Pankajbhai Manubhai Jhaveri vs M/S Pallav Delite

Gujarat High Court

Pankajbhai Manubhai Jhaveri vs M/S Pallav Delite on 6 February, 2025

                                                                                                               NEUTRAL CITATION




                             C/SCA/14220/2018                                   ORDER DATED: 06/02/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 14220 of 2018

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                                            PANKAJBHAI MANUBHAI JHAVERI & ORS.
                                                          Versus
                                                 M/S PALLAV DELITE & ORS.
                       ==========================================================
                       Appearance:
                       ADITYA D DAVDA(8354) for the Petitioner(s) No. 1,2,3,4,5,6,7
                       MR SHALIN MEHTA, SENIOR COUNSEL WITH MANAN K PANERI(7959)
                       for the Petitioner(s) No. 1,2,3,4,5,6,7
                       MR MEHUL SHAH, SENIOR COUNSEL WITH JENIL M SHAH(7840) for the
                       Respondent(s) No. 1,2,3
                       ==========================================================

                            CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                            Date : 06/02/2025

                                                             ORAL ORDER

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

"(A) This Court Hon'ble kindly may be pleased to issue a writ of certiorari or any other appropriate writ, direction and order quashing and setting aside impugned judgment and order dated 6.1.2018 passed by the learned Judge, Small Cause Court No. 6, Ahmedabad below application Exh.68 in HRP Civil Suit No.2287 of 2009. (Annexure B) by allowing application Exh.68, as prayed for. (B) Pending hearing and final disposal of this petition, stay implementation, operation execution of impugned judgment order dated 6.1.2018 passed by as to and and the learned Judge, Small Cause Court No.6, Ahmedabad below application Exh.68 in HRP No.2287 Suit Civil of 2009 (Annexure B) may kindly be granted, in the interest of justice.

NEUTRAL CITATION C/SCA/14220/2018 ORDER DATED: 06/02/2025 undefined (C) That Your Lordships may be pleased to award cost or proceedings.

(D) Grant such other and further relief as the nature of the case may require in the interest of justice."

2. Heard learned Senior Counsel Mr. Shalin Mehta with learned advocate Mr. Manan K. Paneri appearing for the petitioners and learned Senior Counsel Mr. Mehul S. Shah with learned advocate Mr. Jenil M. Shah for the respondents.

3. Submissions of the petitioners:

3.1 Learned Senior Counsel Mr. Mehta would submit that the petitioner trust is the original landlord and has instituted the suit for eviction being HRP Civil Suit No.2287 of 2009 against respondent - tenant. During the pendency of the aforesaid suit need arise to file amendment application in the suit, so the landlord has preferred an application below Exh.68 under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code, 1908').

3.2 Learned Senior Counsel would further submit that impugned application has been erroneously rejected by the trial Court dehorse the provision of law, requires to be interfered by this Court under Article 227 of the Constitution of India.

3.3 Learned Senior Counsel would further submit that despite due diligence, at the relevant point of time, while instituting Page 2 of 14 Uploaded by DRASHTI K. SHUKLA(HC00354) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 21:23:37 IST 2025 NEUTRAL CITATION C/SCA/14220/2018 ORDER DATED: 06/02/2025 undefined the suit, the plaintiffs would not be able to incorporate the facts which are sought tobe prayed for in the impugned amendment application. So, he would further submit that proviso of Order 6 Rule 17 of the Code, 1908 would not apply to the present case and the impugned application was required to be allowed.

3.4 Making above submissions, learned Senior Counsel requested this Court to allow the present petition.

4. Submissions of respondents:

4.1 Per contra, learned Senior Counsel Mr. Mehul Shah vehemently objected the present petition contending that the powers under Article 227 of the Constitution of India, the impugned order may not be disturbed, as it is passed in consonance with the provisions of law.

4.2 Learned Senior Counsel Mr. Shah would submit that there is no due diligence on the part of the plaintiffs and when the present application was filed, issues were already famed and the trial was at the stage of recording the evidence which was within the knowledge of plaintiffs and which was rightly not allowed by the trial Court.

4.3 So, he would request this Court that there is no error Page 3 of 14 Uploaded by DRASHTI K. SHUKLA(HC00354) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 21:23:37 IST 2025 NEUTRAL CITATION C/SCA/14220/2018 ORDER DATED: 06/02/2025 undefined committed by the trial Court and no interference may be made by this Court. Thus, he would request this Court to reject the present petition.

No other and further submissions are being made by any of the respective senior counsels appearing for the parties.

Analysis

5. Before adverting to the issue involved in the matter, I would 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 in following two decisions of Honourable Supreme Court of India. First one in a 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 Page 4 of 14 Uploaded by DRASHTI K. SHUKLA(HC00354) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 21:23:37 IST 2025 NEUTRAL CITATION C/SCA/14220/2018 ORDER DATED: 06/02/2025 undefined 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 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 Page 5 of 14 Uploaded by DRASHTI K. SHUKLA(HC00354) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 21:23:37 IST 2025 NEUTRAL CITATION C/SCA/14220/2018 ORDER DATED: 06/02/2025 undefined 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 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 Page 6 of 14 Uploaded by DRASHTI K. SHUKLA(HC00354) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 21:23:37 IST 2025 NEUTRAL CITATION C/SCA/14220/2018 ORDER DATED: 06/02/2025 undefined 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 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 Page 7 of 14 Uploaded by DRASHTI K. SHUKLA(HC00354) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 21:23:37 IST 2025 NEUTRAL CITATION C/SCA/14220/2018 ORDER DATED: 06/02/2025 undefined 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 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.

NEUTRAL CITATION C/SCA/14220/2018 ORDER DATED: 06/02/2025 undefined

(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 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.

NEUTRAL CITATION C/SCA/14220/2018 ORDER DATED: 06/02/2025 undefined

(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 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."

5.1 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 Page 10 of 14 Uploaded by DRASHTI K. SHUKLA(HC00354) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 21:23:37 IST 2025 NEUTRAL CITATION C/SCA/14220/2018 ORDER DATED: 06/02/2025 undefined 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.

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 Page 11 of 14 Uploaded by DRASHTI K. SHUKLA(HC00354) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 21:23:37 IST 2025 NEUTRAL CITATION C/SCA/14220/2018 ORDER DATED: 06/02/2025 undefined 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. It is undisputed fact that proposed amendment by way of impugned application sought tobe incorporated in the plaint is after framing of issues and at the stage of recording of evidence of plaintiffs. The provisions of Order 6 Rule 17 of the Code, 1908 requires to be considered when such application is filed. The relevant provision of Order 6 Rule 17 of the Code, 1908 including proviso reads as under;

"17. Amendment of pleadings.--The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

NEUTRAL CITATION C/SCA/14220/2018 ORDER DATED: 06/02/2025 undefined Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

6.1 After closely reading the impugned application and the impugned order, I am of he view that petitioner has not made out the case and despite due diligence such amendment could not be incorporated to the plaint either at the time of institution of the suit and / or at the time of framing of the issues.

6.2 When the impugned order is in consonance with law i.e. Order 6 Rule 17 of the Code, 1908 and when there is no gross error committed by the trial court, thereby second view can be taken by the trial Court which is otherwise not possible while exercising powers under section 227 of the Constitution of India, I do not find any error which requires interference by this Court.

7. Conclusion:

7.1 Thus, in the aforesaid facts and circumstances of the case, present application requires to be rejected having no merits in its.

NEUTRAL CITATION C/SCA/14220/2018 ORDER DATED: 06/02/2025 undefined 7.2 The application is dismissed thereby the order dated 06.01.2018 passed below Exh.68 in HRP Civil Suit No.2287 of 2009 passed by the Small Causes Court NO.6, Ahmedabad, is hereby confirmed. Notice discharged. There shall be no order as to costs.

(MAULIK J.SHELAT,J) DRASHTI K. SHUKLA Page 14 of 14 Uploaded by DRASHTI K. SHUKLA(HC00354) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 21:23:37 IST 2025