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Supervisory Power of The High Courts Under Article 227 of The Constitution of India

The purpose of the present write up is to draw a distinction between the Scope of the Supervisory Power of the High Courts under Article 227 of the Constitution and its Writ Jurisdiction under Article 226, more so in the light of amendments carried out in the Code of Civil Procedure 1908 [Code] with object of minimizing costs, avoiding delay in litigation, implementing the directive principles and resolving divergence of judicial opinions with regard to certain provisions of the Code pursuant to the 54th report of the Law Commission on the Code of Civil Procedure, in February 1973.

At the very outset, the legislative intent behind certain amendments incorporated in the Code with effect from 01.02.1977 are being referred here under:

· Statutory right of Appeal available under S.105 R/W with Order XLIII Rule 1(A) of the Code of Civil Procedure and the Legislative Intent behind it as reflected in clause 92 of the statements and reasons for introducing amendment in Code of Civil Procedure.

· Clause 92 of Gazette notification dated 08.04.1994

Clause-92-Orders which are final in themselves, that is to say, which are not preceded or accompanied by any decree are not appealable unless they are enumerated in section 104 or in rule 1 of Order XLIII. But, under section 105, any error, defect or irregularity in such order may, if it affects the decision in the case, be challenged in an appeal against the decree passed in the suit. Order XLIII is, therefore, being amended to provide that certain orders, which are not appealable, may be challenged in an appeal against the decree on the ground that such order should not have been made. The principal object of such an approach is to avoid successive appeals which add to the length of the litigation.

Code of Civil Procedure
· Section 105 Other Orders.- (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

· Order 43 Appeal from orders

1. Appeal from orders - An appeal shall be from the following orders under the provisions of section 104, namely:-
(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court except where the procedure specified in rule 10 A of Order VII has been followed;
(c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;
(f) an order under rule 21 of Order XI.;
(i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;
(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;
(ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable.
(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
(l) an order under rule 10 of Order XXII giving or refusing to give leave;
(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;
(p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;
(q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII;
(r) an order under rule 1, rule rule 2A, rule 4 or rule 10 of Order XXXIX;
(s) an order under rule 1 or rule 4 of Order XL;
(t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal;
(u) an order under rule 23 or rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate court;
(w) an order under rule 4 of Order XLVII granting an application for review.

· Order XLIII Rule 1 (A)(1)-1A. Right to challenge non-appealable orders in appeal against decrees-(1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced.

# Section 115 Revision
(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears
(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings.

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.

Explanation--.In this section, the expression" any case which has been decided "includes any order made, or any order deciding an issue in the course of a suit or other proceeding.

We could broadly categorize the orders which are passed during the life of a proceeding as under:
1. Orders that are appealable under Order 43 Rule 1 CPC.

2. Order passed under Order 43 Rule 1 CPC where no further appeal is provided.

3. Orders though not appealable under Order 43 Rule 1 CPC but Revision Petition under Section 115 of the Code of Civil Procedure would be competent, if the order had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings.

4. Orders, while they may affect the decision of the case, but are neither appealable nor revisable under Section 115 of CPC, and hence in an appeal against a decree, the same can also be challenged under Section 105 read with Order 43 Rule 1 (a) of the Code.

In each of these instances except (2), the Civil Procedure Code provides for a remedy to an aggrieved party. Entertaining a petition under Article 227 in such instances may rather run contrary to the legislative intent when a settled detailed scheme on how a litigation should proceed is laid down.

View of the Hon’ble Supreme Court on the subject is enunciated in the following judgments wherein the Hon’ble Supreme Court has elucidated and clearly defined the scope of supervisory powers of the High Court under Article 227 of the Constitution:
i. Wariyam Singh & Anr. Vs. Amarnath and Anr. [1954 AIR 215]

ii. Sadhana Lodh Vs. National Insurance –MANU/SC/0080/2003.

iii. Radhey Shyam & Anr. Vs. Chhabi Nath & Ors.- MANU/SC/0200/2015, Civil Appeal 2548/2009 with SLP (C) 25828/2013 dated 26.02.2015

iv. Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar Patil-MANU/SC/0508/2010.

In Sadhana Lodh Vs. National Insurance –MANU/SC/0080/2003 the Hon’ble Supreme Court made the following observations:
5. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Article 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution.

6. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision.

In Radhey Shyam & Anr. Vs. Chhabi Nath & Ors.-MANU/SC/0200/2015, it was observed:
22. ..Scope of Article 227 has been explained in several decisions including Waryam Singh and another vs. Amarnath and another, Ouseph Mathai vs. M. Abdul Khadir12, Shalini Shyam Shetty vs. Rajendra Shankar Patil13 and Sameer Suresh Gupta vs. Rahul Kumar Agarwal14. In Shalini Shyam Shetty, this Court observed:

64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions.

65. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority.

66. We may also observe that in some High Courts there is a tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding the High Court’s power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.

67. As a result of frequent interference by the Hon’ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon’ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice within their jurisdiction will adhere to them strictly.

In Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar Patil-MANU/SC/0508/2010, it was observed:
83. For the reasons aforesaid, it is held that the High Court committed an error in entertaining the writ petition in a dispute between landlord and tenant and where the only respondent is a private landlord. The course adopted by the High Court cannot be approved.

Para-62
High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court……

The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court…….

According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, within the bounds of their authority'………..

In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised…………

The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court…..

This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

View of the Hon’ble Delhi High Court on the subject
An important and interesting judgment on the issue of maintainability of a petition under Article 227 of the Constitution when Code provided for a remedy of appeal against a final decree passed by the Appellate Court came up for consideration before the Hon’ble High Court of Delhi in the matter Smt. Savitri Devi Vs. Smt. Gayatri Devi & Ors. CM (M) 331/2007 [Date of Decision – 11.02.2009]. The Hon’ble High Court while dwelling into the issue in detail, held as under:

Para1. All the six petitions have been preferred invoking the jurisdiction of this court under Article 227 of the Constitution of India with respect to the order of the first appellate court on an application under Order 41Rule 27 of the CPC. This court being prima facie of the view that a challenge to the decision, if any, on an application under Order 41 Rule 27 of the CPC taken up prior to the hearing of the appeal, is not entertainable before this court, put the said question to the counsels as and when each of the said matters came up before this court. Attention of the counsels was also drawn by this court to the judgments of the Supreme Court in Gurdev Singh Vs. Mehnga Ram AIR 1997 SC 3572 and in Mahavir Singh Vs. Naresh Chandra (2001) 1 SCC 309. The common questions as to the very maintainability.

Para 2. The Supreme Court in Gurdev Singh (supra) was concerned with the order The Supreme Court held as under:

If the order was wrong on merits, it would always be open for the respondent to challenge the same in accordance with law if an occasion arises to carry the matter in Second Appeal, after an appellate decree is passed. But at this interim stage, the High Court should not have felt itself convinced that the order was without jurisdiction. Only on this short question, without expressing any opinion on the merits of the controversy involved and on the legality of the contentions advanced by both the learned Counsel for the parties regarding additional evidence, we allow this appeal, set aside the order of the High Court…….

Para 16. The power vested in Order 41 Rule 27 of the CPC is of the appellate court and not of the revisional court or the High Court under Article 227 of the Constitution of India. Other reasoning is that the order is challengeable along with the decision in the appeal and not independently.

A conspectus of the judicial pronouncement on the scope of supervisory power of the High Courts under Article 227 of the Constitution, thus present with the following propositions as quoted therein:

[a] This reserve and exceptional power of judicial intervention under Article 227 is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance.

[b] We may also observe that in some High Courts there is a tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of ratio in Surya Dev and in view of the recent amendment of Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment scope of Section 115 CP has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding the High Court’s power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.

[c] As a result of frequent interference by the Hon’ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice.

[d] High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

[e] The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision.

[f] In cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority.

[g] In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view.

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