Khambhat Nagarpalika Through ... vs Babubhai Dhanaji Marwadi
2021 Latest Caselaw 5267 Guj

       C/SCA/16440/2020                               JUDGMENT




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CIVIL APPLICATION NO. 16440 of 2020

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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     Whether Reporters of Local Papers may be allowed
 1                                                                NO
     to see the judgment ?

 2 To be referred to the Reporter or not ?                       YES

     Whether their Lordships wish to see the fair copy
 3                                                                NO
     of the judgment ?
   Whether this case involves a substantial question
 4 of law as to the interpretation of the Constitution            NO
   of India or any order made thereunder ?

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      KHAMBHAT NAGARPALIKA THROUGH CHIEF OFFICER
             JITENDRAKUMAR GOVINDBHAI DABHI
                            Versus
           BABUBHAI DHANAJI MARWADI & 1 other(s)
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Appearance:
MR DILIP B RANA(691) for the Petitioner(s) No. 1
MR JINESH H KAPADIA(5601) for the Respondent(s) No. 1,2
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                          Date : 27/04/2021

                          ORAL JUDGMENT

1. This petition under Article 227 of the Constitution of India assails the order dated 27.11.2020 passed below exh. 76 in Regular Civil Suit No. 41 of 2016 by the learned Principal Senior Civil Judge, Khambhat, whereby, an application preferred by the present petitioner - original defendant under O.6 R.17 of the Civil

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Procedure Code, 1908 (CPC) came to be rejected.

2. Rule.

3. Filtering the unnecessary details, the case on hand are that the petitioner is the original defendant and the respondents are the original plaintiffs who have filed a civil suit being Regular Civil Suit No. 41 of 2016 for declaration and permanent injunction before the concerned Civil Court at Khambhat. In the said suit, the respondents - plaintiffs had filed an application exh. 5 for interim injunction as well as an application exh. 20 for mandatory injunction and by a common order dated 06.08.2016, the learned 4th Additional Civil Judge, Khambhat was pleased to partly allow application exh. 5 and directed to maintain status quo qua the suit property till final disposal of the suit, however, rejected the application exh. 20 for mandatory injunction. The order passed below exh. 5 came to be challenged before the first appellate Court by way of Misc. Civil Appeal No. 180 of 2016, however, the learned Additional District Judge at Anand rejected the said appeal by an order dated 13.10.2017 and confirmed the order dated 06.08.2016, against which, the petitioner - defendant preferred a petition being Special Civil Application No. 1514 of 2018 before this Court, which came to be disposed of vide order dated 06.08.2019 by this Court without disturbing the aforesaid orders, however, the suit came to be expedited.

3.1 In the meantime, the petitioner preferred an application under O.6 R.17 of CPC dated 19.02.2020 seeking amendment in the written statement filed by the petitioner - defendant vide exh. 21 in the said suit. The said application came to be rejected vide order dated 27.11.2020 by the learned Principal Senior Civil

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Judge, Khambhat, which is the subject matter of challenge in this petition.

4. Heard, learned advocate Mr. Dilip B. Rana for the petitioner

- defendant and learned advocate Mr. J. H. Kapadia for the respondents - defendants.

4.1 The learned advocate for the petitioner - defendant submitted that the order passed by the learned trial Judge is illegal, perverse and against the settled principles of law and without properly considering the material produced on record. It is submitted that by way of Regular Civil Suit No. 330 of 1993 in which the present petitioner - defendant was the party defendant and the subject matter was the same as in the present suit and in the said suit, since the decision was arrived at, the principle of res judicata applies to the present suit and hence, by way of amendment application in question, the petitioner had sought to place the said fact on record, however, without considering the said fact in its true and proper perspective, the learned trial Judge has rejected the said application on the ground that the principle of res judicata does not apply as the order passed is the interlocutory one as also the trial has already commenced and thereby, has materially erred in rejecting the said application. It is also submitted that in the said suit, exh. 5 application also came to be rejected by the learned trial Court concerned.

4.2 Further, drawing attention to the provisions of O.6 R.17 CPC, the learned advocate for the petitioner - defendant submitted that under the proviso to this rule, the learned trial Court is empowered to grant amendment even after trial has commenced when after due diligence the party could not have

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raised the matter before the commencement of trial. It is submitted that the petitioner was no aware of the earlier suit in which, the subject matter was the same and such an order was passed, which is required to be brought on record. However, the learned trial Judge rejected the application.

4.3 Thus, making above submissions, it is urged that present petition may be allowed and the impugned order may be set aside.

4.4 In support of his case, the learned advocate for the petitioner - defendant ha relied upon following decisions:

i) Usha Balasaheb Swami v. Kiran Appaso Swami, (2007) 5 SCC 602; and

ii) Ranchhodbhai Shambhubhai Patel v. Popatbhai Savjibhai Patel and Others, 1993 (2) GLH 594.

5. Per contra, the learned advocate for the respondents - plaintiffs, while heavily opposing the present petition and supporting the impugned order, submitted that the impugned order passed by the learned trial Court is a well-reasoned order and in accordance with the settled principles of law. It is submitted that by the application for amendment, the facts of earlier suit being Regular Civil Suit No. 330 of 1993 are sought to be placed on record and the written statement was sought to be amendment on the basis that the said suit is decided, wherein the subject matter of suit was the same as in the present suit and hence, there is a bar under the principle of res judicata. It is submitted that the said suit is not finally decided as what is produced on record is an order passed below exh. 5, which is an interlocutory order and in no case, the same can be said to be

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the final order and accordingly, the principle of res judicata has no application in the facts of the present case.

5.1 It is submitted that after due application of mind and considering the material placed on record, the learned trial Judge has come to such a conclusion, which, requires no interference at the hands of this Court and accordingly, it is urged that present petition, being devoid of any merits, required to be dismissed.

5.2 In support of his case, the learned advocate for the respondents - plaintiffs has relied upon following decisions:

i) Akshar Image through Proprietor Karunaben v. Jahesh Creation and Others, 2007 (1) GLH 582;

ii) Ajendraprasadji Narendraprasadji Pande and Another v. Swami Keshavprakashdasji Gurupujya Narayanpriyadasji and Others, 2006 (3) GLH 566.

6. At the outset, it would not be out of place to mention here that supervisory jurisdiction under Article 227 of the Constitution of India is confined only to see whether the subordinate Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of record, much less, an error of law and the High Court cannot act as an appellate authority and has only to see that an inferior Court has to function within the limits of its authority. In the case of Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil, (2010) 8 SCC 329, the Hon'ble Apex Court has considered in detail the scope of interference by this Court to hold and observe that Article 227 can be invoked by the High Court Suo motu as a custodian of justice. An improper and a frequent exercise of this power would be counterproductive and will divest this extraordinary power of

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its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle. Relevant observations made therein, read as under:

"57. Articles 226 and 227 stand on substantially different footing. As noted above, prior to the Constitution, the Chartered High Courts as also the Judicial Committee of the Privy Council could issue prerogative writs in exercise of their original jurisdiction. [See 1986 (suppl.) SCC 401 at page 469)].

58. However, after the Constitution every High Court has been conferred with the power to issue writs under Article 226 and these are original proceeding. [State of U.P . and others vs. Dr. Vijay Anand Mahara j - AIR 1963 SC 946, page 951].

59. The jurisdiction under Article 227 on the other hand is not original nor is it appellate. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields.

60. Another distinction between these two jurisdictions is that under Article 226, High Court normally annuls or quashes an order or proceeding but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. {See Surya Dev Rai (supra), para 25 page 690 and also the decision of the Constitution Bench of this Court in Hari Vishnu Kamath vs. Ahmad Ishaque and others - [AIR 1955 SC 233, para 20 page 243]}.

61. Jurisdiction under Article 226 normally is exercised where a party is affected but power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. In fact, the power under Article 226 is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. Jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. In certain cases where there is infringement of fundamental right, the relief under Article 226 of the

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Constitution can be claimed ex-debito justicia or as a matter of right. But in cases where the High Court exercises its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claim it as a matter of right. From an order of a Single Judge passed under Article 226, a Letters Patent Appeal or an intra Court Appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Judge of a High Court in exercise of power under Article 227. In almost all High Courts, rules have been framed for regulating the exercise of jurisdiction under Article 226. No such rule appears to have been framed for exercise of High Court's power under Article 227 possibly to keep such exercise entirely in the domain of the discretion of High Court.

62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:

(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by 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, on 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 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 its 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 (supra)

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and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh (supra), 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 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) 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 the case of L.Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement 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.

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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 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 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 counter-productive and will divest this extraordinary power of its strength and vitality.

6.1 Further, In Ouseph Mathai and Ors. v. M. Abdul Khadir, AIR 2002 SC 110:MANU/SC/0718/2001, it is held as under:

"...Only wrong decision may not be a ground for the exercise of jurisdiction under this article unless the wrong is referable to grave dereliction of duty, flagrant abuse of power by the subordinate Courts and tribunals, resultantly in "grave injustice" to any party."

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7. Regard being had to the submissions advanced and considering the material placed on record vis-a-vis keeping in mind the aforesaid principles laid down for exercise of jurisdiction under Article 227 of the Constitution of India, issue in the case on hand may be adverted to. The petitioner, who is the defendant in the suit in question, had, by way of an application exh. 76, sought to amend the written statement exh. 21. What was sought to be amended by such application is significant. It was prayed that, since in the earlier suit being Regular Civil Suit No. 330 of 1993 of which, the subject matter was the same as the present suit and since, the decision in the said suit is already arrived at, principle of res judicata applies to the present suit i.e. Regular Civil Suit No. 41 of 2016 and therefore, the present suit is not required to be entertained.

7.1 In the said backdrop, if section 11 of the CPC is referred to, it speaks as under:

11. Res judicata.--No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I.--The expression "former suit" shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto.

Explanation II.--For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either

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denied or admitted, expressly or impliedly, by the other.

Explanation IV.--Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V.--Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.

Explanation VI.--Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating .

[Explanation VII.--The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.

Explanation VIII. --An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.]

7.2 Thus, in order to operate as res judicata the finding must be such that it disposes of a matter that is directly and substantially in issue in the former suit, and the said issue must have been heard and finally decided by the Court trying such suit. A matter which is collaterally or incidentally in issue for the purpose of deciding a matter which is directly in issue in the case, cannot be made the basis for a plea of res judicata.

7.3 Coming to the facts of the present case, the petitioner - defendant has prayed to grant amendment on the basis that

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issue in question in the present suit is already decided in the earlier suit and hence, the same is not required to be decided again and to that extent, the amendment is sought for. To substantiate the said fact, the petitioner - defendant has produced on record copy of order passed in earlier suit i.e. Regular Civil Suit No. 330 of 1993 on the basis of which, the amendment is sought for. Now, if the said order is glanced at, it is an order dated 24.05.1994, passed below application exh. 5 by which, the said application exh. 5 came to be rejected. Except that, nothing is produced on record qua the said suit. Coming back to Section 11 of the CPC which explains res judicata and says that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Thus, it is abundantly clear that in order to operate as res judicata, the finding must be such that it disposes of a matter that is directly and substantially in issue in the former suit, and the said issue must have been heard and finally decided by the Court trying such suit. Indisputably, the order on which the reliance is placed for seeking amendment is an interlocutory order, passed below application exh. 5. Further, the said suit appears to be still pending before the competent civil Court. No other material has been brought either before this Court or the trial Court to suggest otherwise and hence, prima facie, the said order may not come to any assistance to the present petitioner.

7.4 Further, looking to the tenor of O.6 R.17 CPC, it provides

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that 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, however, there is a check in the same and it is provided by way of proviso that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that despite due diligence, the party could not have raised the matter before the commencement of trial. Looking to the amendment sought in the instant case and more particularly, the basis for the same (an interlocutory order passed below exh. 5), as this Court has already opined that the same would of no avail to the petitioner - defendant as principle of res judicata would not apply as it being an interlocutory order, even if this Court comes to the conclusion that the amendment could have been permitted, the same would not be applicable and hence, this Court is not inclined to go further deep into it, more particularly, when the trial has stated to have already been commenced.

7.5 So far as the decision in Usha Balasaheb Swami (supra), relied upon by the learned advocate for the petitioner is concerned, it is held in the said decision that, "....Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable". Thus, inconsistent pleas in written statement are permissible, however, there should be consistency in inconsistency. In the case on hand, the amendment in written statement is sought basis for which, is apparently, against the settled principles of law.

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Further, in the case before the Hon'ble Apex Court, the trial had not commenced, whereas, in the present case, the trial has already commenced and it is trite law that the discretion vested in the Court under O.6 R.17 CPC should be exercised sparingly and judiciously, in appropriate case and hence, the said decision would be of no assistance to the petitioner.

7.6 So far as the decision in Ranchhodbhai Shambhubhai Patel (supra) as relied upon by the learned advocate for the petitioner is concerned, it is held in paragraph 8 of the said decision that, "...Granting leave to file additional written statement, or to bring additional facts on record by pleading, would not mean that the Court will always accept them as true. The parties will lead evidence regarding the facts stated in the original written statement as well as the new written statement and on appreciation of evidence, the Court will be able to judge whether the facts brought on record pursuant to the new written statement deserve to be accepted as credible or whether they discredit the defence version. Granting the application to bring such additional written statement or permitting the defence to amend the written statement would merely give him an opportunity to prove his case and bring the truth to light". Thus, leave to file the additional written statement or to bring additional facts on record by pleading would not mean that the Court will always accept them as true but would merely give the party an opportunity to prove his case and bring the truth to light. However, the underlying principle is that the discretion vested in the Court should be exercised judiciously and considering what is put before the Court. In the present case, apparently, the amendment in written statement is sought for, basis for which, as referred to herein above, is against the settled

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principles of law and hence, this decision also would be of no avail to the petitioner.

7.7 Further, in the decision rendered by this Court in Akshar Image through Proprietor Karunaben (supra), as relied by the learned advocate for the respondents, it is held 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. It is also held that O.8 R.6A of the CPC prohibits amendment of written statement after adoption of leave to defend affidavit as the written statement. Indisputably, the trial in the case on hand is commenced. Further, in the decision in Ajendraprasadji Narendraprasadji Pande and Another (supra), this Court has reiterated that powers to issue writ of Certiorari under the supervisory jurisdiction of the High Court is to be exercised sparingly. When a subordinate Court has arrived at a view which is a possible view, even if a different view is possible, High Court will not, in exercise of powers under Article 227 of the Constitution of India correct such order.

8. In the aforesaid discussion and observations, in the considered opinion of this Court, the learned trial Court has not committed any error apparent, which requires interference at the hands of this Court. This petition, thus fails and is dismissed accordingly. Rule is discharged with no order as to costs.

          C/SCA/16440/2020                             JUDGMENT




8.1     Since by virtue of an order dated 06.08.2019, passed in

Special Civil Application No. 1514 of 2018 this Court has already expedited the suit, this Court reiterate the same and directs the trial Court to make all endeavour to comply the said order.

[ A. C. Joshi, J. ] hiren