High Court's Supervisory Jurisdiction Over Orders Passed Under Order 39 Rules 1&2 Restricted, Can Be Exercised In Case Of Palpable Error: Delhi HC

The Delhi High Court has observed that the scope of interference by the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India would be even more restricted with an order passed by the court below under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908.

"If, therefore, the courts below are functioning in a manner which calls for correction in the exercise of the supervisory jurisdiction vested in the court under Article 227 of the Constitution of India, the court would interfere; else, the court would hold its hands," Justice C Hari Shankar observed.

On the question of whether to grant, or not to grant, injunctive relief under Order XXXIX Rules 1 and 2 CPC, is discretionary, the Court said that there is no right that inheres, in any party, to interim injunction under Order XXXIX.

"If, however, in granting, or rejecting an application preferred under Order XXXIX Rules 1 and 2 CPC, a court acts arbitrarily or illegally, or in irregular exercise of the jurisdiction vested in it, the hierarchically superior court may interfere," the Court said.

It added that where the order passed is interlocutory, and in exercise of the discretionary jurisdiction vested by Order XXXIX Rules 1 and 2 CPC, the scope of interference, even in appeal, is restricted.

"Even more restricted, therefore, would be the scope of interference by the High Court, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, with an order passed by the court below under Order XXXIX Rules 1 and 2. It is only where the court below has exercised its jurisdiction in a palpably erroneous manner, as would call for correction by the High Court, as a supervisory court, that the High Court would act under Article 227," the Court observed.

The Court was dealing with a plea challenging an order dated 4th April, 2022, passed by the Additional District Judge which had issued summons in a civil suit and notice in the application filed under Order XXXIX Rules 1 and 2.

The petitioners were the plaintiffs, and the respondent was the defendant, in the said suit. The petitioners were aggrieved by the fact that the ADJ did not grant ex-parte ad interim injunction, as sought by the petitioner.

The suit related to a property and the plaintiffs were in possession of the first and second floors, whereas the defendant was in possession of a part of the ground floor comprising two bedrooms.

The petitioner had approached the High Court, invoking its jurisdiction under Article 227 of the Constitution of India, submitting that in failing to grant ex parte ad interim relief to the petitioner, the ADJ had erred.

"In the present case, the scope of interference is even more constricted, as the impugned order does not either grant or refuse the injunction sought by the petitioner under Order XXXIX Rules 1 and 2. It merely issues summons in the suit and notice on the application for interim injunction. To my mind, an order of the court below, which issues notice on an application filed by a party before it, without taking a decision either to grant or refuse the prayer contained in the application prior to issuance of notice, would ordinarily be immune from interference by the High Court in exercise of its supervisory jurisdiction under Article 227," the Court said.

The Court said that it is difficult to imagine a situation in which the High Court, under Article 227, would interfere with an order, passed by the court below, issuing notice on an application filed before it, without either allowing or rejecting the application.

Noting that there may be a situation in which the failure on the part of the court below, in passing ex parte order as sought, result in serious or irreparable prejudice to one of the parties, the Court said:

"Possibly, the High Court, even in exercise of its supervisory jurisdiction under Article 227, may interfere in such a case. For a case for interference to be made out, however, the standard to be set is extremely high. It would have to be shown that the court below was duty bound, in law, to pass the order sought by the petitioner before the High Court, in its application, even without notice to the opposite party and that, in issuing notice to the opposite party without passing ex-parte orders, the court below acted in patently illegal or perverse, exercise of the jurisdiction vested in it. The standard, to reiterate, is extremely high."

The Court added that where the issue is one of interpretation, ordinarily, there is nothing irregular in a court calling for a response from the opposite party before taking a prima facie view. All that the learned ADJ has done, by the impugned order, is to seek such a response, the Court said.

"No jurisdictional error, or other illegality, as would justify interference by this Court, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, can be said to exist," the Court observed.

The plea was accordingly dismissed. However, the Court clarified that the observations contained in the impugned order shall not in any manner influence the trial court while deciding the petitioner's application under Order XXXIX Rules 1 and 2 CPC.

It also clarified that if the respondents were erecting any structure or construction on the suit property, such erection or construction would remain subject to further orders in the suit by the Court below and that, if they are found to be illegally erected or constructed, they would be liable to demolition.

Case Title: ANIL KUMAR SETH v. LALIT KUMAR SETH AND ANR

Citation: 2022 LiveLaw (Del) 366

Click Here To Read Order