 SCC 573, Union Bank of India v. Naresh Kumar (1996) 6 SCC 660 and held that the power to strike out pleading is extraordinary in nature and must be exercised by the Court sparingly and with extreme care, caution and circumspection. 19. In this case, the learned trial Court did make a reference to the provisions of Order VI Rule 16 and held that the application made by the plaintiffs (respondent Nos. 1 and 2 herein) does not fall in either clauses of Rule 16. The learned Single Judge of the High Court did not even bother to notice Order VI Rule 16 what to say of considering its applicability to the pleadings contained in the additional written statement and granted the prayer of respondent Nos. 1 and 2 by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Single Judge should have taken note of the often quoted judgment in Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC 675, in which a two-Judge Bench, after threadbare analysis of Articles 226 or 227 of the Constitution and considering large number of judicial precedents on the subject, recorded the following conclusions: (1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 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 CPC Amendment Act 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, under Article 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit premises were given to defendant No.2 for conducting business of distribution of liquor. There is nothing in the written statement of Abdul Razak from which it can be inferred that he has claimed ownership over the suit property. After they were brought on record as legal representatives of late Abdul Razak, the appellants filed additional written statement incorporating therein the plea that the suit property had become subject matter of inventory proceedings No.80/89/A and the same was allotted to the daughters of Abdul Razak i.e. appellant Nos.3, 4 and 6. The appellants also pleaded that in the meeting of the Family Council held on 10.4.1990, a unanimous decision was taken for allotment of the properties and the same was approved by the trial Court vide order dated 26.9.1990. According to the appellants, Abdul Razak was looking after the suit property because at the time of death of his parents, appellant Nos. 3, 4 and 6 were minor. Therefore, it cannot be said that the plea raised by the appellants is inconsistent with the averments contained in the original written statement by Abdul Razak. Order 22 Rule 4(1) and (2) CPC on which reliance has been placed by learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legal heir of the tenant could not be treated as a tenant as defined under Section 2(h) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 and that possession of such legal heir of the tenant would be that of a trespasser. He accordingly prayed for dismissal of the eviction petition. The Rent Controller rejected the appellant's plea and allowed the eviction petition by holding that Musadi Lal had sublet the premises to Med Ram without his consent. The appeal and revision filed by the appellant were dismissed by the Appellate Authority and the High Court respectively. Before this Court, the appellant relied upon the ratio of J.C. Chatterjee's case and argued that he was entitled to raise an additional plea that the eviction petition was not maintainable. While rejecting this plea, this Court held: But in the instant case the appellant cannot claim the benefit of the above decision for two reasons. First, the appellant had not been brought on record as a respondent in the eviction petition in his personal capacity but had been brought on record only as the legal representative of Musadi Lal. Secondly, in the circumstances of this case, even if a prayer had b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould result in ouster of the jurisdiction of the Rent Controller. In the second case also, the Court found that the plea raised by the appellant, who was impleaded as legal representative of the defendant that she had independent title under the will executed by Champawati was not in consonance with the plea taken by the original defendant. However, as discussed in the earlier part of the judgment, the claim made by the appellants is in no way inconsistent with or derogatory to the defence set up by Abdul Razak. In any case, once the additional written statement filed by the appellants was taken on record without any objection by respondent Nos. 1 and 2, who also led their evidence keeping in view the pleadings of the additional written statement, the High Court was not at all justified in allowing the application filed for striking off the additional written statement and that too without even adverting to Order VI Rule 16 CPC and considering whether respondent Nos. 1 and 2 were able to make out a case for exercise of power by the court under that provision. 27. In the result, the appeal is allowed. The impugned order of the High Court is set aside and the one passed by the tri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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