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TMI Blog2022 (1) TMI 1433X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... civil suit. Consequently, since none appeared for the appellant, vide the order dated 28th October 2015, the Joint Registrar, Delhi High Court, directed closure of the defence evidence. 7. On raising the plea of pecuniary jurisdiction, the suit was transferred to the court of District Judge, Tis Hazari, Delhi. 8. On an application moved by the appellant, the Additional District Judge, vide order dated 14th March 2016, recalled the order directing closure of defence evidence and the appellant was granted opportunity to lead defence evidence subject to costs of Rs.5,000/-. 9. As Shailendra Garg was incarcerated, the Additional District Judge, (Central), Tis Hazari, Delhi, on the next date of hearing on 22nd April 2016 observed that the counsel for the appellant should have filed an application for issuance of production warrant to enable Shailendra Garg to appear before court. Cost of Rs.5,000/- was imposed and the case was adjourned for recording of the defence evidence on 31st May 2016. 10. Consequent to the order, the counsel for the appellant moved an application for issuance of production warrant for the appearance of Shailendra Garg. Accepting the application, vide order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on bail on 6 th May 2017 and within 10 days of his release on 16th May 2017, he filed an application under Order IX Rule 13 of the Code for setting aside of the ex-parte decree. In particular, it was pleaded that the High Court had failed to issue production warrant for appearance of Shailendra Garg before closing the defence evidence, despite the fact that earlier production warrant had been issued and Constable Jitendra Kumar had appeared seeking clarifications. It was highlighted that Shailendra Garg being in detention, could not follow up the proceedings in the suit and it was very difficult for him to communicate with and give instructions to his counsel. 16. Upon consideration of the facts, vide detailed reasoned order dated 24th July 2018, the application under Order IX Rule 13 of the Code was allowed, setting aside the ex-parte decree, restoring it to its original number and listing it for defence evidence. Paragraphs 8, 11 and 12 of the order read thus: 8. From the certified copy of the proceedings of the suit filed by the applicant/defendant, it is evident that matter was transferred from the Hon'ble High Court to the District Court vide order dated 17.12.2015 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel that defendant is actually happened to be in jail till date along with particular of the case and that he has not been released from jail and court adjourned the matter for 04.11.2016. On 04.11.2016, only plaintiff counsel has appeared but M. No.264/17 Prakesh Chand Goel Vs. M/s Garment Craft Page 6 of 9 none appeared on behalf of defendant, hence after noting down the previous proceedings, DE was closed and case was listed for final arguments for 07.11.2016. On 07.11.2016, the case was fixed for clarifications for 08.11.2016 and on 08.11.2016 judgment was passed. xx xx xx 11. Since technically on 04.11.2016 defendant was not proceeded ex parte hence in technical sense the judgment cannot be said as an ex parte judgment but actually this is an ex parte judgment as for all practical purpose defendant has been proceeded ex parte on 04.11.2016 when his DE was closed in his absence. Hence I consider the judgment dated 08.11.2016 as ex parte judgment. Therefore, in my view application U/o 9 Rule 13 CPC filed by the defendant is maintainable. 12. Now coming to the merits. From the aforesaid order sheets, it is evident that the fact of defendant being in JC was intimated by the defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the aforesaid facts, the trial court should not have accepted the argument that the appellant and his counsel were not in communication during the period when the appellant was in judicial custody. Earlier, the application for reopening the defence evidence was filed by pairokar of the appellant. 18. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217 The jurisdiction exercised is in the nature of cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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