Power under Article 227 is discretionary and has to be exercised on equitable principle: Gujarat High Court

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. This was said in the case of Kunal Vinaykumar Rayllon vs Dhansukh Harjibhai Patel [C/SCA/15899/2019] by Dr. Justice Ashokkumar C. Joshi in the High Court of Gujarat

The facts of the case are that a petition under Article 227 of the Constitution of India is filed by the petitioners against the order dated 09.08.2019 passed by the learned 4th Additional Senior Civil Judge, and Additional Chief Judicial Magistrate

The petitioners contended that the impugned order is contrary to the express provisions of O.22 R.10 r/w. O.1 R.10 of the Civil Procedure Code. Secondly, by an order, the petitioners were ordered to be joined as a party defendants in the counter claim only and not in the suit, however, the trial Judge has failed to appreciate the said fact and erred in passing such an order. It was further contended that as per the settled principles of law, mentioning of wrong provisions or non-mentioning of relevant provisions in an application, is immaterial.

The respondents contended that the application of the petitioners was under specific provisions i.e. O.1 R.10 r/w. Section 151 CPC and the trial Court, after due application of mind, has rejected the said application giving detailed reasons. Secondly, a petition filed under Article 227 of the Constitution of India has a specific scope for interference in the orders of the lower Court, Tribunal and Authority and not for mere correction or error of law. Further, the wrong referring of any provisions does not vitiate the order passed by the authority if otherwise the authority has power and jurisdiction to pass the order

The Court referred to the case of Ouseph Mathai and Ors. v. M Abdul Khadir [AIR 2002 SC 110] wherein it is held that “Only wrong decision may not be a ground for the exercise of jurisdiction under this article unless the wrong is referable to grave dereliction of duty, flagrant abuse of power by the subordinate Courts and tribunals, resultantly in “grave injustice” to any party”.

Furthermore, it referred to the decision of Thomson Press (India) Ltd [Civil Appeal No. 1518 of 2013] wherein the Apex Court while allowing the transferee pendente lite to be joined as party defendant in the suit, permitted him to take all such defences which are available to the vendor as the appellant derived title, if any, from the vendor on the basis of purchase of the suit property subsequent to the agreement with the plaintiff and during the pendency of the suit. Applying the above decision to the present case, the Court said that the “the petitioners are the party defendants in the counter-claim which is in the main suit only and thus, it is not the case that they are not the party to the suit. Further, when the learned advocate for the respondents has specifically averred that it may be inadvertently mentioned as counter suit instead of suit, this Court does not find any reason to interfere in the impugned order”. Hence, the petition was dismissed.

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