$~55(Appellate)

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CM(M) 896/2022 & CM APPL. 38332/2022, CM APPL.
38333/2022

RAHUL BABBAR@ RANVEER SINGH BABBAR

..... Petitioner
Through: Mr. Rakesh Mohan and Mr.
Sundaram Ojha, Advs.

versus

SIDDHARTH SAPRA ..... Respondent

Through: None
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR

J U D G M E N T (ORAL)
% 01.09.2022

1. This petition, under Article 227 of the Constitution of India,

impugns order dated 21st March 2022, passed by learned ADJ in CS
DJ 1058/2021 (Siddharth Sapra v. Rahul Babbar). By the impugned
order, the learned ADJ has partly allowed the application filed by the
respondent (the plaintiff in the suit) under Section 151 of the Code of
Civil Procedure, 1908 (CPC) and has directed the petitioner to furnish
a security of ₹ 4.5 lakhs by way of an FDR within 30 days, in the
name of the learned Trial Court.

2. CS DJ 1508/2021 was filed by the respondent against the

petitioner as a summary suit under Order XXXVII of the CPC for
recovery of an amount of ₹ 9 lakhs.

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 3. Consequent to filing of leave to defend by the petitioner (the
defendant in the suit), leave to defend was granted and the suit was
converted into an ordinary suit.

4. The suit came to be decreed vide ex-parte judgment/decree

dated 10th March 2015. The petitioner moved an application under
Order IX Rule 13 of the CPC for setting aside the ex-parte
judgment/decree. The said application was allowed by the learned
ADJ, subject to costs of ₹ 50,000/-.

5. Assailing this order, the respondent moved this Court by way of

CRP 161/2022, which came to be disposed of, vide judgment dated
11th February 2022, by a coordinate Single Bench of this Court. This
Court held that it was not inclined to interfere with the order dated 24th
December 2021, passed by the learned ADJ, but reserved liberty with
the respondent to move an application before the learned ADJ seeking
some form of security or deposit from the petitioner.

6. Pursuant to the liberty thus granted by this Court on 11th

February 2022, the respondent filed an application before the learned
ADJ under Section 151 of the CPC, seeking a direction, to the
petitioner, to furnish security of ₹ 9 lakhs pending disposal of the suit.

7. The said application stands partly allowed by the impugned

order dated 21st March 2022 of the learned ADJ, which, as already
noted at the commencement of this judgment, directs furnishing of an
FDR, by the petitioner, of an amount of ₹ 4.5 lakhs, to be deposited
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 with the learned Trial Court.

8. Mr. Rakesh Mohan, learned Counsel for the petitioner, submits

that the learned ADJ ought not to have placed such an onerous
condition on the petitioner, especially as the petitioner is in
impecunious circumstances.

9. The present petition has been preferred under Article 227 of the
Constitution of India. The parameters and peripheries of Article 227
of the Constitution of India stand well defined by the judgments of the
Supreme Court in Estralla Rubber v. Dass Estate (P) Ltd.1, Garment
Craft v. Prakash Chand Goel2 ; Puri Investments v. Young Friends
& Co.3 and Sadhana Lodh v. National Insurance Co. Ltd.4, the
relevant passages whereof read thus:

Estralla Rubber 1:

“7. This Court in Ahmedabad Mfg. & Calico Ptg. Co. Ltd.
v. Ram Tahel Ramnand5 in para 12 has stated that the power
under Article 227 of the Constitution 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.
Reference also has been made in this regard to the case
Waryam Singh v. Amarnath6. This Court in Bathutmal
Raichand Oswal v. Laxmibai R. Tarte7 has observed that the
power of superintendence under Article 227 cannot be
invoked to correct an error of fact which only a superior court
can do in exercise of its statutory power as a court of appeal
1
(2001) 8 SCC 97
2
2022 SCC OnLine SC 29
3
2022 SCC OnLine SC 283
4
(2003) 3 SSC 524
5
AIR 1972 SC 1598
6
AIR 1954 SC 215
7
AIR 1975 SC 1297
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 and that the High Court in exercising its jurisdiction under
Article 227 cannot convert itself into a court of appeal when
the legislature has not conferred a right of appeal. Judged by
these pronounced principles, the High Court clearly exceeded
its jurisdiction under Article 227 in passing the impugned
order.”

*****

Garment Craft2

“15. Having heard the counsel for the parties, we are clearly
of the view that the impugned order [Prakash Chand
Goel v. Garment Craft8] is contrary to law and cannot be
sustained for several reasons, but primarily for deviation from
the limited jurisdiction exercised by the High Court under
Article 227 of the Constitution of India. The High Court
exercising supervisory jurisdiction does not act as a court of
first appeal to reappreciate, reweigh the evidence or facts
upon which the determination under challenge is based.
Supervisory jurisdiction is not to correct every error of fact or
even a legal flaw when the final finding is justified or can be
supported. The High Court is not to substitute its own decision
on facts and conclusion, for that of the inferior court or
tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar
Kholkar9] The jurisdiction exercised is in the nature of
correctional jurisdiction to set right grave dereliction of duty
or flagrant abuse, violation of fundamental principles of law
or justice. The power under Article 227 is exercised sparingly
in appropriate cases, like when there is no evidence at all to
justify, or the finding is so perverse that no reasonable person
can possibly come to such a conclusion that the court or
tribunal has come to. It is axiomatic that such discretionary
relief must be exercised to ensure there is no miscarriage of
justice.

16. Explaining the scope of jurisdiction under Article 227,

this Court in Estralla Rubber v. Dass Estate (P) Ltd1 has
observed : (SCC pp. 101-102, para 6)

“6. The scope and ambit of exercise of power and

8
2019 SCC OnLine Del 11943
9
(2010) 1 SCC 217
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 jurisdiction by a High Court under Article 227 of the
Constitution of India is examined and explained in a
number of decisions of this Court. The exercise of
power under this article involves a duty on the High
Court to keep inferior courts and tribunals within the
bounds of their authority and to see that they do the
duty expected or required of them in a legal manner.
The High Court is not vested with any unlimited
prerogative to correct all kinds of hardship or wrong
decisions made within the limits of the jurisdiction of
the subordinate courts or tribunals. Exercise of this
power and interfering with the orders of the courts or
tribunals is restricted to cases of serious dereliction of
duty and flagrant violation of fundamental principles of
law or justice, where if the High Court does not
interfere, a grave injustice remains uncorrected. It is
also well settled that the High Court while acting under
this Article cannot exercise its power as an appellate
court or substitute its own judgment in place of that of
the subordinate court to correct an error, which is not
apparent on the face of the record. The High Court can
set aside or ignore the findings of facts of an inferior
court or tribunal, if there is no evidence at all to justify
or the finding is so perverse, that no reasonable person
can possibly come to such a conclusion, which the
court or tribunal has come to.”

*****
3
Puri Investments

“14. In the case before us, occupation of a portion of the

subject-premises by the three doctors stands admitted. What
has been argued by the learned counsel for the appellant is
that once the Tribunal had arrived at a finding on fact based
on the principles of law, which have been enunciated by this
Court, and reflected in the aforesaid passages quoted from
the three authorities, the interference by the High Court
under Article 227 of the Constitution of India was
unwarranted. To persuade us to sustain the High Court's
order, learned counsel appearing for the respondents has
emphasized that full control over the premises was never
ceded to the medical practitioners and the entry and exit to
the premises in question remained under exclusive control of
the respondent(s)-tenant. This is the main defence of the
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 tenant. We have considered the submissions of the
respective counsel and also gone through the decisions of the
fact-finding fora and also that of the High Court. At this
stage, we cannot revisit the factual aspects of the dispute.
Nor can we re-appreciate evidence to assess the quality
thereof, which has been considered by the two fact-finding
fora. The view of the forum of first instance was reversed by
the Appellate Tribunal. The High Court was conscious of the
restrictive nature of jurisdiction under Article 227 of the
Constitution of India. In the judgment under appeal, it has
been recorded that it could not subject the decision of the
appellate forum in a manner which would project as if it was
sitting in appeal. It proceeded, on such observation being
made, to opine that it was the duty of the supervisory Court
to interdict if it was found that findings of the appellate
forum were perverse. Three situations were spelt out in the
judgment under appeal as to when a finding on facts or
questions of law would be perverse. These are: —

(i) Erroneous on account of non-consideration of

material evidence, or

(ii) Being conclusions which are contrary to the

evidence, or

(iii) Based on inferences that are impermissible in

law.

15. We are in agreement with the High Court's

enunciation of the principles of law on scope of interference
by the supervisory Court on decisions of the fact-finding
forum. But having gone through the decisions of the two
stages of fact-finding by the statutory fora, we are of the
view that there was overstepping of this boundary by the
supervisory Court. In its exercise of scrutinizing the
evidence to find out if any of the three aforesaid conditions
were breached, there was re-appreciation of evidence itself
by the supervisory Court.

16. In our opinion, the High Court in exercise of its

jurisdiction under Article 227 of the Constitution of India in
the judgment under appeal had gone deep into the factual
arena to disagree with the final fact-finding forum. ……
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 Sadhna Lodh4

“7. 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 reweigh the evidence upon which
the inferior court or tribunal purports to have passed the
order or to correct errors of law in the decision.”

10. Where the order under challenge is discretionary, the scope of

interference under Article 227 of the Constitution of India is even
lesser.

11. A higher degree of circumspection is required to be observed

when examining discretionary orders passed by an hierarchically
lower judicial authorities is, even where the Court is exercising
appellate jurisdiction, is, as has been held by the following passages
from Wander Ltd. v. Antox India P. Ltd.10:
“13. On a consideration of the matter, we are afraid, the
appellate bench fell into error on two important propositions.
The first is a misdirection in regard to the very scope and
nature of the appeals before it and the limitations on the
powers of the appellate court to substitute its own discretion
in an appeal preferred against a discretionary order. The
second pertains to the infirmities in the ratiocination as to the
quality of Antox„s alleged user of the trademark on which the
passing-off action is founded. We shall deal with these two
separately.

10
1990 SCC 727
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 14. The appeals before the Division Bench were against
the exercise of discretion by the Single Judge. In such
appeals, the appellate court will not interfere with the exercise
of discretion of the court of first instance and substitute its
own discretion except where the discretion has been shown to
have been exercised arbitrarily, or capriciously or perversely
or where the court had ignored the settled principles of law
regulating grant or refusal of interlocutory injunctions. An
appeal against exercise of discretion is said to be an appeal on
principle. Appellate court will not reassess the material and
seek to reach a conclusion different from the one reached by
the court below if the one reached by that court was
reasonably possible on the material. The appellate court
would normally not be justified in interfering with the
exercise of discretion under appeal solely on the ground that if
it had considered the matter at the trial stage it would have”

12. Where the Court is exercising jurisdiction under Article 227 of

the Constitution of India, the scope of interference would be
proportionaly lesser.

13. It is only, therefore, where the exercise of discretion is palpably

perverse or results in serious miscarriage of justice that the Court
would step in under Article 227 of the Constitution of India. Else, the
Court is expected not to substitute its subjective satisfaction for the
subjective satisfaction of the Court, the legitimacy of which it is
examining.

14. In the present case, the reasoning of the learned ADJ, in

directing furnishing of an FDR, by the petitioner, for 50% of the
amount in dispute in the suit, is to be found in para 6 of the impugned
order, which reads thus:
“6. From the nature of the defence taken by the defendant,
it is clear that the defendant had admitted the factum of giving
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 bank guarantor by the plaintiff for securing the overdraft
facility. Story brought on record by the defendant does not
prima facie appear to be convincing though the matter
requires evidence and trial to arrive at just decision of the
case. However, keeping in mind the prima facie case in favour
of the plaintiff and the previous conduct of the defendant
which is apparent from his ex-parte status, this court is of the
opinion that there are chances that the defendant may not pay
or obstruct payment of decreetal amount to the plaintiff, if the
suit of the plaintiff is decreed. Accordingly, to secure the right
of the plaintiff, the present application is allowed and the
defendant is directed to deposit an FDR of 50o/o of the suit
amount which is Rs.4,50,000 within 30 days in the name of
this court i.e. „Additional District Judge-03, South East
District' with automatic renewal clause. The proceeds of the
sard FDR shall be subject to final decision of this court.”

15. A reading of the aforesaid passage reveals that the learned ADJ
has kept in mind the three considerations of existence of a prima facie
case, balance of convenience and irreparable loss, which are required
to guide any consideration of whether interlocutory relief is required
to be granted.

16. The learned ADJ has noted the fact that the petitioner had
admitted the fact that the respondent had acted as guarantor for the
overdraft facility that the petitioner sought to obtain from the bank.
Owing to the default on the part of the petitioner in liquidating the
dues of the bank, the respondent, as guarantor, had to liquidate the
said dues.

17. The suit of the respondent against the petitioner was essentially
for this amount, along with interest.

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 18. The claim of the respondent being of ₹ 9 lakhs, the direction of
the learned ADJ, to the petitioner, to deposit 50% of the said amount
by way of an FDR, cannot be said to suffer from any such infirmity as
would justify interference by this Court under Article 227 of the
Constitution of India.

19. This petition is accordingly dismissed in limine, with no order

as to costs.

20. At this juncture, learned Counsel for the petitioner seeks

extension of time to make the aforesaid deposit.

21. The petitioner is granted four weeks further time to comply with
the directions for deposit passed by the learned ADJ on 21st March
2022.

C. HARI SHANKAR, J.
SEPTEMBER 1, 2022
dsn

Signature Not Verified

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