PENTA URMILA Vs. KARUKOLA KUMARASWAMY

JUDGEMENT

(1.) Respondents 1 to 6 herein along with another person filed a suit being O.S. No. 105 of 1988 on the file of the Court of Junior Civil Judge, Palasa, for permanent injunction to restrain defendants 1 to 31, in any manner interfering with the possession of the plaintiffs in respect of agricultural lands comprised in S.Nos. 232-2A1/B, 232-2A2/A, 232-1B, 232-2A1/C, 232-2A2/B, 232-1C. The suit was opposed by defendants who were in possession of the land in S. No. 232/ 7 which was adjacent to suit schedule lands The trial Court by judgment dt. 31-12-2001 dismissed the suit disbelieving the version of the plaintiffs. Aggrieved by the same, plaintiffs filed regular first appeal being A.S. No. 15 of 2002 on the file of the Court of Senior Civil Judge, Sompet. When the appeal suit was coming up for arguments, plaintiffs/appellants filed IA No. 87 of 2004 under Order XXVI Rule 9 of Code of Civil Procedure, 1908 (CPC) for appointment of Advocate Commissioner to localize the plaint schedule property and the property in S.No. 232/7 with reference to Field Measurement Book (FMB) and other revenue records. This application was opposed by the defendants/respondents. Overruling objections, the learned Appellate Judge by impugned order dt. 9-9-2004 appointed Advocate Commissioner as prayed for directing him to take assistance of Mandal Surveyor, give prior notice to both parties and submit a report. Aggrieved by this, the legal representatives of eighth defendant, who came on record as respondents 2, 4, 5, 7 and 8 in the appoal, filed present Civil Revision Petition under Article 227 of the Constitution of India.

(2.) Learned Counsel for the petitioners, Sri P. Veera Reddy, submits that the impugned order amounts to collection of evidence which is not permissible in a suit for injunction at the appellate stage. He would urge that new and additional evidence is sought to be procured by the plaintiffs after lapse of sixteen years and therefore orders of the learned Senior Civil Judge suffer from grave error apparent on the face of the record, requiring correction in the proceedings under Article 227 of the Constitution of India. Per contra, learned counsel for respondents 1 to 6, Sri Kouturu Vinaya Kumar submits that plaintiffs filed an application only for verification of the features of the suit schedule property and property claimed by the defendants, with reference to FMB and revenue records and the same does not amount to collecting evidence. Therefore, he would urge that the order of the learned Senior Civil Judge does not in any manner cause prejudice to the petitioners.

(3.) It is now well settled that by catena of decisions of the Supreme Court every error committed by a Court subordinate to High Court is not amenable to supervisory jurisdiction under Artice 227 of the Constitution of India. The power under Article 227 of the Constitution of India is intended to avoid miscarriage of justice by improper exercise of jurisdiction by subordinate Courts or exercise of jurisdiction which primarily does not vest in lower Courts. In Surya Dev v. Ram Chander Rai the Supreme Court considered the scope of Article 227 of the Constitution of India in the background of amendments to CPC in 1999 and 2002. While laying down general principles in relation to exercise of jurisdiction under Article 227, the Supreme Court observed. ...Not less than often, the High Court would be faced with a dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self-restraint and not to intervene because the error of jurisdiction thougr committed is yet capable of being taken care of and corrected at a later stage and the wrung done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where "a stitch in time would save nine". At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge.