Gujarat High Court
Amarshibhai Hirabhai Rathod vs State Of Gujarat on 25 July, 2025
NEUTRAL CITATION
C/SCA/10071/2025 ORDER DATED: 25/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10071 of 2025
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AMARSHIBHAI HIRABHAI RATHOD
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR RAJESH O GIDIYA(5222) for the Petitioner(s) No. 1
MR SHAILESH DESAI, AGP for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 25/07/2025
ORAL ORDER
1. Rule returnable forthwith. Learned Assistant Government Pleader Mr. Shailesh Desai waives service of notice of rule on behalf the respondents-State. With the consent of learned advocates, matter is taken up for final hearing.
2. Heard learned advocate Mr. Rajesh O. Gidiya for the petitioner and learned Assistant Government Pleader Mr. Shailesh Desai for the respondents-State.
3. The present writ application is filed under Article 227 of the Constitution of India seeking following relief :-
"A. That this Hon'ble Court may be pleased to admit and allow this petition.
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certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction, by quashing and setting aside the order dated 26.07.2024 passed below application, Exh.27 by the learned 6 th Additional Senior Civil Judge, Bhavnagar in Regular Civil Suit No.601/2022, at annexure 'E' to this petition and thereby grant the relief as prayed for below application, Exh.27.
C. Pending, admission and/or final disposal of the petition, this Hon'ble Court may be pleased to stay further proceedings of Regular Civil Suit No.601/2022 pending before the court of the learned 6th Additional Senior Civil Judge, Bhavnagar and thereby direct the parties to maintain status quo with regard to the disputed land.
D. That this Hon'ble Court be pleased to grant such other and further relief/s as may be deemed fit and proper in the facts and circumstances of the case."
4. Learned advocate Mr. Gidiya for the petitioner would submit that the trial Court has committed a manifest error by rejecting the impugned application filed by the petitioner under Order 26 rule 9 read with Section 151 of CP.C. in the suit against the respondents. He would further submit that the trial Court was required to take note of the fact that the petitioner is occupying the suit land in question and to prepare a map and actual status of the suit land, the Court Commissioner was required, thereby, the Court can get actual status of the suit land, which would elucidate the Court to resolve the dispute between the parties.
4.1 Learned advocate Mr. Gidiya would further submit that
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NEUTRAL CITATION
C/SCA/10071/2025 ORDER DATED: 25/07/2025
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as such defendants have neither filed any reply to impugned application nor participated in the hearing of the application, despite granting reasonable opportunities to them and in that view of the matter, the trial Court ought to have allowed the application.
4.2 At last, learned advocate Mr. Gidiya would submit that by appointing Court Commissioner, no prejudice would be caused to the respondents and as such by getting report of Court Commissioner, an actual site status of the suit land will come on record which will facilitate the trial Court to resolve the dispute between the parties.
4.3 In support of his submission, learned advocate Mr. Gidiya would refer and rely upon the decision of the Hon'ble Apex Court in the case of Suryanarayana Reddy and others Vs. Nawab Md. Kabiruddin Khan (Dead) by Lrs. And others reported in (2004) 13 SCC 703.
4.4 Making the above submission, learned advocate Mr. Gidiya would request this Court to allow the present writ application.
5. Per contra, learned Assistant Government Pleader, Mr. Shailesh Desai would submit that the impugned application filed by the petitioner is misconceived on facts and law and Page 3 of 13 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:29:52 IST 2025 NEUTRAL CITATION C/SCA/10071/2025 ORDER DATED: 25/07/2025 undefined as such filed contrary to the provisions of Order 26 rule 9 of CPC. He would submit that the trial Court has not committed any manifest error inasmuch not committed any jurisdictional error while rejecting the impugned application and this Court should not interfere with the impugned order which is passed by the trial Court by giving well reasons.
5.1 Learned AGP Mr. Desai would further submit that only object of filing the impugned application is to collect evidence by the petitioner happens to be plaintiff of the suit in question, which is not permissible in law. He would further submit that suit is filed seeking a declaration by way of an adverse possession of the suit land, which otherwise a public property. It is submitted that by way of Court Commissioner, the plaintiff/ petitioner wants to prove his possession over the suit land which otherwise, plaintiff unable to prove it by any way of piece of evidence. So, learned AGP Mr. Desai would request this Court not to entertain the present writ application.
Point for determination The short question falls for my consideration, as to whether any gross error of law and or jurisdictional error committed by the trial Court while rejecting the impugned application filed by the plaintiff below Exh. 27 in Regular Civil Suit No. 601 of 2022 pending before the 6 th Additional Senior Page 4 of 13 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:29:52 IST 2025 NEUTRAL CITATION C/SCA/10071/2025 ORDER DATED: 25/07/2025 undefined Civil Judge, Bhavnagar?
Analysis
6. The short fact appears to be that the petitioner happens to be plaintiff of the aforesaid suit seeking declaration by way of an adverse possession, be declared as owner of the suit land. There are other reliefs which are also sought as regards to quash the orders passed by the Revenue Authority and so also seeking permanent injunction. Nonetheless, the fact remain that suit filed by the petitioner/ plaintiff is only for declaration and injunction wherein there is no dispute as regards any boundary and or any overlapping possession of the property by the parties to the suits involved in it.
7. The bare reading of the impugned application more particularly Para-4 of such application would indicate that the plaintiff wants to collect the evidence on record by way of appointment of Court Commissioner through his report, inasmuch as to get actual position of suit land to come on record, he requested the trial Court to appoint Court Commissioner, which is not permissible in law.
8. The trial Court has categorically observed and assigned reason while rejecting the impugned order that only object Page 5 of 13 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:29:52 IST 2025 NEUTRAL CITATION C/SCA/10071/2025 ORDER DATED: 25/07/2025 undefined of the petitioner/ plaintiff is to bring on record the possession of the suit property and by way of using such evidence, the plaintiff wants to establish his case, which is not permissible in law.
9. It is well settled legal position of law that to collect the evidence, the trial Court should not exercise its power, so vested in it under Order 26 rule 9 of CPC [See : Jyotsanaben R. Patel Vs. State of Gujarat reported in 2024 (2) GLR 1157].
10. The judgment cited by the learned advocate for the petitioner in the case of Suryanarayana Reddy (supra) would not helpful to his argument, inasmuch as the trial Court has not rejected the application only on the ground that it was filed belatedly. There is no cavil on the issue that application under Order 26 rule 9 of CPC can be filed at any stage of proceeding but in absence of any ingredient of Order 26 rule 9 of CPC made out from such application, it is required to be rejected. According to me, trial Court has correctly rejected impugned application vide its order dated 26.07.2024.
11. I would to like to remind myself the scope and power available to this Court while exercising its power under Arti- cle 227 of the Constitution of India which is succinctly dis-
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cussed 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 judg- ment reads as under:-
"[6] In our view, the impugned order is liable to be set aside be- cause while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's ju- risdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were consid- ered 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 af-
fect 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 cor- recting 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 over- stepping or crossing the limits of jurisdiction, or (iii) acting in fla- grant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure speci- fied, 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 juris- diction which it does not have or has failed to exercise a jurisdiction Page 7 of 13 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:29:52 IST 2025 NEUTRAL CITATION C/SCA/10071/2025 ORDER DATED: 25/07/2025 undefined which it does have or the jurisdiction though available is being exer- cised 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 jurisdic- tion, 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 juris- diction 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 pen- dency of any suit or proceedings in a subordinate Court and the er- ror 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 super- visory 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 cor- rected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of jus- tice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdic- tion will not covert itself into a Court of Appeal and indulge in re-ap- preciation or evaluation of evidence or correct errors in drawing in- ferences or correct errors of mere formal or technical character.
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(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory juris- diction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliter- ated 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 ex-
ercise 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 op- erate 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 prin- ciples laid down by the Constitution Bench of this Court in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] and the prin-
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ciples 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 in- terfere 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 mani- fest 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 an- other view than the one taken by the tribunals or Courts subordi- nate 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 constitu- tional 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 su- perintendence under Article 227.
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(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 en- tire 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 unpol- luted 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 de- gree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be coun- terproductive and will divest this extraordinary power of its strength and vitality."
(emphasis supplied) 11.1 The second decision in a case 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.Garment Craft, 2019 SCC OnLine Del 11943] is contrary to law and cannot be sus- tained for several reasons, but primarily for deviation from the lim-
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ited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory juris- diction 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 deci- sion on facts and conclusion, for that of the inferior Court or tri- bunal.[Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] The jurisdiction exer-
cised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental princi- ples 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 exam- ined and explained in a number of decisions of this Court. The ex- ercise of power under this article involves a duty on the High Court to keep inferior Courts and tribunals within the bounds of their au- thority 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 un- limited prerogative to correct all kinds of hardship or wrong deci- sions 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 in- justice 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 Page 12 of 13 Uploaded by SALIM(HC01108) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 00:29:52 IST 2025 NEUTRAL CITATION C/SCA/10071/2025 ORDER DATED: 25/07/2025 undefined face of the record. The High Court can set aside or ignore the find- ings 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 per- son can possibly come to such a conclusion, which the Court or tri- bunal has come to."
(emphasis supplied) Conclusion
12. In view of the above, impugned order neither suffers from any gross error of law nor any jurisdictional error committed by trial Court while rejecting impugned application.
13. As such, impugned application came to be filed under Order 26 rule 29 of CPC to collect the evidence thereby, to establish the alleged possession of the petitioner-plaintiff which is not permissible in law.
14. In view of aforesaid conclusion, I do not find any merit in the present writ application, thus requires to be rejected, which is hereby rejected. Rule is discharged. No order as to costs.
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