Gujarat High Court
Vadibhai Manilal Patel vs Sharmishtaben Punjalal Parikh on 25 March, 2022
Author: Ashokkumar C. Joshi
Bench: Ashokkumar C. Joshi
C/SCA/22035/2019 JUDGMENT DATED: 25/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 22035 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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Whether Reporters of Local Papers may be
1 YES
allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
Whether their Lordships wish to see the fair copy
3 NO
of the judgment ?
Whether this case involves a substantial question
4 of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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VADIBHAI MANILAL PATEL
Versus
SHARMISHTABEN PUNJALAL PARIKH
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Appearance:
MS MEGHA JANI(1028) for the Petitioner(s) No. 1,2
A R KADRI(7330) for the Respondent(s) No. 3,4,5
MR MI HAVA(348) for the Respondent(s) No. 2
MR UNMESH SHUKLA, SR ADVOCATE with SWATI B
SINGHAL(9123) for the Respondent(s) No. 1
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 25/03/2022
ORAL JUDGMENT
1. This petition under Article 227 of the Constitution of India is filed by the petitioners praying for to issue appropriate writ, order or direction quashing and setting aside the order dated 26.06.2019 passed below Exh. 72 in Special Civil Suit No. 206 of Page 1 of 14 Downloaded on : Sun Mar 27 01:21:20 IST 2022 C/SCA/22035/2019 JUDGMENT DATED: 25/03/2022 2010 by the learned 2nd Additional Chief Judicial Magistrate, Ahmedabad (Rural), Ahmedabad, wherein, the learned trial Judge was pleased to reject the application under O.1 R.10(1) of the Civil Procedure Code, 1908 ('the CPC') filed by the present petitioners for impleading them as defendants in the said suit.
2. Heard, Ms. Megha Jani, learned advocate for the petitioners and Shri Unmesh Shukla, Senior Advocate, learned counsel with Ms. Swati Singhal for the respondent No. 1 and Mr. M. I. Hava learned advocate for the respondent No. 2.
3. Learned advocate Ms. Megha Jani for the petitioners submitted that in the present case, the petitioners have already entered into the an agreement to sell with the original plaintiffs - respondent Nos. 1 and 2 herein as back as on 24.12.2007, however, subsequently on 01.05.2008, the plaintiffs executed a sale deed in respect of the very same suit property in favour of the respondent Nos. 3 to 5 - original defendants. However, in view of the earlier agreement to sell in favour of the petitioners, the original defendants proposed terms of agreement with the petitioners for foregoing their right over the said land by paying Rs.91 lakh in three instalments. To that effect, an MoU was signed between the petitioners and the original defendants - respondent Nos. 3, 4 and 5 herein on 01.05.2008. The original defendants - respondent Nos. 3, 4 and 5 herein acknowledged and recognized the right of the petitioners over the suit property and that, their purchase vide sale deed dated 01.05.2008 would be subject to such right. Thus, although the petitioners are the necessary parties in the suit being Special Civil Suit No. 206 of 2016 filed by the respondent Nos. 1 and 2 - original plaintiffs, the petitioners have not been joined as party. The learned advocate for the petitioners submitted that accordingly, the petitioner Page 2 of 14 Downloaded on : Sun Mar 27 01:21:20 IST 2022 C/SCA/22035/2019 JUDGMENT DATED: 25/03/2022 preferred an application Exh. 72 under O. 1 R. 10(1) of the Civil Procedure Code, 1908 (CPC) before the trial Court concerned for impleading them in the suit as party, however, by way of impugned order dated 26.06.2019, passed by the learned 2nd Additional Chief Judicial Magistrate, Ahmedabad (Rural), the said application came to be rejected, which is illegal, perverse and against the settled legal position.
3.1 In support, the learned advocate for the petitioners has relied upon a decision of the Apex Court in Sumtibai and Others v. Paras Finance Co. Mankanwar W/o. Parasmal Chordia (D)& Ors., (2007) 10 SCC 82.
4. Per contra, learned advocate Mr. A. R. Kadri for the respondent Nos. 3, 4 and 5 - original defendants has heavily contended the petition and submitted that as such, the relationship between the petitioner No. 2 and the respondent No. 1 - original plaintiff No. 1 is brother and sister and they are knowing each other and hence, as per the decision of this Court in Manjulaben D/o. Jagjivanbhai Lallubhai and Wd/o. Kanaiyalal Morardas v. Dakshaben D/o. Mansukhbhai Jagjivanbhai and Wd/o. Mukesh Patel and Others, 2019 eGLR_HC 10006337, rendered in Special Civil Application No. 20379 of 2016 dated 06.12.2019, if a party is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment. In the present case when the petitioner No. 2 and the respondent No. 1 are the brother and sister by relation and thus, they were knowing each other and all such transactions, only with a view to linger the Page 3 of 14 Downloaded on : Sun Mar 27 01:21:20 IST 2022 C/SCA/22035/2019 JUDGMENT DATED: 25/03/2022 matter they had approached the learned Court below, that too, after 10-12 years to ventilate their grievance and thereby, dragging the matter. Therefore, he urged that this petition being devoid of any merits, deserves to be dismissed.
5. Shri Unmesh Shukla, Senior Advocate, learned counsel with Ms. Swati Singhal for the respondent No. 1 has joined with the petitioners and submitted that there is no question of fraud and/or any collusion since in the case of cancellation of sale deed agreement to sell is required to be referred to other wise, it would heavily prejudice the petitioners and therefore, the petitioners are required to be impleaded as party in the suit and therefore allegation of collusion is wrongly pointed.
6. Learned advocate Mr. M. I. Hava for the respondent No. 2 also joined with the petitioners.
7. In re, learned advocate Mr. Megha Jani for the petitioners drew attention of the Court to the decision of this Court in Vinodkumar Mansukhlal Kaniya and 1 vs. Jayantilal Ramanlal Tailor and 5, 2014 SCC Online Guj 2287, wherein, in paragraph 8, the decision in Sumtibai's case (supra) was referred, in which, reference of decision in the case of Kasturi v. Iyyamperumal, (2005) 6 SCC 733, wherein, it is observed that, "the aforesaid decision will have no application where a third party shows some semblance of title or interest in the property in dispute". It is further held that, "in the present case, the registered sale deed dated 12.8.1960 by which the property was purchased shows that the shop in dispute was sold in favour of not only Kapoor Chand, but also his sons. Thus prima facie it appears that the purchaser of the property in dispute was not only Kapoor Chand but also his sons. Hence, it cannot be said Page 4 of 14 Downloaded on : Sun Mar 27 01:21:20 IST 2022 C/SCA/22035/2019 JUDGMENT DATED: 25/03/2022 that the sons of Kapoor Chand has no semblance of title and are mere busybodies or interlopers". She submitted that, in the present case also, agreement to sell as well as the MoU have been in favour of the petitioners and therefore, the petitioners are the necessary parties in the suit, however, the application for impleadment under O.1 R.10(1) CPC came to be rejected and therefore, the order passed by the learned civil Court concerned, requires to be set aside and accordingly, she requests to allow this petition.
8. Regard being had to the submissions made and having gone through the impugned order as well as the decision relied upon by the learned advocates for the respective parties, at the outset, it would be worthwhile to refer to a decision of the Apex Court in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, (2010) 8 SCC 329, wherein, the Court has considered in detail the scope of interference by this Court to hold and observe that Article 227 can be invoked by the High Court Suo motu as a custodian of justice. An improper and a frequent exercise of this power would be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle. The observations of the Hon'ble Supreme Court, read as under:
"57. Articles 226 and 227 stand on substantially different footing. As noted above, prior to the Constitution, the Chartered High Courts as also the Judicial Committee of the Privy Council could issue prerogative writs in exercise of their original jurisdiction. [See 1986 (suppl.) SCC 401 at page 469)].
58. However, after the Constitution every High Court has been conferred with the power to issue writs under Article 226 and these are original proceeding. [State of U.P . and Page 5 of 14 Downloaded on : Sun Mar 27 01:21:20 IST 2022 C/SCA/22035/2019 JUDGMENT DATED: 25/03/2022 others vs. Dr. Vijay Anand Mahara j - AIR 1963 SC 946, page 951].
59. The jurisdiction under Article 227 on the other hand is not original nor is it appellate. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields.
60. Another distinction between these two jurisdictions is that under Article 226, High Court normally annuls or quashes an order or proceeding but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. {See Surya Dev Rai (supra), para 25 page 690 and also the decision of the Constitution Bench of this Court in Hari Vishnu Kamath vs. Ahmad Ishaque and others - [AIR 1955 SC 233, para 20 page 243]}.
61. Jurisdiction under Article 226 normally is exercised where a party is affected but power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. In fact, the power under Article 226 is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. Jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. In certain cases where there is infringement of fundamental right, the relief under Article 226 of the Constitution can be claimed ex-debito justicia or as a matter of right. But in cases where the High Court exercises its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claim it as a matter of right. From an order of a Single Judge passed under Article 226, a Letters Patent Appeal or an intra Court Appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Judge of a High Court in exercise of power under Article 227. In almost all High Courts, rules have been framed for regulating the exercise of jurisdiction under Article 226. No such rule appears to have been framed for exercise of High Court's power under Article 227 possibly to keep such exercise entirely in the domain of the discretion of High Court.Page 6 of 14 Downloaded on : Sun Mar 27 01:21:20 IST 2022
C/SCA/22035/2019 JUDGMENT DATED: 25/03/2022
62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by 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, on 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 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.
(d) The parameters of interference by High Courts in exercise of its 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 (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), 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 Page 7 of 14 Downloaded on : Sun Mar 27 01:21:20 IST 2022 C/SCA/22035/2019 JUDGMENT DATED: 25/03/2022 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 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) 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 the case of L.Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement 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.
Page 8 of 14 Downloaded on : Sun Mar 27 01:21:20 IST 2022 C/SCA/22035/2019 JUDGMENT DATED: 25/03/2022 (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 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 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 counter-productive and will divest this extraordinary power of its strength and vitality."
8.1 The Apex Court in a recent decision in Puri Investments v. Young Friends and Co. and Others, MANU/SC/0290/2022 has observed as under:
"13. There was no perversity in the order of the Appellate Tribunal on the basis of which the High Court could have interfered. In our view, the High Court tested the legality of the order of the Tribunal through the lens of an appellate body and not as a supervisory Court in adjudicating the application under Article 227 of the Considering. This is impermissible. The finding of the High Court that the appellate forum's decision was perverse and the manner in which such finding was arrived at was itself perverse."
8.2 Thus, a petition under Article 227 of the Constitution of India cannot be given a shape of appeal in disguise. The exercise of power under Article 227 of the Constitution of India should be Page 9 of 14 Downloaded on : Sun Mar 27 01:21:20 IST 2022 C/SCA/22035/2019 JUDGMENT DATED: 25/03/2022 with a view to keep the tribunals /Courts within the bounds of their authority, to ensure that law is followed by tribunals / Courts by exercising jurisdiction which is vested in them and/or when there has been a patent perversity in the orders of 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. 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.
9. In the above backdrop, if the facts of the present case are considered, following salient points emerge:
i) on 24.12.2007, the respondent Nos. 1 and 2 herein -
original plaintiffs executed an agreement to sell in favour of the petitioners herein for the suit property for a sale consideration of Rs.70 lakh;
ii) on 01.05.2008, the respondent Nos. 1 and 2 herein - original plaintiffs executed a sale deed in respect of the very same suit property in favour of the respondent Nos. 3 to 5 - original defendants;
iii) on the very same day i.e. on 01.05.2008, in view of the earlier agreement to sell in favour of the petitioners, the original defendants (respondent Nos. 3 to 5 herein) executed an MoU in favour of the petitioners for foregoing their right over the said land by paying Rs.91 lakh in three instalments;
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iv) the original defendants - respondent Nos. 3, 4 and 5 herein acknowledged and recognized the right of the petitioners over the suit property and that, their purchase vide sale deed dated 01.05.2008 would be subject to such right;
v) the respondent Nos. 1 and 2 - original plaintiffs filed suit being Special Civil Suit No. 206 of 2010 for cancellation of the sale deed dated 01.05.2008 executed in favour of the respondent Nos. 3, 4 and 5 herein - original defendants;
vi) in the said suit, the present petitioners have not been joined as party;
vii) in the suit of 2010, there is no mention, at all, as regards the agreement to sell in question with the present petitioners;
viii) in the said suit, the petitioners herein filed an application Exh. 72, under O.1 R.10(1) CPC for impleading them as defendants in the suit on 16.03.2019;
ix) the said application came to be rejected by way of the impugned order dated 26.06.2019;
x) there appears nothing on record to show that the petitioners have ever moved any Court of law for specific performance of the agreement to sell.
9.1 The aforesaid facts go to show that in the suit of 2010, the petitioners filed impleadment application in the year 2019.
Page 11 of 14 Downloaded on : Sun Mar 27 01:21:20 IST 2022C/SCA/22035/2019 JUDGMENT DATED: 25/03/2022 Further, indisputably, the suit in question is filed for cancellation of the sale deed dated 01.05.2008 arrived at between the respondents herein. It may be that an agreement to sell came to be executed in favour of the petitioners, but the fact remains that the suit is for the cancellation of sale deed. Besides, there comes nothing on record to show that the petitioners have taken any steps to culminate the agreement to sell into the actual sale by way executing the sale deed in their favour. Besides, from a perusal of the cause-title, it appears that the petitioner No. 2 and respondent No. 1 herein - original plaintiff No. 1 are the brother and sister respectively and accordingly, prima facie, it is indigestible that the petitioners were not aware of such a suit filed by the plaintiffs for all this time.
9.2 In the decision Manjulaben D/o. Jagjivanbhai Lallubhai and Wd/o. Kanaiyalal Morardas (supra), relied by learned advocate Mr. Kadri, following observations have been made:
"17. In the case of Vidur Impex and Traders Pvt. Ltd. And Ors. v. Tosh Apartments Pvt. Ltd. And Ors. (Supra), it was observed that:
"The broad principles for impleading of parties are as under:
"1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit.
2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by Court.
3. A proper party is a person whose presence would Page 12 of 14 Downloaded on : Sun Mar 27 01:21:20 IST 2022 C/SCA/22035/2019 JUDGMENT DATED: 25/03/2022 enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.
4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.
5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above- board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation.
6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment".
9.3 Besides, if the impugned order passed by the learned Court below is referred to, the learned trial Judge has also observed that the petitioners have not taken any steps to implement the agreement to sell. Further, considering the facts and record, he also opined to have some collusion between the plaintiffs and the petitioners. Further, looking to the prayer in the suit, which is for cancellation of sale deed and the fact that there is no mention as to the agreement to sell, the petitioners also appear not to be the necessary party, whose presence would enable the Court to completely, effectively and property adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made. In the facts and circumstances of the case, there appears no infirmity and/or perversity in the conclusion arrived at by the learned trial Judge.
Page 13 of 14 Downloaded on : Sun Mar 27 01:21:20 IST 2022C/SCA/22035/2019 JUDGMENT DATED: 25/03/2022 9.4 It may be reiterated that this is a petition under Article 227 of the Constitution of India and as aforesaid, the scope to interfere in the same is very scant and a petition under Article 227 of the Constitution of India cannot be given a shape of appeal in disguise. Accordingly, for the foregoing reasons, the Court finds no reason to interfere in the impugned order.
9.5 The learned advocate for the petitioners has relied upon a decision in Sumtibai and Others (supra). In the said case, the legal representatives of the deceased had prayed for to implead them in the suit filed by the respondent therein for specific performance on demise of the deceased, in which, the Court allowed them to file additional written statement only and expedited the suit. The said decision would be of no avail to the petitioners as the facts vary, besides, the status of the parties vis-a-vis the prayer in the suit. Another decision in Vinodkumar Mansukhlal Kaniya and 1 (supra) also not applicable in the facts and circumstances of the case on hand, on the same count as aforesaid.
10. In view of the above, the petition fails and is dismissed accordingly. Rule is discharged. No order as to costs. Interim relief, if any, granted earlier, shall stand vacated forthwith.
[ A. C. Joshi, J. ] hiren Page 14 of 14 Downloaded on : Sun Mar 27 01:21:20 IST 2022