CMPMO No. 529 of 2009. Case: Rajeev Sood Vs Devinder Sain Chopra and Ors.. Himachal Pradesh High Court
| Case Number | CMPMO No. 529 of 2009 |
| Counsel | For Appellant: Vinay Kuthiala, Senior Advocate and Diwan Singh Negi, Advocate and For Respondents: Sandeep Sharma, Advocate |
| Judges | Tarlok Singh Chauhan, J. |
| Issue | Code of Civil Procedure (CPC) (Amendment) Act, 2002 - Section 16(2)(b); Code of Civil Procedure, 1908 (CPC) - Order VI Rule 17; Section 115; Constitution of India - Articles 226, 227 |
| Judgement Date | July 06, 2015 |
| Court | Himachal Pradesh High Court |
Judgment:
Tarlok Singh Chauhan, J.
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This petition under Article 227 of the Constitution of India is directed against the order dated 22.08.2009 passed by the learned District Judge (Forest), Shimla, whereby the application for amendment of the written statement preferred by the petitioner came to be dismissed.
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The dispute relates to building No. 8, Middle Bazar, Shimla, over which the respondents claim ownership, whereas, petitioner claims to have become owner by way of adverse possession.
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As per the petitioner, the necessity for amendment arose because of the fact that the case of the plaintiffs was based upon mutation attested in their favour vide order dated 12.07.1977 on the strength of alleged sale certificate issued under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1954. However, the said mutation was not only reviewed, but was cancelled by the competent authority which fact came to the knowledge of the petitioner only on 24.07.2009 when he applied for the copy of the revenue record (jamabandi).
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This application was opposed by the plaintiffs/respondents on the ground that no such subsequent event has taken place with regard to suit property which had been acquired by them on the basis of the sale certificate. It was further contended that the revenue authorities had no jurisdiction or authority to cancel the sale made by the Rehabilitation Department.
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The learned appellate Court dismissed the application only on the ground that after amendment of Rule 17 of Order 6 CPC, the parties were required to prove that inspite of due diligence, the party could not raise the matter before the commencement of the trial and accordingly dismissed the application.
I have heard the learned counsel for the parties and have gone through the records of the case.
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At the outset, it may be observed that even the learned counsel for the respondents has fairly conceded that the order passed by the Court below dismissing the application only on the ground of due diligence cannot be supported in law. He has fairly submitted that the amendment brought about the Code of Civil Procedure by Amendment Act 22 of 2002 with effect from 01.07.2002, more particularly, provisions of Rule 17 of Order 6 CPC would only operate prospectively and not to the proceedings already instituted.
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It is also not in dispute that this legal position has already been set at rest by the judgment of the Hon'ble Supreme Court in State Bank of Hyderabad versus Town Municipal Council (2007) 1 SCC 765 wherein it was categorically held that by reason of Section 16(2)(b) of the Code of Civil Procedure (Amendment) Act, 2002, the amendments carried out therein would only apply in respect of the suits which were filed after 01.07.2002. As the suit in the present case has admittedly been filed in the year 1982, the proviso appended to Order 6 Rule 17 CPC as applied by the learned District Judge does not apply to the present proceedings.
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Having conceded to a part of the impugned order, the learned Senior Counsel for the respondents has raised preliminary objection regarding the maintainability of this petition which has been filed under Article 227 of the Constitution of India. It is contended that once the specific remedy of Revision under the provision of 115 CPC has been provided for, then recourse to Article 227 of the Constitution of India cannot be permitted.
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This objection according to the learned Senior Counsel for the petitioner will now have to be decided bearing in mind the recent judgment of three Judges of the Hon'ble Supreme Court on this issue.
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The earlier view of the Hon'ble Supreme Court in Surya Dev Rai versus Ram Chander Rai and others (2003) 6 SCC 675 that an order of the Civil Court was amenable to writ jurisdiction under Article 226 of the Constitution of India was doubted in Radhey Shyam and another versus Chhabi Nath and others (2009) 5 SCC 616 and this is how the matter came up before the Bench of Hon'ble three Judges in Radhey Shyam and another versus Chhabi Nath and others (2015) 5 SCC 423 and it was held:--
"25. It is true that this Court has laid down that technicalities associated with the prerogative writs in England have no role to play under our constitutional scheme. There is no parallel system of King's Court in India and of all other courts having limited jurisdiction subject to supervision of King's Court. Courts are set up under the Constitution or the laws. All courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227. Writ jurisdiction is constitutionally conferred on all High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of Tribunals or authorities or courts other than judicial courts. There are no precedents in India for High Courts to issue writs to subordinate courts. Control of working of subordinate courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence under Article 227. Orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than...
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