Gujarat High Court

Ritaben Pareshbhai Pathak vs Chetnaben Himmatbhai Parekh on 7 April, 2022

Bench: Ashokkumar C. Joshi

     C/SCA/11173/2021                             JUDGMENT DATED: 07/04/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 11173 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1     Whether Reporters of Local Papers may be allowed                 No
      to see the judgment ?

2     To be referred to the Reporter or not ?                          No

3     Whether their Lordships wish to see the fair copy                No
      of the judgment ?

4     Whether this case involves a substantial question                No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                         RITABEN PARESHBHAI PATHAK
                                   Versus
                        CHETNABEN HIMMATBHAI PAREKH
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Appearance:
MR DIGANT M POPAT(5385) for the Petitioner(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1
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    CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                              Date : 07/04/2022
                              ORAL JUDGMENT

1. This petition is filed under Articles 226 and 227 of the

Constitution of India, by the petitioner - original plaintiff against the

impugned order dated 18.2.2020 passed by the learned City Civil

Judge, Court No.14, Ahmedabad below application Exh. 94 in Civil

Suit No.1599 of 2008.

2. Heard learned advocate Mr. Digant Popat for the petitioner at

C/SCA/11173/2021 JUDGMENT DATED: 07/04/2022

length. Though duly served, none is present for the respondent. On

the earlier occasion, also last chance was also given to the

respondent. Today, at the request of learned advocate for the

petitioner, this matter is taken up for final hearing.

3. Rule.

4. Brief facts of the case on hand are that the petitioner is the

owner of the Flat No.1/15, Aashray Apartment, near Devdeep Tower,

Judges Bunglow Road, Bodakdev, Ahmedabad. That, on 25.9.2004,

the petitioner entered into leave and license agreement with the

respondent for a period of 11 months starting from 1.10.2004. That,

upon expiry of the leave and lincense agreement, the respondent

continued to reside in the said flat as she wanted to move out of

India and needed the Flat only for a couple of months, therefore, no

further leave and license agreement was entered into between the

petitioner and the respondent and the respondent was allowed to

stay for further two months as she was having a seven years old

child at the relevant time. That, for the reasons best known to the

respondent, she did not go out of India and therefore, the petitioner

repeatedly requested to the respondent to vacate the flat in

question or enter into a new leave and lincense agreement. That,

instead of vacating the flat or entering into a new leave and license

agreement, the respondent filed a suit being Civil Suit No. 1220 of

2007 before the learned City Civil Court, Ahmedabad, praying that

she be not dispossessed without following the due process of law.

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That, even after filing of the suit by the petitioner, the respondent

did not regularly pay the amount of rent and hence, the petitioner

preferred an application before the learned Trial Court and the

learned Trial Court directed the respondent to pay the arrears of

rent as was calculated at the relevant time. That, the respondent

irregularly paying the arrears of rent as per her convenience.

5. Learned advocate Mr. Digant Popat for the petitioner heavily

and fervently argued that the learned Court below has committed

an error in rejecting the application of the plaintiff - the present

petitioner by order dated 18.2.2020 passed by the learned City Civil

Judge, Court No.14, Ahmedabad. He further contended that as such

there is no sufficient reason assigned by the learned City Civil Court,

therefore also, this petition may be allowed.

6. Before we advert to the merits of the case, it would be

worthwhile to refer to a decision of the Apex Court in Shalini

Shyam Shetty and Another Vs. Rajendra Shankar Patil,

(2010) 8 SCC 329, wherein, the 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 its

strength and vitality. The power is discretionary and has to be

exercised very sparingly on equitable principle. The observations of

the Hon'ble Supreme Court, read as under:

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"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 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.

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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) 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

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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.

(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 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 Thus, exercise of power under Article 227 of the Constitution

of India should be with a view to keep the tribunals / Courts within

the bounds of their authority, to ensure that law is followed by

tribunals / Courts by exercising jurisdiction which is vested in them

and/or 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. 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.

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7. The Apex Court in a recent decision in Puri Investments v.

Young Friends and Co. and Others, MANU/SC/0290/2022 has

observed as under:

"13. There was no perversity in the order of the Appellate Tribunal on the basis of which the High Court could have interfered. In our view, the High Court tested the legality of the order of the Tribunal through the lens of an appellate body and not as a supervisory Court in adjudicating the application under Article 227 of the Considering. This is impermissible. The finding of the High Court that the appellate forum's decision was perverse and the manner in which such finding was arrived at was itself perverse."

8. Regard being had to the submissions made by the learned

advocate for the petitioner, Ex-facie, it appears that order dated

18.2.2020, passed by the learned City Civil Judge, Court No.14,

Ahmedabad is just, assigning detailed reasons and passed

meticulously and no interference is required. Learned City Civil

Court has also discussed, the para-meters of Order-15 Rule - 5 of

the Civil Procedure Code, with the decision of the Hon'ble Supreme

Court in the case of Bimalchand Jain Vs. Gopal Agarwal and

therefore, this Court is of the opinion that impugned order is not

required to interfere with, and hence, this petition is devoid of

merits and stands dismiss accordingly. Rule is discharged.

9. It is made clear that the original Suit is of the year 2007,and