Gujarat High Court
Jamir Hosain Najrul Shaikh vs Hatilmali Taiyabali Trivedi on 21 April, 2023
NEUTRAL CITATION
C/SCA/19477/2022 ORDER DATED: 21/04/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19477 of 2022
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JAMIR HOSAIN NAJRUL SHAIKH
Versus
HATILMALI TAIYABALI TRIVEDI
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Appearance:
MR.BHASH H MANKAD(6258) for the Petitioner(s) No. 1
MR NISHANT LALAKIYA(5511) for the Respondent(s) No. 2
MR PREMAL S RACHH(3297) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 21/04/2023
ORAL ORDER
1. The present petition is filed by the present petitioner - original defendant No.1, by challenging the impugned order dated 27.6.2022 passed below Exh.49 application in Regular Civil Suit No.128 of 2020 by the 4 th Addl. Civil Judge, Rajkot, whereby the learned Trial Court has allowed the application under the provisions of Order 11 Rules 1, 2 & 12 of the Civil Procedure Code, 1908 (hereinafter referred to as "the C.P.C.") filed by the plaintiff - respondent No.1 herein. 2.1 Brief facts of the case are as such that respondent No.1
- Hatilmali Taiyabali Trivedi has filed Regular Civil Suit No.128 of 2020 for declaration and permanent injunction against the defendants namely the petitioner herein and Rajkot Municipal Corporation- the Respondent no.2 herein. Page 1 of 13 Downloaded on : Sun Sep 17 18:44:27 IST 2023
NEUTRAL CITATION C/SCA/19477/2022 ORDER DATED: 21/04/2023 undefined The said dispute pertains to land being Survey No.619 of Ward No.3 of Rajkot City, admeasuring 42.87 Sq. Mtr., whereby the crux of the dispute is that the present respondent No.1 was opposing any fresh construction or any material changes in the original construction to be carried out by the present petitioner and sought an injunction to this effect. Defendant Nos.1 & 2 had filed their written statement at Exh.11 and 15 respectively. Interim relief is operating in favour of respondent No.1 herein - original plaintiff as their application below Exh.5 was allowed vide order dated 15.9.2021, therefore, respondent No.1 - plaintiff has filed the application under Order XI Rules 1, 2 & 12 of the C.P.C. for seeking discovery by interrogatories which was allowed by the learned Trial Court by order dated 27.6.2022. 2.2 Being aggrieved and dissatisfied by the impugned order dated 27.6.2022, the present petition is preferred.
3. Heard learned advocate Mr. Valmik M. Vyas appearing on behalf of Mr. Bhash H. Mankad, learned advocate for the petitioner, learned advocate Mr. Premal S. Rachh for the respondent No.1 and learned advocate Mr. Nishant Lalakiya for the respondent No.2.
4.1 Learned advocate Mr. Vyas for the petitioner has drawn my attention towards the application field below Exh.49 Page 2 of 13 Downloaded on : Sun Sep 17 18:44:27 IST 2023 NEUTRAL CITATION C/SCA/19477/2022 ORDER DATED: 21/04/2023 undefined application by which the discovery by interrogatories is sought under Order XI Rule 1, 2 & 1 of the Code of Civil Procedure, 1908 by the respondent No.1 herein and has submitted that under Order XI Rule 1 of the C.P.C., no leave is sought by the respondent No.1 before filing of such application. He has also drawn my attention towards the impugned order passed by the Trial Court, where also, the learned Trial Court has not made any reference about that the leave is granted or not.
4.2.1 He has further drawn my attention towards the provisions of Order XI Rules 1, 2 & 12 of the C.P.C. 4.2.2 He has also relied upon the judgment of the Delhi High Court in the case of Mamta versus Rishipal CM(M) 265/2022 & CM No.14383/2022, CM No.14384/2022, has observed as under.
"8. Before me, too, Mr. Rana has been unable to draw attention to any decision which precludes a Court from issuing notice on an application preferred under Order XI Rule 1 of the CPC, seeking leave to serve interrogatories on the opposite party, before granting or refusing to grant, such leave. 9. Order XI Rule 1 reads thus: "1. Discovery by interrogatories-In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties, and such Page 3 of 13 Downloaded on : Sun Sep 17 18:44:27 IST 2023 NEUTRAL CITATION C/SCA/19477/2022 ORDER DATED: 21/04/2023 undefined interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such person is required to answer: Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose: Provided also that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness." 10. The use of the word "may" in Order XI Rule 1, when referring to the power of the Court to deliver interrogatories on an application by one of the parties before it, indicates that the right to serve interrogatories is not absolute, and that a discretion vests in the Court in that regard. Serving of interrogatories on the opposite party can only, therefore, by leave of Court. The sequitur would, therefore, be that the opposite party could oppose the grant of such leave. CM(M) 265/2022 Page 5 of 8 Extending of an opportunity to the opposite party to, if it so chooses, oppose grant of leave to serve interrogatories is, therefore, in my view, inbuilt into Order Rule 1. Of course, it may be that, in more cases than not, grant of leave to serve interrogatories may be the norm; that, however, cannot foreclose a Court of its right to issue notice on an application to serve interrogatories on the opposite party, before deciding whether to grant leave or not."
4.3 He has further submitted that the Trial Court has committed gross error which may cause great prejudice to the right of the present petitioner by not passing appropriate order and also not considered the fact that the present Page 4 of 13 Downloaded on : Sun Sep 17 18:44:27 IST 2023 NEUTRAL CITATION C/SCA/19477/2022 ORDER DATED: 21/04/2023 undefined respondent No.1 has not sought any leave before the filing of such application or even no averment regarding leave is sought even in the present application filed by the respondent No.1 herein at Exh.49 and therefore, he prays to allow this petition.
5. Learned advocate Mr. Nishant Lalakiya for the respondent No.2 has submitted that impugned order passed by the learned Trial Court is just and proper and he, being Municipal Corporation is not directed affected by the impugned order passed by the learned Trial Court.
6. Per contra, learned advocate Mr. Premal S. Rachh for the respondent No.1 has strongly objected the submission made by the learned advocate for the petitioner and has submitted that no interference is required to be called for as the learned Trial Court has passed well reasoned order by considering all the aspects of the matter and more particularly, provisions of Order XI Rules 1, 2 & 12 of the C.P.C. He has drawn my attention towards the objection filed by the petitioner herein below Exh.53 application to the application field below Exh.49 and has submitted that considering such objection that there is no specific plea raised in the objection regarding the leave which is not granted. He has also drawn my attention towards the judgment of the Page 5 of 13 Downloaded on : Sun Sep 17 18:44:27 IST 2023 NEUTRAL CITATION C/SCA/19477/2022 ORDER DATED: 21/04/2023 undefined Hon'ble Apex Court which is referred by the learned Trial Court in the cases of (ii) A. Shanmugam versus Ariya K.R.K.M.N.P. Sangam reported in (2012) 6 SCC 230 (ii) Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria reported in (2012) 5 SCC 370, and has submitted that looking to this observation, the learned Trial Court has rightly exercised its discretion in favour of the petitioner herein by considering the averments made in the application. He has also drawn my attention towards the application filed below Exh.49 and has submitted that considering the same, the petitioner is praying for allowing the application itself in his submission and this is satisfied under the provisions or Order XI Rules 1 & 2. He has further submitted that the copy is also served to the learned advocate for the petitioner herein and in turn the petitioner herein has also filed objection under the provisions of Order XI Rule 6 of the C.P.C. and therefore, this Court should not exercise the powers under 227 of the Constitution, whereby the learned Trial Court has given cogent and detailed reasons while deciding the application under Order XI Rules 1, 2 & 12 of the C.P.C.
7.1.1 I have considered the rival submissions made at the Bar. I have also considered the provisions of Order XI Rules 1 & 2 of the C.P.C, which reads as under:
Page 6 of 13 Downloaded on : Sun Sep 17 18:44:27 IST 2023
NEUTRAL CITATION C/SCA/19477/2022 ORDER DATED: 21/04/2023 undefined "1. Discovery by interrogatories.--In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such person is required to answer: Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose : Provided also that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.
2. Particular interrogatories to be submitted.--On an application for leave to deliver interrogatories, the particular interrogatories proposed to be delivered shall be submitted to the Court and that court shall decide within seven days from the day of filing of the said application. In deciding upon such application, the Court shall take into account any offer, which may be made by the party sought to be interrogated to deliver particulars, or to make admissions, or to produce documents relating to the matters in question, or any of them, and leave shall be given as to such only of the interrogatories submitted as the Court shall consider necessary either for disposing fairly of the suit or for saving costs."
7.1.2 I have also considered the provisions of Order XI Rule 6 of the C.P.C, which is as under: Page 7 of 13 Downloaded on : Sun Sep 17 18:44:27 IST 2023 NEUTRAL CITATION C/SCA/19477/2022 ORDER DATED: 21/04/2023 undefined
"6. Objections to interrogatories by answer.--Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit, or that the matters inquired into are not sufficiently material at that stage, or on the ground of privilege or any other ground, may be taken in the affidavit in answer."
7.1.3 I have also considered the provisions of Order XI Rule 12 of the C.P.C, which is as under:
"12. Application for discovery of documents.--Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion be thought fit: Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs."
7.2 In view of the above, no doubt, there is word used in the Order XI Rules 1, 2 of the C.P.C., which is to the effect Page 8 of 13 Downloaded on : Sun Sep 17 18:44:27 IST 2023 NEUTRAL CITATION C/SCA/19477/2022 ORDER DATED: 21/04/2023 undefined that the petitioner is required to seek leave of the Court. Such provisions should be considered in harmonious manner and by taking into consideration the averments made in the present application filed below Exh.49 application, it transpires that the petitioner has prayed for leave of the Court, and of course, not by way of separate application but by way of filing of application by seeking permission to raise certain questions by way of interrogation. Moreover, the discussion, regarding impugned order passed by the learned Trial Court, also clearly shows that the learned Trial Court has considered the application after considering the rival submissions and after considering the documentary evidence available on record. The findings of the learned Trial Court is required to be considered as the Court has found that while deciding the application under Order XI of the C.P.C., opposite parties should be heard and notice can be served on the opposite parties. In this situation, the argument, advanced by the defendant No.1 that prior permission is required to file this application, itself is not maintainable. The Court has rightly construed the judgment of Delhi High Court by holding that the notice should be issued to the opposite party before deciding the application of interrogatories under the provisions of Order XI of the C.P.C. which was done in the present case and the Court has rightly come to the conclusion that no permission is required Page 9 of 13 Downloaded on : Sun Sep 17 18:44:27 IST 2023 NEUTRAL CITATION C/SCA/19477/2022 ORDER DATED: 21/04/2023 undefined before filing of the application and it is only after filing of the application when permission of the Court is required. 7.3 Considering the provisions of Order XI Rules 1, 2 and other Rules under Order XI of the C.P.C., it transpires that the learned Trial Court has not committed any error which is gross in nature which shall cause any prejudice and the findings of the learned Trial Court is just and proper which cannot be termed as perverse.
7.4 At this stage, it is required to refer to the judgment of the Apex Court in the case of Garment Craft versus Prakash Chand Goel reported in (2022) 4 SCC 181, in which the Hon'ble Apex Court has stated that supervisory jurisdiction of High Court when to be exercised, more particularly, paragraph 15 to 17 which read as under:
"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that Page 10 of 13 Downloaded on : Sun Sep 17 18:44:27 IST 2023 NEUTRAL CITATION C/SCA/19477/2022 ORDER DATED: 21/04/2023 undefined of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. has observed:-
"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the Page 11 of 13 Downloaded on : Sun Sep 17 18:44:27 IST 2023 NEUTRAL CITATION C/SCA/19477/2022 ORDER DATED: 21/04/2023 undefined subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
17. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always Page 12 of 13 Downloaded on : Sun Sep 17 18:44:27 IST 2023 NEUTRAL CITATION C/SCA/19477/2022 ORDER DATED: 21/04/2023 undefined important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution." 7.5 Considering the above, this Court has limited jurisdiction to interfere in the discretionary order under Article 227 of the Constitution of India.
8. In view of the aforesaid, the present petition is dismissed with no order as to costs.
Notice stands discharged.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 13 of 13 Downloaded on : Sun Sep 17 18:44:27 IST 2023