Gujarat High Court
Savitaben Ambalal Desai Trust Through ... vs Madhusudan Thakordas Tijoriwala Now ... on 2 May, 2023
C/SCA/737/2023 JUDGMENT DATED: 02/05/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 737 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SAVITABEN AMBALAL DESAI TRUST THROUGH ITS TREUSTEES
Versus
MADHUSUDAN THAKORDAS TIJORIWALA NOW DECD AND DELETED
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Appearance:
MR NANDISH Y. CHUDGAR, ADVOCATE for
MR SHRINIL A SHAH, ADVOCATE for the Petitioners
DELETED for the Respondent(s) No. 1,2
MR SHIRISH SANJANWALA, SENIOR ADVOCATE with
MR DILIP L KANOJIYA(3691) for the contesting Respondent No. 3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 02/05/2023
ORAL JUDGMENT
1. The present petition is filed by the petitioners - Page 1 of 26 Downloaded on : Wed May 03 20:59:48 IST 2023
C/SCA/737/2023 JUDGMENT DATED: 02/05/2023 original defendants challenging orders passed by the Principal Senior Civil Judge, Surat in Special Civil Suit No.360 of 2013 :- (i) dated 20.09.2022 passed below application Exh.142 for framing the issue of limitation as a preliminary issue for deciding the suit and (ii) dated 05.07.2019 below application Exh.131 for recasting and reframing the issues already framed, so as to include the issue of delay and laches. The trial Court has rejected both these application Exh.142 and Exh.131 filed by the petitioners - original defendants.
2. Heard learned advocates.
3.1 Learned advocate Mr.Nandish Chudgar for learned advocate Mr.Shrinil A. Shah for the petitioners has submitted that the trial Court has committed gross error of law in deciding the applications at Exh.142 and 131. He has submitted that the impugned orders are bad in law, contrary to the settled principles of law, unjustifiable and unreasonable. He has submitted that suit itself is barred by limitation as the issue is of the year 1986. He has submitted that the trial Court has failed to appreciate that when the suit is barred by limitation, which can be decided on the basis of the documents and the averments made by the plaintiffs in the plaint itself, then the issue of limitation should be decided as a preliminary issue and not to make Page 2 of 26 Downloaded on : Wed May 03 20:59:48 IST 2023 C/SCA/737/2023 JUDGMENT DATED: 02/05/2023 the parties undergo the long and lengthy process of the trial. He has submitted that the trial Court has failed to appreciate that in cases where specific facts are admitted and the question of law arises, which is dependent upon the outcome of the admitted facts, then it is open to the Court to pronounce the judgment based on admitted facts and the preliminary question of law under the provisions of Order XIV Rule 2 of the Code of Civil Procedure, 1908. 3.2 In support of his submissions, he has relied upon the following decision :
2022 SCC OnLine SC 1322 - Sukhbiri Devi versus Union of India 3.3 He has submitted that this petition may be allowed.
4.1 Learned senior advocate Mr.Shirish Sanjanwala with learned advocate Mr.Dilip Kanojiya for the contesting respondents has submitted that the trial Court has rightly considered the applications and the reply of that application and after hearing the parties, passed the impugned orders.
He has submitted that the issue before this Court is the perversity in the impugned orders and not the facts. He has Page 3 of 26 Downloaded on : Wed May 03 20:59:48 IST 2023 C/SCA/737/2023 JUDGMENT DATED: 02/05/2023 submitted that the defendants have earlier filed an application Exh.121 before the trial Court and requested to raise preliminary issue of limitation, which the trial Court has, after hearing the parties, rejected, which is not challenged by the defendants before any higher forum till date. He has submitted that the defendants have again filed an application Exh.142 for the same issue of limitation, which is again rejected by the trial Court vide impugned order. He has submitted that the defendants have time and again filed unnecessary application/s in the suit proceedings and thereby tried to prolong the trial. He has submitted that this Court has very limited powers to interfere in the impugned orders under Article 227 of the Constitution of India.
4.2 In support of his submissions, he has relied upon the following decisions :
(i) AIR 1969 SC 941 - Satyadhyan Ghosal
versus Smt. Deorajin Debi
(ii) (2002) 10 SCC 501 - Raj Narain Sarin
versus Laxmi Devi
(iii) (2003) 10 SCC 282 - Mercantile
Industrial Development Co. Pvt. Ltd.
Versus Wahid Chauhan
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(iv) AIR 2006 SC 3672 - Ramesh B. Desai
versus Bipin Vadilal Mehta
(v) AIR 1964 SC 993 - Arjun Singh versus
Mohindra Kumar
4.3 He has submitted that this petition may be
dismissed.
5. Rule. Learned advocate Mr.Dilip Kanojiya waives service of notice of rule on behalf of the respondents. With consent of the learned advocates for the respective parties, the matter is taken up for hearing and decided finally today.
6. I have heard learned advocates for the respective parties. I have perused the impugned orders passed by the trial Court. I have gone through the material on record. From record, the following picture is emerged :
6.1 The respondents are the original plaintiffs before the trial Court. They have filed a suit being Special Civil Suit No.360 of 2013 for declaration and injunction qua the suit property with other ancillary reliefs.
6.2 The petitioners - original defendants have filed their written statement in detail at Exh.36 in the said suit and opposed the suit proceedings.Page 5 of 26 Downloaded on : Wed May 03 20:59:48 IST 2023
C/SCA/737/2023 JUDGMENT DATED: 02/05/2023 6.3 The defendants have filed an application Eh.121 and requested the trial Court to frame the preliminary issue as to whether the suit is barred by limitation or not . The said application is rejected by the trial Court after hearing the parties, which is not challenged by the defendants before any forum till date.
6.4 The trial Court has framed the issues at Exh.127 on 21.04.2018.
6.5 The defendants have given an application Exh.131 for recasting of issues, which are already framed by the trial Court, on the ground that the defendant has taken a defense of delay and laches and of plaint being without cause of action and that the burden is on the plaintiff to prove that deceased Mamtaben died intestate. Accordingly, the defendants have, vide this application Exh.131, suggested the following issues to be added :
"(1) Whether the suit is liable to be dismissed as it is not within the limitation?
(2) Whether the suit is liable to be dismissed as it is not within the limitation in absence of cause of action ?Page 6 of 26 Downloaded on : Wed May 03 20:59:48 IST 2023
C/SCA/737/2023 JUDGMENT DATED: 02/05/2023 (3) Whether the plaintiffs prove that they have right in the suit property because deceased Mamtaben died intestate ?"
6.6 Keeping in mind the written statement filed by the defendants as well as the application Exh.131 for recasting the issue filed by the defendants, the plaintiffs have also filed an application Exh.132 for recasting of issues framed at Exh.127, on the ground that the defendants have filed counter-claim and the issues regarding the same has not been framed. Furthermore, the plaintiff has challenged the Will and Codicil executed by Savitaben and issue regarding the Codicil has only been framed by the trial Court.
Moreover, as per the pleadings, the question regarding the fact that whether Savitaben had the right to execute a Will and Codicil qua whole property and such issue has not been framed by the trial Court. Accordingly, the plaintiffs have, vide this application Exh.132, suggested the following issues to be re-casted / added in the issues which are already framed by the trial Court at Exh.127 :
"(1) Whether the plaintiffs prove that
Savitaben had the right to execute the
Will and Codicil qua the whole of the
property ?
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(2) Whether the plaintiffs prove that there is no signature of Savitaben in the impugned Will ?"
6.7 The trial Court has, after hearing the parties, rejected the application Exh.131 and partly allowed the application Exh.132 vide common order dated 05.07.2019. 6.8 Accordingly, the trial Court has modified and added the other issues in the issues which are already framed at Exh.127.
6.9 The defendants have again filed an application Exh.142 for recasting the issues and treat this issue as a preliminary issue, which are already framed by the trial Court and re-casted / re-framed by the trial Court as noted above, which is as under :
"Whether the suit is barred by limitation ?"
6.10 The plaintiffs have filed their objections at Exh.146 against the said application (Exh.142), wherein they have specifically raised contention that the similar application has been made by the defendants earlier at Exh.121, which is Page 8 of 26 Downloaded on : Wed May 03 20:59:48 IST 2023 C/SCA/737/2023 JUDGMENT DATED: 02/05/2023 rejected by the trial Court after hearing the parties and again, the defendants are giving such application for the same issue. They have not challenged the earlier order passed by the trial Court on application Exh.121. 6.11 The trial Court has, after hearing the parties, rejected the application Exh.142 vide impugned order dated 20.09.2022, by observing that the said issue of limitation is already raised and rejected by the trial Court. It is noted that the said issue covers in the earlier issues, which are already framed/re-framed/re-casted by the trial Court. 6.12 It is these orders impugned dated 20.09.2022 below application Exh.142 and 05.07.2019 below application Exh.131, which are challenged by the original defendants - present petitioners before this Court in this petition.
7. The issue on hand is as to whether the applications Exh.142 for framing the issue of limitation as a preliminary issue for deciding the suit and the application Exh.131 for recasting and reframing the issues which are already framed by the trial Court at Exh. 127, so as to include the issue of delay and laches can be granted by the trial Court or not.
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C/SCA/737/2023 JUDGMENT DATED: 02/05/2023 8.1 At this stage, the issues which are already framed by the trial Court initially at Exh.127 are required to be noted here, which are as under :
"(1) Whether the plaintiffs prove that the suit property is an ancestral property ?
(2) Whether the plaintiffs prove that there is no signature of Savitaben in the Codicil in question ?
(3) Whether the plaintiffs prove that he has share in the suit property, as claimed in the suit ?
(4) Whether the defendants prove that
Savitaben has executed Codicil in
accordance with law ?
(5) Whether the suit of the plaintiffs is
competent to be proceeded under the
law ?
(6) Whether the plaintiffs are entitled to get reliefs, as prayed for ?
(7) What order and decree ?"
8.2 The defendants vide an application Exh.131 suggested that the following issues are required to be added/re-casted in the issues which are already framed by Page 10 of 26 Downloaded on : Wed May 03 20:59:48 IST 2023 C/SCA/737/2023 JUDGMENT DATED: 02/05/2023 the trial Court at Exh.127 :
"(1) Whether the suit is liable to be
dismissed as it is not within the
limitation?
(2) Whether the suit is liable to be dismissed as it is not within the limitation in absence of cause of action ?
(3) Whether the plaintiffs prove that they have right in the suit property because deceased Mamtaben died intestate ?"
8.3 The plaintiffs have, vide application Exh.132, suggested the following issues to be re-casted / added in the issues which are already framed by the trial Court at Exh.127 :
"(1) Whether the plaintiffs prove that
Savitaben had the right to execute the
Will and Codicil qua the whole of the
property ?
(2) Whether the plaintiffs prove that there is
no signature of Savitaben in the
impugned Will ?"
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8.4 Before an application filed by the defendants at
Exh.142, the trial Court has already modified / re-casted / added the issues at Exh.127, which are as under :
"(1) Whether the plaintiffs prove that the suit property is an ancestral property ? (2) Whether the plaintiffs prove that there is no signature of Savitaben in the Codicil in question ?
(2A) Whether the plaintiffs prove that there is no signature of Savitaben in the Will and Codicil in question ? (Modified) (3) Whether the plaintiffs prove that he has share in the suit property, as claimed in the suit ?
(4) Whether the defendants prove that
Savitaben has executed Codicil in
accordance with law ?
(4) Whether the defendants prove that
Savitaben has executed Will and Codicil in accordance with law ? (Modified) (4A) Whether the defendants are entitled to get reliefs, as per counter-claim ?
(Added)
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(5) Whether the suit of the plaintiffs is
competent to be proceeded under the
law ?
(6) Whether the plaintiffs are entitled to get reliefs, as prayed for ?
(7) What order and decree ?"
8.5.1 Inspite of the above, the defendants vide an application Exh.142 suggested that the following issues are required to be framed, over and above the issues already framed/modified/added by the trial Court at Exh.127 :
"Whether the suit is barred by limitation ?"
8.5.2 It is noted that the defendants have earlier filed an application Exh.121 before the trial Court in the suit proceedings and requested the trial Court to add the following issue as preliminary issue, which is rejected by the trial Court and there is no challenge to that effect before any forum by the defendants till date.
"Whether the suit is barred by limitation ?"
9. On conjoint consideration of the applications at Exh.142, Exh.131 and Exh.121 filed by the defendants for Page 13 of 26 Downloaded on : Wed May 03 20:59:48 IST 2023 C/SCA/737/2023 JUDGMENT DATED: 02/05/2023 framing the issue of limitation as a preliminary issue and for recasting and reframing the issues, which are already framed, respectively, vis-à-vis the issues already framed/modified/added by the trial Court at Exh. 127, this Court finds that the issues which are already framed by the trial Court cover the issues of the defendants which are suggested by the defendants vide applications at Exh.142, Exh.131 and Exh.121. Further, the said application Exh.121 is already rejected by the trial Court, however, the defendants have given Exh.142 for adding the same issue again, which the trial Court has rightly rejected. The issues which are suggested by the defendants are already included in the issues framed/modified/ re-casted/added by the trial Court and therefore, there is no need to grant application filed by the defendants at Exh.142, which the trial Court has rightly rejected.
10.1 Here, the principles of res judicata applies in the present case qua such situation. The doctrine of res judicata is a method of preventing injustice to the parties of a case supposedly finished but perhaps also or mostly a way of avoiding unnecessary waste of judicial resources. In the case of res judicata, the matter cannot be raised again, either in the same court or in a different court. A court will use res judicata to deny reconsideration of a matter. Section Page 14 of 26 Downloaded on : Wed May 03 20:59:48 IST 2023 C/SCA/737/2023 JUDGMENT DATED: 02/05/2023 11 of the Code of Civil Procedure, 1908 is relevant to reproduced here, which is as under :
"Sec. 11. Res judicata.--No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I.--The expression "former suit" shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto.
Explanation II.--For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV.--Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.--Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.
Explanation VI.--Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim Page 15 of 26 Downloaded on : Wed May 03 20:59:48 IST 2023 C/SCA/737/2023 JUDGMENT DATED: 02/05/2023 under the persons so litigating.
[Explanation VII.--The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII. --An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.]"
10.2 At this stage, it would be fruitful to refer to the decision of the Hon'ble Apex Court in the case of Satyadhyan Ghosal versus Smt. Deorajin Debi reported in AIR 1969 SC 941, more particularly paras 7 to 9 thereof, which are as under :
" 7. The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a respondent is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation, When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in S. 11 of the Code of Civil Procedure; but even where S. 11 Page 16 of 26 Downloaded on : Wed May 03 20:59:48 IST 2023 C/SCA/737/2023 JUDGMENT DATED: 02/05/2023 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct.
8. The principle of res judicata applies also as between two stages in the same litigation to this extent that a court whether the trail court or a higher court having at an earlier stage decided a matter in oneSC944 way will not allow the parties to re- agitate the matter again at a subsequent stage of the same proceedings. Does this however mean that because at an earlier stage of the litigation a court has decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher court cannot at a later stage of the same litigation consider the matter again?
9. Dealing with this question almost a century ago the Privy Council in Maharaja Moheshur Singh v. Bengal Government, 7 Moo Ind App 283, held that it is open to the appellate court which had not earlier considered the matter to investigate in an appeal from the final decision grievances of a party in respect of an interlocutory order. That case referred to the question of assessment of revenue on lands. On December 6, 1841, judgment was pronounced by the Special Commissioner to the effect that 3,513 beghas of land alone were assessable, and that the collections made by the Government on the other lands should be restored to the possessors. This judgment was affirmed by another Special Commissioner on March 8, 1842. On September 21, 1847, a petition for review on behalf of the Government of Bengal was presented to another Special Commissioner. That petition for review was granted. After due hearing the judgment of March 8, Page 17 of 26 Downloaded on : Wed May 03 20:59:48 IST 2023 C/SCA/737/2023 JUDGMENT DATED: 02/05/2023 1842, was reversed. The question arose before the Privy Council whether the review had been granted in conformity with the Regulations existing at that time with respect to the granting a review. It was urged however on behalf of the Government of Bengal that it was then too late to impugn the regularity of the proceeding to grant the review and that if the appellant deemed himself aggrieved by it, he ought to have appealed at the time, and that it was too late to do so after a decision had been pronounced against him."
11. In view of above, this Court finds that the trial Court has taken sufficient care regarding the issues suggested by the parties while framing/modifying/re-casting/ adding the issues at Exh.127 and therefore, there is no need to frame the issue of limitation as a preliminary issue, which is already rejected by the trial Court, and/or for recasting and reframing the issues which are already framed/reframed/added by the trial Court. This Court further finds that no right or interest of the defendants will be closed or affected by not framing the issues as suggested by the defendants, by rejecting the impugned applications below Exh.142 and Exh.131. Hence, no prejudice will be caused to the defendants. It is open for the defendants to agitate their grievance and raise contentions as well as lead evidence to this effect in the suit proceedings. Their right qua their grievance, in substance, will not be affected by the impugned orders.
Page 18 of 26 Downloaded on : Wed May 03 20:59:48 IST 2023 C/SCA/737/2023 JUDGMENT DATED: 02/05/2023 12.1 At this stage, it would be referred to the provisions of Order XIV Rule 2 of the Code of Civil Procedure, 1908, which is contended by the learned advocate for the petitioners, which is as under :
"Order XIV - Settlement of Issues and Determination of Suit on Issues of Law or on Issues agreed upon.
Rule [2. Court to pronounce judgment on all issues.--
(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if the issue relates to--
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.]"
12.2 With regard to the decision which is relied upon by learned advocate for the petitioners, it would help the respondents as held by the Hon'ble Apex Court in the said decision in the case of Sukhbiri Devi (supra). Therefore, the Page 19 of 26 Downloaded on : Wed May 03 20:59:48 IST 2023 C/SCA/737/2023 JUDGMENT DATED: 02/05/2023 relevant observations made in para : 16 is relevant and is the direct the reply to the defendants - petitioners. The said para : 16 is reproduced as under :
" 16. Now, we will consider the first question: 'whether the issue of limitation can be determined as a preliminary issue under Order XIV, Rule 2, CPC'. It is no longer res integra. In the decision in Mongin Realty and Build Well Private Limited v. Manik Sethi 7 , even while holding that the course of action followed by the learned Trial Judge of directing the parties to address arguments on the issue of limitation as irregular since it being a case where adduction of evidence was required, a two-Judge Bench of this Court referred to a three-Judge Bench decision of this Court in Nusli Neville Wadia v. Ivory Properties 8 observing that the issue therein was whether the issue of limitation could be determined as a preliminary issue under Order XIV, Rule 2, CPC. After taking note of the fact that going by the decision in Nusli Neville Wadia's case8, in a case where question of limitation could be decided based on admitted facts it could be decided as a preliminary issue under Order XIV, Rule 2(2)(b), CPC., the two-Judge Bench held that in the case before their Lordships the question of limitation could not have been decided as a preliminary issue under Order XIV, Rule 2 of CPC as determination of the issue of limitation in that case was not a pure question of law. In the said contextual situation it is worthy and appropriate to refer to paragraphs 51, in so far as it is relevant, and 52 of the decision in Nusli Neville8 Wadia's case and they read thus:-
"51.[...] As per Order 14 Rule 1, issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. The issues are framed on the material proposition, denied by another party. There are issues of facts and issues of law. In case specific facts are Page 20 of 26 Downloaded on : Wed May 03 20:59:48 IST 2023 C/SCA/737/2023 JUDGMENT DATED: 02/05/2023 admitted, and is the question of law arises which is dependent upon the outcome of admitted facts, it is open to the court to pronounce the judgment based on admitted facts and the preliminary question of law under the provisions of Order 14 Rule 2. In Order 14 Rule 2(1), the court may decide the case on a preliminary issue. It has to pronounce the judgment on all issues. Order 14 Rule 2(2) makes a departure and the court may decide the question of law as to jurisdiction of the court or a bar created to the suit by any law for the time being in force, such as under the Limitation Act.
52. [...] In a case, question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue under Order 14 Rule 2(2)
(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made under Order 14 Rule 2(2) as a preliminary issue or any other such issue of law which requires examination of the disputed facts.
In case of dispute as to facts, is necessary to be determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue. In a case, the question of jurisdiction also depends upon the proof of facts which are disputed and the question of law is dependent upon the outcome of the investigation of the facts, such question of law cannot be decided as a preliminary issue, is settled proposition of law either before the amendment of CPC and post amendment in the year 1976." (Emphasis added)"
13. In the above facts and circumstances of the case as well as legal position noted above, this Court finds that Page 21 of 26 Downloaded on : Wed May 03 20:59:48 IST 2023 C/SCA/737/2023 JUDGMENT DATED: 02/05/2023 the trial Court has rightly rejected the applications Exh.142 and Exh.131 of the petitioners - original defendants. This Court finds that while passing the impugned orders, the trial Court has not committed any error. By way of applications impugned, the defendants have tried to mould the suit proceedings as per their convenience. The trial Court has rightly tried to balance between the parties. The trial Court has already framed/re-framed/added the issues and the additional issues which are suggested by the defendants and therefore, there is no need to specifically frame the additional issues, as suggested by the defendants. The trial Court has rightly and properly dealt with the applications and passed the impugned orders at Exh.142 and Exh.131. The trial Court has properly appreciated the evidence available on record at this stage and passed the impugned orders. This Court cannot re-appreciate the evidence at this stage in this petition. This petition therefore needs to be dismissed.
14. The scope of this Court to interfere in the impugned orders is very limited under Article 227 of the Constitution of India as held by the Hon'ble Apex Court in the case of M/s. Garment Craft versus Prakash Chand Goel reported in (2022) 4 SCC 181, more particularly in paras 15 to 17, observed as under :
"15. Having heard the counsel for the parties, we Page 22 of 26 Downloaded on : Wed May 03 20:59:48 IST 2023 C/SCA/737/2023 JUDGMENT DATED: 02/05/2023 are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, 1 Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217 violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 has observed:- Page 23 of 26 Downloaded on : Wed May 03 20:59:48 IST 2023
C/SCA/737/2023 JUDGMENT DATED: 02/05/2023 "6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so Page 24 of 26 Downloaded on : Wed May 03 20:59:48 IST 2023 C/SCA/737/2023 JUDGMENT DATED: 02/05/2023 perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
17. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex- parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could Page 25 of 26 Downloaded on : Wed May 03 20:59:48 IST 2023 C/SCA/737/2023 JUDGMENT DATED: 02/05/2023 have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution."
15. Considering the totality, this Court finds that this petition deserves to be dismissed and is dismissed accordingly. Rule is discharged. No order as to costs.
Sd/-
(SANDEEP N. BHATT,J) M.H. DAVE Page 26 of 26 Downloaded on : Wed May 03 20:59:48 IST 2023