Ratilal Dahyabhai Bhandari vs Hirenkumar Pravinchandra

Gujarat High Court

Ratilal Dahyabhai Bhandari vs Hirenkumar Pravinchandra on 5 February, 2025

                                                                                                               NEUTRAL CITATION




                              C/SCA/1282/2025                                   ORDER DATED: 05/02/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                      R/SPECIAL CIVIL APPLICATION NO. 1282 of 2025

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                                             RATILAL DAHYABHAI BHANDARI & ORS.
                                                           Versus
                                             HIRENKUMAR PRAVINCHANDRA & ANR.
                       ==========================================================
                       Appearance:
                       MR MB GOHIL(2702) for the Petitioner(s) No. 1,2,3,4,4.1,4.2,4.3,5,6,7
                       ==========================================================

                            CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                            Date : 05/02/2025

                                                             ORAL ORDER

1. The present application is filed under Article 227 of the Constitution of India with the following prayers:

"(A) This Hon'ble Court be pleased to quash and set aside the order passed below Exh.136 dated 12/11/2024 passed in the Special Civil Suit No.10/2017 pending before the Ld. Additional Senior Civil Judge, at Vyara and further permit the petitioner to reopen the right of Evidence and re-

examine the original respondent no. 1, as prayed for in Exh: 136; at Annexure-3.

(B) During the pendency of this petition, be pleased to stay the further proceedings of the Special Civil Suit No.10/2017 pending before the Ld. Additional Senior Civil Judge, at Vyara as the same is pending at final stage; (C) Such other and further relief/s as may be deemed just in the facts and circumstances of the present case may be granted;"

NEUTRAL CITATION C/SCA/1282/2025 ORDER DATED: 05/02/2025 undefined So far as necessary, Parties are referred as per their original position.

2. The short facts of the case are referred to as under:

2.1 The petitioners are original plaintiffs of Regular Civil Suit No.10/2017, filed against the respondents - defendants, seeking a declaration and permanent injunction. It appears that the suit has been preferred for cancellation of sale-deed, executed by plaintiffs in favour of respondents.

2.2 The plaintiffs have examined themselves, and two other witnesses have been examined on their behalf before the trial court. Likewise, the defendant and his witnesses are also examined. The suit is at the stage of final arguments of the parties.

2.3 At this stage, the impugned application below Exhibit 136 has been filed by the plaintiffs to reopen their right to lead evidence as well as again to allow the plaintiffs to cross-

NEUTRAL CITATION C/SCA/1282/2025 ORDER DATED: 05/02/2025 undefined examine Defendant No. 1.

2.4 After hearing the parties, by its impugned order dated 12.11.2024, the trial court has rejected such application.

2.5 Being aggrieved and dissatisfied with the impugned order dated 12.11.2024, passed by the learned Additional Senior Civil Judge, Vyara, below Exhibit 136 in Regular Civil Suit No. 10 of 2017, the present petition has been filed.

3. Learned advocate Mr. Gohil, appearing for the plaintiffs/ petitioners, would submit that the impugned order is not sustainable in law as it is in violation of the principles of natural justice and requires interference by this Court while exercising its power under Article 227 of the Constitution of India.

3.1 Learned Advocate for the plaintiffs would further submit that the impugned application below Exh.136 is required to be Page 3 of 16 Uploaded by DRASHTI K. SHUKLA(HC00354) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 00:26:22 IST 2025 NEUTRAL CITATION C/SCA/1282/2025 ORDER DATED: 05/02/2025 undefined filed by the plaintiffs due to the sheer negligence of the learned advocate engaged by the plaintiff who failed to place on record the vital evidence, i.e., affidavits of nearby farmers, who were required to be examined by the plaintiffs, which would ultimately result in a failure of justice if the petition is not allowed by this Court.

3.2 He would further submit that due to negligence on the part of the lawyer, the litigant should not suffer. The trial court ought to have considered the request made by the plaintiffs.

3.3 Lastly, he would submit that the plaintiffs are also ready to pay costs to the other side if their right to lead evidence is reopened and they are allowed to cross-examine Defendant No.1 again. Thus, he would only request this Court to interfere in the matter and allow the application filed by the petitioner.

3.4 Making the above submissions, he would request this Page 4 of 16 Uploaded by DRASHTI K. SHUKLA(HC00354) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 00:26:22 IST 2025 NEUTRAL CITATION C/SCA/1282/2025 ORDER DATED: 05/02/2025 undefined Court to allow the present petition. No other and further submissions are made.

4. Before adverting to the issue involved in the matter, I would like to remind myself scope and power available to this Court while exercising its power under Article 227 of the Constitution of India which is succinctly discussed by the Honourable Supreme Court of India in case of Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374, the relevant observation of the aforesaid judgment reads as under:-

"[6] In our view, the impugned order is liable to be set aside 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 Page 5 of 16 Uploaded by DRASHTI K. SHUKLA(HC00354) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 00:26:22 IST 2025 NEUTRAL CITATION C/SCA/1282/2025 ORDER DATED: 05/02/2025 undefined of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by the Code of Civil Procedure Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for 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 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 Page 6 of 16 Uploaded by DRASHTI K. SHUKLA(HC00354) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 00:26:22 IST 2025 NEUTRAL CITATION C/SCA/1282/2025 ORDER DATED: 05/02/2025 undefined 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 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.

NEUTRAL CITATION C/SCA/1282/2025 ORDER DATED: 05/02/2025 undefined (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 give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate Court as the Court should have made in the facts and circumstances of the case.

7. The same question was considered by another Bench in Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329 : (2010) 3 SCC (Civ) 338] , and it was held: (SCC pp. 347-49, para 49) "(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.

(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in 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 Page 8 of 16 Uploaded by DRASHTI K. SHUKLA(HC00354) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 00:26:22 IST 2025 NEUTRAL CITATION C/SCA/1282/2025 ORDER DATED: 05/02/2025 undefined 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 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 Page 9 of 16 Uploaded by DRASHTI K. SHUKLA(HC00354) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 00:26:22 IST 2025 NEUTRAL CITATION C/SCA/1282/2025 ORDER DATED: 05/02/2025 undefined 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 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 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 Page 10 of 16 Uploaded by DRASHTI K. SHUKLA(HC00354) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 00:26:22 IST 2025 NEUTRAL CITATION C/SCA/1282/2025 ORDER DATED: 05/02/2025 undefined 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."

Emphasized supplied.

4.1 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 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.

NEUTRAL CITATION C/SCA/1282/2025 ORDER DATED: 05/02/2025 undefined

16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97] has observed : (SCC pp. 101-102, para 6) "6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is 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."

5. It is required to be noted that at the stage of final arguments, the plaintiffs have come out with an impugned application requesting the trial court to reopen their rights to Page 12 of 16 Uploaded by DRASHTI K. SHUKLA(HC00354) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 00:26:22 IST 2025 NEUTRAL CITATION C/SCA/1282/2025 ORDER DATED: 05/02/2025 undefined lead evidence as well as to again cross-examine Defendant No.1.

5.1 The ground on which, such an application is filed is sheer negligence on the part of the advocate of the plaintiffs.

No other ground has been set out in the application. If such a ground is considered by the Court as a sufficient cause to grant the impugned application, every litigant would, on such grounds, request the civil court to re-open evidence, thereby delaying trials indefinitely.

5.2 The plaintiffs have consciously participated in the trial and have examined themselves as well as two witnesses and also cross-examined defendants and their witnesses by their advocate. At the stage of completion of cross-examination of the plaintiffs' evidence, they could have surely verified the facts regarding placing of affidavits of the nearby farmers, which they now want to submit on record, as they have examined only two witnesses. Nothing as stated above Page 13 of 16 Uploaded by DRASHTI K. SHUKLA(HC00354) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 00:26:22 IST 2025 NEUTRAL CITATION C/SCA/1282/2025 ORDER DATED: 05/02/2025 undefined prevented them from submitting such evidence at the relevant point of time. The entire burden has been thrown upon the learned advocate for the plaintiffs for not submitting such evidence on record. Even copies of such affidavits sworn by those farmers at relevant point of time are not on record, having not submitted with the impugned application.

5.3 Moreover, no steps have been taken by the plaintiffs against the concerned advocate, as available under law, for such alleged negligence on the part of the plaintiffs. This speaks volumes about the conduct of the plaintiffs. When the party is not taking any legal action against his lawyer for his alleged professional misconduct than prima facie, words of such party on face of it cannot be accepted.

6. Be that as it may, the plaintiffs, during the course of the trial, had closed their evidence. If they had remained vigilant and verified the evidence which ought to have been placed on Page 14 of 16 Uploaded by DRASHTI K. SHUKLA(HC00354) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 00:26:22 IST 2025 NEUTRAL CITATION C/SCA/1282/2025 ORDER DATED: 05/02/2025 undefined record by their advocate, this situation could have been avoided. However, the defendants and their witnesses have also been examined and cross-examined by the plaintiffs. When the matter has reached at the stage of final arguments, if such a request is permitted, it would further delay the completion of the trial of the suit, which is instituted in the year 2017.

6.1 Thus, in view of abvoe, I am in complete agreement with the observations made by the trial court that if such an application is allowed, it will amount to a fresh trial and will cause serious prejudice to the defendant.

6.2 I am also in agreement with the view taken by the trial court that due to any alleged negligence or error on the part of the lawyer of any party, cross-examination of the defendant cannot be permitted again. This issue cropped up before this Court and recently, this Court had an occasion to deal with a similar issue in the case of Abdulrahim Mamadbhai Parasara Page 15 of 16 Uploaded by DRASHTI K. SHUKLA(HC00354) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 00:26:22 IST 2025 NEUTRAL CITATION C/SCA/1282/2025 ORDER DATED: 05/02/2025 undefined vs. Rudabhai Jivanbhai Bambhva passed in SCA 14795 of 2024, dated 16.1.2025, wherein, after considering the case, such prayer was rejected.

7. The upshot of the aforesaid discussion, observations, and reasons, as well as ratio laiddown by the Honourable Supreme Court in case of Sameer Sunil Gupta (supra) and Garment Craft (supra), I do not find any merit in the matter. The petition lacks merit, requires to be dismissed, and is accordingly dismissed with no order as to costs.

(MAULIK J.SHELAT,J) DRASHTI K. SHUKLA Page 16 of 16 Uploaded by DRASHTI K. SHUKLA(HC00354) on Thu Feb 06 2025 Downloaded on : Fri Feb 07 00:26:22 IST 2025