Gujarat High Court
Ghanshyambhai Ratibhai Barvaliya vs Khimajibhai Damjibhai Navadiya on 7 April, 2025
NEUTRAL CITATION
C/SCA/17438/2023 ORDER DATED: 07/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17438 of 2023
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GHANSHYAMBHAI RATIBHAI BARVALIYA
Versus
KHIMAJIBHAI DAMJIBHAI NAVADIYA
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Appearance:
MR PARTH B THUMMAR(13122) for the Petitioner(s) No. 1
MR MANAN A SHAH(5412) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 07/04/2025
ORAL ORDER
1. The present writ application is filed under Article 227 of the Constitution of India seeking following reliefs :-
"A. Be pleased to admit and allow this Petition.
B. Be pleased to quash and set aside the impugned order dated 05.06.2023 passed by the Ld. 15th Additional District Judge, Surat below Stay Application in Regular Civil Appeal No. 24 of 2023 (Annexure-P/1);
C. Be pleased to quash and set aside the impugned order dated 28.08.2023 passed by the Ld. 15th Additional District Judge, Surat below Exhibit 13 Application in Regular Civil Appeal No. 24 of 2023 (Annexure-P/2);
D. Pending admission, hearing and final disposal, be pleased to stay the impugned order dated 05.06.2023 passed by the Ld. 15th Additional District Judge, Surat below Stay Application (Annexure-P/1) and order dated 28.08.2023 passed by the Ld. 15th Additional District Judge, Surat below Exhibit 13 Application in Regular Civil Appeal No. 24 of 2023 (Annexure-P/2);
E. Pending admission, hearing and final disposal, be pleased to Page 1 of 19 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Fri Apr 18 23:50:46 IST 2025 NEUTRAL CITATION C/SCA/17438/2023 ORDER DATED: 07/04/2025 undefined stay execution of impugned judgement in Regular Civil Appeal No. 24 of 2023.
F. Pending admission, hearing and final disposal, be pleased to stay further hearing in Regular Civil Appeal No. 24 of 2023.
G. Be pleased to grant Ex-parte Ad-interim relief in terms of para 9D to 9F of this Petition;
H. Cost of this petition be awarded."
2. Heard learned advocate Mr. Parth B. Thummar for the petitioner and learned advocate Mr. Manan A. Shah for the respondent.
3. As far as possible, the parties will be referred as per their original position in the suit.
Facts of the case 4.0 The petitioner herein is original defendant of Special Civil Suit No. 323 of 2016 filed by respondent herein. The suit is filed seeking specific performance of agreement to sale and in alternative prayed for refund of Rs. 40 lakh with interest paid by plaintiff in favour of defendant.
4.1 The trial Court vide its judgement and decree dated 31.12.2022 partly allowed aforesaid suit whereby, directed defendant to repay Rs. 40 lakh with 6 % interest from the Page 2 of 19 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Fri Apr 18 23:50:46 IST 2025 NEUTRAL CITATION C/SCA/17438/2023 ORDER DATED: 07/04/2025 undefined date of suit till payment.
4.2 The defendant appears to have challenged aforesaid judgment/ decree before appellate Court by way of filing Regular Civil Appeal No. 24 of 2023. The defendant appears to have file injunction application under Order 41 rule 5 of CPC, which came to be partly allowed by appellate Court vide its order 05.06.2023 thereby, stay the execution of decree impugned in the appeal on condition that defendant shall submit bank guarantee of disputed amount within a period of 30 days from the date of said order.
4.3 The defendant had filed impugned application below Exh. 13 on 28.08.2023 before the Appellate Court, thereby, requested the Court to allow defendant to collect original sale-deed of suit property in question filed below Exh.49 in the suit, thereby, defendant can mortgage suit property with the bank by submitting original sale-deed to avail bank guarantee.
4.4 The plaintiff appears to have objected impugned application, whereby, contended that same is not filed within time and cause which is assigned in application is not proper.
4.5 After hearing the parties, the appellate Court vide its order dated 28.08.2023 has rejected the impugned Page 3 of 19 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Fri Apr 18 23:50:46 IST 2025 NEUTRAL CITATION C/SCA/17438/2023 ORDER DATED: 07/04/2025 undefined application.
4.6 Being aggrieved and dissatisfied with the impugned orders dated 05.06.2023 and 28.08.2023, the defendant- original appellant has filed the present writ application.
5. At the outset, learned advocate Mr. Parth B. Thummar, under the instruction of his client, does not press prayer-B made in Para-9 of the present writ application. So, petitioner is not pressing present writ application against its challenge of order dated 05.06.2023 passed by the appellate Court in Regular Civil Appeal No. 24 of 2023.
6. In view of the aforesaid request made by learned advocate Mr. Thummar having not objected by the learned advocate Mr. Manan A. Shah appearing for the respondent, permission as sought for is hereby granted. Thereby, present writ application is confined to the remaining prayers made in the present writ application.
Submission of petitioner-appellant-defendant
7. Leaned advocate Mr. Parth Thummar for the petitioner would submit that original sale-deed produced on record of the suit by plaintiff is in relation to the suit property which is Page 4 of 19 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Fri Apr 18 23:50:46 IST 2025 NEUTRAL CITATION C/SCA/17438/2023 ORDER DATED: 07/04/2025 undefined undisputedly owned by defendant, the appellate Court was required to allow defendant to get back original title deed of suit property especially when trial Court has not decreed and order for specific performance of execution of sale-deed of suit property.
7.1 Learned advocate Mr. Thummar would further submit that the appellate Court has committed a serious error in law by observing that permission which has been sought by defendant is in relation to disputed property as suit is decreed by the trial Court, thereby, order only for refund earnest money alleged paid by the plaintiff to defendant. So, suit property is no more remain disputed property.
7.2 Learned advocate Mr. Thummar would further submit that the decree passed by the trial Court is not challenged by the plaintiff and in that circumstances, title document of suit property requires to be returned back to defendant, thereby, he can avail bank guarantee by submitting original title deed with bank. He would further submit that as such during the pendency of appeal, original document can be returned back to the party by getting its certified copy and or to put any condition upon party as may be deem fit by the Court.
7.3 Learned advocate Mr. Thummar would rely upon the Order 13 rule 9 read with Section 151 of CPC, thereby, would Page 5 of 19 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Fri Apr 18 23:50:46 IST 2025 NEUTRAL CITATION C/SCA/17438/2023 ORDER DATED: 07/04/2025 undefined submit that appellate Court ought have exercise its discretion in favour of the defendant and to allow the defendant to get back his original sale-deed which is submitted by the plaintiff before the trial Court in the suit proceedings.
7.4 To but buttress his argument, learned advocate Mr. Thummar would rely on the following decisions.
(i) In the case of Sangeeta Shrikant Pingale Vs. Shrikant Shankar Pingale reported in 2017 SCC Online Bom 10099.
(ii) In the case of K.K. Velusamy Vs. N. Palanisamy reported in (2011) 11 SCC 275.
(iii) In the case of Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hirala reported in 1961 SCC Online SC 17.
7.5 Making the above submission, learned advocate Mr. Thummar would request this Court to allow the present writ application.
Submission of respondent-plaintiff
8. Per contra, learned advocate Mr. Manan A. Shah has vehemently opposed the present writ application Page 6 of 19 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Fri Apr 18 23:50:46 IST 2025 NEUTRAL CITATION C/SCA/17438/2023 ORDER DATED: 07/04/2025 undefined contending inter-alia that defendant has not disclosed true and correct facts while submitting impugned application whereby, he has not disclosed that original title deed (sale- deed) of suit property has been submitted by plaintiff below Exh. 49 in the suit and even not submitted any evidence that defendant has applied to any bank to avail any bank guarantee for which, an original title deed of suit property is required.
8.1 Learned advocate Mr. Shah would further submit that defendant has even not disclosed that he is not having any other property than the suit property whereby, he can not avail bank guarantee. He would further submit that suit filed by defendant against plaintiff being Regular Civil Suit No. 78 of 2016 came to be partly decreed vide its judgement and decree dated 31.12.2022 by the trial Court wherein also issue No. 3 answered in favour of respondent herein - plaintiff (defendant of aforesaid suit).
8.2 Learned advocate Mr. Shah would further submit that by answering issue No.3 in favour of respondent herein, the trial Court has accepted that petitioner herein has received Rs. 40 lakh from respondent, thereby, executed agreement for sale on 21.02.2015. He would further submit that such finding of fact is not questioned by the petitioner by filing Page 7 of 19 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Fri Apr 18 23:50:46 IST 2025 NEUTRAL CITATION C/SCA/17438/2023 ORDER DATED: 07/04/2025 undefined any independent appeal.
8.3 Learned advocate Mr. Shah would further submit that Order 13 rule 9 of CPC would not apply in the facts of the present case as original title deed is undisputedly submitted by respondent- plaintiff. He would further submit that in absence of any specific prayer and also any evidence to show that petitioner is required to have original title document for availing bank guarantee discretionary power not exercised by the trial Court in favour of the petitioner cannot be interfered with by this Court while exercising its power under Article 227 of Constitution of India.
8.4 Making the above submission, learned advocate Mr. Shah would request this Court to reject the present writ application.
9. No other and further submissions have been made by the learned advocates for the respective parties.
ANALYSIS
10. Before adverting to the issue involved in the matter, I would to remind myself scope and power available to this Court while exercising its power under Article 227 of the Page 8 of 19 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Fri Apr 18 23:50:46 IST 2025 NEUTRAL CITATION C/SCA/17438/2023 ORDER DATED: 07/04/2025 undefined Constitution of India which is succinctly discussed in follow- ing two decisions of Honourable Supreme Court of India. First one in a case of Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374, the relevant observation of the aforesaid judgment reads as under:-
"[6] In our view, the impugned order is liable to be set aside be- cause while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's ju- risdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were consid- ered by the two Judge Bench of this Court in Surya Dev Rai v. Ram Chander Rai and Ors., 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 af-
fect 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 Code of Civil Procedure 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 cor- recting 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 over- stepping or crossing the limits of jurisdiction, or (iii) acting in fla- grant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure speci- fied, 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 Page 9 of 19 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Fri Apr 18 23:50:46 IST 2025 NEUTRAL CITATION C/SCA/17438/2023 ORDER DATED: 07/04/2025 undefined their jurisdiction. When the subordinate Court has assumed a juris- diction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exer- cised 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 jurisdic- tion, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and
(ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory juris- diction 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 pen- dency of any suit or proceedings in a subordinate Court and the er- ror 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 super- visory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not cor- rected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of jus- tice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdic- tion will not covert itself into a Court of Appeal and indulge in re-ap-
Page 10 of 19 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Fri Apr 18 23:50:46 IST 2025NEUTRAL CITATION C/SCA/17438/2023 ORDER DATED: 07/04/2025 undefined preciation or evaluation of evidence or correct errors in drawing in- ferences 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 juris- diction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliter- ated 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 v. Rajendra Shankar Patil [(2010) 8 SCC 329 :
(2010) 3 SCC (Civ) 338] , and it was held: (SCC pp. 347-49, para
49) "(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in ex-
ercise 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 op- erate 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 Page 11 of 19 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Fri Apr 18 23:50:46 IST 2025 NEUTRAL CITATION C/SCA/17438/2023 ORDER DATED: 07/04/2025 undefined this Court. In this regard the High Court must be guided by the prin- ciples laid down by the Constitution Bench of this Court in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] and the prin- ciples in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] , followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can in- terfere 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 mani- fest 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 an- other view than the one taken by the tribunals or Courts subordi- nate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] and therefore abridgment by a constitu- tional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment Page 12 of 19 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Fri Apr 18 23:50:46 IST 2025 NEUTRAL CITATION C/SCA/17438/2023 ORDER DATED: 07/04/2025 undefined does not correspondingly expand the High Court's jurisdiction of su- perintendence 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 en- tire 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 unpol- luted 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 de- gree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be coun- terproductive and will divest this extraordinary power of its strength and vitality."
(emphasis supplied) 10.1 The second decision in a case of Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181, wherein the Hon'ble Supreme Court of India has held as under:-
"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order [Prakash Chand Goel.Garment Craft, Page 13 of 19 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Fri Apr 18 23:50:46 IST 2025 NEUTRAL CITATION C/SCA/17438/2023 ORDER DATED: 07/04/2025 undefined 2019 SCC OnLine Del 11943] is contrary to law and cannot be sus- tained for several reasons, but primarily for deviation from the lim- ited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory juris- diction 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 deci- sion on facts and conclusion, for that of the inferior Court or tri- bunal.[Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] The jurisdiction exer-
cised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental princi- ples 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. [Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97] has observed : (SCC pp. 101- 102, para 6) "6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is exam- ined and explained in a number of decisions of this Court. The ex- ercise of power under this article involves a duty on the High Court to keep inferior Courts and tribunals within the bounds of their au- thority 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 un- limited prerogative to correct all kinds of hardship or wrong deci- sions 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 in- justice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an Page 14 of 19 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Fri Apr 18 23:50:46 IST 2025 NEUTRAL CITATION C/SCA/17438/2023 ORDER DATED: 07/04/2025 undefined 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 find- ings of facts of an inferior Court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable per- son can possibly come to such a conclusion, which the Court or tri- bunal has come to."
(emphasis supplied)
11. Now, adverting to the issue germane in the matter, at the outset, it is required to be noted herein that both the parties have filed their respective suits against each other, which are partly decreed in their favour. Nonetheless, suit filed by the respondent came to be decreed against petitioner whereby, he was ordered to pay Rs. 40 lakh with 6 % interest from the date of suit till payment to the plaintiff. Further, suit filed by the petitioner is also decreed whereby, respondent herein is restrained from creating any mortgage, loan, encumbrance and further permanently injuncted from transferring the suit property and also injuncted not to disturb the possession of the petitioner. Furthermore, as per issue No.3 framed by the trial Court in the suit filed by the petitioner, the trial Court held that respondent herein has paid Rs. 40 lakh to petitioner. Such decree passed by the trial Court in the suit filed by the petitioner is not questioned by him. So, in view of the aforesaid facts, prima facie, a finding of fact recorded in both the suits clearly shows that petitioner has received Rs. 40 lakhs from respondent which is Page 15 of 19 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Fri Apr 18 23:50:46 IST 2025 NEUTRAL CITATION C/SCA/17438/2023 ORDER DATED: 07/04/2025 undefined ordered for refund in a suit filed by the respondent.
12. The petitioner-defendant has not complied with order dated 05.06.2023 within time granted by the appellate Court but filed impugned application below Exh. 13 without any supporting evidence to show that in fact bank has demanded from him an original title document of his property. Moreover, plain reading of the impugned application would indicate that it is not stated by him that suit property is the only property of defendant wherein he is required to create a charge over it to avail bank guarantee. Furthermore, appeal is considered to be continuation of suit proceeding, original title document sought to be obtained is in relation to disputed- suit property. Prima-facie, no error can be found in the impugned order.
13. Now, to appreciate submissions made by the learned advocate Mr. Thummar, provisions of Order 13 rule 9 of CPC would not be applicable to the facts of the present case as original title document is undisputedly not produced by petitioner- defendant but submitted by respondent- plaintiff. At this stage, it is apt of refer Order XIII rule 9 of CPC, which reads as under :-
"ORDER XIII-PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS.Page 16 of 19 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Fri Apr 18 23:50:46 IST 2025
NEUTRAL CITATION C/SCA/17438/2023 ORDER DATED: 07/04/2025 undefined
9. Return of admitted documents-- (1) Any person, whether a party to the suit or not, desirous of receiving back any document produced by him in the suit and placed on the record shall, unless the document is impounded under rule 8, be entitled to receive back the same,-- (a) where the suit is one in which an appeal is not allowed, when the suit has been disposed of, and (b) where the suit is one in which an appeal is allowed, when the Court is satisfied that the time for preferring an appeal has elapsed and that no appeal has been preferred or, if an appeal has been preferred, when the appeal has been disposed of :
[Provided that a document may be returned at any time earlier than that prescribed by this rule if the person applying therefor--
(a) delivers to the proper officer for being substituted for the original,--
(i) in the case of a party to the suit, a certified copy, and
(ii) in the case of any other person, an ordinary copy which has been examined, compared and certified in the manner mentioned in sub-rule (2) of rule 17 of Order VII, and (b) undertakes to produce the original, if required to do so] Provided also, that no document shall be returned with, by force of the decree, has become wholly void or useless.
(2) On the return of a document admitted in evidence, a receipt shall be given by the person receiving it."
14. Thus, plain reading of Order XIII rule 9 of CPC would makes position very clear that petitioner can not allow to get back original document which is not produced by him. Furthermore, certified copy of sale deed was not available with petitioner for its delivers as provided under said provision. It does not appear from the record that petitioner had ever argued and or requested appellate Court which is now argued in present writ application. As no such request so made by petitioner before Court below.
15. So far as application of Section 151 is concerned, Page 17 of 19 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Fri Apr 18 23:50:46 IST 2025 NEUTRAL CITATION C/SCA/17438/2023 ORDER DATED: 07/04/2025 undefined considering the peculiar facts and circumstances of the present case and in absence of any evidence to show that petitioner is not having any other property on which he can avail bank guarantee and having not challenged finding of fact recorded by the trial Court while answering issue No. 3 in his suit by way of independent regular appeal as well as in absence of any foundational fact with documentary evidence that in fact petitioner has approached any bank to avail bank guarantee which demanded original title deed, a discretionary power available to the Court not exercised in favour of petitioner can not be considered to be bad in law.
16. The judgments cited by the learned advocate Mr. Thummar would not carry the case of the petitioner further as it is not directly applicable to the issue germane in the present writ application. So, no need to further discuss by this Court having already answered his submission hereinabove.
17. At last, this Court is exercising its power under Article 227 of the Constitution of India whereby, as per settled legal position of law as declared by Honourable Apex Court in aforesaid decisions, not every error of law committed by the Court below is required to be interfered by this Court, except where there is gross error of law or jurisdiction error committed by the Court below while passing the impugned Page 18 of 19 Uploaded by SALIM(HC01108) on Tue Apr 15 2025 Downloaded on : Fri Apr 18 23:50:46 IST 2025 NEUTRAL CITATION C/SCA/17438/2023 ORDER DATED: 07/04/2025 undefined order which I don't find in the order impugned.
18. Having not found any gross error of law or jurisdictional error committed by the appellate Court while passing the impugned order, this Court would not like to interfere with the impugned order.
19. As order dated 05.06.2023 passed by the appellate Court is not complied by the petitioner - defendant in time, it is open for the respondent - plaintiff to execute decree impugned in the Regular Civil Appeal No. 24 of 2023 in accordance with law unless petitioner hereby provides bank guarantee as per order dated 05.06.2023 within 15 days from today.
20. Thus, in view of aforesaid, present writ application is found meritless requires to be dismissed, is hereby dismissed. Notice is discharged. No order as to costs.
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