# State of U.P. & Ors v. M/s Modern Medicos, Jhansi & Anr

- **Citation:** (2022) 4 ILRA 476
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-07
- **Case number:** Writ C No. 37914 of 2013
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-m-s-modern-medicos-jhansi-anr-47608
- **Pages:** 14

## Headnote

Sri
Pushkar
Srivastava,
Sri
Arvind
Srivastava

(A) Civil Law - Constitution of India, 1950
- Article 227 - Civil Procedure Code, 1908 -
Section 102 - High Court Act, 1861 -
Section 15 - Government of India Act,
1935 - Sections 107 & 224 (2) -
Development of Law in respect of Judicial
discharge of function of the High Court
having inherent powers qua the Courts
and Tribunals are subordinate to it -
Powers under article 227 of Constitution
are inherent and independent of the
provisions contained in other central or St.
Acts.(Para - 7, 8, 10, 11, 20)

(B) Civil Law - Constitution of India, 1950
- Article 227 - Civil Procedure Code, 1908 -
Section 102- High Court Act, 1861 -
Section 15 - Government of India Act,
1935 - Sections 107 & 224 (2) -
Preliminary objection - merely power of
revision or appeal barred or taken away
under any Act - would not amount to an
automatic abrogation of the powers of
4 All. State of U.P. & Ors. Vs. M/s Modern Medicos, Jhansi & Anr.
477
High Court - held - petition u/a 227 to be
maintainable even in the face of bar
created u/s 102 of CPC - objection
rejected.(Para - 21, 22)

(C) Civil Law - Constitution of India,
1950 - Article 227 - Civil Procedure
Code, 1908 - Section 102 - High Court
Act, 1861 - Section 15 - Government of
India Act, 1935 - Sections 107 & 224 (2)
- Partnership Firm - instituted a Suit for
recovery for demand of money for
supplied medicines - defendant raised
objection that suit for recovery by an
un-registered firm is not maintainable -
as claim of money as set up in plaint is
not
shown
by
any
partnership
agreement or agreement with or as a
third party and since suit for demand of
money which was a pure contract - suit
by an unregistered partnership firm is
not hit section 69 - writ petition against
decree - dismissed.(Para - 24, 33, 34,
37, 40)

Writ Petition Dismissed. (E-11)

List of Cases cited: -

## Text

_Characters 0–39,987 of 47,137. This is a partial read: ask again with offset=39987 for what follows._

476 INDIAN LAW REPORTS ALLAHABAD SERIES
State Government or the Officer authorised
by it, must ensure constitution of the Gram
Panchayat or its Administrative Committee
through other means, permitted by the
statute.

17. Accordingly, the writ petition is
allowed with a direction upon respondents
to take cognizance of the matter and pass
appropriate
orders
with
respect
to
declaration of deemed vacancy on the post
of 10 members of Gram Panchayat, Bhauli
who may still refuse to subscribe to the
oath despite further notice to be issued to
them, now. For that purpose, the time limit
of three weeks from today is fixed. Thus,
either such oath would be made and
subscribed by minimum five elected
members so as to complete the quorum of
10 members, on or before 22 April, 2022 or
a declaration of deemed vacancy under
Section 12-E of the Act would be made
with respect to the above, at the end of that
time limit.

18. Further, in the event of such
vacancy being declared, and quorum being
still not met, keeping in mind the facts
noted above, no fresh election may be
called for the next six months. However the
respondents may proceed directly, under
Section 12(3-A) of the Act and appoint
such eligible persons as members of the
Administrative Committee of the Gram
Panchayat, Bhauli as may be required to
complete the minimum quorum, over and
above the elected members who may have
subscribed oath. Such exercise may be
completed, within a period of one week
therefrom, so that the Gram Panchayat,
Bhauli may be constituted not later than
2nd May, 2022.

19. Upon, such event, the petitioner
may be allowed to function as the full
fledged Gram Pradhan for his remaining
term, in accordance with law.

20. No order as to costs.
----------
(2022)04ILR A476
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2021

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ C No. 37914 of 2013

State of U.P. & Ors. ...Petitioners
Versus
M/s Modern Medicos, Jhansi & Anr.
 ...Respondents

Counsel for the Petitioners:
Sri R.B. Pradhan, A.C.S.C.

Counsel for the Respondents:
Sri
Pushkar
Srivastava,
Sri
Arvind
Srivastava

(A) Civil Law - Constitution of India, 1950
- Article 227 - Civil Procedure Code, 1908 -
Section 102 - High Court Act, 1861 -
Section 15 - Government of India Act,
1935 - Sections 107 & 224 (2) -
Development of Law in respect of Judicial
discharge of function of the High Court
having inherent powers qua the Courts
and Tribunals are subordinate to it -
Powers under article 227 of Constitution
are inherent and independent of the
provisions contained in other central or St.
Acts.(Para - 7, 8, 10, 11, 20)

(B) Civil Law - Constitution of India, 1950
- Article 227 - Civil Procedure Code, 1908 -
Section 102- High Court Act, 1861 -
Section 15 - Government of India Act,
1935 - Sections 107 & 224 (2) -
Preliminary objection - merely power of
revision or appeal barred or taken away
under any Act - would not amount to an
automatic abrogation of the powers of
4 All. State of U.P. & Ors. Vs. M/s Modern Medicos, Jhansi & Anr.
477
High Court - held - petition u/a 227 to be
maintainable even in the face of bar
created u/s 102 of CPC - objection
rejected.(Para - 21, 22)

(C) Civil Law - Constitution of India,
1950 - Article 227 - Civil Procedure
Code, 1908 - Section 102 - High Court
Act, 1861 - Section 15 - Government of
India Act, 1935 - Sections 107 & 224 (2)
- Partnership Firm - instituted a Suit for
recovery for demand of money for
supplied medicines - defendant raised
objection that suit for recovery by an
un-registered firm is not maintainable -
as claim of money as set up in plaint is
not
shown
by
any
partnership
agreement or agreement with or as a
third party and since suit for demand of
money which was a pure contract - suit
by an unregistered partnership firm is
not hit section 69 - writ petition against
decree - dismissed.(Para - 24, 33, 34,
37, 40)

Writ Petition Dismissed. (E-11)

List of Cases cited: -

1. Mahendra Singh Vs Haqimuddin 92008 Vol.
10 ADJ 182)

2. Chandrashekhar Singh & ors.Vs Siva Ram
singh & ors.(1979 Vol. 3 SCC 118)

3. L Chandra Kumar Vs UOI & others

4. St. Thru. Sepecial Cell, New Delhi Vs Navjot
Sandhu & ors.(2003 ACR Vol. 3 (SC) 2391)

5. Surya Devi Rai Vs Ram Chander Rai &
ors.(AIR 2003 SC 3044)

6.
Nagendra
Nath
Bora
&
Another
Vs
Commissioner of Hills & ors.(1958 Vol. 1 SCR
1240)

7. Bathutmal Raichand Oswal Vs Laxmibai R.
Tarta (AIR 1975 SC 1297)

8. Sadhna Lodh Vs National Insurance Co. Ltd.
(2003 Vol. 3 SCC 524)

9. Radhey Shyam & ors.Vs Chhabi Nath &
ors.(2015 Vol.v3 ADJ 210)

10. Jagdish Chandra Gupta Vs Kajaria Traders
(India) Ltd. (AIR 1964 SC 1882)

11. Krishna Motor Services Vs H B Vittala
Kamath (1996 Vol. 10 SCC 88)

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard learned counsel for the
parties.

2. By means of this petition filed
under Article 227 of the Constitution, the
petitioner State of U.P. and two others seek
to set aside the judgments and decrees
passed by the trial court and court of appeal
in O.S. No. 213 of 2008 and Civil Appeal
No. 70 of 2010 respectively whereby
present petitioners have been saddled with
the liability to pay an amount of Rs.
15,841.18 paise to the opposite party
alongwith interest @ 18 per cent.

3. Learned Standing Counsel submits
that since valuation of money recovery suit
is less than Rs. 25000/- therefore, second
appeal is barred in such matters under
Section 102 of the Code of Civil Procedure,
1908 and hence this petition has been filed
under Article 227 of the Constitution.

4. A preliminary objection has been
raised by learned Advocate appearing for
the respondents that since second appeal
under Section 102 is barred in the matters
of valuation of the original money recovery
suit being less than 25,000/- under Section
102 of Code of Civil Procedure, 1908, a
petition
under
Article
227
of
the
Constitution to circumvent such a bar,
would equally not be maintainable. He has
placed reliance upon the judgment of a
coordinate bench of this Court in the case
478 INDIAN LAW REPORTS ALLAHABAD SERIES
of Mahendra Singh v. Haqimuddin
decided on 27.11.2008 and reported in
2008 (10) ADJ 182.

5. Meeting aforesaid preliminary
objection, learned Standing Counsel has
submitted that powers under Article 227 of
the Constitution of India are the inherent
powers of superintendence of the High
Court upon the Courts and Tribunals
subordinate to it through out territorial
jurisdiction of the High Court and this
power cannot be curtailed or limited by any
Act of legislature. He submits that power of
superintendence conferred upon the High
Court is one of the basic features of our
Constitution, and therefore, either by any
Act of legislature or any amendment to the
constitution, this power cannot be taken
away. He submits that second appeal is
though barred under Section 102 of the
CPC but a petition under Article 227 of the
Constitution at the same time would be
maintainable. He has placed reliance upon
a number of the authorities of the High
Court and the Supreme Court.

6. In view of the above rival
submissions regarding maintainability of
this petition, before I proceed to consider
the present petition filed under Article 227
of the Constitution on its merit, I consider it
appropriate to deal with preliminary
objection
raised
by
learned
counsel
appearing for the contesting respondents
first in the light of various authorities on
this issue.

7. In case of Mahendra Singh (supra)
a coordinate bench of this Court in its
judgment running in one and half page, in
the third paragraph of it has quoted Section
102 which bars second appeal against the
judgment and decree of the trial Court and
the court of appeal where valuation of suit
for recovery of money is not exceeding Rs.
25,000/- and considering this bar the court
observed that holding a petition under
Article
227
in
such
cases
to
be
maintainable would frustrate the very
purpose for which Section 102 has been
incorporated
under
Code
of
Civil
Procedure. Vide paragraph 5, the ratio as
laid down in the said judgment for holding
petition not maintainable under Article 227
of the Constitution, it has been held thus:

" Learned counsel for the plaintiff
appellate requests for return of the certified
copies of the judgments and orders of the
courts below and the decree appealed
against to enable him to file a writ petition
challenging the said judgments and orders.
There is no difficulty in accepting the above
request of the counsel simplicitor but a writ
petition under Article 227 against the
judgments and orders of the courts below
would not be maintainable as it would
amount to frustrating the very purpose of
the amendment made under Section 102
Civil Procedure Code. The jurisdiction of
the High Court under Article 227 of the
Constitution of India is very limited and it
cannot be permitted to be used to
circumvent the provisions of the Civil
Procedure
ode
and
to
invoke
writ
jurisdiction where the second appeal has
been specifically barred particularly when
the judgment and order of the Court of first
instance had already been scrutinised once
in appeal before the lower appellate court."

8. After going through the aforesaid
paragraph , I find that his Lordship has held
a petition under Article 227 of the
Constitution to be not maintainable only on
the ground that since Section 102 of the
CPC bars second appeal, a petition under
Article 227 of the Constitution would
frustrate
the
very
purpose
of
the
4 All. State of U.P. & Ors. Vs. M/s Modern Medicos, Jhansi & Anr.
479
amendment. If this analogy is accepted in
toto to hold a petition under Article 227 of
the Constitution to be not maintainable
would amount to taking a view quite
contrary to the view taken by the Supreme
Court in the past regarding scope of Article
227 of the Constitution of India.

9. One must not forget that power
conferred upon the High Courts under
Article 226 and 227 of the Constitution are
inherent powers under the constitution and
tracing history prior to the constitution of
India coming into force, one would find
that these powers always existed there
under Section 15 of the High Courts Act,
1861 and Government of India Act, 1915
and 1935.

10. So tracing out the development of
law in respect of judicial discharge of
function of the High Courts having inherent
powers qua the Courts and Tribunals
subordinate to it, relevant provisions as
contained in Section 15 of the High Courts
Act, 1861, Section 107 of the Government
of India 1915, Section 224 of the
Government of India, 1935 and Article 227
of the Constitution of India as incorporated
under the Indian Constitution, 1950, are
reproduced hereunder:

" THE HIGH COURTS ACT,
1861

15. Each of the High Courts
established under this Act shall have
superintendence over all Courts which may
be subject to its appellate jurisdiction, and
shall have power to call for returns, and to
direct the transfer of any suit or appeal
from any such Court to any other Court of
equal or Superior jurisdiction, and shall
have power to make and issue general rules
for regulating the practice and proceedings
of such Courts, and also to prescribe forms
for every proceeding in the said Court for
which it shall think necessary that a form
be provided, and also for keeping all books,
entries and accounts to be kept by the
officers and also to settle tables of fees to
be allowed to the Sheriff Attorneys, and all
clerks and officers of Courts and from time
to time to alter any such rule or form or
table: and the rules so made the forms so
famed, and the tables so settled, shall be
used and observed in the said Courts:
provided that such general rules and forms
and tables be not inconsistent with the
provisions of any law in force, and shall
before they are issued, have received the
sanction, in the Presidency of Fort William
of the Governor-General in council, and in
Madras or Bombay of the Governor in
Council of the respective Presidencies.

GOVERNMENT
OF
INDIA ACT, 1915

"(Section 107) - Section 15:-
Each
of
the
high
courts
has
superintendence over all courts for the time
being subject to its appellate jurisdiction,
and may do any of the following things,
that is to say:--

(a) call for returns;

(b) direct the transfer of any suit
or appeal from any such court any other
court of equal or superior jurisdiction;

(c) make and issue general rules
and prescribe forms for regulating the
practice and proceedings of such courts;

(d) prescribe forms in which
books, entries and accounts shall be kept
by the officers of any such courts; and

(e) settle tables of fees to be
allowed to the sheriff, attorneys and all
clerks and officers of courts:

Provided that such rules, forms
and tables shall not be inconsistent with the
provisions of any 1 [law] for the time being
in force, and shall require the previous
approval, in the case of the high court at
480 INDIAN LAW REPORTS ALLAHABAD SERIES
Calcutta, of the Governor-General in
Council, and in other cases of the local
government.

GOVERNMENT
OF
INDIA ACT, 1935

224 (1)Every High Court shall
have superintendence over all courts in
India for the time being subject to its
appellate jurisdiction, and may do any of
the following things, that is to say,'--

(a)call for returns;

(b)make and issue general rules
and prescribe forms for regulating the
practice and proceedings of such courts;

(c)prescribe
forms
in
which
books, entries and accounts shall be kept
by the officers of any such courts; and .

(d)settle tables of fees to be
allowed to the sheriff, attorneys, and all
clerks and officers of courts :

Provided that such rules, forms
and tables shall not be inconsistent with the
provision of any law for the time being in
force, and shall require the previous
approval of the Governor.

(2)Nothing in this section shall be
construed as giving to a High Court any
jurisdiction to question any judgment of
any inferior court which is not otherwise
subject to appeal or revision.

 ARTICLE
227
OF
THE
CONSTITUTION OF INDIA

"(1) Every High Court shall have
superintendence
over
all
courts
and
tribunals throughout the territories in
relation to which it exercises jurisdiction

(2) Without prejudice to the
generality of the foregoing provisions, the
High Court may

(a) call for returns from such
courts;

(b) make and issue general rules
and prescribe forms for regulating the
practice and proceedings of such courts;
and

(c) prescribe forms in which
books, entries and accounts shall be kept
by the officers of any such courts

(3) The High Court may also
settle tables of fees to be allowed to the
sheriff and all clerks and officers of such
courts and to attorneys, advocates and
pleaders practising therein:

Provided that any rules made,
forms prescribed or tables settled under
clause ( 2 ) or clause ( 3 ) shall not be
inconsistent with the provision of any law
for the time being in force, and shall
require the previous approval of the
Governor.

(4) Nothing in this article shall be
deemed to confer on a High Court powers
of superintendence over any court or
tribunal constituted by or under any law
relating to the Armed Forces."

11. Upon bare reading of the aforesaid
quoted provisions as enacted/incorporated
from time to time, it is clear that this power of
superintendence under High Courts Act, 1861
was independent of the provisions of other
laws that conferred power of appeal/ revision
upon High Courts, though under Sub Section
2 of Section 224 of the Government of India,
1935 the power in relation to inferior courts
were limited to the cases where appeals or
revisions were not maintainable, but while
incorporating such a provision under the
Constitution even that restriction has been
done away with.

12. Although powers conferred upon
the High Court under Article 227 of the
Constitution is taken to be very wide one
but at the same time not wider enough to
exercise as an alternative to the forum of
appeal.

13. In Chandrasekhar Singh & Ors.
Vs. Siva Ram Singh & Ors., (1979) 3
4 All. State of U.P. & Ors. Vs. M/s Modern Medicos, Jhansi & Anr.
481
SCC 118 summing up the position of law
in relation to exercise of power under
Article 227 of the Constitution, the Court
has held thus:

"On a review of earlier decisions,
the three-Judges Bench summed up the
position of law as under :-

(i) that the powers conferred on
the High Court under Article 227 of the
Constitution cannot, in any way, be
curtailed by the provisions of the Code of
Criminal procedure;

(ii) the scope of interference by
the High Court under Article 227 is
restricted. The power of superintendence
conferred by Article 227 is to be exercised
sparingly and only in appropriate cases in
order to keep the subordinate Courts within
the bounds of their authority and not for
correcting mere errors;

(iii) that the power of judicial
interference under Article 227 of the
Constitution is not greater than the power
under Article 226 of the Constitution;

(iv)
that
the
power
of
superintendence under Article 227 of the
Constitution cannot be invoked to correct
an error of fact which only a superior
Court can do in exercise of its statutory
power as the Court of Appeal; the High
Court cannot, in exercise of its jurisdiction
under Article 227, convert itself into a
Court of Appeal. "

14. In the case of L. Chandra
Kumar v. Union of India and Others,
Supreme Court has very categorically held
that power conferred upon the Supreme
Court and High Courts under Articles 32
and 226 and 227 of the Constitution
respectively is a part of basic structure of
our Constitution, forming its integral and
essential feature, which cannot be tempered
with much less be taken away even by a
constitutional amendment, not to speak of a
parliamentary legislation. However, courts
have repeatedly cautioned that power of
judicial review though is an integral part of
basic structure of the Constitution, but
exercise of it has to have self imposed
limitations because such a power has to be
exercised sparingly only to ensure that
courts subordinate to the High Court obey
the law, procedure and authority prescribed
for. The power, it has been held, is not
exercisable to correct mere errors nor, to be
exercised as a cloak of appeal in disguise.

15. In the case case of State, through
special Cell, New Delhi v. Navjot Sandhu
and Others, 2003 (3)ACR 2391 (SC) it
has been held thus:

"Thus the law is that Article 227
of the Constitution of India gives the High
Court the power of superintendence over
all Courts and Tribunals throughout the
territories in relation to which it exercises
jurisdiction. This jurisdiction cannot be
limited or fettered by any act of the State
Legislature. The supervisory jurisdiction
extends
to
keeping
the
subordinate
Tribunal's within the limits of their
authority and to seeing that they obey the
law. The powers under Article 227 are wide
and can be used, to meet the ends of justice.
They can be used to interfere even with an
interlocutory order. However the power
under Article 227 is a discretionary power
and it is difficult to attribute to an order of
the High Court, such a source of power,
when the High Court itself does not in
terms purport to exercise any such
discretionary power. It is settled law that
this power of judicial superintendence,
under Article 227 , must be exercised
sparingly and only to keep subordinate
Courts and Tribunal's within the bounds of
their authority and not to correct mere
482 INDIAN LAW REPORTS ALLAHABAD SERIES
errors. Further where the statute bans the
exercise of revisional powers it would
require very exceptional circumstances to
warrant interference under Article 227 of
the Constitution of India since the power of
superintendence
was
not
meant
to
circumvent statutory law. It is settled law
that the jurisdiction under Article 227
could not be exercised "as the cloak of an
appeal in disguise"

16. Relying upon the aforesaid
authorities, Supreme Court in the case of
Surya Devi Rai v. Ram Chander Rai and
Others, AIR
2003
SC
3044,
vide
paragraph 38 has held thus:

"38. Though we have tried to lay
down broad principles and working rules,
the fact remains that the parameters for
exercise of jurisdiction under Articles 226
or 227 of the Constitution cannot be tied
down in a straitjacket formula or rigid
rules. Not less than often the High Court
would be faced with 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 though
committed is yet capable of being taken
care of and corrected at a later stage and
the wrong 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."

(emphasis added)

17. In case of Nagendra Nath Bora
and Another v. Commissioner of Hills
Division and Appeals, Assam and Others,
(1958) 1 SCR 1240, Supreme Court had
much early observed thus:

the parameters for the exercise of
jurisdiction, calling upon the issuance of
writ of certiorari where so set out by the
Constitution Bench : - "The Common law
writ, now called the order of certiorari,
which has also been adopted by our
Constitution, is not meant to take the place
of an appeal where the Statute does not
confer a right of appeal. Its purpose is only
to determine, on an examination of the
record, whether the inferior tribunal has
exceeded its jurisdiction or has not
proceeded in accordance with the essential
requirements of the law which it was meant
to administer. Mere formal or technical
errors, even though of law, will not be
sufficient to attract this extra-ordinary
jurisdiction. Where the errors cannot be
said to be errors of law apparent on the
face of the record, but they are merely
errors in appreciation of documentary
evidence or affidavits, errors in drawing
inferences or omission to draw inference or
in other words errors which a court sitting
as a court of appeal only, could have
examined and, if necessary, corrected and
the appellate authority under a statute in
question has unlimited jurisdiction to
examine and appreciate the evidence in the
exercise of its appellate or revisional
jurisdiction and it has not been shown that
in exercising its powers the appellate
authority
disregarded
any
mandatory
provisions of the law but what can be said
4 All. State of U.P. & Ors. Vs. M/s Modern Medicos, Jhansi & Anr.
483
at the most was that it had disregarded
certain executive instructions not having
the force of law, there is not case for the
exercise of the jurisdiction under Article
226.

18. So also again in the Bathutmal
Raichand Oswal v. Laxmibai R.Tarta, AIR
1975 SC 1297, Supreme Court had very
categorically held that power under Article
227 of the Constitution cannot be exercised
"as the cloak of an appeal in disguise. It
does not lie in order to bring up an order or
decision for rehearing of the issues raised
in the proceedings."

19. In case of Sadhna Lodh v.
National Insurance Co. Ltd. 2003(3) SCC
524 while dealing with the scope of Article
227 of the Constitution the Supreme Court
observed that a petition filed under Article
227 of the Constitution by the ensurer was
wholly misconceived as statutory right to file
an appeal was provided for under the statute.
The Court observed, in such situation it was
not open for the High Court to entertain a
petition under Article 227 of the Constitution.
The Court further observed that even where
remedy by way of appeal has not been
provided for against the order and judgment
of District Judge, the remedy available to the
aggrieved person is to file revision before the
High Court but where revision against
such order is barred under Section 115 of
the Code of Civil Procedure then petition
under Article 227 of the Constitution
would lie. This above judgment has been
further relied upon in the case of Radhey
Shyam and Others v. Chhabi Nath and
Others, 2015 (3) ADJ 210, the Supreme
Court has very categorically held that
power
under
Article
227
of
the
Constitution can not be whistled down by
any legislative Act vide paragraph 21 of
the judgment, it held thus:

"21. It is true that this Court has
laid down that technicalities associated
with the prerogative writs in England have
no role to play under our constitutional
scheme. There is no parallel system of
King's Court in India and of all other
courts having limited jurisdiction subject to
supervision of King's Court. Courts are set
up under the Constitution or the laws. All
courts in the jurisdiction of a High Court
are subordinate to it and subject to its
control and supervision under Article 227,
Writ
jurisdiction
is
constitutionally
conferred on all High Courts. Broad
principles of writ jurisdiction followed in
England are applicable to India and a writ
of certiorari lies against patently erroneous
or without jurisdiction orders of Tribunals
or authorities or courts other than judicial
courts. There are no precedents in India for
High Courts to issue writs to subordinate
courts. Control of working of subordinate
courts in dealing with their judicial orders
is exercised by way of appellate or
revisional
powers
or
power
of
superintendence under Article 227. Orders
of civil court stand on different footing from
the orders of authorities or Tribunals or
courts other than judicial/civil courts.
While appellate or revisional jurisdiction is
regulated
by
statutes,
power
of
superintendence under Article 227 is
constitutional...."

20. Thus from the above discussion, I
may safely conclude that powers under
Article 227 of the Constitution are inherent
and
independent
of
the
provisions
contained in other central or State Acts and
merely because power of revision or appeal
is either barred or taken away under any
Act of parliament or State legislature that
would not amount to an automatic
abrogation of the power or putting feters
upon powers of the High Court, otherwise
484 INDIAN LAW REPORTS ALLAHABAD SERIES
exercisable under Article 227 of the
Constitution.

21. In my considered view since
judgments as referred to above have not
been considered in the case of Mahendra
Singh (supra), with great respect to the
coordinate bench, I am more bound by the
judgments of the Supreme court under
Article 141 of the Constitution and,
accordingly, I hold that merely because
second appeal is not maintainable under
Section 102 of the Code of Civil Procedure,
against the judgment arising from the
money recovery suit having valuation not
more than 25,000/, a petition under Article
227 of the Constitution would be absolutely
maintainable. However, I may hasten to
add that power is to be exercised very
sparingly not to correct any mere error of
facts but to ensure that Civil Courts have
exercised power within bounds of law and
following propriety.

22. Thus, I hold that this petition
under Article 227 of the Constitution to be
maintainable even in the face of bar created
under Section 102 of Code of Civil
Procedure,1908

23. Now, I proceed to consider the
petition on merits.

24. Briefly stated facts of the case are
that petitioners who claim to be a partnership
firm running a medical agency, instituted a
suit for recovery of money of Rs. 15,814.18
paise @ 18 per ent interest. As many as five
issues were framed by the trial court in the
suit and all the issues were answered in
favour of the plaintiffs and the suit was
decreed. The present petitioners preferred a
civil appeal against the judgment of the trial
court dated 29th July, 2010 raising specific
ground that suit for money recovery by a
partnership firm which was not registered,
was not maintainable in view of bar created
under Section 69 of the Indian Partnership
Act, 1932. The Court of appeal, however,
rejected the arguments of petitioner and
dismissed the appeal confirming the order of
trial court vide order dated 15th March, 2011.

25. Assailing the two orders passed by
the court of first instance in O.S. No. 213 of
2008 and that of appeal in civil appeal no. 70
of 2010, learned Standing Counsel has placed
heavy reliance upon judgment of the
Supreme Court in the case of Jagdish
Chandra Gupta v. Kajaria Traders (India)
Ltd, AIR 1964 SC 1882 and judgment in the
case of Krishna Motor Services by its
Partners v. H.B. Vittala Kamath (1996)10
SCC 88 and submitted that since plaintiffs
claimed to be a partnership firm and claimed
money recovery from the petitioners to
whom plaintiffs claimed to have executed an
agreement for supply of medicines, could not
have maintained the suit as suit would clearly
stand barred under Section 69 of the Indian
Partnership Act. 1932 (hereinafter referred to
as Partnership Act), the plaintiff being an
unregistered firm.

26. Per contra, learned counsel
appearing for the respondent has submitted
that suit in question would not be barred
under Section 69 of the Partnership Act
because
plaintiffs
were
not
seeking
enforcement of any right arising out of any
partnership
agreement,
inasmuch
as,
respondents-defendants being not partners of
the firm, any enforcement of right of contract
against such a third person would not be hit
by Section 69 of the Partnership Act.

27. In order to appreciate the above
arguments, it is first necessary to go
through
the
bare
facts
pleaded
by
respective parties in the suit and further as
4 All. State of U.P. & Ors. Vs. M/s Modern Medicos, Jhansi & Anr.
485
to whether plaintiffs' firm in the suit in any
manner ever entered the contract or
agreement with the respondents for supply
of medicines.

28. Upon bare reading of the plaint
case, brought on record as annexure 1 to
this petition, it clearly transpires that
respondents claimed to be a partnership
firm running a medical agency and that the
defendants petitioners had placed some
order for supply of the medicines and bill
for Rs. 15,598.92 paise was signed and sent
to the defendants for payment . It was
claimed that outstanding amount of Rs.
15,841.18 paise/- remained unpaid despite
repeated requests. Hence notice was issued
under Section 80 of the Code of Civil
Procedure after service, 1908 and even
after service of notice when the payment
was not made, the suit was instituted as
O.S. No. 213 of 2008.

29. Written statement was filed in the
case by the defendants, in which they
absolutely denied to have purchased any
medicine from the medical agency of the
firm standing in the name of M/s Modern
Medicos. They also claimed in the written
statement that defendant no. 2 had died,
and therefore, there existed no partnership
in
law,
and
hence,
suit
was
not
maintainable. It was also claimed that no
order placing the supply of medicines was
ever executed in the name of firm as
claimed to be dated 19.10.1985 and
09.03.1987 .It was also claimed that those
orders claimed by the plaintiffs were found
to be forged inasmuch as suit was time
barred.

30. Upon perusal of both the plaint
and written statement as brought on record,
I do not find any averment either coming in
the plaint or in the written statement that
ever any partnership agreement or any sort
of agreement worth its name was entered
between
the
parties
for
supply
of
medicines.

31. It was a simple case where order
was placed to the petitioners plaintiffs as
claimed by the plaintiffs in the suit and that
they supplied the medicines but payments
were not made.

32. Amongst the issues framed by the
trial court issue no. 1 was to the effect
whether
plaintiffs
were
entitled
for
recovery of money as claimed in the suit
and dealing with this issue, the Court
returned a finding of fact to the effect that
as per P.W. 1 witness account two supplies
were made on 19.10.1985 and 09.03.1987
in response to which medicines were
supplied to the store of the defendants and
bills were sent for payment, copies of
which were available on record. The
defence witness no. 1 when was examined
he would claim to have joined Government
Ayurvedic College in the year 2006 but he
failed to bring stock and dispatch register
of that time in question and rather claimed
that there was no entry in the register of
1987. However, looking to the seal on the
bill he claimed that though there was seal,
but name of K.P. Pandey was hand written
and there was no order number that was
necessary to ensure supply of medicines.
He accepted that on the receipt, there was a
signature and seal of Principal but he could
not recognize the signature. The Court,
therefore, having appreciated and analysed
that the statements of respective witnesses
finally held that when the letters were
written to the higher authority to ensure
payments as such documents had been
brought on record as paper no. 108-C and
109-C and then 110-C, it satisfactorily
demonstrated that there was a bill pending,
486 INDIAN LAW REPORTS ALLAHABAD SERIES
otherwise though letters would not have
been written. Having come to answer this
issue in favour of the plaintiffs, the court
decreed the suit returning further findings
that all issues favour the plaintiffs.

33. Thus, I do not find any statement
of fact coming up either in the witness
account of plaintiffs or defendants nor, do I
find any plaint case or defence case that
there was any agreement entered into
between
the
partnership
firm
and
defendants for supply of medicines. It was
a mere case of demand raised to the firm
for supply of medicines that was claimed to
have been made and findings of facts if
have come to be recorded in that respect by
the trial court, the Court sitting in civil
appeal held that the argument regarding bar
of Section 69 of Partnership Act, was not
attracted to the facts of the case and so also
the authorities cited were not applicable.

34. Having carefully gone through the
pleadings raised, I also do not find any
enforcement of right claimed in the suit
having its source in the partnership
agreement. It was a simple case of demand
and supply and no agreement was reached
between the parties. The suit was not filed
for enforcement of any rights nor, a third
party, namely, defendants against whom
suit was instituted, it was ever claimed that
such third persons, namely, defendants
were parties to any agreement at any point
of time. However, further in order to deal
with this legal aspect as argued by the
learned counsel for the petitioner, it would
be appropriate to reproduce Section 69 of
the Partnership Act, in its entirety:

"69. Effect of non-registration.--
(1) No suit to enforce a right arising from a
contract or conferred by this Act shall be
instituted in any court by or on behalf of
any person suing as a partner in a firm
against the firm or any person alleged to be
or to have been a partner in the firm unless
the firm is registered and the person suing
is or has been shown in the Register of
Firms as a partner in the firm.

(2) No suit to enforce a right
arising from a contract shall be instituted
in any Court by or on behalf of a firm
against any third party unless the firm is
registered and the persons suing are or
have been shown in the Register of Firms
as partners in the firm.

(3) The provisions of sub-sections
(1) and (2) shall apply also to a claim of
set-off or other proceeding to enforce a
right arising from a contract, but shall not
affect,--

(a) the enforcement of any right
to sue for the dissolution of a firm or for
accounts of a dissolved firm, or any right
or power to realise the property of a
dissolved firm, or

(b) the powers of an official
assignee, receiver or Court under the
Presidency-towns Insolvency Act, 1909 (3
of 1909) or the Provincial Insolvency Act,
1920 (5 of 1920) to realise the property of
an insolvent partner.

(4) This section shall not apply,--

(a) to firms or to partners in firms
which have no place of business in 8 [the
territories to which this Act extends], or
whose places of business in 9 [the said
territories], are situated in areas to which,
by notification under 10 [section 56], this
Chapter does not apply, or

(b) to any suit or claim of set-off
not exceeding one hundred rupees in value
which, in the Presidency-towns, is not of a
kind specified in section 19 of the
Presidency Small Cause Courts Act, 1882
(5 of 1882), or, outside the Presidencytowns, is not of a kind specified in the
Second Schedule to the Provincial Small
4 All. State of U.P. & Ors. Vs. M/s Modern Medicos, Jhansi & Anr.
487
Cause Courts Act, 1887 (9 of 1887), or to
any proceeding in execution or other
proceeding incidental to or arising from
any such suit or claim. State Amendments."

35. Upon bare reading of the
aforesaid provisions, it becomes explicit
that legislature intended to non suit an
unregistered partnership firm in case if a
suit is instituted for enforcement of a right
arising from a contract under this Act, i.e.
Indian
Partnership
Act,
otherwise,
instituted by a partners or on behalf of a
person suing as partner in a firm or any
other person who is claimed to have been
partner in the firm.

36. Thus subsection 1 of Section 69 of
the Partnership Act is not attracted. Sub
Section 2 of Section 69 also states that no
suit would be maintainable to enforce the
right arising from a contract by a firm or in
its behalf against any third party unless the
firm is registered and persons suing have
been shown in the register of firm as
partners in the firm. Sub Section 3 also bars
proceedings to enforce a right arising from
such a contract.

37.

In
the
present
case
no
enforcement of right arising out of any
contract under Partnership Act is sought to
be enforced inasmuch the claim for
recovery of money as set up in the plaint is
not shown by way of any partnership
agreement or agreement entered with a
partnership firm as a third party. It was a
pure contract where demand for medicine
was raised was accepted and so supply was
made. Such contract cannot be claimed to
be arising out of any partnership agreement
or contract. Thus, suit by a partnership firm
may be an unregistered firm, is not hit by
Section 69 of Partnership Act. It is hit only
when contract emanates from partnership
agreement and enforcement of any right
arising out of such agreement is involved in
the suit.

38. In the case of Jagdish Chandra
Gupta (supra) while dealing with scope of
Section 69 vide paragraph 5 and 6 the
Court has held thus:

"(5) The first question to decide is
whether the present proceeding is one to
enforce a right arising from the contract of
the parties. The proceeding under the
eighth section of the Arbitration Act has its
genesis in the arbitration clause, because
without an agreement to refer the matter to
arbitration that section cannot possibly be
invoked. Since the arbitration clause is a
part of the agreement constituting the
partnership
it
is
obvious
that
the
proceeding which is before the court is to
enforce a right which arises from a
contract. Whether we view the contract
between the parties as a whole or view only
the
clause
about
arbitration,
it
is
impossible to think that the right to proceed
to arbitration is not one of the rights which
are founded on the agreement of the
parties. The words of S. 69 93), "a right
arising from a contract" are in either sense
sufficient to cover the present matter.