Gujarat High Court
Sarlaben Kanaiyalal Desai vs Heirs Of Late Kusumben W/O Dolatram ... on 8 August, 2019
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/13737/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13737 of 2019
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SARLABEN KANAIYALAL DESAI
Versus
HEIRS OF LATE KUSUMBEN W/O DOLATRAM RAGHUNATHJI AND D/O
MAGANLAL GULABBHAI
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Appearance:
MR ISHAN MIHIR PATEL(6508) for the Petitioner(s) No.
1,2,2.1,2.1.1,2.1.2,2.2,2.3,2.4
for the Respondent(s) No. 1,1.1,1.2,1.3,2,3,4
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 08/08/2019
ORAL ORDER
[1] The present petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of challenging the legality and validity of an order dated 28.06.2019 passed below Exh.360 in Regular Civil Suit No.11 of 2010.
[2] Learned advocate Mr.Ishan Mihir Patel appearing for the petitioners has contended that grant of such request as prayed for under Exh.360 would not cause any prejudice to the other side and additionally has also submitted that the issues i.e 7A and 7B have been framed after, and pursuant to the order which has been passed by this Court therefore, ought to have been dealt with as a preliminary issue. Learned advocate Mr.Patel has drawn the attention of this Court to the order dated 03.12.2015 passed in Civil Revision Application No.396 of 2015 and has requested that the application Exh.360 ought to have been considered by the Court below.
Page 1 of 10 Downloaded on : Fri Aug 09 22:55:03 IST 2019 C/SCA/13737/2019 ORDER[3] Having heard learned advocate for the petitioners and having gone through the material on record, it appears that the issue Nos.7A and 7B are framed in response to the order which has been passed by this Court but that would not mean that the same has to be dealt with as a preliminary issue and has not been suggested in the earlier order as well. In view of the reasons which are assigned in paragraph No.3 of the impugned order are sufficient enough for this Court not to exercise extraordinary jurisdiction which is equitable in nature.
[4] Considering the contents which are stated in paragraph No.3 of the order passed in Regular Civil Suit No.11 of 2010 below Exh.360, this Court is not inclined to entertain the present petition. The said relevant observations are reproduced hereinafter:
"3 Heard the Ld. Advocate of the parties and perused the record of the case. It appears that the present suit is instituted for specific performance of the contract and it is running on the stage of evidence of defendant. Moreover, the evidence of the plaintiff is concluded and the present case is pending since 1993. The revenue proceedings with respect to suit property is also under consideration between the same parties before the Hon'ble High Court and decision is pending. This Court is of the opinion that this is not a proper stage for hearing of preliminary issue because it will result into leading of evidence again by the plaintiff on the aforesaid issues specifically and thereafter from the defendant which may further delay the trial of the case. Whereas, if the defendant proceeds with his stage of evidence, than the trial of the entire case can be concluded expeditiously and all the issues can be decided together and the case may be finally disposed off. The case is more than 20 years old and it is required to be decided first without any lingering. In this circumstances, this Court of view that it is in interest of justice to proceed with the stage of evidence of the defendant inspite of hearing of preliminary issues. So that all the issues along with issue no.7A and 7B will be decided together and the case finally disposed off. Therefore, without going into merits of the issues of 7A and 7B, this Court hereby passes following final order-Page 2 of 10 Downloaded on : Fri Aug 09 22:55:03 IST 2019 C/SCA/13737/2019 ORDER
ORDER
1. The present application of defendants is hereby rejected.
2. The defendants are hereby directed to produce evidence in the suit and proceed with trial expeditiously without any delay.
3. No order as to cost."
[5] In view of the aforesaid circumstance and in view of the submissions made by learned advocate, this Court has an assistance of two decisions, which are delivered by the Apex Court, some of the observations since have been considered by the Court found to be relevant, this Court deems it proper to reproduce the same hereinafter:
(i) In the case Mohd. Yunus versus Mohd.
Mustaquim and others reported in AIR 1984 SC 38, the relevant abstract contained in paragraph No.7 is reproduced hereinafter:
"7. The supervisory jurisdiction conferred on the High Courts udder Art. 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority", and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Art.227, the High Court does not act as an Appellate Court or Tribunal. It will not review or Page 3 of 10 Downloaded on : Fri Aug 09 22:55:03 IST 2019 C/SCA/13737/2019 ORDER re-weigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision."
(ii) In the case of Sameer Suresh Gupta versus Rahul Kumar Agarwal reported in (2013) 9 SCC 374, the relevant abstract contained in paragraph No.6 and 7 are reproduced hereinafter:
"6. In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai vs. Ram Chander Rai and others (2003) 6 SCC 675. After considering various facets of the issue,the two Judge Bench culled out the following principles:
"(1) Amendment by Act No.46 of 1999 with effect from 01-07-2002 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, i.e. Page 4 of 10 Downloaded on : Fri Aug 09 22:55:03 IST 2019 C/SCA/13737/2019 ORDER 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 (ii) 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.Page 5 of 10 Downloaded on : Fri Aug 09 22:55:03 IST 2019 C/SCA/13737/2019 ORDER
(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 abovesaid 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 would 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 covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences 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 Page 6 of 10 Downloaded on : Fri Aug 09 22:55:03 IST 2019 C/SCA/13737/2019 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."
7. The same question was considered by another Bench in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 SCC 329, and it was held:
"(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.Page 7 of 10 Downloaded on : Fri Aug 09 22:55:03 IST 2019 C/SCA/13737/2019 ORDER
(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, "within the bounds of their authority".
(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in Page 8 of 10 Downloaded on : Fri Aug 09 22:55:03 IST 2019 C/SCA/13737/2019 ORDER L. Chandra Kumar v. Union of India and therefore abridgment by a constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion Page 9 of 10 Downloaded on : Fri Aug 09 22:55:03 IST 2019 C/SCA/13737/2019 ORDER of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."
[6] The Court has also taken note of a situation that herein this case the suit proceedings are of 2010 and considering the long standing grievance, it is desirable that instead of intercepting the adjudication of the main suit proceedings the suit itself deserves to be expeditiously dealt with and this is additional reason for not entertaining the present petition.
[7] In view of the aforesaid set of circumstances and in view of the proposition of law which has been laid down, this Court is of the considered opinion that no case is made out by the petitioners to allow the petitioners to invoke extraordinary jurisdiction.
[8] However, while parting with the order, the Court is of the opinion that the proceedings of the suit in view of the aforesaid peculiar circumstances which are stated in paragraph No.3 require expeditious disposal.
[9] With these observations, petition stands dismissed with no order as to costs.
(A.J. SHASTRI, J) DHARMENDRA KUMAR Page 10 of 10 Downloaded on : Fri Aug 09 22:55:03 IST 2019