Gujarat High Court
Chandubhai Ambalal Patel vs Rasikbhai Naranbhai Patel on 7 January, 2025
NEUTRAL CITATION
C/SCA/12740/2024 ORDER DATED: 07/01/2025
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IN THE HIGH Court OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12740 of 2024
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CHANDUBHAI AMBALAL PATEL & ORS.
Versus
RASIKBHAI NARANBHAI PATEL & ORS.
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Appearance:
MR RAJESH M CHAUHAN(2470) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 07/01/2025
ORAL ORDER
1. The present petition is filed under Article 227 of the Constitution of India by the original plaintiff of Special Civil Suit No.133 of 2018 pending before the Additional Senior Civil Judge, Sanand, District Ahmedabad (Rural), with the following prayers:-
"(A) YOUR LORDSHIPS may be pleased to admit and allow this petition;
(B) YOUR LORDSHIPS may be pleased to issue writ of, order to Mandamus and certiorrati and any appropriate writ, order to quash and set aside the impugned order 6/1/2024 passed in review application no.1 of 2021 and allowed the application under ex. 54 be allowed and joined necessary parties in civil suit no. 133 of 2018 in the interest of justice, as Annexure-B. (C) YOUR LORDSHIPS may be pleased to issue writ of Mandamus & certiorari and any appropriate writ, order to quash and set aside the impugned order dt passed by appellate Court in M.C.A.NO.-
5/2024 on 03/02/24, as Annexure-C. (D) Pending admission and final disposal of this petition yours lordship may please to stay the implementation of order dt:-
06/01/24 passed review petition no.-1 of 2021 and further pending hearing and final disposal of this petition to restrain the respondent original defendant for not to sale, transferred mortgage alienated the suit property district sub- district Ahmedabad, taluka- Sanand, Page 1 of 16 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:37 IST 2025 NEUTRAL CITATION C/SCA/12740/2024 ORDER DATED: 07/01/2025 undefined Moje Sanand land bearing old survey/Block no. 194, ad measuring 5-07-88 H.A.SQ. Mte, as Annexeure A. (E) YOUR LORDSHIPS may be pleased to pass such other and further orders deemed fit in the facts and circumstances of the case."
2. For the sake of convenience, as far as possible, the parties will be referred to as per their original position in the suit.
3. To appreciate the controversy involved in the present petition, the short facts necessitated to be considered are as under:-
3.1 The petitioners are the original plaintiffs of Special Civil Suit No.133 of 2018 (Old Civil Suit No. 467 of 2009) filed before the Principal Civil Judge, Sanand, District Ahmedabad, against the respondents/defendants, thereby seeking a declaration and injunction against the defendants in relation to the suit property in question. It appears that pending the suit, an application below Exhibit 54 came to be filed by the plaintiffs to join private persons as proposed Defendant Nos.12 to 15 on 19.03.2021.
3.2 After a bi-party hearing, the learned Trial Court, vide its order dated 27.09.2021, rejected such application. Such rejection of the application appears to have been challenged by way of filing a review application before the same Court, Page 2 of 16 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:37 IST 2025 NEUTRAL CITATION C/SCA/12740/2024 ORDER DATED: 07/01/2025 undefined being Review Application No.1 of 2021.
3.3 After detailed hearing, the Trial Court, vide its impugned order dated 06.01.2024, rejected such review application filed by the plaintiffs.
3.4 It further appears that the said order rejecting the review application came to be questioned by the plaintiffs by way of an appeal from order filed under Order XLIII of the Code of Civil Procedure, 1908 (hereinafter referred to as the "Code, 1908"), being C.M.A. No.5 of 2024, which came to be dismissed by the concerned District Court vide its impugned judgment and order dated 03.02.2024. As per the said order of the concerned District Court, the appeal is not maintainable.
4. Being aggrieved and dissatisfied with the aforesaid impugned orders passed by the Trial Court as well as the concerned District Court, the present petition has been filed by the original plaintiffs.
SUBMISSION OF THE PETITIONERS/PLAINTIFFS
5. Mr. Rajesh M. Chauhan, learned advocate appearing for the original petitioners/plaintiffs, would submit that both the Courts below have committed a gross error in not appreciating the original application filed by the plaintiffs below Exhibit 54 in the suit for joining private persons, i.e., proposed Defendant Page 3 of 16 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:37 IST 2025 NEUTRAL CITATION C/SCA/12740/2024 ORDER DATED: 07/01/2025 undefined Nos.12 to 15 in the suit, thereby committing a gross error in law.
5.1 Learned advocate for the petitioners/plaintiffs would further submit that plaintiffs are the makers of the suit, and when any request is made by the plaintiffs to join someone in the suit, the Trial Court is required to accept such a request by exercising its power under Order I Rule 10 of the Code, 1908. He would further submit that by exercising the power so vested in it, the discretion ought to have been used in favor of the plaintiffs, and hence the Trial Court has committed a grave error in law while rejecting the impugned application filed by the plaintiffs below Exhibit 54 in the suit.
5.2 Learned advocate for the petitioners/plaintiffs would further submit that the decisions, which are cited before the Trial Court as well as the Appellate Court has not at all been appreciated in its true perspective, which has resulted in miscarriage of justice.
5.3 Learned advocate for the petitioners/plaintiffs would further submit that the Trial Court has also committed an error in law while rejecting the review application of the plaintiffs.
According to the submissions of the learned advocate for the petitioners, the District Court has wrongly dismissed their appeal as not maintainable, thereby committing a jurisdictional Page 4 of 16 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:37 IST 2025 NEUTRAL CITATION C/SCA/12740/2024 ORDER DATED: 07/01/2025 undefined error which requires to be corrected by this Court while exercising its power under Article 227 of the Constitution of India.
5.4 So, in view of the aforesaid submissions of Mr. Chauhan, learned advocate appearing for the original plaintiffs, would submit that this Court may quash and set aside the impugned orders passed by the Trial Court as well as the District Court, thereby allowing the application of the plaintiffs to join private persons as proposed Defendant Nos.12 to 15 in the interest of justice.
6. No other and further submissions are made.
APPRECIATION OF SUBMISSIONS
7. By now, it is a well-settled legal position that this Court, having limited jurisdiction under Article 227 of the Constitution of India, cannot routinely interfere with the orders passed by the Trial Court and the appellate Court in their respective jurisdictions. When the discretion exercised by the concerned Courts is not in favor of the petitioners/plaintiffs in the present case, and in the absence of any gross error of law, jurisdictional error, or miscarriage of justice, this Court cannot lightly interfere with the impugned orders passed by the Trial Court and appellate Court.
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8. Before adverting to the whole issue germane in the present petition, this Court would like to remind itself and would like to refer to a direct pronouncement of the Hon'ble Supreme Court of India in the case of Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374 wherein the law has been laid down and the scope of the power of the High Court while exercising its power under Article 227 of the Constitution of India is elaborated in detail. 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 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 Page 6 of 16 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:37 IST 2025 NEUTRAL CITATION C/SCA/12740/2024 ORDER DATED: 07/01/2025 undefined 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 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 Page 7 of 16 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:37 IST 2025 NEUTRAL CITATION C/SCA/12740/2024 ORDER DATED: 07/01/2025 undefined 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.
(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 Page 8 of 16 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:37 IST 2025 NEUTRAL CITATION C/SCA/12740/2024 ORDER DATED: 07/01/2025 undefined 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 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 Page 9 of 16 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:37 IST 2025 NEUTRAL CITATION C/SCA/12740/2024 ORDER DATED: 07/01/2025 undefined 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 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.
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(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."
9. I have patiently heard the learned advocate appearing for the petitioners and gone through the impugned orders which are submitted with the present petition. It is also required to be noted that except the impugned application filed below Exhibit 54 and the order passed on 27.10.2021 as well as a copy of the review application and the impugned order dated 06.01.2024 passed thereon, and also the impugned order passed by the learned District Court holding the appeal filed by the plaintiffs, which was not maintainable, no other Page 11 of 16 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:37 IST 2025 NEUTRAL CITATION C/SCA/12740/2024 ORDER DATED: 07/01/2025 undefined documentary evidence, including a copy of the suit, has been submitted by the petitioners.
10. Be that as it may, the Trial Court has considered the controversy in detail while rejecting the impugned application filed by the plaintiffs below Exhibit 54, vide its order dated 27.01.2021. The Trial Court has recorded the earlier orders passed by this Court as well as the Honourable Supreme Court of India in different proceedings initiated by the respective parties prior to filing of the impugned application below Exhibit 54.
11. According to the opinion of the Trial Court, as per the orders passed by this Court and the Honourable Supreme Court of India in various proceedings, it has been held that the plaintiffs would be allowed to receive an amount deposited by the defendant as per the order passed by this Court in Special Civil Application No.15628 of 2023 dated 29.06.2015, read with Civil Application No. 8654 of 2011.
12. The plaintiffs would be entitled to receive the amount so deposited by the defendant. It has been observed by the Trial Court that the orders passed by this Court and the Honourable Apex Court were neither interfered with nor modified. It is further observed that the order of status quo stands vacated in favor of Defendant No.11, who has already deposited the Page 12 of 16 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:37 IST 2025 NEUTRAL CITATION C/SCA/12740/2024 ORDER DATED: 07/01/2025 undefined amount as per the directions of the order passed by this Court, which will be paid to the plaintiffs on the successful completion of the trial of the suit. The Trial Court has also taken note of the law laid down by the Honourable Supreme Court of India in the Kasturi Versus Iyyamperumal and Others reported in 2005 (6) SCC 733.
13. Thus, after considering the aforesaid facts, the orders passed by this Court, and the Honourable Apex Court of India, the amount deposited by Defendant No. 11 will be paid to the plaintiffs on succeeding in the trial of the suit, and no further relief will be available to the plaintiffs as per the aforesaid orders passed by this Court/the Honourable Apex Court of India. Considering the ratio of the Honourable Apex Court of India in the case of Kasturi (supra), the Trial Court has rejected the impugned application of the plaintiff filed below Exhibit 54.
14. The plaintiffs filed a review application against the rejection of their application filed below Exhibit 54. After going through the well-reasoned order passed by the Trial Court on 27.01.2021, this Court is of the opinion that no error was committed by the Trial Court while rejecting the application, as the proposed Defendant Nos. 12 to 15 are neither necessary nor proper parties for the adjudication of the Page 13 of 16 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:37 IST 2025 NEUTRAL CITATION C/SCA/12740/2024 ORDER DATED: 07/01/2025 undefined suit filed by the plaintiffs.
15. So, in view of the aforesaid facts and the position of law, the review application filed by the plaintiffs is misconceived in law and requires to be rejected.
16. The Trial Court has taken great care and, after rehearing and reappreciating the repeated arguments of the plaintiffs, vide its impugned order dated 06.01.2024, passed a detailed order rejecting the review application of the petitioners/Plaintiffs.
17. It is now a well-settled legal position that unless an apparent error on the face of the record is shown by the applicants, the concerned Court ordinarily should not interfere with its order challenged in the form of a review. Considering the narrow scope of review and not finding any error, much less an apparent error on the face of the record, the Trial Court categorically rejected the review application vide its impugned order dated 06.01.2024. I am in complete agreement with the reasons assigned by the Trial Court while rejecting the review application.
18. Lastly, no appeal from the order would lie against the decision of rejecting review application filed by the plaintiffs. Under the wrong premise, the plaintiffs filed such an appeal, Page 14 of 16 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:37 IST 2025 NEUTRAL CITATION C/SCA/12740/2024 ORDER DATED: 07/01/2025 undefined which came to be correctly dismissed, vide order dated 03.02.2024, by the District Court as not maintainable.
19. After going through the orders passed by the appellate Court, it is clear that such an appeal could not have been filed before the District Court against the order under challenge. The learned advocate appearing for the petitioners is unable to show any provision of law to persuade this Court on the maintainability of the appeal. As such, no error of law was committed by the District Court while dismissing the appeal of the plaintiffs vide its impugned order dated 03.02.2024.
20. When the entire set of evidence and the orders passed by the Trial Court and the appellate Court are considered, it only leads to one conclusion that there is no error, much less any error of law, committed by the concerned Courts while rejecting the prayer of the plaintiffs to join the proposed Defendant Nos.12 to 15 in the suit.
21. Thus, in view of the aforesaid pronouncement of the Honourable Supreme Court of India and having applied its ratio to the facts of the present case, I am of the opinion that no gross error was committed by the Trial Court while rejecting the application of the plaintiffs below Exhibit 54, thereby correctly not permitting the plaintiffs to join the Page 15 of 16 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:37 IST 2025 NEUTRAL CITATION C/SCA/12740/2024 ORDER DATED: 07/01/2025 undefined proposed Defendant Nos. 12 to 15.
22. When the plaintiffs wrongly filed an appeal from the order before the District Court contrary to the provisions of law, I am of the view that there is no error, much less any apparent error, committed by the District Court while dismissing such an appeal, declaring it as not maintainable.
CONCLUSION
23. The upshot of the aforesaid discussions, observations, and reasons assigned by this Court hereinabove is that there is no merit in the petition, and the impugned orders passed by the Trial Court and the appellate Court are in accordance with law and the same does not require any interference at the hands of this Court in its limited jurisdiction under Article 227 of the Constitution of India.
24. The petition is meritless and requires to be dismissed, and hence, the same is DISMISSED. No order as to costs.
(MAULIK J.SHELAT,J) MOHD MONIS Page 16 of 16 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:21:37 IST 2025