Gujarat High Court
Future Scaps Infra vs Ankurbhai Arunrao Pavle on 29 April, 2023
C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20905 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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FUTURE SCAPS INFRA
Versus
ANKURBHAI ARUNRAO PAVLE
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Appearance:
MR NILESH A PANDYA(549) for the Petitioner(s) No. 1
MR. HARDIK J JANI(6497) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 29/04/2023
CAV JUDGMENT
1. The present petition, under Articles 226 and 227 of the Constitution of India is filed by challenging the impugned order dated 1.7.2022 passed below Exh.60 in Page 1 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 Special Civil Suit No.6 of 2020 by the learned Principal Senior Civil Judge, Savli, whereby the learned Trial Court has allowed said application under Order XI Rule 12 of the Code of Civil Procedure, 1908, (hereinafter referred to as "the C.P.C.") filed by the respondent herein - original defendant and the petitioner herein - original plaintiff was directed to produce the documents referred to in the application filed below Exh.60 application within 30 days and also is directed to give explanation with regard to the said document with regard to the said documents, if wants.
2.1 Brief facts of the case are as such that the dispute pertains to land bearing Revenue Survey No.170 paiki 2 admeasuring 5160 Sq. Mts. out of which 3888 Sq. Mts. land, Revenue Survey No.171 Revenue, admeasuring 4148 Sq. Mts. Survey No.172/2 total admeasuring 3844 Sq. Mts. out of which 3056 Sq. Mts. and Revenue Survey No.173 paiki 2 admeasuring 4654 Sq. Mts, out of which 914 Sq. Mrs. land, totally 12006 Sq. Mts. land and on the said lands, plans have been sanctioned for construction of residential Flats known as "The Aukland"
(Towers A to B - 136 Flats and 2 Duplex). It is further Page 2 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 the case of the petitioner as per the petition that the plaintiff has filed Special Civil Suit No.6 of 2020 for specific performance of the Banakhat dated 7.2.2017 and registered Development Agreement dated 7.12.2017 and declaration of his right and contended that the defendant has executed sale agreement on 7.2.2017 and accordingly, registered development agreement is executed between the parties. However, since the defendant has failed in his duty to act as per the registered development agreement and Banakhat, the plaintiff was constrained to file the suit. It is further the case of the petitioner as per the petition that upon summons being issued by the learned Trial Court, the defendant appeared in the suit proceeding and filed his written statement. Further, during the pendency of the suit, the plaintiff also filed application under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, 1908 read with Section 151 of the C.P.C. and prayed for interim injunction restraining the defendant not to transfer the suit property in question and after hearing both the parties, the learned Trial Court by order dated 28.9.2020 partly allowed application for injunction and restrained the respondent and his agents as well as servants from transferring the Page 3 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 suit property with respect to Towers A and D as mentioned in the said order.
2.2 It is further the case of the petitioner as per the petition that thereafter, the suit proceeded further and the plaintiff has filed his affidavit in lieu of chief- examination and thereafter, the matter was pending for cross-examination of the plaintiff. Further, at the time of cross-examination of the plaintiff, the respondent filed an application Exh.60 under Order XI, Rule 12 read with Section 30 of CPC and contended that there are many documents and details which are in custody and knowledge of the plaintiff and those details and documents are required to be brought on record for adjudication of the dispute between the parties. By the said application, the defendant has prayed to direct the plaintiff to produce following documents :-
A. Bank statement of plaintiff with HDFC Bank limited bearing Account No.50200015153184 for the period from 1.12.2016 to 5.7.2017.
B. Bank statement of plaintiff with HDFC Bank limited Page 4 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 bearing Account No.50200015153184 for the period from 12.7.2017 to 30.11.2021.
C. All original agreements with STENZA "DTwelve Spaces Pvt. Ltd" pertaining to properties in suit land. D. Account statement for the amount received from STENZA "DTwelve Spaces Pvt. Ltd." Pertaining to properties in suit land.
2.3 It is further the case of the petitioner as per the petition that plaintiff has filed reply at Exh.61 to the application below Exh.60 of the defendant and denied the contentions raised in application Exh.60 and specifically contended that the said application is filed only with a view to delay the proceedings of the suit as well as to avoid cross-examination of the plaintiff. Thereafter, the learned Trial Court after hearing all the parties, by the impugned dated 1.7.2022 has been pleased to allow the application Exh.60 of the defendant and thereby directed the plaintiff to produce the documents referred to in application Exh.60 within a period of 30 days and also directed the plaintiff that if the plaintiff wants to give Page 5 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 any explanation with regard to the said documents, the same shall be declared on affidavit before the learned Trial Court.
2.4 Being aggrieved by and dissatisfied with the impugned order dated 1.7.2022 passed by learned Principal Senior Civil Judge, Savli below application Exh.60 in Special Civil Suit No.6 of 2020, the present petition is preferred.
3.1 At the request of learned advocates appearing for the respective parties, the matter is taken up for final disposal.
3.2 Heard learned Senior Advocate Mr. Bhaskar Tanna assisted by learned advocate Mr. Nilesh A. Pandya for the petitioner and learned advocate Mr. Hardik J. Jani for the respondent.
4.1 Learned Senior Advocate Mr. Bhaskar Tanna for the petitioner has submitted that the the learned Trial Court has erred in exercising his jurisdiction as the impugned order passed by the learned Trial Court is Page 6 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 absolutely illegal and improper and is against the settled principle of law. He has further submitted that the learned Trial Court ought to have seen that the affidavit in lieu of chief-examination of the plaintiff is already submitted before the learned Trial Court and the suit is now for cross-examination of the plaintiff. However, with a view to delay the proceedings of the suit, application under Order XI Rule 12 of the C.P.C. is preferred by the defendant. He has further submitted that the learned Trial Court ought to have seen that the defendant had also given an application under Order VII Rule 11 of the C.P.C. to dismiss the suit, but the said application was rejected by learned Trial Court.
4.2 He has further submitted that the learned Trial Court ought to have seen that considering the contents of the plaint and also considering the application below Exh.60 filed by the defendant, it becomes clear that it is not relevant to the plaint and there is no requirement to produce such documents as asked for in application below Exh.60 by the defendant, but only with a view to delay the suit proceeding, the application below Exh.60 was filed by the defendant. He has further submitted Page 7 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 that the learned Trial Court has not properly appreciated the provisions of Order XI Rule 12 of the C.P.C. He has further submitted that the the learned Trial Court ought to have seen that the documents demanded by the defendant was not required to decide the controversy between the parties. He has further submitted that the defendant has given an application under Order VII, Rule 11 CPC to reject the plaint, which was already rejected by learned Trial Court and subsequently he has given present application Exh.60, the only intention of the defendant is to delay the suit proceedings, as in fact, the documents which are sought by the defendant on the record of the suit, are not at all concerned to decide the controversy between the parties. He has further submitted that the learned Trial Court has not considered the fact that the defendant has wrongly given application below Exh.60 under Order XI, Rule 12 of the C.P.C. rather than cross-examining the plaintiff, which is nothing but to delay the suit proceedings. 4.3 He has further submitted that the learned Trial Court ought to have seen that the oral evidence of the plaintiff has begun and at that time, just to delay the Page 8 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 suit proceedings, the application below Exh.60 was filed by the defendant falsely and the learned Trial Court has erred in holding that the documents sought by the defendant are required to decide the controversy between the parties, and therefore, the learned Trial Court has passed the order by directing the plaintiff to produce the same within 30 days. He has further submitted that the petitioner has a strong prima facie case on the merits of the suit. He has further submitted that the petitioner has no other equally efficacious, alternative and speedy remedy except by way of this petition and the reliefs may be granted by this Court will be complete in its nature and accordingly, he has prayed to allow this petition by setting aside the impugned order. 5.1 Per contra, learned advocate Mr. Hardik J. Jani for the respondent has submitted that the learned Trial Court has rightly passed the impugned order dated 01.07.2022 by exercising its discretionary jurisdiction vested under Order XI Rules 12 and 14 of Civil Procedure Code, 1908. He has further submitted that an order for production of documents under Order XI Rule 14 of the C.P.C. does not decide or affect any vital and Page 9 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 valuable rights of the parties or decide matters of moment which may cause any prejudice to the right of either party but it is only to enable the Trial Court to decide the dispute/issues involved in the suit between the parties, hence, the supervisory power under Article 226 sought to be invoked by the petitioner.
5.2 He has further submitted that the learned Trial Court is clearly empowered and it shall be lawful for it to order the production, by any party to the suit, such documents in his possession and power are relate to any matter in question in the suit when the Court thinks it right that the production of the documents are necessary to decide the matter in question. Further, the Court has also been given power to deal with the documents when produced in such a manner as shall appear just. Further, it has been observed in case of Gopal Krishnaji by Hon'ble the Supreme Court that irrespective of the doctrine of burden of proof, it is always incumbent on the part of the party in whose possession the documents are, to produce the same. Here, when the documents are in possession of the plaintiff and the suit is yet to be decided on merits, there was no reason for the Court to Page 10 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 reject the application for production of documents. 5.3 He has further submitted that the documents of which production is ordered by the Ld. Trial Court are akin to the disputes/issues involved in the suit and necessary pleadings and averments are made in the suit more particularly, in paras 1, 4 & 10, hence, the documents which were relevant and necessary for deciding the suit as thought by the Ld. Trial Court does not warrant any interference by this Court under Article 227 of the Constitution of India in its supervisory jurisdiction which is a limited jurisdiction to be exercised by this Court as in exercise of supervisory jurisdiction under Article 227, it does not act as a Court of first appeal to re-appreciate, reweigh the evidence or facts upon which determination under challenge is based. Further, the jurisdiction exercised under Article 227 is in nature of correctional jurisdiction to set grave dereliction of duty or flagrant abuse inasmuch as the power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or finding is so perverse that no reasonable person can possibly come to such conclusion that Court has come to Page 11 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 and the High Court exercising power under Article 227 cannot 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. Here, in the present case, the discretion exercised by the Ld. Trial Court in granting relief, does not suffer from an error apparent on fact of record or was not a finding so perverse that it was unsupported by evidence to justify it, hence, no ground existing in this case for interference in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.
5.4 He has further submitted that it is required to be considered that the order under challenge in this petition came to be passed on 01.07.2022 by the Ld. Trial Court whereby the plaintiff - the petitioner herein was ordered to be produced the documents within 30 days or if, the plaintiff wish he may make explanation for such documents on oath before the court. That period of 30 days had been gone by and admittedly, no such steps were taken by the plaintiff during that period and the plaintiff had filed present petition before this Court on 28.07.2022 which the petitioner had kept in office Page 12 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 objection till 14.09.2022 and not taken any steps to get this petition listed for hearing till then. He has further submitted that this Court vide common order dated 14.09.2022 had directed to remove office objections within a period of 4 weeks failing which, matter was ordered to be dismissed for non-prosecution without reference to the Court. It is only about on 12.10.2022, the office objections were removed by the petitioner in this petition and get his petition listed for hearing on 17.10.2022 and took time in the matter. Thereafter, since the Bench was changed, the petitioner engaged senior counsel and it is then only, the petitioner had proceeded the petition only on 22.12.2022 on which day the notice was issued to the respondent and the advocate for the respondent was permitted to file his Vakalathama. Thus, from the above conspectus, it has been clear that the plaintiff (the herein) had allowed to go on, the duration of 30 days time limit as ordered/directed by the Ld. Trial Court and he did not even bother to prosecute the present petition so keenly and promptly, if at all he was very serious in proceeding with this petition and the suit both. The petitioner himself has extended a period of delay in prosecuting the proceeding out of bona fide and now he Page 13 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 may not shift or transfer the blame on the defendant, who has taken due recourse to the provisions of law before the Ld. Trial Court as was available to him under the law, hence, the petitioner cannot blame the delay on the shoulder of the respondent herein. Further, the injunction granted in favour of the plaintiff was ex-parte one, as no submissions were made by the respondent's lawyer as his right of submissions was closed. 5.5 He has relied upon the judgment of the Hon'ble Apex Court in the cases of (i) M/s Garmet Craft versus Prakash Chand Goel reported in 2021 (LiveLaw (SC) 39
(ii) M/s Puri Investments versus M/s Young Friends and Co. & Others reported in 2022 LiveLaw (SC) 279. He has also srelied upon the judgment of this Court in the cases of (i) Ujval Products reported in 1995 (1) G.L.H. (U.J.) 14, (ii) State of Gujarat versus Fakirbhai Jivabhai Chauhan and Others reported in 1995 (1) G.L.H. (U.J.) 15, (iii) M/s Kamalia Brothers & Co. versus State of Gujarat reported in 1992 (1) G.L.H. 274. He has also relied upon the judgment of Delhi High Court in the cases of (i) Maj. Retd Sukesh BEHL and Another versus Koninklijke Philips Electronics N.V. reported in FAO Page 14 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 (OS) No.458 of 2015 & CM. No.15177 of 2015 dated 19.1.2016, (ii) Black Diamond Trackparts Private Limited and Others versus Black Diamond Motors Private Limited reported in 2022 LiveLaw (Del) 164 and (iii) Smt. Usha @ Durgawati Devi versus Sh. Dilip Kumar Singh reported in 2022 LiveLaw (Del) 166. 5.6 He has further submitted that the petitioner herein has himself referred the documents in his plaint and relief upon the same before the Ld. Trial Court. Further, the documents are admittedly in the power, possession and custody of the plaintiff and those documents are controverted by the respondent in his written statement vide Exhibit-55, hence, the documents of which production is sought, are admittedly in possession of the plaintiff and are so relevant for determination of issue/dispute involved in the suit, and therefore, the impugned order is just and proper which does not warrant any interference by this Court in its supervisory jurisdiction under Article 227 of the Constitution of India.
6.1 I have heard the learned advocates for the Page 15 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 respective parties and considered the judgments cited at the Bar. Additionally, I have reviewed the material evidence available on the record and the written submissions filed by both parties. I have considered the submissions made at the Bar, whereby the petitioner is aggrieved by the impugned order dated 1.7.2022 passed below Exh.60 in Special Civil Suit No.6 of 2020 by the learned Trial Court, whereby the learner Trial Court has directed the production of certain documents under the provisions of Order XI, Rules 12 to 14 read with Section 30 of the Civil Procedure Code, 1908.
6.2.1 In this contest, it is necessary to re-produce Section 30 of the Code of Civil Procedure, 1908 which reads as under:
"30. Power to order discovery and the like:-
Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party,-
(a) make such Orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, Page 16 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 production, impounding and return of documents or other material objects producible as evidence;
(b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;
(c) Order any fact to be proved by affidavit."
6.2.2 It is also necessary to re-produce provisions of Order 11 Rule 12 of the C.P.C., which reads a 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 Page 17 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 for saving costs."
6.2.3 It is also necessary to re-produce provisions of Order 11 Rule 13 of the C.P.C., which reads a under:
"13. Affidavit of documents.--The affidavit to be made by a party against whom such order as is mentioned in the last preceding rule has been made, shall specify which (if any) of the documents therein mentioned he objects to produce, and it shall be in Form No. 5 in Appendix C, with such variations as circumstances may require."
6.2.4 It is also necessary to re-produce provisions of Order 11 Rule 14 of the C.P.C., which reads a under:
"14. Production of documents.--It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just."
6.3.1 Further, it is also relevant to note that the Page 18 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 present proceeding is going on since the year 2020, whereby it transpires that the proceedings of the parties are completed and suit is now proceeded and now, it is at the stage of cross-examination of the plaintiff and at that point of time the defendant has filed an application under the provisions of Order 7 Rule 11 of the C.P.C. to reject the plant and thereafter, the same was rejected by the learned Trial Court. Hence, the present application is filed. Futher, considering the environment made in the application below Exhibit-60, it transpires that the present respondent - original defendant has filed application by asking to produce the certain documents regarding bank account of plaintiff with HDFC Bank, agreements with Stenza pertains to property in the suit land and also account statement for the amount received from Stenza. It was the case of the defendant in that application that it is required to be produced with a view to decide the present suit and to brought the clear status as well as fact to decide the suit in proper perspective. It was alleged that the plaintiff has suppressed this facts with a view to take undue advantage and by that act the plaintiff is abusing the process of law and against that application, the plaintiff Page 19 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 has filed detailed objection at Exh.61 by specifically contending that the suit proceeding is delayed by the present defendant by filing one application after another and earlier also, the application under the provisions of Order 7 Rule 11 of the C.P.C. is filed, which was rejected by the learned Trial Court and now the suit is at the stage of recording of cross-examination of the plaintiff and the application is misconceived and the same is with a view to delay the proceeding of suit in question, however, the learned Trial Court has decided that application by observing that the documents, which are asked for to produce by the defendant under the provisions of Order 11 Rules 12 to 14 of the Code of Civil Procedure, are necessary to decide the outcome of the suit and prima facie also found necessary for the defence of the defendant and also by considering the nature of the suit, such documents are required to be brought on record.
6.3.2 Considering the suit finding, it seems that learned Trial Court has committed gross error in law as the learned Trial Court is not required to enter into that arena by considering that whether those documents are Page 20 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 required to produce merely on the assumption that it will help the defence of the defendants that is not the duty of any Court to examine from this angle. Moreover, this consideration is out of requirement under the provisions of Order 11 Rules 12 to 14 of the C.P.C. and also the findings which are given by the learned Trial Court is erroneous. Moreover, the learned Trial Court has not considered the fact that the when the trial is commenced and the trial is at the stage of recording of evidence, and thereafter, such application under the provisions of Order 11 Rule 12 cannot be entertained except in exceptional circumstances. The above are from the entire records produced before this Court as well as from the submissions made at the Bar and also from the written submissions filed by the rival parties. 6.4 It is evident that the application below Exh.60 is nothing but a dilatory tactic by the defendant to prolong the proceedings before the learned Trial Court where the process of recording evidence is ongoing in the suit. Upon considering the various documents and the prayer made, as well as the issues framed by the learned Trial Court, it becomes apparent that such documents are not Page 21 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 necessary to prove the averments made in the pleadings or the issues framed by the learned Trial Court. Furthermore, the learned Trial Court has not framed any issue related to the documents sought to be produced, and therefore, such documents are not required. The learned Trial Court has committed a serious error of law in this regard.
6.5 Furthermore, I have gone through the judgments cited at the Bar by the respondents, which are mentioned earlier in the submissions. This Court finds that there is no dispute about the principles that the Hon'ble Apex Court and the Hon'ble High Court have laid down regarding the production of documents, particularly under the provisions of Order 11, Rules 12 to 14 of the CPC. However, it depends on the facts of each case, and the Court has to consider the relevance of such documents in deciding the issues or real controversy arising between the parties. If the documents are not found relevant, as in the present case, the Court should not allow such an application under Order 11, Rules 12 to 14 of the Code of Civil Procedure, 1908. Page 22 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 6.6 Furthermore, I have considered the judgments of the Apex Court in the cases of (i) Garment Craft versus Prakash Chand Goel reported in (2022) 4 SCC 181, whereby the Apex Court has stated that supervisory jurisdiction of High Court when to be exercised, more particularly, paragraphs 15 to 17 are relevant and (ii) M/ s Puri Investments V/s M/s Young Friends and Co. & Ors. reported in 2022 Law Suit (SC) 306, whereby it is held that supervisory jurisdiction can be exercised if finding of fact would be perverse (1) erroneous on account of non-consideration of material evidence; (2) conclusion contrary to evidence; (3) based on inferences impermissible in law and re-appreciation of evidence is not permissible and I have also considered the judgment of the Hon'ble Delhi High Court in the case of Black Diamond Trackparts Private Limited and Others (supra). There is no dispute about the ratio of aforementioned judgments, however, considering the fact that in the present case, the Court has to exercise the correctional jurisdiction to set right the flagrant abuse violation of fundamental principles of law and justice as the findings of the learned Trial Court are found apparently not in consonance with the materials available on the record Page 23 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 and therefore, and are therefore, considered perverse. To prevent any miscarriage of justice, it is appropriate to exercise the powers under Article 227 of the Constitution of India.
6.7 Article 227 of the Constitution of India is re- produced as under for ready reference:
"Article 227 in The Constitution Of India, 1950:-
227. Power of superintendence over all courts by the High Court (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing provisions, the High Court may-
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any Page 24 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023 such courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces."
6.8 As discussed above, this Court finds that the learned Trial Court has committed gross error which is required to be corrected. The findings of the learned Trial Court are not in consonance with the materials available on the record and also not in accordance with the provisions of Order 11 Rules 12 to 14 of the C.P.C. Therefore, interference is required to be called for. Page 25 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023 C/SCA/20905/2022 CAV JUDGMENT DATED: 29/04/2023
7. Hence, the present petition is allowed.
8. The impugned order dated 1.7.2022 passed below Exh.60 in Special Civil Suit No.6 of 2020 by the learned Principal Senior Civil Judge, Savli is hereby quashed and set aside.
9. It is further directed that the learned Trial Court shall proceed with the suit proceedings as expeditiously as possible and decide the same after giving proper opportunity to the parties. The court shall decide the suit in accordance with the law.
10 It is expected that the parties shall co-corporate in the suit proceedings without seeking unnecessary adjournment.
11. At this stage, learned advocate for the respondent prays for stay of this judgment for three weeks. Since this Court has directed the learned Trial Court to decide the suit as expeditiously as possible, the request made by learned advocate for the respondent is rejected.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 26 of 26 Downloaded on : Sat Apr 29 21:03:40 IST 2023