Gujarat High Court
Inayat Hussain Amirminya Bhukhari vs Ahmad Hussain Alihussain Bhukhari on 16 April, 2025
NEUTRAL CITATION
C/SCA/4137/2010 ORDER DATED: 16/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4137 of 2010
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INAYAT HUSSAIN AMIRMINYA BHUKHARI & ORS.
Versus
AHMAD HUSSAIN ALIHUSSAIN BHUKHARI & ORS.
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Appearance:
MR NV GANDHI(1693) for the Petitioner(s) No. 1,10,2,3,4,5,6,7,8,9
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Respondent(s) No. 2
MR MA BUKHARI(211) for the Respondent(s) No. 1,3,4,5,6,7,8
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 16/04/2025
ORAL ORDER
1. Heard learned advocate Mr. N. V. Gandhi for the petitioners. None present for the respondents.
2. The present application is filed under Article 227 of the Constitution of India seeking the following reliefs.
"(a) Your Lordships may be pleased to admit and allow this petition:
(b) Your Lordships may be pleased to issue appropriate writ, order or directions and be pleased to quash and set aside the impugned order below Exhbit 39 dated 2nd February 2010 passed in Civil Suit No.382 of 1998 by the Ld. City Civil Judge at Ahmedabad Court No.7.
(c) Pending hearing and final disposal of this petition Your Page 1 of 19 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:55 IST 2025 NEUTRAL CITATION C/SCA/4137/2010 ORDER DATED: 16/04/2025 undefined Lordships may be pleased to stay the impugned order below Exhibit 39 dated 2nd February 2010 passed in Civil Suit No.382 of 1998 by the Ld. City Civil Judge at Ahmedabad Court No.7 and further pleased to stay the further proceedings of Civil Suit No.382 of 1998.
(d) Grant such other and further relief/s as the Hon'ble Court may deem fit."
3. Petitioners happen to be the original defendants of Civil Suit No.382 of 1998 pending before the Civil Court, Ahmedabad.
The suit was filed seeking declaration having right, title, and interest in the suit property on the basis of inheritance and by way of application below Exhibit 39, plaintiffs requested the trial court to allow them to incorporate a new plea which was sought to be introduced by way of amendment as regards claiming right and ownership in the suit property by way of adverse possession as an alternative plea.
4. After hearing the parties, the trial court vide its order dated 2nd February 2010 has allowed the impugned amendment application. Such order is challenged by way of present writ application.
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5. Learned counsel Mr. N. V. Gandhi for the original defendants - petitioners herein would submit that granting the impugned amendment application would not only change the nature of the suit but amendment as sought for could not have been granted by the trial Court as such introduction of contradictory plea is not permissible in law.
5.1 Learned counsel Mr. Gandhi would submit that by way of an amendment thereby plaintiffs are introducing self-
contradictory plea and now wants to introduce plea of adverse possession which is opposite to main relief sought in the suit is not permissible in law.
5.2 Learned advocate Mr. Gandhi would submit that as per the settled legal position, such contradictory plea could not have been permitted by the trial Court as it goes to the root of the matter.
5.3 Learned counsel Mr. Gandhi would submit that when the plaintiffs have claimed declaration on the strength of inheritance right in the suit property but by introducing new plea in the form of adverse possession, it would change the Page 3 of 19 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:55 IST 2025 NEUTRAL CITATION C/SCA/4137/2010 ORDER DATED: 16/04/2025 undefined nature of the suit and such amendment could not have been allowed by the trial court.
5.4 In support of his submission, he would rely upon the following decisions:
(1) Kesar Bai vs. Genda Lal reported in 2022 (10) SCC 217 (2) Dhirubhai Kanjibhai vs. Babiben reported in 2024 (O) GUJHC 44933 5.5 Making above submissions, learned counsel Mr. Gandhi requested the court to allow the present writ application.
No other and further submissions are made by learned advocate Mr. Gandhi.
6. The short question which falls for consideration of this Court would be that whether the trial court has committed any error while allowing amendment application or not?
6.1 At the outset, I would like to remind myself and required to take note of the ratio of following decisions of the Honourable Supreme Court in a case of Sameer Suresh Gupta Page 4 of 19 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:55 IST 2025 NEUTRAL CITATION C/SCA/4137/2010 ORDER DATED: 16/04/2025 undefined TRPA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 wherein the law has been summarized thereby the scope of the power of the High Court while exercising its power under Article 227 of the Constitution of India has been elaborated. The relevant observation of the aforesaid judgment reads as under:-
"[6] In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai 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 affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by the Code of Civil Page 5 of 19 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:55 IST 2025 NEUTRAL CITATION C/SCA/4137/2010 ORDER DATED: 16/04/2025 undefined 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 correcting gross errors of jurisdiction, i.e. when a subordinate Court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or
(iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of Page 6 of 19 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:55 IST 2025 NEUTRAL CITATION C/SCA/4137/2010 ORDER DATED: 16/04/2025 undefined supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and Page 7 of 19 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:55 IST 2025 NEUTRAL CITATION C/SCA/4137/2010 ORDER DATED: 16/04/2025 undefined entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. ( (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate Courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only Page 8 of 19 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:55 IST 2025 NEUTRAL CITATION C/SCA/4137/2010 ORDER DATED: 16/04/2025 undefined 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 Page 9 of 19 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:55 IST 2025 NEUTRAL CITATION C/SCA/4137/2010 ORDER DATED: 16/04/2025 undefined Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of the Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] and the principles 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 interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is Page 10 of 19 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:55 IST 2025 NEUTRAL CITATION C/SCA/4137/2010 ORDER DATED: 16/04/2025 undefined vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] and therefore abridgment by a constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a Page 11 of 19 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:55 IST 2025 NEUTRAL CITATION C/SCA/4137/2010 ORDER DATED: 16/04/2025 undefined rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Page 12 of 19 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:55 IST 2025 NEUTRAL CITATION C/SCA/4137/2010 ORDER DATED: 16/04/2025 undefined Courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."
6.2 It is also apt to reply upon the decision 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 v.
Garment Craft, 2019 SCC OnLine Del 11943] is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the Page 13 of 19 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:55 IST 2025 NEUTRAL CITATION C/SCA/4137/2010 ORDER DATED: 16/04/2025 undefined 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. [Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] 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. [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 Page 14 of 19 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:55 IST 2025 NEUTRAL CITATION C/SCA/4137/2010 ORDER DATED: 16/04/2025 undefined 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 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."
6.3 Now, adverting to the issue germane in the matter, suit Page 15 of 19 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:55 IST 2025 NEUTRAL CITATION C/SCA/4137/2010 ORDER DATED: 16/04/2025 undefined was filed in the year 1998 at the stage of framing of issues when impugned application was filed, and as such trial was not commenced at the relevant point of time. So, as per the settled legal position amendment in Order 6 Rule 17 of the CPC would not be applicable to the present case. Having considered scope and power of court to grant amendment as per pre-amended Order 6 Rule 17 of CPC, ordinarily an amendment which is introduced by the parties to the suit is to be allowed unless it is hit by any express provision of law and/or changing the nature of the suit.
6.4 The amendment which is sought by the plaintiff is to the effect that as an alternative plea, plaintiff wants a declaration as regards his right, title and interest in the suit property by way of an adverse possession. The trial court considered submissions made by learned advocates for their respective parties and arrived at definite findings having so observed that trial of the suit is yet to begin and defendants have all rights to object the suit on its merits. So, trial court has allowed the amendment.
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6.6 So far as decision on which reliance has been placed in case of Kesarbai (supra), issue before the Honourable Apex Court was somewhat different than the case on hand. In that case, High Court has held that plea of ownership based on a sale deed and plea of adverse possession both are contrary to each other and plaintiff cannot be permitted to take both pleas at the same time. Nonetheless, High Court has not entertained the appeal of defendant, who had to travel to the Apex Court to get his appeal allowed and in that set of facts and circumstances, Honourable Apex Court has allowed the appeal.
Before the Honourable Apex Court, it was not an issue as to whether such contrary pleas could have been raised by the plaintiff or not.
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6.8 Lastly, this court is required to examine the impugned order in light of scope and ambit of power of this court under Article 227 and thereby, as it was settled down by Honourable Apex Court in case of Sameer Suresh Gupta (supra) and Garment Craft (supra), thereby if the trial court has not committed any gross error of law or jurisdictional error while passing the impugned order, this Court is not required to interfere with the impugned order. Thus, I do not find any merit in the matter, thereby present writ application deserves to be dismissed.
7. Before parting with the order, this court would like to request the trial court to expedite the suit proceedings which is Page 18 of 19 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:55 IST 2025 NEUTRAL CITATION C/SCA/4137/2010 ORDER DATED: 16/04/2025 undefined filed in the year 1998, as this court is vacating the interim relief so granted earlier.
8. In view of above, present writ application stands dismissed.
Interim relief if any granted earlier stands vacated. Rule is discharged. There shall be no order as to costs.
(MAULIK J.SHELAT,J) DRASHTI K. SHUKLA Page 19 of 19 Uploaded by DRASHTI K. SHUKLA(HC00354) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:30:55 IST 2025