Gujarat High Court
Mohommad Ibrahim Hingora vs State Of Gujarat on 3 July, 2025
NEUTRAL CITATION
C/SCA/8706/2025 JUDGMENT DATED: 03/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8706 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 8722 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 8750 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 8777 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No ========================================================== MOHOMMAD IBRAHIM HINGORA Versus STATE OF GUJARAT & ORS.
========================================================== Appearance:
MR HARSHIT S BHATT(12874) for the Petitioner(s) No. 1 MR DHAVAL U TRIVEDI, ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1,2,3 ========================================================== CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT Date : 03/07/2025 COMMON ORAL JUDGEMENT
1. Rule returnable forthwith. Learned Assistant Government Pleader Mr. Dhaval U. Trivedi waives service of notice of rule for the respondents. With the consent of parties, the matter is taken up for final hearing.Page 1 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:09:11 IST 2025
NEUTRAL CITATION C/SCA/8706/2025 JUDGMENT DATED: 03/07/2025 undefined
2. Heard learned Advocate Mr. Harshit S. Bhatt for the petitioner and learned Assistant Government Pleader Mr. Dhaval U. Trivedi for the respondents at length.
3. The common issue arise in these batch of Writ Applications, and accordingly, it is heard together and decided by way of this common judgment.
4. The short controversy cropped up in the matters about granting of stay by the Appellate Court against the judgment and decree impugned in the regular appeal filed by the respondents, which are filed after about 821 days and as such at stage of delay application, such stay granted. It is undisputed fact that regular civil appeal filed by the respondents herein against the judgment and decree passed by the Trial Court was filed after the period of limitation as prescribed under law. So, they have preferred a delay application as per Order 41, Rule 3A of the C.P.C.
5. The respondents herein have shown urgency in the matter before the Appellate Court and submitted that the land in question having minerals worth of crores of rupees and if the judgment and decree impugned in the appeal will not be stayed, it would cause loss of the public property. The Appellate Court appears to have accepted such submissions and was carried away with such submissions. Thus, granted Page 2 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:09:11 IST 2025 NEUTRAL CITATION C/SCA/8706/2025 JUDGMENT DATED: 03/07/2025 undefined ex-parte ad-interim stay of judgement/decree of trial court till final disposal of the delay application. Such order passed by the Appellate Court in the delay application preferred by the respondents herein is the subject matter of the present Writ Applications.
6. As noted hereinabove, the regular civil appeal is filed after about 821 days from the passing of the impugned judgment and decree by the Trial Court. If the respondents would have been so concerned about public property, it could not have preferred appeal after about 821 days of decree passed by trial court. Nonetheless, the concern of State could have been taken note by the Appellate Court, if appeal could have been filed in time.
7. It further appears that the impugned judgment and decree passed by the Trial Court was ex-parte and the respondents have chosen not to defend the suit, though it is alleged before the Appellate Court that the suit land is very precious land.
8. Be that as it may, from the aforesaid facts and the position of law, the Appellate Court could not have stayed the judgment and decree passed by the Trial Court unless the regular civil appeal filed by the respondents have been duly registered, as it is not filed within the stipulated time prescribed under law. Ordinarily, when litigant is found to be indolent and not Page 3 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:09:11 IST 2025 NEUTRAL CITATION C/SCA/8706/2025 JUDGMENT DATED: 03/07/2025 undefined coming to the Court within the stipulated time, the question of granting ad-interim injunction, that too at the stage of hearing delay application, would be out of place.
9. Nonetheless, in very exceptional and rare circumstances, in a given case, the Appellate Court may exercise its power, thereby granting an injunction to preserve the nature of the suit property instead of granting stay against the judgment and decree. It would not be out of place to observe that stay against judgment and decree can be granted by the Appellate Court while exercising its power under Order 41, Rule 5 of the C.P.C., which would come into play once the delay condoned by the Appellate Court and the appeal would have been treated as filed having then after registered, which is not the case on hand.
10. There is an express bar under Order 41, Rule 3-A (3) of the C.P.C. to grant stay so long as the Court does not condoned delay and heard the appeal. Order 41, Rule 3-A (3) of the C.P.C reads as under:
"3A. Application for condonation of delay.
(1) When a appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. (2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice Page 4 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:09:11 IST 2025 NEUTRAL CITATION C/SCA/8706/2025 JUDGMENT DATED: 03/07/2025 undefined hereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be.
(3) Where an application has been made under sub-
rule (1) the Court shall not made an order fact the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal."
11. Learned AGP, Mr. Trivedi, would not in a position to dispute such provision of law but at the same time would submit that as per Section-151 of the C.P.C., the Appellate Court and/or any Court, as the case may be, can protect the interest of the party, as an inherent power available with the Court to pass an appropriate order in the interest of justice, which is, in fact, exercised by the Appellate Court in the present case. So, learned AGP Mr. Trivedi would request this Court not to interfere with the matter.
12. Per contra, learned Advocate Mr. Bhatt for the petitioner would submit that when the order impugned in the present Writ Application is itself without jurisdiction and contrary to the express provision of law, this Court should exercise its power under Article 227 of the Constitution of India and quash this order.
13. It is pointed out to this Court by the learned Advocate for the petitioner that the impugned judgment and decree passed by Page 5 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:09:11 IST 2025 NEUTRAL CITATION C/SCA/8706/2025 JUDGMENT DATED: 03/07/2025 undefined the Trial Court is, in fact, partially implemented by the respondents, as the names of the respective petitioners is incorporated in the 2nd column of revenue record. Learned AGP Mr. Trivedi is not in a position to dispute such fact.
14. It is now well-settled legal position of law that the power of Civil Court to be exercised under Section-151 of the C.P.C. is an inherent power, which can be exercised when there is no express provision available under the C.P.C. As referred to hereinabove, the power to stay judgment and decree is available with the Appellate Court under Order 41, Rule 5 of the C.P.C., then the question of exercising its power under Section-151 of the C.P.C. would not arise. Furthermore, it is equally well settled law that power under Section-151 of the C.P.C can not be exercised dehors provisions of C.P.C.. It would be apt to refer and rely upon the decision of Honourable Supreme Court of India in a case of K.K. Velusamy vs N. Palaanisamy reported in (2011) 11 SCC 275 wherein law on the issue summarized thus:
"12......The scope of section 151 has been explained by this Court in several decisions (See : Padam Sen vs. State of UP- AIR 1961 SC 218; Manoharlal Chopra vs. Seth Hiralal - AIR 1962 SC 527; Arjun Singh vs. Mohindra Kumar - AIR 1964 SC 993; Ram Chand and Sons Sugar Mills (P) Ltd. vs. Kanhay Lal - AIR 1966 SC 1899; Nain Singh vs. Koonwarjee - 1970 (1) SCC 732; The Newabganj Sugar Mills Co.Ltd. vs. Union of India - AIR 1976 SC 1152; Jaipur Mineral Development Syndicate vs. Commissioner of Page 6 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:09:11 IST 2025 NEUTRAL CITATION C/SCA/8706/2025 JUDGMENT DATED: 03/07/2025 undefined Income Tax, New Delhi - AIR 1977 SC 1348; National Institute of Mental Health & Neuro Sciences vs. C Parameshwara - 2005 (2) SCC 256; and Vinod Seth vs. Devinder Bajaj - 2010 (8) SCC 1).
We may summarize them as follows:
(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is `right' and undo what is `wrong', that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances.
(c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.
(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature. Page 7 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:09:11 IST 2025
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(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.
(f) The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court."
(emphasis supplied)
15. Nonetheless, as observed hereinabove, in exceptional and rare circumstances, an injunction could have been granted by the Appellate Court to preserve the suit property, which is not done so by the Appellate Court while passing the impugned order, as it has simply stayed the judgment and decree impugned in the appeal, which would be in contravention of direct and express provision of Order 41, Rule 3-A (3) read with Rule 5 & 11 of the C.P.C.. So, impugned order is ex facie illegal, erroneous and without jurisdiction, as passed before the regular civil appeal register, having not condone delay.
16. In view of the aforesaid, the impugned orders are required to be interfered with by this Court while exercising its power under Article 227 of the Constitution of India which are hereby interfered with in order to keep the subordinate courts within Page 8 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:09:11 IST 2025 NEUTRAL CITATION C/SCA/8706/2025 JUDGMENT DATED: 03/07/2025 undefined the bounds of their authority. [See - Waryam Singh v/s Amarnath - AIR 1954 SC 215].
17. Having come to the conclusion that the impugned order is ex facie without jurisdiction and not sustainable in law, it requires to be quashed and set aside, which is hereby quashed and set aside passed in each matter.
18. At the same time, considering the nature of the urgency so expressed by the respondents and as such the learned Mr. Bhatt appearing for the petitioner states that the notice of the delay application is already served upon the respective petitioners and the date for hearing of respective delay application in respective matters is fixed on 16th July 2025, let Appellate Court shall hear both the sides on aspect of the delay in filing appeal and thereafter, decide respective delay applications in the respective matters within one month from date of receipt of the copy of this order, albeit, in accordance with law. It is open for the petitioner to file his reply to delay applications before the next date of hearing so fixed by the Appellate Court.
19. It is made clear that this Court has not expressed any opinion about the merits of the matter, but has interfered with the impugned order only on the ground that it was passed without jurisdiction not vested with the Appellate Court and so also Page 9 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:09:11 IST 2025 NEUTRAL CITATION C/SCA/8706/2025 JUDGMENT DATED: 03/07/2025 undefined passed contrary to settle legal position of law.
20. With the aforesaid observations, discussion and reasons, all these batch of Writ Applications are allowed to the aforesaid extent. Rule is made absolute to aforesaid extent.
(MAULIK J.SHELAT,J) Nilesh Page 10 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:09:11 IST 2025