K.S. Radhakrishnan, J.
1. Revision petitioners have invoked Section 415 of the Code of Civil Procedure against the orders rejecting their applications filed under Order VI Rule 17 C.P.C. seeking amendment of the plaint. Court took the view that if those applications are allowed the same would alter the nature of the suit and also cause prejudice to the defendants. Respondents took up a preliminary objection stating that these Revision Petitions are not maintainable in view of the CPC Amendment Act, 46 of 1999. In view of the amendment, interlocutory orders passed by Courts subordinate to High Court which does not have effect of final disposal of suit or proceedings cannot be challenged before High Court under Section 115 of the CPC.
2. The question whether under such circumstance the power under Articles 226 and 227 can be exercised came up for consideration before me Apex Court in Surya Dev Rai v. Ram Chander Rai, 2003 (3) KLT 490 (SC). Apex Court has laid down various guideline with regard to the powers of the High Courts under Articles 226 and 226 which are extracted below for easy reference.
1. Amendment by Act 46 of 1999 with effect from 1.7.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
2. Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
3. Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, ie., when a subordinate court is found to have acted (i) without jurisdiction --by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction -- by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
4. Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
5. Be it a writ of certiorari or the exercise of supervisory jurisdiction none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.
6. A patent error is an error which is self evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.
7. The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court could obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
8. The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing interferences or correct errors of mere formal or technical character.
9. In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate Courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.'
Several interlocutory orders passed by the Subordinate Courts are now being challenged under Article 227 of the Constitution of India. Revision Petitions which are not otherwise maintainable under Section 115 CPC are now being filed under Article 227 of the Constitution of India, which in my view, would defeat the purpose and object sought to be achieved by the Amendment Act 46 of 1999. The area of litigation is now shifted from the Civil Court to the constitutional Court.
3. Counsel for the petitioners submitted, if the Revision Petitions are not maintainable, those petitions be treated as petitions under Article 227 of the Constitution of India. Counsel for the revision petitioners laid considerable emphasis on subparagraph (4) of paragraph 37 of the decision of the Supreme Court in Surya Dev Rai's case (supra) which says that supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
4. Counsel submitted if the subordinate Court commits any illegality in not entertaining application for amendment under Order VI, Rule 17, that illegality would amount to failure of justice and by not correcting that error, the Court is acting in a manner not permitted by law and therefore in appropriate cases Court could exercise powers under Article 227 of the Constitution of India to correct such error of law. Counsel referred to the decision of the Apex Court in Fritiz T.M. Clement v. Sudhakaran Nadar, (2002) 3 SCC 605, and submitted in appropriate case refusing the prayer for amendment of the plaint would amount to illegal exercise of jurisdiction.
5. The Apex Court while deciding Fritiz's case was exercising its appellate jurisdiction, against an order passed by the High Court in exercise of its revisional jurisdiction under Section 115 CPC. The High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decision or error of law or facts. Only in cases where there is grave dereliction of duty and flagrant abuse of fundamental principles of law or justice the court would exercise extraordinary jurisdiction under Article 227 of the Constitution of India. In Surya Dev Rai's case the Apex Court has reiterated that the supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. Apex Court has also explained the difference between the writ of certiorari under Article 226 and supervisory jurisdiction under Article 227. Court held proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. The power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate Courts and tribunals within the bounds of their authority and not for correcting mere errors. Subordinate Courts may commit error on facts as well as error on law. Powers under Article 227 cannot be exercised to correct an error of fact or error of law committed by the Subordinate Courts.
6. Counsel tried to contend that rejection of the prayer to amend the plaint would fall within the expression 'failure of justice' evidently placing reliance on subparagraph (4) of paragraph 37 of the judgment in Surya Dev Rai's case. I am of the view expression 'failure of justice or gross injustice' used in that paragraph refers to jurisdiction. The Court below has assumed a jurisdiction which it does not have or failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and by virtue of those reasons, a failure of justice or grave injustice has occasioned, then only the High Court may step into exercise its supervisory jurisdiction under Article 227 of the Constitution. The Apex Court in Sadhana Lodh v. National Insurance Co. Ltd., 2003 (2) KLT 47 (SC) = AIR 2003 SC 1561 held that 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. While rejecting a prayer under Order VI Rule 7, the Court is not exercising its jurisdiction not permitted by law. While exercising its jurisdiction the Court might commit error of facts or error of law and every such error cannot be corrected under Article 227 of the Constitution of India.
7. The Court while passing order on I.A.1935 of 2002, against which CRP.1569 of 2002 has stated the reasons for its rejection. It is stated that if the amendment sought for is allowed that would change the basic nature of the suit. Further it is also stated by the Court that the petitioner wants to insert a totally inconsistent plea in the plaint and that by the proposed amendment issue regarding title is also proposed to be brought in. Further it is also stated that petitioners came forward with such a petition only when the suit is listed for trial. The suit in I.A.784 of 2002 passed the order, against which CRP. 1939 of 2002 was filed rejecting the petition stating that amendment if allowed, would certainly prejudice the defendant as he would be put to task to defend a claim put forth by plaintiff which is not disclosed from his title deed. Further it is also opined that the basic nature of the plaint claim would be altered in the sense that a new case is set up. Further it is also stated that the application for amendment was made when the commission report was awaited after remission. Further the suit is of the year 1999 while the amendment application was filed in 2002. The order in I.A.929 of 2002, against which CRP 540 of 2003 was preferred. It is stated that if the amendment is allowed that will change the character of the suit. Further it is also stated that the petition was filed when the suit was listed for trial. It is also opined that the petition is highly belated and only to drag the proceedings.
8. I am of the view, the above mentioned reasons pointed out by the Courts for rejecting the various applications for amendment of the plaint cannot be characterized as orders not permitted by law and would amount to illegal exercise of jurisdiction by the Court. I have already indicated, error of jurisdiction cannot be equated to error of law and error of facts or error apparent on the face of records. Every error of law, error of facts or error apparent on the face of the records are not to be corrected under Article 227 of the Constitution of India. Supervisory jurisdiction of the High Court under Article 227 can be invoked only when the subordinate court submits illegality in exercise of its jurisdiction. In these cases courts have not committed any illegality in exercise of their jurisdiction while dismissing the applications under Order VI Rule 17 C.P.C. The above being the legal position I find no illegality in the orders passed by the Courts below. Consequently all the revision petitions lack merits and they are accordingly dismissed.