Madhya Pradesh High Court
Shubhalay Villa A Partnership Firm vs Vishandas Parwani(Dead) Through Lrs ... on 3 August, 2023
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 03rd of AUGUST 2023
Misc. Petition No.4187 of 2019
BETWEEN:-
1. SHUBHALAY VILLA, A PARTNERSHIP FIRM
HAVING ITS OFFICE AT E-7/158, 11 NUMBER, MAIN
ROAD, ARERA COLONY, BHOPAL (MP) THOURGH
ITS PARTNERS NAMELY PETITIONERS 2 &
3/DEFENDANTS 2 & 3
2. SHISHIR KHARE S/O SHRI G.L. KHARE, AGED
ABOUT 59 YEARS, R/O G-2/194, GULMOHAR
COLONY, BHOPAL (MP)
3. SMT. NANDA KHARE W/O SHRI SHISHIR KHARE,
AGED ABOUT 55 YEARS, R/O G-2/194, GULMOHAR
COLONY, BHOPAL (MP)
4. VISHNU HITECH BUILDERS & DEVELOPERS, A
PARTNERSHIP FIRM HAVING ITS OFFICE AT G-
2/194 GULMOHAR COLONY, BHOPAL (MP)
THROUGH PARTENERS PETITIONERS 2 &
3/DEFENDANT 2 & 3
.....PETITIONERS
(BY SHRI AVINASH ZARGAR - ADVOCATE)
AND
1. VISHANDAS PARWANI(DEAD) THROUGH LRS
(a). JHANHAVI MANGWANI ALIAS BHARTI PARWANI
W/O SHRI PRAKASH MANGWANI R/O 48, IDGAH
HILLS, BHOPAL (MP)
(b). SANAYA JAGTAYANI ALIAS SARITA PARWANI
W/O RAKESH JAGTAYANI R/O 48, IDGAH HILLS,
BHOPAL (MP)
(c). JITESH PARWANI S/O LATE VISHANDAS
PARWANI R/O 48, IDGAH HILLS, BHOPAL (MP)
2. PARWANI BUILDING LANDMARKS PRIVATE
2
LIMITED R/O 141 MALVIYA NAGAR BHOPAL (MP)
3. CITY BUILDER & INVESTMENTS, THROUGH
PARTNER VISHANDAS PARWANI, R/O 141
MALVIYA NAGAR BHOPAL (MP)
......RESPONDENTS
(RESPONDENTS BY SHRI SANKALP KOCHAR - ADVOCATE)
..............................................................................................................................................................................
Reserved on : 31.07.2023
Pronounced on : 03.08.2023
..............................................................................................................................................................................
This petition having been heard and reserved for orders,
coming on for pronouncement this day, the Court pronounced the
following:
ORDER
This petition is listed under caption 'Heldup Matters'. Since pleadings are complete and learned counsel for the parties are ready to argue the matter, therefore, it is heard finally.
2. By the instant petition filed under Article 227 of the Constitution of India, the petitioners/defendants are challenging the legality, validity and propriety of order dated 23.07.2019 (Annexure-P/1) passed by the Court of 14th Additional District Judge, Bhopal in RCS B/1600018/2015, whereby in a pending civil suit, the trial Court has rejected the application preferred by the petitioners/defendants for bringing certain documents on record.
3. At the outset, Shri Zargar, learned counsel for the petitioners has fairly accepted that there was some delay in filing the application for bringing the documents on record despite the liberty earlier granted to the defendants/petitioners by the trial Court vide order dated 22.03.2017 when their application submitted for the same purpose was rejected by the Court.
3However, according to him, the trial Court on earlier occasion had allowed only two documents to be taken on record whereas for remaining documents, it was directed to file the same along with an appropriate application. He has submitted that the trial Court has rejected the application only on the ground of delay and, therefore, he prays that by compensating the other side, the delay occurred in filing the application can be condoned and the application submitted by the petitioners may also be allowed. He has further submitted that since the evidence of defendants is yet to be commenced, therefore, the application submitted by the defendants/petitioners could have been allowed so as to give them an opportunity to cross-examine the plaintiffs' witnesses again on the basis of those documents. He has also submitted that the earlier application moved by the defendants/petitioners on 24.04.2018 was rejected by the trial Court vide order dated 09.05.2018 (Annexure-P/10) mainly on the ground that despite granting liberty on 22.03.2017, the defendants took more than one year for moving the application which makes their intention clear that they wanted to keep the suit pending unnecessarily and as such, learned counsel for the petitioners has prayed that by imposing some cost upon the petitioners their application may be allowed and they may also be permitted to bring those documents on record. He has further submitted that cross-examination of the plaintiffs' witnesses was closed on 10.12.2018 and as such, according to him, there was no delay in moving the application. He has also submitted that the application filed by the petitioners was opposed by the respondents/plaintiffs mainly on the ground that the documents which are being brought on record are forged and fabricated and, therefore, those documents cannot be allowed to be taken on record. He has submitted that whether the documents are forged and fabricated or genuine, can be determined after recording the statement, but 4 at the stage of brining the same on record, the objection raised by the plaintiffs/respondents cannot be considered.
4. Shri Kochar, learned counsel for the respondents has submitted that the application preferred by the defendants/petitioners for bringing the documents on record had earlier been rejected by the trial Court vide orders dated 09.05.2018 (Annexure-P/10) and 22.03.2017 respectively and now by the impugned order dated 23.07.2019 (Annexure-P/1), the trial Court has again rejected their application not only on the ground of delay but also on the ground that the defendants were failed to demonstrate as to how those documents are relevant for proper adjudication of the case. He has submitted that the petitioners are repeatedly filing the applications one after another despite the fact that the applications filed by them had already been rejected by the Court. He has submitted that the documents which are being brought on record are forged and fabricated and even in a criminal trial pending against the petitioners for fabricating the documents, the Court trying criminal case, has also refused to take those documents on record. He has also submitted that the trial Court has rejected the application of the defendants/petitioners not only on the ground of delay but also on the grounds that the documents are not relevant to be taken on record and further their application is hit by the principle of res judicata. He has submitted that the other applications filed by the petitioners for the same purpose got rejected, but those orders have not been challenged by the petitioners initially when this petition was filed and after raising objection by the respondents/plaintiffs, the petitioners have amended the petition and challenged those orders also. According to learned counsel for the respondents, the plaintiffs/respondents by moving an application had 5 requested the Court to direct the defendants/petitioners to produce the cheques which they were claiming to have been executed for the purpose of paying income tax and in turn, the trial Court vide order dated 08.12.2016 though allowed their application and directed the defendants/petitioners to produce those cheques, but they never produced those original cheques before the Court. He has also submitted that in pursuance to the liberty granted by the trial Court vide order dated 22.03.2017, the petitioners though again moved an application for brining certain documents to be taken on record, but not filed the cheques which were directed to be produced before the Court. However, that application got rejected by the trial Court vide order dated 09.05.2018 on various grounds including the ground that the petitioners were failed to demonstrate as to how those documents are relevant for proper adjudication of the case. According to him, the trial Court took cognizance of the fact that on 22.03.2017, the petitioners were granted an opportunity to file appropriate application along with relevant documents, but even after considering the fact that the plaintiffs' witnesses are being examined, the said application had been moved after much delay. According to him, the Court had also observed that the defendants/petitioners are facing the criminal case on a complaint made by the plaintiffs/respondents with regard to document dated 23.11.2012 alleged to have been fabricated and forged in which an offence got registered vide FIR No.2/2014 under Sections 420, 467, 468 and 471 of the Indian Penal Code wherein the defendants were on bail and their application preferred under Section 65 of the Indian Evidence Act had also been rejected by the Court vide order dated 09.05.2018, but they have never challenged the said order.
5. Learned counsel for the respondents has submitted that the 6 petitioners for one reason to another are moving the applications for bringing the documents on record despite knowing the fact that on earlier occasions, their application had already been rejected by the trial Court and, therefore, according to him, not only on the ground of res judicata, but also on the ground that the documents are not relevant as per the opinion of the trial Court, this Court cannot substitute its own view with the view already taken by the trial Court while exercising the power in a petition filed under Article 227 of the Constitution of India. In support of his contention, he has placed reliance upon the judgments of the Supreme Court reported in (2010) 9 SCC 385 [Jai Singh and others Vs. Municipal Corporation of Delhi and another] and also (2010) 8 SCC 329 [Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil]. He has also placed reliance upon an order of this Court reported in ILR [2015] MP, 3176 [Devendra Kumar Nayan and another Vs. Sudha Nayak (Smt.) and others] in which, it was held that when the application for taking additional document on record filed under Order 7 Rule 14 of the Code of Civil Procedure and also the application filed under Order 11 Rule 14 of the Code of Civil Procedure were rejected by the trial Court, then at a subsequent stage, another application filed under Order 7 Rule 14 of the CPC for taking additional document on record, is not maintainable and under such circumstances, the principle of res judicata would be applicable.
6. Considering the rival submissions of learned counsel for the parties and on perusal of record especially the impugned order passed by the trial Court, I am of the opinion that the application submitted by the petitioners has been rejected by the trial Court not only on the ground of delay, but also on the ground that the defendants/petitioners were failed to 7 substantiate as to how those documents are relevant for proper adjudication of the case. It is also observed by the Court that had the said documents been relevant, then the same would have been filed by the defendants immediately after giving opportunity by the trial Court on earlier occasion vide order dated 22.03.2017. Not only this, the trial Court has also observed that when the applications for bringing the documents on record had earlier been rejected, then another application for the same purpose cannot be moved and if it is filed, then the same cannot be allowed. The Court has also found that under such a circumstance, the application filed by the defendants/petitioners is hit by the principle of res judicata.
7. So far as the case of Jai Singh (supra) on which learned counsel for the respondents has placed reliance is concerned, in the said case, the Supreme Court discussing the jurisdiction of the High Court in a petition filed under Section 227 of the Constitution of India, has observed as under:-
"16. The High Court cannot lightly or liberally act as an appellate court and reappreciate the evidence. Generally, it can not substitute its own conclusions for the conclusions reached by the courts below or the statutory/quasi-judicial tribunals. The power to reappreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice.
17. In our opinion, the High Court in this case, has travelled beyond the limits of its jurisdiction under Article 227 of the Constitution. Both the ARC and ARCT had acted within the limits of the jurisdiction vested in them. The conclusions reached cannot be said to be based on no evidence. All relevant material has been taken into consideration. Therefore, there was hardly any justification for the High Court to undertake an investigation into the issues which did not even arise in the lis."8
8. Furthermore, the Supreme Court in Shalini Shyam Shetty (supra), considering the scope of interference by the High Court in a petition filed under Articles 226 and 227 of the Constitution of India has formulated the principles as to how, the High Court can exercise the jurisdiction in a petition under Article 227 of the Constitution of India. The principles formulated by the Supreme Court read as under:-
"49. 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 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.
(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 [AIR 1954 SC 215] and the principles in Waryam Singh [AIR 1954 SC 215] have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh [AIR 1954 SC 215], followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in 9 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 L. Chandra Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] 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 10 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."
9. Considering the aforesaid enunciation of law and the facts and circumstances existing in the present case, I am of the opinion that the petitioners/defendants are trying to keep the matter pending by moving application after application that too for the same purpose. Had it been a case in which the application was rejected only on the ground of delay, then this Court would have considered the suggestion made by learned counsel for the petitioners for allowing the application by compensating the other side, but situation is otherwise, ergo, the suggestion made, in my opinion does not appear to be proper. In the existing scenario, the impugned order dated 23.07.2019 (Annexure-P/1) passed by the trial Court does not suffer from any material irregularity which warrants any interference from this Court.
10. In light of foregoing discussion, the petition fails and is hereby dismissed.
(SANJAY DWIVEDI) JUDGE Devashish DEVASHISH MISHRA 2023.08.04 10:58:55 +05'30'