Gujarat High Court
Mansukhlal Nanjibhai Devani vs Alkaben Gokaldas Raja on 26 April, 2019
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/17193/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17193 of 2016
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MANSUKHLAL NANJIBHAI DEVANI & 1 other(s)
Versus
ALKABEN GOKALDAS RAJA
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Appearance:
MR JAYESH A KOTECHA(5293) for the Petitioner(s) No. 1,2
MR AR THACKER(888) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 26/04/2019
ORAL ORDER
1. The present petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of seeking the following reliefs:
"[A] Issue a writ of Certiorari and/or any other appropriate writ, order or direction by way of quashing and setting aside order dated 14/07/2016 passed by Ld. Principal Civil Judge, Jetpur below Exh.123 in Regular Civil Suit No. 125 of 2005 as the same is illegal, arbitrary and against the well establish principles of law.
[B] Pending admission and till the final disposal of present petition YOUR LORDSHIPS may be pleased to stay the further proceedings of Regular Civil Suit No. 125 of 2005 pending before the court of Ld. Principal Civil Judge, Jetpur, in the interest of justice.
[C] Grant such other or further relief, which Your Lordships deem, fit and proper in the interest of justice."
2. It is the case of the petitioners that the petitioners are owners and occupiers of residential building purchased from Page 1 of 11 Downloaded on : Tue Jun 25 06:47:32 IST 2019 C/SCA/17193/2016 ORDER one Madhukar Kanjibhai Mehta by way of registered sale deed in the year 1987. On the eastern side of the said property, City Survey Nos.53 and 4949 are situated, which are of the ownership of Kanubhai Kanji Mehta consisting of common veranda, common way and common room to be enjoyed by both of them without any hindrance and Kanubhai sold the said property to the respondent herein in 2004. It is case of the petitioners that despite the aforesaid situation, the respondent tried to make construction jeopardizing the rights of the petitioners to enjoy the common amenities and, therefore, the petitioners filed a civil suit in the Court of Principal Civil Judge, Jetpur along with an application for injunction. During the course of evidence of the defendant, the petitioners filed an application at Exh.123 seeking permission to produce certain documents mentioned in the list of documents at Exh.124. However, learned trial Judge after hearing, rejected the said application which is made the subject matter of the present Special Civil Application.
3. Learned advocate, Mr. Jayesh Kotecha appearing on behalf of the petitioners has contended that xerox copies of the documents which were forming part of the record were very relevant to decide the controversy involved in the suit proceedings, however, the learned Judge, instead of going Page 2 of 11 Downloaded on : Tue Jun 25 06:47:32 IST 2019 C/SCA/17193/2016 ORDER into technicality, ought to have allowed the petitioners to produce the same on record. It has been further submitted that by virtue of Order 13, Rule 1 of the Code of Civil Procedure, the request ought not to have been rejected, as a result of this, the order passed by the court below being unjust and improper requires to be corrected. It has been further contended that in view of the decision reported in 1994 LawSuit (SC) 131 in the case of Billa Jagan Mohan Reddy Vs. Billa Sanjeeva Reddy, even at the stage of arguments, the Hon'ble Apex Court has considered the request and allowed the documents to be brought on record, as a result of this, the request ought to have been considered by the court below and this being the error of jurisdiction, the same deserves to be corrected by quashing and setting aside the impugned order.
4. To meet with the said submission, learned advocate, Mr. A.R.Thacker appearing on behalf of the contesting respondent has vehemently contended that first of all the judgment which has been tried to be relied upon by learned advocate for the petitioners is of pre-amendment stage of the relevant provision and as such, the decision cannot be made applicable to the facts of the present case. Mr. Thakkar, however, has relied upon a decision of the Page 3 of 11 Downloaded on : Tue Jun 25 06:47:32 IST 2019 C/SCA/17193/2016 ORDER Coordinate Bench of this Court reported in 2009(0) AIJEL-
HC 221831 in the case of Syndicate Bank Vs. Ishan Communication Private Limited wherein this Court, after considering the amendment in the relevant provision under Order 13 Rule 1 of CPC, has considered the similar issue and has not permitted such documents to be produced on record.
In that view of the matter, the issue, according to Mr. Thacker, is clearly concluded and no case is made out in the present case. Apart from that, it has further been submitted that learned Judge while exercising discretion has assigned valid reasons and after hearing at length, the impugned order was passed and as such, such discretion which has been exercised may not be allowed to be disturbed in exercise of extra-ordinary jurisdiction.
5. Having heard the learned advocates appearing for the parties and having gone through the material on record, ex-
facie it appears that while passing the impugned order below Exh.123, the learned Judge has examined the relevancy of the documents and after hearing learned advocates appearing for the parties and after considering the stage of the suit proceedings, has not exercised discretion in favour of the petitioners and as such, in the absence of any perversity or material irregularity, this Court is of the opinion that this Page 4 of 11 Downloaded on : Tue Jun 25 06:47:32 IST 2019 C/SCA/17193/2016 ORDER is not a fit case to exercise extra-ordinary jurisdiction.
Additionally, the Court has also gone through the decision delivered by the Coordinate Bench of this Court wherein also, exactly similar situation was considered by the Court after amendment to the Order 13 Rule 1 of CPC and the Court has not considered such kind of request to produce documents in the suit, as a result of this, considering the observations made in the aforesaid decision delivered by the Coordinate Bench, this Court is of the opinion that no case is made out by the petitioners to exercise extra-ordinary jurisdiction.
6. Additionally, the Court is of the view that the discretion which has been exercised by the trial court and the conclusion which has been arrived at may not be substituted in exercise of extra-ordinary jurisdiction in absence of any perversity or material irregularity. While coming to this conclusion, the Court is also mindful of the proposition of law laid down on exercise of extra-ordinary jurisdiction and one of such decisions delivered by Hon'ble Apex Court on that issue is reported in (2013)9 Supreme Court Cases 374 in the case of Sameer Suresh Gupta through PA Holder Vs. Rahul Kumar Agarwal and the relevant observations made in paras 6 and 7 are reproduced hereinafter:
Page 5 of 11 Downloaded on : Tue Jun 25 06:47:32 IST 2019 C/SCA/17193/2016 ORDER"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. 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 Page 6 of 11 Downloaded on : Tue Jun 25 06:47:32 IST 2019 C/SCA/17193/2016 ORDER 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.
(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 Page 7 of 11 Downloaded on : Tue Jun 25 06:47:32 IST 2019 C/SCA/17193/2016 ORDER 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 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 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 Page 8 of 11 Downloaded on : Tue Jun 25 06:47:32 IST 2019 C/SCA/17193/2016 ORDER 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.
(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 Page 9 of 11 Downloaded on : Tue Jun 25 06:47:32 IST 2019 C/SCA/17193/2016 ORDER 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 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.
Page 10 of 11 Downloaded on : Tue Jun 25 06:47:32 IST 2019 C/SCA/17193/2016 ORDER(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 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."
7. In view of the above principles, the Court is unable to exercise jurisdiction and the present petition being devoid of merit is dismissed hereby with no order as to costs. Notice is discharged.
(A.J. SHASTRI, J) RADHAKRISHNAN K.V. Page 11 of 11 Downloaded on : Tue Jun 25 06:47:32 IST 2019