Gujarat High Court
Mukesh Jamnadas Shah vs Mamtaben W/O Dilipbhai Sanmukhbhai ... on 17 March, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/14157/2014 ORDER DATED: 17/03/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14157 of 2014
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 14157 of 2014
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 14157 of 2014
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MUKESH JAMNADAS SHAH & 1 other(s)
Versus
MAMTABEN W/O DILIPBHAI SANMUKHBHAI UPADHYAY & 9 other(s)
=============================================
Appearance:
MR.NANDISH H THACKAR(7008) for the Petitioner(s) No. 1,2
GOVERNMENT PLEADER for the Respondent(s) No. 10
MR DHAVAL M BAROT(2723) for the Respondent(s) No. 9
MR UDAYAN P VYAS(1302) for the Respondent(s) No. 5
NOTICE SERVED for the Respondent(s) No. 2,7
NOTICE SERVED BY DS for the Respondent(s) No. 1,3,4,6
UNSERVED EXPIRED (N) for the Respondent(s) No. 8
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 17/03/2023
ORAL ORDER
1. By way of present petition, the petitioners herein have challenged the order dated 14.08.2014 passed by the 5 th Additional Senior Civil Judge, Vadodara, below Exh.1 whereby, the application for condonation of delay being No.184 of 2012, moved in the restoration application for restoring Special Civil Suit No.521 of 2007 instituted by the petitioners against the respondents herein before the learned Senior Civil Judge, Vadodara, came to be rejected. Being aggrieved by the same, the petitioners herein have approached this Court seeking Page 1 of 18 Downloaded on : Sun Sep 17 22:48:03 IST 2023 NEUTRAL CITATION C/SCA/14157/2014 ORDER DATED: 17/03/2023 undefined following reliefs:
"(A) YOUR LORDSHIPS may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or directions quashing and setting aside order dated 14.08.2014 passed by learned 5 th Additional Senior Civil Judge, Vadodara (at ANNEXURE-E hereto) and further be pleased to grant the restoration application;
(B) During the Pendency and Final Disposal of the present petition, YOUR LORDSHIPS may be pleased to stay further operation, execution and implementation of order dated 14.08.2014 passed by learned 5th Additional Senior Civil Judge, Vadodara (at ANNEXURE - E hereto) and further be pleased to direct the respondents to maintain status-quo qua the suit property;
(C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case;."
2. The brief facts germane for the adjudication of the dispute-in-question read thus:
2.1 The petitioners instituted Special Civil Suit No.521 of 2007 against the respondents herein before the Court of learned Senior Civil Judge, Vadodara. The withdrawal pursis filed on 28.02.2012 before the learned trial Court, which is duly produced at Annexure - B. The petitioners thereafter, applied for restoration of the suit by preferring an application before the trial Court. Since there was delay in preferring the said application, the application being Delay Condonation Application No.184 of 2012 came to be filed before the Court below, which is duly produced at Annexure - D. 2.2 The aforesaid application seeking condonation of delay came to be dismissed by order dated 14.08.2014 by the 5 th Additional Senior Civil Judge, Vadodara. The petitioners Page 2 of 18 Downloaded on : Sun Sep 17 22:48:03 IST 2023 NEUTRAL CITATION C/SCA/14157/2014 ORDER DATED: 17/03/2023 undefined preferred an application before the Hon'ble Supreme Court for recalling order dated 03.04.2012 passed in I.A. No.5 of 2014 in Civil Appeal No.3279 of 2010. In the said civil appeal, an application seeking recall of the order dated 03.04.2012 came to be filed wherein Notice was issued on 21.07.2014 and which came to be withdrawn by the petitioners herein.
2.3 Being aggrieved by the aforesaid impugned order dated 14.08.2014 passed by the 5th Additional Senior Civil Judge, Vadodara, the petitioners herein approached this Court by way of present petition.
3. Heard Mr. Nandish H. Thackar, learned advocate appearing for the petitioners and Mr. Asim Pandya, learned Senior Counsel with Mr. Udayan P. Vyas, learned advocate appearing for the respondent No.5.
4. Mr. Nandish Thackar, learned advocate appearing for the petitioners, submitted that the trial Court ought to have allowed the application seeking condonation of delay in restoration application for restoration of Special Civil Suit No.521 of 2007.
4.1 Mr. Thackar, learned advocate, submitted that the impugned order dated 14.08.2014 is contrary to the provisions of Order IX Rule 13 and 4 of the Code of Civil Procedure, 1908.
4.2 Mr. Thackar, learned advocate, submitted that the trial Court has erred in holding that there was no proper explanation or sufficient cause for condonation of delay.
Page 3 of 18 Downloaded on : Sun Sep 17 22:48:03 IST 2023NEUTRAL CITATION C/SCA/14157/2014 ORDER DATED: 17/03/2023 undefined 4.3 Mr. Thackar, learned advocate, submitted that the documents produced below Exh.4/1 and 4/2 were erroneously construed by the Court below while passing the impugned order.
4.4 Mr. Thackar, learned advocate, submitted that the trial Court has acted in a hyper-technical manner while considering the application for condonation of delay. That, the trial Court has not observed anywhere that the grounds mentioned in the said application are false, bogus or frivolous.
4.5 Placing reliance on the aforesaid submissions, Mr. Thackar, learned advocate, submitted that the trial Court ought to have condoned the delay occurred in filing of the application for restoration of the Special Civil Suit No.521 of 2007.
4.6 Mr. Thackar, learned advocate, placed reliance on the decisions rendered in the case of Collector, Land Acquisition Anantnag & Anr. Vs. Mst. Katiji & Ors. reported in 1987 (2)SCC 107, State (NCT of Delhi) Vs. Ahmed Jain reported in 2008 (14)SCC 582, Improvement Trust, Ludhiana Vs. Ujagar Singh & Ors. reported in 2010 (6)SCC 786, K.Subbarayadu Vs. Special Deputy Collector (Land Acquisition) reported in 2017 (12)SCC 840, and submitted that the trial Court ought to have taken a liberal approach and ought to have condone the delay in preferring the application for restoration of the Special Civil Suit No.521 of 2007.
5. Mr. Asim Pandya, learned Senior Counsel appearing for Page 4 of 18 Downloaded on : Sun Sep 17 22:48:03 IST 2023 NEUTRAL CITATION C/SCA/14157/2014 ORDER DATED: 17/03/2023 undefined the respondent No.5 submitted that no interference is called for in the impugned order passed by the trial Court considering the fact that the impugned order passed by the trial Court is well reasoned and passed after having considered the averments made in the application seeking condonation of delay.
5.1 Mr. Asim Pandya, learned Senior Counsel, submitted that the Court below while dismissing the said application filed by the petitioners herein considered all the documents and after recording of the cogent findings arrived at the conclusion.
5.2 Mr. Asim Pandya, learned Senior Counsel submitted that if two views are possible and by applying correct legal principles, if the view taken by the trial Court is a plausible view, no interference is called for while exercising supervisory jurisdiction under Article 227 of the Constitution of India.
5.3 Placing reliance on the aforesaid submissions, Mr. Asim Pandya, learned Senior Counsel reiterates that the Court below while dismissing the said application considered all the aspects and therefore, no interference is called for.
5.4 Mr. Asim Pandya, learned Senior Counsel submitted that the withdrawal pursis dated 28.02.2012 clearly shows that the defendants have not admitted the contents of the said withdrawal pursis. That, the Civil Court in its order dated 28.02.2012 recorded that the defendants have objected against the contents of pursus and withdrawal of the suit however, the same was not accepted since the plaintiff being Page 5 of 18 Downloaded on : Sun Sep 17 22:48:03 IST 2023 NEUTRAL CITATION C/SCA/14157/2014 ORDER DATED: 17/03/2023 undefined dominus litus, proceeded to withdraw the suit unconditionally. It was also recorded that the plaintiffs were made aware about the implications of the unconditional withdrawal but, the plaintiffs were firm in their decision to withdraw the suit unconditionally.
5.5 Mr. Asim Pandya, learned Senior Counsel, submitted that the petitioners have also withdraw the Civil Appeal No.3279 of 2010 on 03.04.2012 pending before the Hon'ble Supreme Court. That, the petitioners in their application did not mention about the withdrawal of the Civil Appeal No.3279 of 2010 or a so called agreement dated 19.04.2012.
5.6 Mr. Asim Pandya, learned Senior Counsel, submitted that on 01.11.2012, the application seeking condonation of delay was filed by the petitioners seeking restoration of the Special Civil Suit No.521 of 2007 however, in the said application it is nowhere stated about the execution of such agreement dated 19.04.2012. That, the aforesaid facts are supplied by one of the defendants in the written statement in delay condonation proceeding.
5.7 Mr. Asim Pandya, learned Senior Counsel, submitted that once the Hon'ble Supreme Court dismissed the application seeking recall of withdrawal order considering all the aspects of the matter, the petitioners were not justified in relying on the said agreement dated 19.04.2012 more particularly, the facts regarding the said agreement were never pleaded in the delay condonation application filed by the petitioners herein.
Page 6 of 18 Downloaded on : Sun Sep 17 22:48:03 IST 2023NEUTRAL CITATION C/SCA/14157/2014 ORDER DATED: 17/03/2023 undefined 5.8 Mr. Asim Pandya, learned Senior Counsel, submitted that even assuming without admitting that the said agreement was executed, the petitioner have not filed any substantive proceedings based on the said agreement.
5.9 Mr. Asim Pandya, learned Senior Counsel, submitted that the present petition is preferred under Article 227 of the Constitution of India wherein, the scope is very limited and interference is called for only unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention. Mere error of law would not justify exercise of supervisory jurisdiction under Article 227 of the Constitution of India. That, the petitioners have failed to provide sufficient explanation for delay caused in filing the review application.
5.10 Mr. Asim Pandya, learned Senior Counsel, submitted that under Order 47 of the Code of Civil Procedure, without reviewing the order, the order cannot be recalled and without recalling the order, the proceedings cannot be restored for hearing. That, the scope of recall is very limited and the order can be recalled only if the order was passed without giving an opportunity of hearing to the affected party.
5.11 Mr. Asim Pandya, learned Senior Counsel, submitted that the application filed by the petitioners herein can be said to be an application for review and Order 47 provides for reviewing an order for "any other sufficient reason which would cover the contentions of the petitioners and hence recourse to Section 151 of CPC is misplaced.
Page 7 of 18 Downloaded on : Sun Sep 17 22:48:03 IST 2023NEUTRAL CITATION C/SCA/14157/2014 ORDER DATED: 17/03/2023 undefined 5.12 Placing reliance on the aforesaid submissions, Mr. Asim Pandya, learned Senior Counsel, submitted that the order passed by the trial Court could not be said to be erroneous and that the application is rightly rejected by order dated 14.08.2014.
6. Heard the learned advocates appearing for the respective parties. The petitioners herein preferred the Special Civil Suit No.521 of 2007 against the respondents before the Court of learned Senior Civil Judge, Vadodara. A pursis seeking withdrawal of the suit came to be filed by the petitioners herein on 28.02.2012 as referred above, which is duly produced at Annexure - B, page 29 of the petition. This Court while going through the aforesaid pursis, noted that the defendants raised objections in the said pursis. Subsequent thereto, the order below Exh.1 dated 28.02.2012, duly produced at Annexure - B, page 31, of the even date came to be passed, which reads thus:
"Order below Ex-1 In view of the withdrawal pursis Exh. 76 it is read over and explained in their known language in open Court, in the presence of the plaintiffs and their advocate, Mr. Tusharbhai Vyas, and same as defendant's advocates are present before the Court, they objected for this withdrawal as per their endorsement but looking to the withdrawal pursis matter is withdrawn unconditionally, and plaintiffs are master of the suit, therefore objection taken by the defendants side are not tenable hence this suit is disposed by withdrawal of under Order -23, Rule -1(1) of the Civil Procedure Code.
No order as to costs.
2/3 Refund certificate be issued in the name of the plaintiff."
7. Perusing the aforesaid order, it appears that the Page 8 of 18 Downloaded on : Sun Sep 17 22:48:03 IST 2023 NEUTRAL CITATION C/SCA/14157/2014 ORDER DATED: 17/03/2023 undefined defendants objected to the said withdrawal however, the suit was permitted to be withdrawn on the basis of the pursis and the suit came to be withdrawn unconditionally and as referred above, it was held that the plaintiffs being master of the suit, the objections taken by the defendants were not tenable and the suit came to be disposed of as withdrawn under Order 23, Rule 1(1) of the Civil Procedure Code.
8. The petitioners herein after a period of 7 months preferred an application seeking condonation of delay of 7 months 3 days under Section 151 of the Code of Civil Procedure praying that the delay in filing the restoration application in Special Civil Suit No.521 of 2007 be condoned. The said application reads thus: (true translation) "Subject: Application for condonation of delay We - the applicants submit the facts that -
(1) We - the applicants had withdrawn Special Suit No.521/2007 against the defendants, pending before this Court through a pursis dated 28/02/2012 and the Court accepted the facts and disposed of the case. The circumstances in which the plaintiffs had withdrawn the said suit have been radically changed and the opponents, i.e. defendants have got the pending suit withdrawn by threatening, giving false promises and misleading. An application to restore the same has been submitted.
(2) A Restoration Application such as the present one should have been filed within 30 days. But, as the said application is being filed today, a delay of about 7 months 29 days has been caused. The delay has been caused due to circumstances beyond our control.
(3) Grounds:-
(1)The defendants pressurized us to withdraw the suit. In the beginning, their mother remained ill for long time and she had to be hospitalized and eventually, she died. Thus, about three months have passed in that situation. (2)We had told to wait for some time to fulfill the conditions of the defendants by which an insistence was made to withdraw the suit. Meanwhile, they had to go abroad Page 9 of 18 Downloaded on : Sun Sep 17 22:48:03 IST 2023 NEUTRAL CITATION C/SCA/14157/2014 ORDER DATED: 17/03/2023 undefined regarding some work of their daughter unexpectedly.
Therefore, they could not be contacted during the intervening one month and since they were abroad, the ongoing business in the home country got hampered. Due to that reason also, we had to wait without undertaking any procedure.
(3)Thereafter, I - the applicant also had to travel abroad for business purpose for fifteen days. Therefore, I did not get sufficient time and could not focus on our ongoing occupation here. Due to that reason also, a considerable amount of time had to be spent.
(4)Meanwhile, there was a vacation for three weeks in the Court. Due to that reason also, all the legal activities and procedure to take measures got delayed.
(5)In addition to that, along with this parties, out of the original issue, one litigation arose from the Hon'ble Gujarat High Court. Therefore, no progress could be made in the present issue, because, more attention had to be given for visiting the Advocate at Ahmedabad from time to time and to carry out the further procedure.
(6)The respondents in this matter have been acquainted with the applicant for years and had business dealings with some of them and well-known persons on both sides took interest and made intensive efforts to resolve the entire dispute with compromise. Therefore, we did not make efforts to take legal action in the present matter immediately. But, we trusted the words of the respondents and therefore could not take any other steps except waiting or reminding from time to time. Therefore, also, there has been a delay. (4) Considering all the above reasons together, one fact proves beyond doubt that, any delay that has been occurred is because of circumstances beyond our control. Therefore, there are sufficient reasonable grounds to condone the same. (5) At this stage, if the delay of a few months is not condoned, then we the applicant will not get the right to make submissions in many suits and complaints that have been fought from the trial court to the Supreme Court and if that happens, we may suffer serious financial loss, which cannot be compensated in rupees.
(6) Moreover, any delay which has occurred is not due to any mala-fide on our part but is merely a technical fault and error which, if accepted, will not cause any major loss to the respondents. But we the applicants will lose all the rights. Therefore too, it is absolutely necessary, reasonable and just to condone the same.
(7) Therefore, it is prayed that, Considering all the above reasons and the existing principles of law, the delay of 7 months and 3 days in filing the present Page 10 of 18 Downloaded on : Sun Sep 17 22:48:03 IST 2023 NEUTRAL CITATION C/SCA/14157/2014 ORDER DATED: 17/03/2023 undefined application may be accepted and condoned as the same has occurred due to uncontrollable circumstances and to pass appropriate order to proceed with the restoration application submitted herewith.
9. The trial Court by impugned order dated 14.08.2014 rejected the said application, which reads thus: (true translation) "(13) Considering the submission of all the parties at length and application of Exhibit-1 (Delay Condone) and replies of the respondents on records therein and documentary evidences therein. Considering the produced documents of Mark-4/1 and 4/2, perused the pursis of the present applicant and the plaintiff in Sp.S. No.521/2007 to withdraw the said suit unconditionally and also the orders passed below therein. As per the same, the plaintiff has been given understanding as to what would be the outcome to withdraw the suit, but it is mentioned in the said order that the plaintiff is firm and also raised objection for the respondents. Moreover, considered the order below Exhibit-1 - Plaint. In addition, perused the order in IA No.5 in Civil Appeal No.3279/10 of Supreme Court produced vide Mark-12/3. Moreover, considered the agreement produced vide Mark-12/4 and also considered that the date therein is 19/4/12. Perusing the grounds for the delay cited by the applicant, a question arises as to whether it can be assumed that the delay is caused to the applicant due to the grounds mentioned in the said application. Considering the records regarding the withdrawal of the suit, it has been withdrawn willingly and unconditionally and therefore, the reason no.1 that the defendants pressurized and misled by making false promises to withdraw the pending suit is not believable. Moreover, if there was pressure, it is not clear as to why it was waited so long to file the suit again. Moreover, the said reasons themselves show that the reasons are out of control because it does not transpire from the record that anyone stopped him making application. Moreover, one of the reasons stated in the application is that the defendants pressurized and misled by making false promises to withdraw the pending suit, whereas considering other reasons, he states that he relied on the promises of the respondents and there was no other option to wait except for waiting and recalling them from time to time and therefore, the delay has been caused. Both the statements/ reasons of the applicant are contradictory to each other. Moreover, the clarification made in the application does not appear acceptable. Further, the reasons stated in the applications do not appear as the reasons for delay. Moreover, upon considering the reasons for delay mentioned in the application, sufficient cause is not found, on the basis of which, the delay of seven months and three days can be condoned for the applicant. Further, it does not appear that the circumstances were out of the control of the applicant Page 11 of 18 Downloaded on : Sun Sep 17 22:48:03 IST 2023 NEUTRAL CITATION C/SCA/14157/2014 ORDER DATED: 17/03/2023 undefined in the duration for which the reasons have been given by the applicant. Thus, with regard to the above discussion and the record of the present delay, upon considering the principles established in the judgements cited by the applicant, I agree with the said established principles. Upon considering the circumstances of the case of the present applicant and the details of the case, they do not help the case of the applicant because no sufficient cause is found in the reasons stated by the applicant to condone delay. Upon considering the principles established in the judgments cited by the respondent no.5, I agree with the said established principles. However, upon considering circumstances and details of the case, mostly the said judgments do not help the respondent no.5. It has not surfaced on record that the opponents ie. the respondents have threatened the present applicant ie. the plaintiff and misguided him by giving false promises and made him withdraw the pending suit. As stated in the present delay condonation application in the aforesaid case, the applicant had withdrawn the pending Sp. Suit no.521/07 by the pursis dated 27/02/2012. The Hon'ble Court approved the aforesaid application and ordered to dispose of the said case. In such circumstances, since the applicant had withdrawn the suit himself, it can not be believed that his rights were lost or he faced damages. Further, upon considering the documents on record vide Mark-4/1, 4/2 and other documents, it is established that at that time, the applicant ie. plaintiff of the said suit, was given understanding that by withdrawing the suit, it shall be disposed of, but the plaintiff was certain. Upon considering para-1 of the delay condonation application, the plaintiff has stated that the pending suit was withdrawn upon being threatened by the opponents ie. respondents and upon being misguided by their false promises. But looking to the documents on record, as it does not transpire that the plaintiff has been misled by giving any false promise or threat and since plaintiff himself appears to have withdrawn the suit willingly, there is no possibility of any loss to have been caused to his legal rights. It also does not appear that the rights of the applicant-plaintiff would be marred. Further, looking to the reasons which the applicant/plaintiff has stated in the application for delay condonation and statements made in the plaintiff's present application as well as Mark-42, if the plaintiff states that he has withdrawn the suit because he was misled and was given threat and false promises, the reasons given by him for waiting so long to withdraw the suit cannot be believed. Moreover, considering "Proof of sufficient cause is a condition precedent for exercise of discretion by the court in condonation of delay" and looking to the reasons for delay in filing the application in the present case, there does not appear any sufficient ground for condoning the delay. Therefore, the present delay condonation application of the applicant is not maintainable. Thus, considering the arguments of the applicant and the defendant as also the complete record for delay as well as all the aforesaid discussion, circumstances and reasons for delay, the following final order is passed on the present application below Exhibit-1.
Page 12 of 18 Downloaded on : Sun Sep 17 22:48:03 IST 2023NEUTRAL CITATION C/SCA/14157/2014 ORDER DATED: 17/03/2023 undefined
-: ORDER :-
The delay condonation application of the applicant below Exhibit-1 is hereby rejected (dismissed).
No order as to cost."
10. This Court has gone through the application which is filed by the petitioners herein and the reasons for which the application seeking condonation of delay came to be rejected. On due consideration, the trial Court declined to condone the delay of 7 months and 3 days on the ground that the reasons given in the said application seeking condonation of delay, as referred above, were such that sufficient cause was not shown and therefore, the application for condonation of delay in restoration of the suit being Special Civil Suit No.521 of 2007 came to be rejected. It was considered by the trial Court that the suit came to be withdrawn by the petitioners - original plaintiffs themselves and therefore, it could not be said that the rights were vitiated or the petitioners faced damages. The trial Court considered the documents on record vide Mark4/1, 4/2 and other documents and came to a conclusion that the petitioners - original plaintiffs were given understanding that by withdrawing the suit, it shall be disposed of but the plaintiffs were certain, which was considered by the trial Court and it was held that the petitioners have stated in the condonation application that the pending suit was withdrawn upon being threatened by the respondents - original defendants and being misguided by the false promise but considering the documents on record, the trial Court concluded that the aforesaid allegation was not well-founded and that none of the rights of Page 13 of 18 Downloaded on : Sun Sep 17 22:48:03 IST 2023 NEUTRAL CITATION C/SCA/14157/2014 ORDER DATED: 17/03/2023 undefined the petitioners could be said to have been affected. It was also considered by the trial Court that the reasons given by the petitioners for waiting so long to withdraw the suit were not believable more particularly, considering "proof of sufficient cause is a condition precedent for exercise of discretion by the court in condonation of delay" and considering the reasons given by the petitioners - original plaintiffs seeking condonation of delay, it was not found that sufficient cause was made by the petitioners for condoning the delay of 7 months and 3 months in filing the restoration application. It was held that the application seeking condonation of delay was not maintainable. Considering the aforesaid, the said application came to be rejected.
11. This Court has considered the facts of the present case and the order impugned passed by the trial Court below Exh.1 whereby the said application seeking condonation of delay of 7 months and 3 days came to be rejected. Considering the aforesaid, following emerge for the consideration of this Court:
(a) The Special Civil Suit No.521 of 2007 came to be withdrawn by the petitioners-original plaintiffs unconditionally.
The respondents-original defendants objected to the withdrawal of the said suit. While passing the order permitting the withdrawal, the trial Court recorded that the defendants had objected to the contents of the pursis seeking withdrawal of the said suit however, the same was not accepted by the trial Court since the petitioners-original plaintiffs being dominus litus were inclined to withdraw the suit unconditionally. It was also recorded that the petitioners were Page 14 of 18 Downloaded on : Sun Sep 17 22:48:03 IST 2023 NEUTRAL CITATION C/SCA/14157/2014 ORDER DATED: 17/03/2023 undefined made aware about the implications of the unconditional withdrawal of the suit but the petitioners were firm to withdraw the suit unconditionally.
(b) The trial Court declined and rejected the said application seeking condonation of delay of 7 months and 3 days considering the following :
the allegation of withdrawal under coercion and misrepresentation was not believed considering all the relevant aspects;
the inconsistent averments regarding coercion on one hand and the trust and good-faith on other hand has been considered;
clear finding of no sufficient cause is made out from the explanation provided and ground cited in delay application; clear recording of finding that no evidences produced in support of the averments/allegations made by the petitioners against the respondents herein.
(c) The suit came to be withdrawn unconditionally.
Considering the aforesaid aspect, the petitioners even otherwise were required to follow the due procedure embargo under the Code by filing an application under Order 23 Rule 3 wherein without permission of the Court, the petitioners even otherwise would be precluded from instituting a fresh suit with respect to same subject matter. In the facts of the present case, the petitioners herein preferred an application under Section 151 of the Code seeking restoration of the Special Civil Suit No.521 of 2007, which came to be withdrawn Page 15 of 18 Downloaded on : Sun Sep 17 22:48:03 IST 2023 NEUTRAL CITATION C/SCA/14157/2014 ORDER DATED: 17/03/2023 undefined unconditionally by the petitioners herein.
(d) The scope of recall of an order is very limited as the same can be recalled essentially only if the said order was passed without giving an opportunity to the affected party. The application seeking condonation of delay is preferred under Section 151 of the Code of Civil Procedure in restoration of the suit however, no application under Order 47 appears to have been filed by the petitioners herein. In the facts of the present case, the suit came to be withdrawn on the petitioners - original plaintiffs own volition.
(e) The reliance placed by the petitioners herein on AIR 2006 SC 1260, would not apply to the facts of the present case considering the fact that there were talks of settlement between the parties and the trial Court allowed the withdrawal of the suit in such background. In the facts of the present case, the trial Court neither allowed conditional withdrawal to the petitioners herein nor accepted the objections of the respondents about the contents of the pursis. Though, the respondents objected to the withdrawal, the petitioners were clear that the petitioners inclined to withdraw the suit unconditionally.
(f) This Court has further considered the fact that the petitioners herein have preferred Special Leave Petition being Civil Appeal No.3279 of 2010 wherein the petitioners filed an application seeking withdrawal of the said appeal having settled the dispute amicably. Pursuant thereto, the petitioners filed an application for recall of the said withdrawal order Page 16 of 18 Downloaded on : Sun Sep 17 22:48:03 IST 2023 NEUTRAL CITATION C/SCA/14157/2014 ORDER DATED: 17/03/2023 undefined which came to be rejected by the order dated 01.12.2015.
12. Considering the aforesaid, which has been taken into consideration by the Court below, this Court deems it fit to refer to the ratio laid down by the Hon'ble Supreme Court in the case of M/S Garment Craft vs Prakash Chand Goel, reported in AIR 2022 SC 422, wherein it is observed as under:
"18. 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 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. 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 subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set Page 17 of 18 Downloaded on : Sun Sep 17 22:48:03 IST 2023 NEUTRAL CITATION C/SCA/14157/2014 ORDER DATED: 17/03/2023 undefined 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."
13. Considering the facts of the present case and the position of law as referred above, in view of this Court, the order impugned passed by the trial Court dated 14.08.2014 is well reasoned order and considered the submissions advanced by the respective parties and facts on record and therefore, no interference is called for in the order dated 14.08.2014 passed by the 5th Additional Senior Civil Judge, Vadodara, by exercising supervisory jurisdiction under Article 227 of the Constitution of India in view of the fact that no error not to speak of any error of law could be said to have been committed by the trail Court in rejecting the application seeking condonation of delay of 7 months and 3 days in restoration of the Special Civil Suit No.521 of 2007.
14. With the aforesaid, the present petition is dismissed.
(VAIBHAVI D. NANAVATI,J) NEHA Page 18 of 18 Downloaded on : Sun Sep 17 22:48:03 IST 2023