Paragbhai Gulabchand Shah vs Ishwarlal Shantilal Mehta
2022 Latest Caselaw 4242 Guj

      C/SCA/2923/2019                             ORDER DATED: 19/04/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 2923 of 2019

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                        PARAGBHAI GULABCHAND SHAH
                                   Versus
                         ISHWARLAL SHANTILAL MEHTA
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Appearance:
MR VAIBHAV B SHUKLA(5563) for the Petitioner(s) No. 1
MR VIVEK N MAPARA(5449) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
MR NV GANDHI(1693) for the Respondent(s) No. 1
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 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                              Date : 19/04/2022

                               ORAL ORDER

1. The Petitioner / Original Defendant No.1 has preferred the present Petition under Article 226 / 227 of the Constitution of India, challenging the order passed by the learned 10 th Additional Senior Civil Judge, Jamnagar, below Ex. 32 filed by the Respondent No.1-Original Plaintiff for appointment of Court Commissioner, for conducting the Panchnama of the Suit Property.

2. The facts leading rise to the present Petition in nutshell are that the petitioner is the Original -- Defendant No. 1 and the Respondent No. 1 is the Original Plaintiff, and respondent No. 2 is the Original Defendant No. 2, in Regular Civil Suit No. 129/2017 filed by the Respondent No. 1, inter alia, praying for a decree of declaration of easmentary right and injunction over the suit property belonging to the Petitioner.

2.1 It is the case of the Respondent No. 1 as averred in the plaint, that they being the owner of the land, adjoining to the suit land

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belonging to the Petitioner, the Respondent No. 1 has easmentary right over the land of the Petitioner for ingress and outgress and for parking of their vehicles. It is further alleged by the Respondent No. 1 that the Petitioner has made construction over the suit land, which caused blockage and obstruction to the Respondent right of entry and passage to their suit land, and accordingly cause of action is alleged to have accrued to the Plaintiff for filing the present Suit.

2.2 It is further contended that suit is specifically resisted by the Petitioner, by filing its Written Statement vide Ex. 25, inter alia, whereby specifically denying all the averments and allegations raised by the Respondent No. 1 in its plaint, and further raising the issue as to maintainability of the suit on the ground of bar u/o 23 Rule 1(4).

2.3 It is further contended that along with the Plaint, the Respondent No. 1 had also preferred an application for interim injunction, which came to be rejected by the learned Trial Court, vide its order dated 22.9.2017, wherein the learned Trial Court, prima facie, held the easement claim of the Respondent No. 1 over the suit property to be not maintainable.

2.4 It is also contended that pursuant thereto, the issues were framed by the learned Trial Court, and the matter was set for trial, and accordingly the Plaintiff had filed its Affidavit in Lieu of Examination in Chief, and thus the trial had already commenced in the above suit.

2.5 It is further contended that at this stage, the Respondent No. 1 by making totally false averments, made an application before the learned Trial Court vide Ex. 32, alleging that after the passing of order below Ex. 5 by the learned Trial Court, the Petitioner has raised construction over

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the suit property, and henceprayed' for conducting "Panchnama" of the suit property by appointing Court Commissioner.

2.6 That the said application was specifically resisted by the Petitioner by filing its written objection at Ex. 35, however, despite the same, the learned Trial Court, passed the impugned order, allowing the said application appointing court commissioner for conducing panchnama of the suit property. Hence, the Petitioner has preferred the present Petition.

3. Heard learned Advocate Mr. Vaibhav B. Shukla for the Petitioner, learned Advocate Ms. Devangi Solanki for learned Advocate Mr. N.V. Gandhi for Respondent No.1 and learned Advocate Mr. Devang Bhatt for learned Advocate Mr. H.S.Munshaw for the Respondent No.2.

4. Learned Advocate Mr. Vaibhav B. Shuikla for the Petitioner has heavily contended that in the present case the impugned order passed by the learned Trial Court is ex-facie bad in law, erroneous and without jurisdiction and hence the same deserves to be quashed. He has further submitted that the petitioner has submitted that the impugned order is passed in most cryptic and mechanical, without appreciating the facts and circumstances of the case, and hence the impugned order is without application of mind and perverse and hence same deserves to be quashed and set aside.

4.2 It is submitted that the learned Trial Court has erred in not appreciating that the order of court commission cannot be made so as to assist a party to collect or procure evidence. That the Court Machinery cannot be used as a means for procuring or creating evidence for a litigant. That the learned Trial Court failed to appreciate, that the Respondent No. 1 has to establish his right of easement based

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on his evidence and documents and that he cannot ask the court machinery to work for him and collect evidence for him to establish his easmentary right. It is further submitted that the learned Trial Court by passing the impugned order has clearly transgressed his jurisdiction and the scope and ambit under Order 26 Rule 9 of the Code of Civil Procedure, and hence the impugned order deserves to be quashed and set aside.

4.3 It is further submitted that the learned Trial Court miserably failed to appreciate that the Plaintiff had already alleged in his plaint that the Petitioner has caused construction over the suit property which has blocked his assess, whereas, in the application for conducting court commission, the Plaintiff in derogation of his pleading now contends that, after the order below Ex. 5 is passed, the Petitioner had raised construction over the suit property which is blocking assess.

4.4 That considering the application of the Plaintiff Ex. 32 and his plaint, it appears that the Respondent No. 1 has stated false and contrary facts to get the court commission conducted so that he mey get to create or collect evidence through court machinery, which is totally impermissible and untenable in the eye of law. Learned Advocate for the Petitioner has therefore submitted that the impugned order deserves to be quashed and set aside.

4.5 It is further submitted that the learned Trial Court has passed the impugned order for conducting court commission at the time of trial i.e. at the time when plaintiff's evidence is under way, but not only that conducting of pachnama at such a belated stage is impermissible, but at the same time, the said fact further substantiates the say of the Petitioner that the purpose for which the application is preferred at such a belated stage is with an ulterior motive, to collect / create evidence in

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favor of the Respondent No. 1. Under the circumstances, the impugned order deserves to be quashed and set aside.

4.6 It is also submitted that the learned Trial Court failed to take into consideration the factual aspects involved in the case, and the legal proposition governing the issue, and passed the impugned order, which cannot sustain in the eye of law and hence, the same deserves to be quashed and set aside.

4.7 It is submitted that even otherwise the impugned order is passed without jurisdiction and in aberration to the settled legal principles, and this Court may exercise the powers under Articles 226 and 227 of the Constitution of India and the impugned order is required to be quashed and set aside.

5. This Court has heard the arguments advanced by learned Advocate Mr. Vaibhav B. Shukla for the Petitioner, learned Advocate Ms. Devangi Solanki for learned Advocate Mr. N.V. Gandhi for Respondent No.1 and learned Advocate Mr. Devang Bhatt for learned Advocate Mr. H.S.Munshaw for the Respondent No.2.

6. Learned Advocate for the petitioner has vehemently and fervently submitted that the order passed by the learned 10 th Additional Senior Civil Judge, Jamnagar is devoid of merits since after the completion of the pleadings, the party has prayed for panchnama by Court Commissioner and therefore urged to interference by this Hon'ble Court and allow the present Petition and quash and set aside the order passed by the learned 10th Additional Senior Civil Judge, Jamnagar below Exh.32 in Regular Civil Suit No. 129 of 2017. Learned Advocate for the Petitioner has placed reliance upon the judgment of this Court in

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the case of Jagdeep Gopalrai Bole v. Himanshu Chandulal Thakkar & Ors. In Special Civil Application No. 15221 of 2018 dated 29.7.2019.

7. Per contra, learned Advocate Mr. Devang Bhatt has heavily and vehemently argued that the learned 10th Additional Senior Civil Judge has arrived at correct conclusion after giving all the reasons for allowing the Application for Court Commissioner under Order 26 Rule 9 of the Code of Civil Procedure, and therefore, no interference is required. Learned Advocate Mr. Bhatt has placed reliance upon the judgment of this Court in the case of Palitana Sugar Mills Pvt. Limited v. Rasulkhan Aliyarkha Blocuh reported in 2013 (0) GLHEL-HC 229735.

8. At the outset, the Court finds it apt to mention here that this writ petition is filed under Article 227 of the Constitution of India. In the case of Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, (2010) 8 SCC 329, the 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 its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle. The observations of the Apex Court 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)].

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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

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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 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

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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

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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."

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9. In yet another judgment in the case of Puri Investments v. Young Friends and Co. and Ors. - MANU/SC0290/2022 the Hon'ble Apex Court has observed as under:

"There was no perversity in the order of the Appellant 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 Constitution of India. 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."

10. Thus, exercise of powers 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 the 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.

11. Having heard the arguments advanced by the learned Advocates for the parties, it is an undisputed fact that pursuant to the contentions raised in the Petition and the recitals in the impugned order dated 3.12.2018 passed by the

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learned 10th Additional Senior Civil Judge, Jamnagar below Exh. 32 in Regular Civil Suit No. 129 of 2017, it appears that learned 10 th Additional Senior Civil Judge, Jamnagar has opined that so longer as the identification, location and measurement of the land or suit premises is concerned, the Court Commissioner can be appointed for the local inspection or investigation and the learned 10th Additional Senior Civil Judge, Jamnagar has passed the order below Exh.32 in Regular Civil Suit No. 129 of 2017 under Order 26 Rule 9 of CPC, wherein no interference is required by this Court. The Petition therefore is devoid of merit and deserves to be dismissed and accordingly stands dismissed. Interim relief granted earlier shall stand vacated forthwith. No order as to costs.

(A. C. JOSHI,J) J.N.W