WPMS/2970/2016 of SH. LALIT MOHAN KALA Vs SH. AHSOK KUMAR KALA

IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

ON THE 19[TH] DAY OF JULY, 2023

BEFORE:

HON’BLE SHRI JUSTICE MANOJ KUMAR TIWARI

WRIT PETITION (M/S) No. 2970 of 2016

BETWEEN:

Sh. Lalit Mohan Kala & another. ……….Petitioners

(By Mr. Ramji Srivastava, Advocate)

AND:

Sh. Ashok Kumar Kala & others. …..Respondents

(By Mr. Pradeep Hairiya, Standing Counsel for the State of Uttarakhand; Ms. Anjali Bhargava, Advocate for respondent no. 10 and Mr. Bhupesh Kandpal, Advocate for respondent no. 11)

JUDGMENT

This is petition under Article 227 seeking

the following reliefs:

“a. To issue suitable order or direction setting aside the impugned orders dated 25.06.2014 and 30.03.2015 (Annexure No.7 and 8 to the writ petition) passed by learned Trial Court and of Court of Revision (Annexure No.11 to this writ petition) and further to direct the learned Trial court to allow the substitution application dated 13.11.2009 (Anneuxre No.5 to this writ petition) filed by the petitioners/plaintiffs in toto.

b. To issue suitable order or direction setting aside the judgment dated 11.01.2016 passed by Addl. Commissioner Pauri Garhwal, Pauri Camp, Dehradun [Annexure No.11 to the writ petition] to the extent of allowing the transferees of the property in dispute to be impleaded as party in the plaint.”

2. Petitioners are plaintiff in declaratory suit filed under Section 229-B of U.P.Z.A. & L.R. Act, in

which relief of partition is also sought. The said suit was filed in the year 2005 against Smt. Chaman Dei and several other persons. According to petitioners, learned trial Court (Assistant Collector, First Class, Dehradun), by an interim order, had restrained the parties from alienating or changing the nature of the suit property, yet Smt. Chaman Dei (defendant no.1 in the suit) sold part of the suit property to other persons in violation of the interim order. Smt. Chaman Dei passed away in the year 2009 and petitioners moved an application seeking substitution of legal representatives of Smt. Chaman Dei. Before any order could be passed on the said substitution application, one son of Smt. Chaman Dei (Om Prakash Kandwal) also passed away, therefore, petitioners moved another application, seeking leave to amend the substitution application. The persons, who purchased the suit property from Smt. Chaman Dei, also moved an application for their impleadment in the suit. The applications filed by petitioners and the impleadment application filed by subsequent transferees of the suit property were rejected by learned Assistant Collector, First Class, vide order dated 25.06.2014. Petitioners sought review of the said order by filing an application, which was rejected vide order dated 30.03.2015. Petitioners filed two Revision Petitions before Additional Commissioner, Garhwal Division, under Section 333 of U.P.Z.A. & L.R. Act, one against the order dated 25.06.2014 and the other against the order dated 30.03.2015, passed by learned trial Court. Both the Revision Petitions filed by petitioners were allowed by learned Additional Commissioner vide judgment dated 10.01.2016. Learned Revisional Court set aside both the impugned

orders and directed the trial Court to substitute legal representatives of the deceased persons and also to implead the subsequent transferees of the suit property in the suit. Petitioners are challenging the order passed by learned Revisional Court to the extent it directed for impleadment of subsequent transferees.

3. It is contended that, in view of provision contained in Section 52 of Transfer of Property Act, the direction to implead subsequent transferees in the suit, is unsustainable. It is further contended that Revisional Court erred in issuing such direction in the absence of any revision by the subsequent transferees.

4. This is petition under Article 227 of the Constitution. The scope of interference with an order of Court of competent jurisdiction is very limited under power of superintendence conferred by Article 227 of the Constitution. Every error in judicial order cannot be corrected in petition under Article 227 and interference would be warranted, when learned Court below has acted wholly beyond jurisdiction.

5. Hon’ble Supreme Court in the case of Mohd. Inam Vs. Sanjay Kumar Singhal, reported in (2020) 7 SCC 327, has held that supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and seeing that they obey the law. Though, the powers under Article 227 are wide, they must be exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere

extracted below:

34. It is well-settled principle of law, that in the guise of exercising jurisdiction under Article 227 of the Constitution of India, the High Court cannot convert itself into court of appeal. It is equally well settled, that the supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and seeing that they obey the law. It has been held, that though the powers under Article 227 are wide, they must be exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. Reliance in this respect can be placed on catena of judgments of this Court including the ones in Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale [Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale, (1960) 1 SCR 890 : AIR 1960 SC 137] , Bathutmal Raichand Oswal v. Laxmibai R. Tarta [Bathutmal Raichand Oswal v. Laxmibai R. Tarta, (1975) 1 SCC 858] , India Pipe Fitting Co. v. Fakruddin M.A. Baker [India Pipe Fitting Co. v. Fakruddin M.A. Baker, (1977) 4 SCC 587] , Ganpat Ladha v. Sashikant Vishnu Shinde [Ganpat Ladha v. Sashikant Vishnu Shinde, (1978) 2 SCC 573] , Labhkuwar Bhagwani Shaha v. Janardhan Mahadeo Kalan [Labhkuwar Bhagwani Shaha v. Janardhan Mahadeo Kalan, (1982) 3 SCC 514] , Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, (1986) 4 SCC 447] , Venkatlal G. Pittie v. Bright Bros. (P) Ltd. [Venkatlal G. Pittie v. Bright Bros. (P) Ltd., (1987) 3 SCC 558] , State of Maharashtra v. Milind [State of Maharashtra v. Milind, (2001) 1 SCC 4 : 2001 SCC (L&S) 117] , State v. Navjot Sandhu [State v. Navjot Sandhu, (2003) 6 SCC 641 : 2003 SCC (Cri) 1545] , Ranjeet Singh v. Ravi Prakash [Ranjeet Singh v. Ravi Prakash, (2004) 3 SCC 682] , Shamshad Ahmad v. Tilak Raj Bajaj [Shamshad Ahmad v. Tilak Raj Bajaj, (2008) 9 SCC 1] and Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar [Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69].”

6. Thus, this Court does not find any reason to interfere with the impugned order in this petition. The order passed by learned Revisional Court cannot be said to be without jurisdiction. Learned Revisional Court has taken particular view and the said view

does not result in miscarriage of justice. The subsequent transferees are bound by doctrine of lis pendens, however, at times, they are entitled to hearing in the pending suit. In the present case, late Chaman Dei and her legal representatives would have lost interest in the subject matter of the suit due to transfer of her share in the suit property, therefore, with view to protect their interest, the subsequent purchasers are entitled for hearing. Section 52 of Transfer of Property Act does not come in the way of providing hearing to the subsequent transferees.

7. The second ground raised by learned counsel for the petitioners for challenging the order passed by Revisional Court also does not hold much substance. No one should be condemned unheard is one of the basic facet of principles of natural justice. If the lis is decided against the interest of subsequent transferees, without affording opportunity of hearing to them, then it would be unjust and would lead to multiplicity of proceedings, which would be against public policy. Therefore, there is nothing wrong in the direction issued by learned Revisional Court to hear the subsequent purchasers, while deciding the suit.

8. Thus, any interference in the matter would be unwarranted.

9. Accordingly, the writ petition fails and is hereby dismissed. There will be no order as to costs.

(MANOJ KUMAR TIWARI, J.) Navin