Exercise of jurisdiction of judicial superintendence

Jurisdiction of High Court under article 227.

Article 227 is as under:

227. Power of superintendence over all courts by the High Court
(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction
(2) Without prejudice to the generality of the foregoing provisions, the High Court may
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts; Continue reading “Exercise of jurisdiction of judicial superintendence”

Are you abusing the process of court?

Conduct of a litigant before court.

Whenever a person approaches a Court of Equity, in the exercise of its extraordinary jurisdiction, it is expected that he will approach the said court not only with clean hands but also with a clean mind, a clean heart and clean objectives.

Thus, he who seeks equity must do equity. The legal maxim “Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem”, means that it is a law of nature that one should not be enriched by causing loss or injury to another.

The judicial process cannot become an instrument of oppression or abuse, or a means in the process of the court to subvert justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same. A petition or an affidavit containing a misleading and/or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the court.

[Source: V.Chandrasekaran vs Administrative Officer, decided on 18 September, 2012 by Supreme Court.]

The quest for personal gain has become so intense that those involved in litigation do not hesitate to seek shelter of falsehood, misrepresentation and suppression of facts in the course of court proceedings. A litigant who attempts to pollute the stream of justice, or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. Continue reading “Are you abusing the process of court?”

Civil suit and writ jurisdiction

Dismissal of plaint in writ jurisdiction:

Scope of writ jurisdiction:

Undoubtedly the High Court, under article 227, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well-known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well-recognised constraints. It can not be exercised like a “bull in a china shop”, to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.

[Source: Jai Singh v. Municipal Corporation of Delhi, ((2010) 9 SCC 385)]

Dismissal of Civil Suit in writ jurisdiction:

The only question which was required to be determined in this case was whether the High Court while exercising its power under Articles 226 and 227 of the Constitution of India is competent to set aside the plaint ?


A petition under Article 226 or Article 227 of Constitution of India can neither be entertained to decide the landlord-tenant dispute nor it is maintainable against a private individual to determine an intense dispute including the question whether one party harassing the other party. The High Court under Article 227 has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them within the bounds of their authority but it was not the case of the 1st respondent that the order passed by the Munsiff Court was without any jurisdiction or was so exercised exceeding its jurisdiction. If a suit is not maintainable it was well within the jurisdiction of the High Court to decide the same in appropriate proceedings but in no case power under Articles 226 and 227 of Constitution of India can be exercised to question a plaint.

[Source: Jacky v. Tiny @ Antony (Supreme Court of India)]

Scope of Review of judgement by Civil Court

Review of an order or judgement by Civil Court:

What is Review:

The dictionary meaning of the word “review” is “the act of looking; offer something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute.

The power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. If cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of Justice. Law has to bend before Justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error.

[Source: Lily Thomas v. Union of India. (Supreme Court of India)]

 

Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice.

[Source: S. Nagaraj v. State of Karnataka, 1993 Supp.(4) SCC 595. (Supreme Court of India)]

 

Power of review in writ jurisdiction:

All proceedings in a civil Court terminate in a decision being given by the Judge and that decision constitutes the order of the Court. It is an order within the meaning of Section 2(14) which defines “order” as the formal expression of any decision of a civil Court which is not a decree. This is not a decree because it is not the formal expression of an adjudication in a suit. If it be the formal expression of the adjudication by the Court in a civil proceeding, the formal expression must take the shape of an order, and, therefore, it is clear beyond doubt that the decision of this Court on the writ application was an order within the meaning of the Civil Procedure Code. If that is so, let us turn to Section 114 to see what the effect of this view is with regard to the power of the High Court to review an order made on a writ application.

A review lies under Section 114 from a decree or order from which an appeal is allowed by the Court, but from which no appeal has been preferred. When we turn to Section 109, an appeal is allowed against an order if the High Court certifies the order to be a fit one for appeal, and although an appeal is allowed no appeal admittedly has been preferred from this order and therefore if the other conditions laid down by Order XLVII are satisfied, then it is difficult to understand why the High Court has no power to review an order passed on a writ application. Such an order is one which clearly falls under Section 114(a).

[Source: Appa Ramgonda Patil v. Dattatraya Vinayak Tengshe, (1958) 60 Bom LR 1312]

Scope of Review and distinction with correction of mistake:

Relevant Code: Civil  Procedure Code, 1908, Section 114, 151, 152,153 read with Order 47 Rule 1.

[R]eview of a judgment or decree lies inter alia where a mistake or an error apparent on the face of the record can be shown or where some new and important evidence has been uncovered. From a bare reading of the aforesaid provisions, it is clear that a review would lie where a party is able to show that the court has failed to consider a plea made by it or record a finding on the same or where the court has omitted to consider a relevant piece of evidence or new evidence has arisen subsequently which was not before the court at the time of hearing, inspite of due diligence on the part of such a party. It is evident that the court’s power of review envisages an enquiry into the merits of the case, which the court has omitted to take notice of in the first instance. The said power of review is quite distinct from the inherent powers of the court under Section 152 and 153 read with Section 151 to correct an accidental arithmetic or clerical mistake or error. It is relevant to note that both the powers are mutually exclusive, and cannot tread into each other’s realm. Any other interpretation would amount to overstepping the parameters laid down in the provisions. It is settled law that in the garb of correction of mistakes arising out of accidental slips or typographical errors, the judgment itself cannot be altered or modified by a Court in exercise of its inherent power.

[Source: MAJOR GENERAL KAPIL MEHRA v. UNION OF INDIA (Delhi)]

 

The Federal Court which preceded the Supreme Court of India, prior to independence, had no express power of review. Federal Court however, observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords.

[Source: Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai (AIR 1941 FC 1,2 : 1940 FCR 78 : (1941) 1 MLJ Supp 45)]

 

An order made by the Court was final and could not be altered …neverthless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common Law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in….The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.

[Source: Rajunder Narain Rae v. Bijai Govind Singh (1836) 1 Moo PC 117]

It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.

[Source: R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No.2)’s case, 1999 (1) All ER 5770]

The role of judiciary merely to interpret and declare the law was the concept of bygone age. It is no more open to debate as it is fairly settled that the courts can so mould and lay down the law formulating principles and guidelines as to adapt and adjust to the changing conditions of the society, the ultimate objective being to dispense justice. In the recent years there is a discernable shift in the approach of the final courts in favour of rendering justice on the facts presented before them, without abrogating but by-passing the principle of finality of the judgment.

Almighty alone is the dispenser of absolute justice – a concept which is not disputed but by a few. We are of the view that though Judges of the highest Court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error. After giving our anxious consideration to the question we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in public interest that a final judgment of the final court in the country should not be open to challenge yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and cause perpetuation of irremediable injustice.

[Source: Rupa Ashok Hurra vs Ashok Hurra]
Thus rectification or review of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality.

Over-reaching the process of court

Restoring equity in case of over reach:

Over-reaching to manipulate witness:

A party cannot be permitted to over reach the process of the Court to communicate directly with the witness when it itself had summoned him in terms of Order XVI of the Code of Civil Procedure, 1908. In any event, it was the duty of the petitioner to be fair to this Tribunal by bringing it to its notice that it had addressed such a letter to BECIL in relation whereto attention of witness was drawn. The cross-examination of expert witness is a different matter but an expert representing an independent agency is not expected to meet either of the parties to the lis or their counsel. If an expert witness has appeared before a Court of law having received the summons, he can only attend the Court and express his opinion on the subject on which he has been asked to depose. It is not a case where this Tribunal can condone a lapse on a part of a party to the lis. For all intent and purport, the action on the part of the petitioner amounts to over-reaching the process of law. It must be deprecated in strongest terms.

[Source: Ortel Communications Ltd v. Zee Turner Ltd. (Telecom Tribunal)]

Over-reaching the process of court:

Where it appears that the orders if passed by court, will be rendered ineffectual, court may pass orders in mandatory form to restore equity.

if a party knowing that his opponent has either approached the Court or is taking steps to approach it for a certain specific relief, does anything to make the grant of the relief by way of prevention in effective, the Court has always jurisdiction to pass Orders even in ordinary cases in a mandatory form and to direct restoration of the status quo ante in a manner and to the extent possible.  It will be a fortiori case when the relief claimed is for a grant of any of the Writs and of direction contemplated by Article 226 of Constitution of India.”
[Sources: OUSEPH V/S G. P. TAHSILDAR, Minister for Food,AIR 1951 Travancore 226 (DB) followed in Joseph v. Asst. Excise Commissioner and others, A.I.R. [1953] Travancore ‑ 145. and also in THIYAGARAJAH v.SHAHUL HAMEED 1984 SLR (1) 98 (Sri Lanka)]

Scope of Writ Appeal

Scope of Intra Court Appeals:

Gavel with a watch.

Letter patent appeal:

High Courts in India have same powers to issue the prerogative writs which English Law provides. The issue of writ is considered to be a matter of discretion which is to be exercised on sound principles of law. But once the discretion has been exercised by a single Judge of the court, it is subject to an Appeal to Division Bench of High Court, popularly called as Letters Patent Appeal. Scope of this intra court appeal has been circumscribed by Supreme Court of India in following words:

“While deciding intra court appeals against the exercise of discretion by a Single Judge, the Appellate Court would not interfere with the exercise of discretion by the Court of First Instance and substitute its own discretion, except where the discretion has been shown to have been exercised either arbitrarily, or capriciously or perversely or where the Court has ignored settled principles of law regulating grant or refusal of interlocutory injunction. Appeal against exercise of discretion is said to be an appeal on principle.”

[Source: Wander Ltd. v. Anton India Pvt. Ltd. (1990 (Suppl) SCC 727)]
The scope of intra-court appeal was considered by Supreme Court of India (in Baddula Lakshmaiah v. Sri Anianeya Swami Temple (1996) 3 SCC 52), and it was indicated that a Letters Patent Appeal, as permitted under the Letters Patent, is normally an intra-court appeal whereunder the Letters Patent Bench, sitting as a court of Correction, corrects its own orders in exercise of the same jurisdiction as was vested in the Single Bench. Such is not an appeal against an order of a subordinate Court. In such appellate jurisdiction the High Court exercises the powers of a court of Error.
It is unfortunate that despite the above authoritative pronouncements about the scope of appeals to division bench, very often the High Court travels beyond the scope and without pointing out the error in judgement of court below, pass a fresh judgement. This manner of exercise of power is not only unjust and illegal but is also contrary to judicial discipline.

 

Comment: It appears that jurisdiction of court in writ appeal is more akin to review than an appeal. Review is tethered to discovery of new facts or an apparent error of record but appeal is entirely a rehearing of the case. Therefore a writ appeal is not a rehearing but merely an exercise to correct an apparent error not to substitute opinion of division bench with the opinion of single judge.