Gujarat High Court
Tajuddin Rajabali Panjwani vs Shaukatali Rajabali Panjwani on 7 August, 2019
Author: A.J. Shastri
Bench: A.J. Shastri
C/SCA/2144/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2144 of 2019
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 2144 of 2019
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TAJUDDIN RAJABALI PANJWANI
Versus
SHAUKATALI RAJABALI PANJWANI
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Appearance:
MR ASIM J PANDYA(542) for the Petitioner(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
RC JANI AND ASSOCIATE(6436) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 07/08/2019
ORAL ORDER
1. Present petition under Articles 226 and 227 of the Constitution of India is filed by the present petitioner for the purpose of seeking following reliefs:-
(a) To quash and set aside the order passed below Ex.211 in Regular Civil Suit: 269 of 1999 dated 15.01.2019 by the 10th Addl. Senior Civil Judge & ACJM, Surat (Annexure-P1) in the interest of justice;
(b) To direct the learned 10th Addl. Senior Civil Judge & ACJM, Surat to recast the issues as prayed for in the Application at Ex.211 in the Suit, in the interest of justice;
(c) To consolidate and club together Regular Civil Suit No.269 of 1999 and the Regular Civil Suit No.446 of 2018 filed by the petitioner pending before the Civil Court, Surat.
(d) Pending admission and final hearing of the petition, the further proceedings of Regular Civil Suit: 269 of 1999 pending before the 10th Addl. Senior Civil Judge & ACJM, Surat may be stayed;
(e) Pending admission and final hearing of the petition, the operation of the order passed below Ex.211 in Regular Civil Suit: 269 of 1999 dated 15.01.2019 by the 10th Addl. Senior Page 1 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019 C/SCA/2144/2019 ORDER Civil Judge & ACJM, Surat (Annexure-P1) may be stayed;
(f) ..........
(g) ........."
2. The background of facts is that the petitioner is the original defendant No.2 in Regular Civil Suit No.269 of 1999, which is preferred by the respondent No.1- original plaintiff, whereas the respondent No.2 herein is the original defendant No.1. The plaintiff and the defendants are real brothers and are residing in a bungalow situated at Plot No.59, of Karimabad Co-operative Housing Society, Ghoddod Road, Surat. The said bungalow was purchased by Rajabali Valimohhmad Panjwani, who is father of the petitioner and the respondents, and after the sad demise of the father, as per the allegation of the petitioner, the respondent No.1- original plaintiff has illegally entered his name in the Co-operative Society's register, which has led the petitioner to file a suit before leaned Board of Nominee, Surat. It is further assertion of the petitioner that claiming to be the sole owner of the property in dispute, the plaintiff filed a suit for declaration and permanent injunction to the effect that the defendants have no right in the property in question and for seeking permanent injunction not to allow the defendants to enter or make any renovation to the property. However, it is not in dispute that the defendants have been staying in the property. Pursuant to the summons having being issued, written statement was filed controverting the version of the plaintiff and it has also been mentioned that during pendency of the suit proceedings, the plaintiff as well as the defendants approached His Highness Prince Aghakhan Shia Ismaili, Conciliation and Arbitration Board of Northern and Eastern Gujarat. It is the assertion of the petitioner that pursuant to the Arbitration Board, an award came to be passed in which the original plaintiff, i.e. respondent No.1, was directed to pay Rs.7,00,000/- each to the defendants and in turn, the defendants will handover back the vacant possession of the property. As per the say of the petitioner, the plaintiff did not Page 2 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019 C/SCA/2144/2019 ORDER comply with the direction issued by the Arbitration Board, as indicated above, nor paid money, which has led one more round of settlement between the brothers and on 11.7.2005, a family settlement was arrived at between the brothers and it was agreed that the property in question shall be partitioned amongst four brothers equally after the bungalow was renovated and developed.
Accordingly, as per the say of the petitioner, he has paid an amount of Rs.13,00,000/- for development and renovation of the bungalow in question. The petitioner appears to have then filed an application at Exh.211, requesting learned Judge to recast the issue on the basis of the aforesaid subsequent development and simultaneously also filed an application at Exh.219 under Order 7 Rule 11 of the Code of Civil Procedure ('the Code' for short). Additionally, an application for transfer of the suit before Principal District Judge was also filed but both these applications came to be rejected.
3. It is further the assertion of the petitioner on oath that during pendency of the suit, the petitioner also filed Regular Civil Suit No.446 of 2018 before learned Principal Senior Civil Judge, Surat for declaration and permanent injunction and the said civil suit is also related to the very same property and has asserted that the same can be termed as counter claim/ suit. It is the case of the petitioner that despite the aforesaid circumstance, which is prevailing on record, learned Judge did not consider the facts in detail and the application came to be rejected vide order dated 15.1.2019, which is made the subject matter of the present petition under Articles 226 and 227 of the Constitution of India.
4. The Court, pursuant to the submission made by learned advocate Mr. Asim Pandya for the petitioner, issued notice on 4.2.2019 and in the meantime, the coordinate Bench of this Court was pleased to direct learned Trial Judge not to pronounce the final judgment until next returnable date and thereafter, the matter came to be adjourned from time to time and lastly, appeared for Page 3 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019 C/SCA/2144/2019 ORDER hearing on 3.7.2019, wherein learned advocates have requested the Court to hear and dispose of the petition finally on the admission stage itself since the same time will consume in deciding the matter finally and more particularly when the original suit proceedings are of 1999. Accordingly, the Court heard the matter after considering the request of learned advocates.
5. Learned advocate Mr. Asim Pandya appearing on behalf of the petitioner- original defendant No.2 has raised multiple grievances. It has been contended that learned Trial Judge has miserably failed in exercising the discretion provided under the provisions of the Code. It is further contended that the application appears to have been rejected on sole ground of being belated and has refrained from exercising the jurisdiction so vested in law, precisely under Order 14 Rule 5 of the Code. It has been contended that the provisions contained under Order 14 is clearly investing the power rather due to frame necessary issues and that can be done even before final stage of the suit and as such, though vested with the power, learned Judge has chosen not to exercise the discretion, which aspect deserves to be considered in the light of the peculiar background of these facts. It has further been contended that on the contrary, here is a plaintiff who has neither complied with the terms of the award nor abided by the family arrangement which took place in the year 2005 and has not paid any amount as agreed upon. Instead, the petitioner has spent around Rs.13,00,000/- after renovation of the bungalow. The question of jurisdiction is also sought to be raised by virtue of non-compliance of the relevant provisions of the Co- operative Societies Act and therefore, suggested that at least the issues could have been taken into consideration from its framing. Mr. Pandya has further contended that whenever any substantial justice is pitted against technical consideration, substantial justice must be given predominance. Learned Judge has miserably failed in exercising the jurisdiction so vested. It has further been submitted Page 4 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019 C/SCA/2144/2019 ORDER that the conduct on the part of the original plaintiff is outrageously not to comply with the award for which both the sides are abided by and disowned the family arrangement which took place. Therefore, this very conduct on the part of the plaintiff is clearly suggesting that the request which has been made deserves to be considered. Even the situation which has been brought to the notice of this Court would at least require a consolidation of both the suits, i.e. one filed by the petitioner being Regular Civil Suit No.446 of 2018 and another Regular Civil Suit No.269 of 1999. The request appears to be reasonable, not prejudicial in any form to the original plaintiff and therefore ought not to have been discarded. Learned Judge has exercised the discretion in an erroneous manner and the conclusion which has been arrived at is is perverse, which warrants this Court to exercise the extraordinary jurisdiction.
6. To strengthen the submission, Mr. Pandya has relied upon following decisions:-
(1) In the case of Bhil Seva Mandal, Dahod and Ors.
Vs. Naik Shana Bahoda and Ors., reported in AIR 1980 Gujarat 163.
(2) In the case of A. Shanmugam Vs. Ariya Kshatriya
Rajakula Vamsathu Madalaya Nandhavana
Paripalanai Sangam Represented by Its president and Ors., reported in AIR 2012 SC 2010.
(3) Decision in the case of Kamlesh Sapre & others Vs. Raghuvar Dayal given by Madhya pradesh High Court in MP No.1463 of 2017 dated 11.1.2018.
(4) Decision in the case of Tota Ram Vs. M/s. Xpro India Limited given by Punjab and Haryana High Court at Chandigarh in CR No.6667 of 2018 dated 21.12.2018.
(5) Decision in the case of Ashok Pandit Vs. Satyapriya
Mohapatra given by Orissa High Court in Civil
Revision No.456 of 1981 dated 12.2.1986;
(6) In the case of Kaniz Fatima and Ors. Vs. Shah Naim
Ashraf, reported in AIR 1983 Allahabad 450.
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C/SCA/2144/2019 ORDER
7. By referring to the aforesaid decisions, Mr. Pandya has submitted that in a situation like this, the reliefs prayed for in the petition deserve to be granted in over all interest of both the sides and has requested to allow the petition. No other submissions have been made.
8. In response to these submissions which have been made by learned advocate Mr. Pandya for the petitioner, learned advocate Mr. R.C. Jani appearing for the contesting respondent has vehemently opposed the petition and has submitted that here is a case in which there is a clear design adopted by the petitioner to delay the proceedings under one pretext or the others and on account of the strategy adopted by the petitioner, the suit of 1999 is not yet over and as such, instead of granting reliefs to the petitioner, the suit itself deserves to be expeditiously disposed of as of 1999. It has been submitted that learned Trial Judge while dealing with the application at Exh.211 has considered the every aspect, including the effect of family arrangement which is tried to be posed and thereafter, the discretion vested in law is exercised after assigning valid reasons and therefore, when such detailed exercise of jurisdiction is undertaken, even if another view is possible in view of the law laid down by the Apex Court, such conclusion may not be substituted.
9. Apart from that, learned advocate Mr. Jani has further submitted that the application Exh.211 itself is misconceived and is nothing but an attempt to mislead the Court. It has been submitted that the application Exh.211 is not a simplicitor application for recasting the issues but it is something beyond which has clearly reflected the intention of the petitioner. While drawing the attention to the Court the subject column of application Exh.211, it has been submitted that the first request is to recast the issue under Order 14 Page 6 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019 C/SCA/2144/2019 ORDER Rule 5 of the Code; secondly, for the purpose of seeking deletion of the deposition which has already become part of the pleadings, thirdly the amendment under Order-6 Rule 17 of the Code and fourthly for the purpose of seeking relief under Section 153 of the Code, so it is a misconceived application raising multiple issues which cannot be entertained and which has rightly been not considered by the Court below. Mr. Jani has further submitted that the relief of consolidation which has been prayed for in the petition vide para 7(c), the same cannot be well within the domain of the concerned District judge and for that purpose, the petitioner has to move that appropriate Court and not the High Court for the first time. Mr. Jani has further submitted that the petitioner, being a practicing advocate, has made all attempts to see that somehow, the suit of the plaintiff may not be decided at all, though it is of 1999. The respondent has reached the age of 73 years and is systematically entangled in a litigation in such a way that probably, during his lifetime, the suit may not get over. So, the attempt which has been made by the petitioner deserves to be deprecated by imposing exemplary cost.
10. Learned advocate Mr. Jani has further submitted that here is a case in which neither any case is made out for seeking consolidation of the suits since the suit filed by the plaintiff is of 1999, and just with a view to misdirect and create a confusion, in the year 2018, when the suit is about to be over, has filed the suit, i.e. Regular Civil Suit No.446 of 2018, and now, when the suit of the respondent No.1- original plaintiff is fixed at final argument, this consolidation request is tried to be made. This is absolutely indicating the evil design to see that the suit of the respondent No.1 of 19991 may not be decided. This is nothing but a clear abuse of the process of Court machinery.
11. Mr. Jani has further submitted that so far as the amendment which has been sought is concerned, it is clearly spelt out by catena Page 7 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019 C/SCA/2144/2019 ORDER of decisions that after the trial commences, no such amendment normally be permitted. Whereas, here, not only the trial has commenced but even evidence of both the sides is over and on the basis of the issues, which have already been framed, both the sides have led their respective evidence and submitted to the jurisdiction on the basis of the issues which were already framed long back. Resultantly, a request for amendment is not possible at this stage of proceedings. So far as recasting of issues is concerned, Mr. Jani has submitted that at the fag end of the issue, even if the law permits, peculiar background of this fact will not permit the petitioner to make a request. Therefore, this misconceived application with a clear design to thwart the proceedings may not be entertained.
12. A further request is made by learned advocate Mr. Jani that here is a case in which learned Trial Judge has exercised the discretion well within the bounds of the authorities and therefore, in a situation like this, to exercise the extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India is nothing but would tantamount to be failure of justice. Hence, this is not a fit case in which extraordinary jurisdiction deserves to be exercised. Further, it has been submitted by Mr. Jani that even before the Trial Court as well as before this Court, in clear terms, no specific averments have been made with regard to filing of the suit; one before the Board of Nominee on 28.12.2018 and another before learned Principal Senior Civil Judge, being Regular Civil Suit No.446 of 2018 and therefore, every attempt is made to mislead the Court and to somehow confuse the entire situation, so that it may not get over at any cost and this is absolutely on account of the fact that the petitioner being a practicing advocate has applied his every craft in dragging on the litigation. By referring to this, Mr. Jani has submitted that the petition be dismissed by imposing exemplary cost.
13. To substantiate his contentions, Mr. Jani has relied upon following decisions and thereafter, has reiterated the contentions:-
Page 8 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019 C/SCA/2144/2019 ORDER(1) In the case of Chander Kanta Bansal Vs. Rajinder Singh Anand, reported in 2008(2) GLH 477.
(2) In the case of Messer Holdings Limits. Vs. Shyam Madanmohan Ruia, reported in 2016(0) AIJEL-SC 58154.
(3) In the case of M. Revanna Vs. Anjanamma, reported in 2019 SCC OnLine 194.
14. Having heard learned advocates appearing for the parties and having gone through the material aspects on record, few circumstances are not possible to be unnoticed by the Court while dealing with the present petition:-
(1) Here is a case in which the respondent No.1 had filed Regular Civil Suit No.269 of 1999, i.e. almost prior to 20 years, and the issues have been framed after hearing the parties long back at Exh.58. So much so that in response to the said framing of issues, the parties have led their respective evidence and have adduced the material and allowed the suit of 1999 to travel till its final argument and it is at that stage, the application Exh.211 appears to have been submitted on 29.9.2018.
(2) Additionally, it further appears that the application Exh.211 is not simply for the purpose of recasting of issues but it is raising multiple reliefs; (i) under Order 14 Rule 5 of the Code for recasting of issues; (ii) for the purpose of seeking deletion of deposition which has already gone on record; (iii) for the purpose of amending the statement/ deposition in respect of the documents by resorting to Order 6 Rule 17 of the Code and (iv) for appropriate order under Section 153 of the Code for giving wrong deposition. So, this combined application has been filed in a suit which is already fixed for final disposal and submitted only in the month of September 2018. Simultaneously, if this is to be correlated with the subsequent suit which has been filed by the petitioner, undisputedly, i.e. Regular Page 9 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019 C/SCA/2144/2019 ORDER Civil Suit No.448 of 2018, is submitted immediately after this application and filed on 15.10.2018. Now, this is a next step immediately after this application having been given. The prayer which has been sought is also related to the very property in question and has based upon his claim, now on the basis of the family arrangement and para 11 is also almost similar to what has been prayed in this application in prayer (B) of para 22.
(3) Yet, another attempt which has been made simultaneously to this subsequent suit and the same is immediately in the next month, i.e. in December 2018, in which learned Board of Nominee was approached by the petitioner by filing Lavad Suit No.105 of 2018, in which also grievance appears to be raised with regard this very same property and its dealing. There also appears to be a reference of family arrangement and award. So, this suit has also not been pointed out before the Court below nor before this Court.
So, simultaneous steps appear to have been taken by this petitioner after dragging on the suit of 1999 for a pretty long period and then at the fag end, tried to create another round of litigation, so this suit which is riped for its final disposal may not be allowed to be over. This ingenious method appears to have been adopted by the petitioner who happens to be undisputedly a practicing lawyer.
(4) Yet, another circumstance which cannot be unnoticed is for the purpose of assertion that almost Rs.13,00,000/- has been spent by the petitioner in renovation or in development of the property in question. Except one document reflecting on page 17, no material is adduced and if this huge amount of Rs.13,00,000/- must have been expended by the petitioner, some banking entries or some income tax return or some short of material might have been attached to substantiate this plea. Irrespective of this, this application has been submitted after unreasonable period of almost 20 years.
15. Now, in the wake of the aforesaid observations of facts, how Page 10 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019 C/SCA/2144/2019 ORDER learned Judge has also considered this attempt and dealt with this also deserves consideration to ensure as to whether any material irregularity has been crept in or not. In view of the aforesaid situation, the reasons which are assigned by the Court below for discarding the request are also clearly reflecting that there is a strong application of mind on the part of learned Judge in dealing with the request and after examining the issues and after giving full opportunities to the parties to the proceedings, a detailed discussion has taken place in the order itself which clearly indicates that there is hardly any perversity reflecting in such exercise. To immediate perusal, the Court deems it proper to reproduce the said discussion hereinafter:
"4. On behalf of plaintiff filed reply of this application vide Exh.218 in which denied all the contention of the application and mainly contended that considering the provision of CPC specifically Order 14 which was regarding framing of issue and in the case on hand at the time of framing of issue Court considered the dispute between the parties and framing an issue further more admittedly if the court come to the conclusion that any issue is required to be re-cast, amend, deleted or any new issue is required to be framed then Court having inherent power for it, but here in the case on hand at the time of framing of issue court considering the provision of CPC Order 13 and framed an issue as per the dispute between the parties. But it is admitted by both sides and lead an evidence as per the issues if defendant No.2 any dispute regarding framing of issue then at time of recording of evidence defendant raised dispute but nothing so happened because he also well aware that issue framed by the Court are property. But present application filed at this stage only with the intention to prolong the matter which was not permissible under the law. Furthermore on behalf of defendant No.2 for amendment but considering the provision of CPC Order 6 Rule 17 and specifically considering the proviso made in it if trail began then no amendment is to be allowed. Here in the case on hand final argument from both sides are completed and after that present application filed on with the intention to prolong the matter so present application is required to be rejected with heavy costs.
Now, considering the contention of the application and contended that present application filed under CPC Order 14 Rule 5 recast of the issue and th fact which was not mentioned in the pleading and deposition made which was required to be rejected and amendment in the written Page 11 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019 C/SCA/2144/2019 ORDER statement filed on behalf of defendant. Admittedly, considering the contention issue framed vide Ex.58 and it is also admitted fact that a suit filed by the plaintiff so burden to prove all these issues lies on the plaintiff and in the present application para 4 on behalf of defendant No.2 mentioned two issues required to be added and in para 10 one issue required to be added.
Now, it is admitted fact that suit filed by the plaintiff and burned lies on the plaintiff to prove his case and issue also cast as per the pleading of the plaintiff. Now, present application filed considering which was nothing more but an appreciation of the deposition of the parties and mainly of the plaintiff and by considering the fact which was came on record during the time of recording of the evidence and after final argument also completed then present application filed on behalf of defendant No.2. Considering the legal aspect pleading is require a proof and pleading is to be proved by the evidence either oral or documentary evidence. Now, at this stage, evidence completed and base of this application is only on the deposition of the plaintiff and on the basis of that deposition defendant No.2 prayed for the recast of issue which was not permissible because now it is a time to appreciate an evidence lead from both sides, and it is not a time to retrial the matter admittedly issue which was proposed by defendant No.2 in which application it is nothing more but to re-try the matter which was not permissible according to law and basic principle for framing of issue is to consider the pleading of the party and document produced on behalf of the parties. And after considering it court found the dispute between the parties and only for the dispute issue is required to be framed and which was followed at the relevant time in these circumstances the contention of defendant No.2 for adding which was only on the basis of deposition is not sustainable.
Now, admittedly considering CPC Order 6 Rule 17 which was for amendment of pleading and considering the proviso made in it which was given as under:-
"Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite due diligence the party could not have raised the matter before the commencement of trial."
5. Now, here in the case on hand, admittedly on behalf of defendant No.2 failed to show this Court that in spite of due diligence he could not have raised the matter before commencement of the trial because the written statement filed very much earlier after that issue framed, evidence recorded, final argument heard and after that this application filed when the case came for the final judgment, in these circumstances the proviso is directly applicable to the present application of defendant No.2 and no amendment is Page 12 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019 C/SCA/2144/2019 ORDER required to be allowed because it is nothing more but to give a rise to re-try the suit which was pending since 1999.
In these circumstances, on the both grounds present application on behalf of defendant No.2 is not sustainable in the eye of law.
6. This Court gone through minutely regarding the principle established in the judgments on which Ld. Advocate on behalf of defendant No.2 relied but admittedly considering the facts of case in hand no such facts found in these judgments because here in the case on hand admittedly present application based on mainly a deposition of the plaintiff before the Court and on that basis present application on behalf of defendant No.2 filed for re-cast of issue and on the same way, an amendment prayed on behalf of the defendant No.2 in the written statement which was at the time of final judgment which was considering CPC Order 6 Rule 17 proviso not sustainable on such specific principle established in the judgments on which defendant No.2 relied by which this Court came to the conclusion that the principle of that judgment became helpful to defendant No.2 but considering the record of the case admittedly present application nothing more but prolong the trial and admittedly it is found not merit and the judgments on which defendant No.2 relied on in support of this application which was not directly became helpful to the defendant No.2 because the fact of the case are totally different then the fact of the case on hand and facts of the case of the judgments on which defendant No.2 relied in these circumstances, all judgments on which defendant No.2 put reliance not became helpful to defendant No.2. Considering all above discussion present application on behalf of defendant No.2 having no merits and it is not sustainable in the eye of law....."
16. In view of the aforesaid discussion, which is very much reflecting on record, this Court is of the opinion that neither there is any irregularity or illegality committed nor any perversity is reflecting, which would necessitate this Court to exercise extraordinary jurisdiction of this Court. In a situation like this, the law laid down by the Apex Court on exercise of extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India, needs to be considered by the Court and one of such decisions which is in the case of Sameer Suresh Gupta TR PA holder Vs. Rahul Kumar Agarwal reported in (2013)9 SCC 374, in which the scope is enlighten by the Apex Court and since the same has been considered, this Court deems it necessary to reproduce the relevant Page 13 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019 C/SCA/2144/2019 ORDER observations contained in para 6 and 7. Hence, the same are reproduced hereinafter:-
"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 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 Page 14 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019 C/SCA/2144/2019 ORDER 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 6to intervene where the error is 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 and another 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 Page 15 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019 C/SCA/2144/2019 ORDER 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 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 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 Page 16 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019 C/SCA/2144/2019 ORDER 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 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."
17. In light of the aforesaid situation, now the judgments which have been relied upon by the respective sides, if to be looked into, first of all, learned advocate Mr. Pandya has relied upon the judgment which in the case of A. Shanmugam (supra), in which what has been relied upon by learned advocate is Catch Note, which has indicated that framing of issues is a very vital and important Page 17 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019 C/SCA/2144/2019 ORDER stage of civil trial and it was imperative for a Judge to critically examine the pleadings of the parties before framing of issues. So, in substance, learned advocate has suggested that framing of issues deserves consideration if the circumstances so warrant. But, here is a case in which learned advocate has allowed himself till final stage of the suit on the basis of the issues which have already been framed at Exh.58 and it is not the case that at the time when the issues were framed at Exh.58 and thereafter, till final disposal and till September, 2018, when this application was filed, grievance is voiced out. Therefore, the challenges are altogether different from what has been observed by the Apex Court in the aforesaid decision. Therefore, in the respectful agreement of the said proposition of law, this Court is of the opinion that the said decision will have no application in the peculiar background of these facts on record.
18. Yet, another decision which has been tried to be relied upon is the decision with respect to deletion of issue about tenancy passed by the Trial Court in the case of Bhil Seva Mandal, Dahod (supra) is dealing with the revisional jurisdiction in which the issue of tenancy, i.e. issue No.8 was deleted by learned Judge which appears to be subject matter of the controversy and in that context, the Court found in para 3 and 4 that the facts are altogether different and as such, it is not possible for this Court to apply in a mechanical manner when the very peculiar circumstance has arose in the present facts.
19. The other decisions which have been relied by learned advocate are of different High Courts but as said earlier, that precedental value would depend upon the similarity of facts. It is settled by the Apex Court time and again that if there is a slight change in the fact, even one additional fact would make a world of difference in applying the ratio by way of precedent and therefore, the judgments which have been tried to be relied upon are of no Page 18 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019 C/SCA/2144/2019 ORDER avail to the petitioner.
20. No-doubt, Order 14 Rule 5 of the Code is investing ample power to the Court to amend the issue at any time before decree came to be passed and permits the Court to strike out any issue. But, the issues are to be framed on the basis of the pleadings which have taken place. While determining the controversy, no-doubt, the Court is under an obligation to recast the issues, if so demands, but it depends upon the satisfaction of the Court, which satisfaction is already derived by learned Judge on the basis of the stand which has been taken by the respective sides and therefore, though the Court is free to frame the issue at any stage of proceedings but the Court has to evaluate the background of facts and here a case in which when Exh.58 issues were framed, written statement was already considered, on the basis of which entire evidence of both the sides is allowed to be forming part of the record and at this stage, if the petitioner is allowed to deal with the application Exh.211, and the relief contained therein, the same would seriously prejudice the respondents. As a result of this, it appears to this Court that no case is made out by the petitioner to call for any interference.
21. Now, in respect of the decisions which have been cited by learned advocate Mr. Jani in almost similar situation, the Supreme Court in a decision in the case of Chander Kanta Bansal (supra) has discarded the request of concerned petitioner who moved after almost a period of 18 years with a view to frustrate the claim of the original plaintiff and almost in a similar situation, where the suit proceedings reached at the final stage of argument, the request was made. While dealing with such situation, the Apex Court in para 6 has clearly observed that such belated application cannot be entertained. While coming to the conclusion, even object of Order 6 Rule 17 of the Code has also been observed and analyzed by the Court. Hence, the relevant observations contained in various Page 19 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019 C/SCA/2144/2019 ORDER paragraphs deserve consideration. Hence, they are reproduced hereinafter:-
6. The said application was resisted by the plaintiff by filing an objection. It was stated that the suit was filed by the plaintiff in the month of May, 1986 and after more than 18 years, the present application has been moved with a view to frustrate the claim of the plaintiff. The trial has completed and after the final arguments when the defendant came to know that she is going to lose her case she is changing her stance by filing the present application for amendment in the written statement. It was further stated that the alleged agreement/partition dated 10.09.1982, which itself is not admissible in the eye of law wince it is a forged document and on the basis of the said document, the proposed amendment cannot be allowed.
8. In order to find out whether the application of the defendant under Order VI Rule 17 for amendment of written statement is bonafide and sustainable at this stage or not, it is useful to refer to the relevant provisions of CPC. Order 6 Rule 17 reads thus:
"17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
This rule was omitted by the Code of Civil Procedure (Amendment) Act, 1999. However, before the enforcement of the Code of Civil Procedure (Amendment) Act 1999, the original rule was substituted and restored with an additional proviso. The proviso limits the power to allow amendment after the commencement of trial but grants discretion to the court to allow amendment if it feels that the party could not have raised the matter before the commencement of trial in spite of due diligence. It is true that the power to allow amendment should be liberally exercised. The liberal principles which guide the exercise of discretion in allowing the amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be granted, while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon the opposite party under pretence of amendment.
9. With a view to shorten the litigation and speed up the trial of cases Rule 17 was omitted by amending Act 46 of 1999. This Page 20 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019 C/SCA/2144/2019 ORDER rule had been on the statute for ages and there was hardly a suit or proceeding where this provision had not been used. That was the reason it evoked much controversy leading to protest all over the country. Thereafter, the rule was restored in its original form by amending Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to some extent. The new proviso lays down that no application for amendment shall be allowed after the commencement of trial, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. But whether a party has acted with due diligence or not would depend upon the facts and circumstances of each case. This would, to some extent, limit the scope of amendment to pleadings, but would still vest enough powers in courts to deal with the unforeseen situations whenever they arise.
10. The entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the others case. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases.
13. As observed earlier, the suit filed in the year 1986 is for a right of passage between two portions of the same property dragged for a period of 21 years. In spite of long delay, if acceptable material/materials placed before the court show that the delay was beyond their control or diligence, it would be possible for the court to consider the same by compensating the other side by awarding cost. As pointed out earlier, when she gave evidence as D.W.1, there was no whisper about the written document/partition between the parties. On the other hand, she asserted that partition was oral. Now by filing the said application, she wants to retract what she pleaded in the written statement, undoubtedly it would deprive the claim of the plaintiff. We are also satisfied that she failed to substantiate inordinate delay in filing the application that too after closing of evidence and arguments. All these aspects have been considered by the High Court. We do not find any ground for interference in the order of the High Court, on the other hand, we are in entire agreement with the same.
22. Yet another decision which has been brought before the Court is a decision in the case of Messer Holdings Limits (supra), in Page 21 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019 C/SCA/2144/2019 ORDER which the long drawn litigation and the attempt disclosing half-truth, misleading, suppression, etc. is dealt with. The same is incorporated in para 43, 44 and 45, hence are reproduced hereinafter:-
43. The net effect of all the litigation is this. For the last 18 years, the litigation is going on. Considerable judicial time of this country is spent on this litigation. The conduct of none of the parties to this litigation is wholesome. The instant SLPs arise out of various interlocutory proceedings. Arguments were advanced on either side for a period of about 18 working days as if this Court were a Court of Original Jurisdiction trying the various above-mentioned suits. The fact remains that in none of the suits even issues have been framed so far. The learned counsel appearing for the parties very vehemently urged that there should be a finality to the litigation and therefore this Court should examine every question of fact and law thrown up by the enormous litigation. We believe that it is only the parties who are to be blamed for the state of affairs. This case, in our view, is a classic example of the abuse of the judicial process by unscrupulous litigants with money power, all in the name of legal rights by resorting to half-truths, misleading representations and suppression of facts. Each and every party is guilty of one or the other of the above-mentioned misconducts. It can be demonstrated (by a more elaborate explanation but we believe the facts narrated so far would be sufficient to indicate) but we do not wish to waste any more time in these matters.
44. This case should also serve as proof of the abuse of the discretionary Jurisdiction of this Court under Article 136 by the rich and powerful in the name of a 'fight for justice' at each and every interlocutory step of a suit. Enormous amount of judicial time of this Court and two High Courts was spent on this litigation. Most of it is avoidable and could have been well spent on more deserving cases.
This Court in Ramrameshwari Devi & Others v. Nirmala Devi & Others, (2011) 8 SCC 249 observed at para 54;
"54. While imposing costs we have to take into consideration pragmatic realities and be realistic as to what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter-affidavit, miscellaneous charges towards typing, photocopying, court fee, etc."
45. We therefore, deem it appropriate to impose exemplary costs quantified at Rs.25,00,000.00 (Rupees Twenty Five Lakhs only) to be paid by each of the three parties i.e. GGL, MGG and RUIAS. The said amount is to be paid to National Legal Page 22 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019 C/SCA/2144/2019 ORDER Services Authority as compensation for the loss of judicial time of this country and the same may be utilized by the National Legal Services Authority to fund poor litigants to pursue their claims before this Court in deserving cases.
23. Yet another decision, which is brought to the notice of this Court is a decision in the case of M. Revanna (supra). The observations contained in para 6 of the said judgment are relevant. The Court deems it proper to reproduce the same hereinafter:-
6. As mentioned supra, the suit was filed in the year 1993 and at that point of time, Defendant Nos. 4 to 6 were not made parties to the suit. Plaintiff Nos. 1 to 5 and Defendants Nos. 1 to 3 were the only parties. They had filed a joint memorandum for the dismissal of the suit on 22.04.1993, which was within one or two months of the filing of the suit.
The compromise petition came to be rightly dismissed by the High Court in RFA No. 297/1994. In the compromise petition, curiously, it was noted that the joint family properties were divided by metes and bounds in the year 1972. If the partition had really taken place in the year 1972 and was acted upon as per the Panchayat Parikath, 5 then Plaintiff Nos. 1 to 5 would not have filed a suit for partition and separate possession in the year 1993. Be that as it may, it is clear from records that the suit was being prolonged on one pretext or the other by the Plaintiff Nos. 1 to 5 and ultimately, the application for amendment of the plaint came to be filed on 01.09.2008. By that time, the evidence of both the parties had been recorded and the matter was listed for final hearing before the Trial Court. If there indeed was a partition of the joint family properties earlier, nothing prevented Plaintiff Nos. 1 to 5 from making the necessary application for the amendment of the plaint earlier. So also, nothing prevented them from making the necessary averment in the plaint itself, inasmuch as the suit was filed in the year 1993. Even according to Plaintiff Nos. 1 to 5, they came to know about the compromise in the year 1993 itself. Thus, there is no explanation by them as to why they did not file the application for amendment till the year 2008, given that the suit had been filed in 1993. Though, even when Plaintiff Nos. 1 to 5 came to know about the partition deed dated 18.05.1972 (Panchayat Parikath) on 22.04.1993, they kept quiet without filing an application for amendment of the plaint within a reasonable time. On the contrary, they proceeded to cross 6 examine PW1 thoroughly and took more than five years' time to get the examination of PW2 completed, and only thereafter filed an application seeking amendment of the plaint on 01.09.2008, that too when the suit was posted for final arguments. As mentioned supra, the suit itself is for partition and separate possession. Now, by Page 23 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019 C/SCA/2144/2019 ORDER virtue of the application for amendment of pleadings, Plaintiff Nos. 1 to 5 want to plead that the partition had already taken place in the year 1972 and they are not interested to pursue the suit. Per contra, Plaintiff No. 6/Respondent No.1 herein wants to continue the proceedings in the suit for partition on the ground that the partition had not taken place at all.
24. In view of the aforesaid circumstances and the proposition of law, which have been laid down, this Court is of the opinion that neither there is any material irregularity or any perversity is reflecting nor any jurisdictional error which call for interference under Articles 226 and 227 of the Constitution of India. A clear chronology of events, if to be looked into, the same itself would suggest that such attempt does not deserve to be encouraged, which ultimately would tantamount to be an abuse of the process.
25. Here is a case, as said earlier, in a suit of 1999, when it has reached for final argument stage, the application at Exh.211 is submitted with multiple grievances on 29.9.2018. Immediately after submitting this, simultaneous proceedings in the form of Regular Civil Suit No.446 of 2018 is filed in the month of October 2018 and immediately thereafter, Lavad suit came to be filed in the month of December 2018. Hence, this is nothing but a clear attempt on the part of the petitioner to thwart a litigation, which this Court is not inclined to encourage in any manner. Even last attempt which appears to have been made is to seek transfer by making bald allegations in the month of October 2018, which application has been dismissed on 17.11.2018, and further the application Order Order-7 Rule 11 also came to be dismissed on 15.1.2019. So, this sequence of events which have taken place at the instance of the petitioner, being a lawyer, the Court would not like to ignore by allowing the extraordinary jurisdiction to be invoked. This being the position, the petition, being devoid of merits, stands dismissed with no order as to costs. Notice is discharged. Interim relief stands vacated forthwith.
Page 24 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019 C/SCA/2144/2019 ORDER26. However, while parting with the present order, the Court deems it proper to direct concerned learned Trial Judge to hear and dispose of Regular Civil Suit No.269 of 1999 as expeditiously as possible without allowing the petitioner to cause any undue delay.
27. Since the main petition is disposed of, the Civil Application does not survive and stands disposed of accordingly.
(A.J. SHASTRI, J) OMKAR Page 25 of 25 Downloaded on : Thu Aug 08 00:47:54 IST 2019