Shardaben D/O Davalbhai ... vs Natwarbhai Davalbhai Patel
2022 Latest Caselaw 1603 Guj

     C/SCA/14629/2017                                JUDGMENT DATED: 11/02/2022




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CIVIL APPLICATION NO. 14629 of 2017

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

=======================================
          SHARDABEN D/O DAVALBHAI MAGANBHAI PATEL
                              Versus
           NATWARBHAI DAVALBHAI PATEL & 8 other(s)
=======================================
Appearance:
DHARMESH D NANAVATY(2396) for the Petitioner(s) No. 1
MR PERCY KAVINA, SR ADVOCATE with MR ASIT B JOSHI(2567) for
the Petitioner(s) No. 1
 for the Respondent(s) No. 1.1,1.2,1.3,1.4
SHASHVATA U SHUKLA(8069) for the Respondent(s) No.
1,2,3,4,5,6,7,8,9
=======================================

 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                          Date : 11/02/2022

                           ORAL JUDGMENT

1. Rule.

2. This petition, under Article 227 of the Constitution of India,

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is filed by the petitioners praying for to issue a writ of certiorari or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 16.06.2017 passed by the learned Principal Senior Civil Judge, Ahmedabad (Rural), Ahmedabad below Exh. 57 in Special Civil Suit No. 370 of 2010 and to direct the learned trial Court to recast the Issue below Exh.

56.

3. Filtering the unnecessary detail, the facts of the case on hand are that the petitioners have filed a suit being Special Civil Suit No. 370 of 2010 before the learned Principal Senior Civil Judge, Ahmedabad (Rural), Ahmedabad for partition, declaration and permanent injunction qua the suit property. In the said suit, Issues came to be framed vide Exh. 56. The petitioners, thereafter, preferred an application Exh. 57 for addition in the said Issues framed by the learned trial Court. The said application came to be rejected vide impugned order dated 16.06.2017 and hence, the petitioners are before this Court by this petition.

4. Heard, learned senior advocate Shri Percy Kavina with learned advocate Mr. Asit B. Joshi for the petitioners and learned advocate Mr. Shashvata Shukla for the respondents.

4.1 The learned senior advocate for the petitioners submitted that the learned trial Judge has rejected the application Exh. 57 without considering the nature and significance of the Issue suggested therein, only on the ground that earlier Issue No. 4 is already framed for 1/3rd share of the plaintiff. He submitted that the learned trial Judge has failed to appreciate the fact that the petitioners will have to firstly prove the fact as regards they

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being the legal heirs of deceased Davalbhai Maganbhai Patel, have 1/3rd share in the suit property and thereafter, the question with regard to the partition of the suit property arises and accordingly, the Issue, as suggested, was necessary to be framed for proper adjudication of the suit in question. He further submitted that it is the specific case of the petitioners - plaintiffs that the petitioners have 1/3rd share in the suit property and relinquishment of immovable property worth Rs.100/- and more would certainly attract the provisions of the Registration Act and it is required to be executed on proper stamp paper and also required to be registered and if not registered, it cannot be read in evidence. The learned senior advocate for the petitioners submitted that in the case on hand, the suit property is worth more than Rs.100/-, however, no such provisions, as aforesaid appear to have been followed and/or come to the fore, meaning thereby, so-called relinquishment, as averred by the respondents

- defendants, has never taken place and/or invalid.

4.2 The learned senior advocate for the petitioners further submitted that the Issue No. 1 framed by the learned trial Judge in Exh. 56, is beyond the scope and jurisdiction of the learned trial Judge and under Section 135L of the Bombay Land Revenue Code, 1879, there is absolute bar of a suit in respect of a claim to have an entry made in any record or register.

4.3 Thus, making above submissions, he urged that this writ petition may be allowed and Issue as suggested, may be directed to be added and the Issue No. 1 as already framed, may be deleted from the array of Issues.

5. Per contra, learned advocate Mr. Shashvata Shukla for the

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respondents, while heavily opposing the present petition, submitted that the Issue, as suggested by the petitioners - plaintiffs, is already a part of the Issues framed by the learned trial Court vide Issue No. 4 and accordingly, the learned trial Court has rightly rejected the said application so as to avoid repetition of an Issue, which is already framed.

5.1 So far as the Issue No. 1, as framed by the learned trial Court is concerned, the learned advocate for the respondents submitted that there was no prayer in the said application with regard to such an Issue. Furthermore, in this petition also, there is no mention as regards the said Issue in the prayer clause and accordingly, the Court may not decide the said aspect for the first time in this petition under Article 227 of the Constitution of India. Thus, making above submissions, it is requested that this writ petition, being bereft of any merits, may be dismissed.

6. 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

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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. But no such appeal is maintainable from an order passed by a Single Judge of a High Court in exercise

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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

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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.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

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(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 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

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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.

6.2 Revisiting the case on hands, the petitioners, who are original plaintiffs have filed the suit for partition, declaration and permanent injunction, wherein, Issues have been framed at Exh. 56 in which, the petitioners preferred an application for addition of an Issue. It is this application which came to be rejected by the learned trial Court and hence, the petitioner are before this Court challenging the same. The petitioners have also prayed for deletion of Issue No. 1 framed therein vide Exh. 56. The learned senior advocate for the petitioners has submitted that prior to partition, 1/3rd right of the plaintiffs - petitioners in the suit property ought to have been decided and then only, the question relating to partition comes into play and such a fact, the learned trial Judge has failed to appreciate. A perusal of the order in question reveals that, while summarily rejecting the said application Exh. 57, the learned trial Judge has observed that since the Issue No. 4 is already framed for 1/3rd share of the plaintiff, that Issue is to be proved by plaintiff. However, what is suggested by the petitioners by the said Issue, if considered, it is: "Whether plaintiff proves that suit property is of Davalbhai Maganbhai Patel, deceased father of plaintiff and defendant No. 1, and plaintiff being a legal heir, has lawful 1/3rd share and rights?". The learned advocate for the respondents has objected to such an incorporation. It may not be out of place to mention here that the suit is for partition of the suit property as well as for declaration and permanent injunction and accordingly, addition of such an Issue may not, in any way, affect the rights of any party to the suit. The Court is in agreement with the contention raised

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by the learned senior advocate for the petitioners that prior to the partition, right/share in the suit property, ought to have been decided. Accordingly, in the considered opinion of this Court, ends of justice would meet if such an Issue is permitted to be framed in the pending suit.

6.3 So far as deletion of Issue No. 1 as requested by the learned senior of the petitioners is concerned, the Issue is: "Whether plaintiff proves that revenue entry no. 6181 dtd. 18.11.1986 posted in the records of rights by which the name of the plaintiff is deleted as coparcener owner, is sham and concocted?". It is pertinent to note here that in the impugned application and order thereon, there was no reference as regards such an Issue and accordingly, the same is canvassed before this Court for the first time in this petition under Article 227 of the Constitution and as referred to herein above, the scope in such a petition under Article 227 of the Constitution is very law. Accordingly, in the considered opinion, no interference of this Court is required so far as Issue No. 1 is concerned.

7. In view of aforesaid discussion and observations, this petition succeeds and is allowed in part. The impugned order dated 16.06.2017 passed by the learned Principal Senior Civil Judge, Ahmedabad (Rural), Ahmedabad below Exh. 57 in Special Civil Suit No. 370 of 2010 is set aside and the learned trial Court is directed to add the Issue (in Exh. 56), as suggested vide application Exh. 57 and the parties to the suit are permitted to adduce evidence qua the same.

7.1 At the request of learned advocates for the respective parties, the suit is expedited. It is expected that the learned trial Judge shall decide the suit of 2010 as early as possible,

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preferably within 06 months from the date of receipt of writ of this order, on its own merits and without being influenced by this order.

7.2 The parties to the suit are directed to cooperate the learned trial Court in such exercise and shall not ask for unnecessary adjournments.

7.3 Rule is made absolute accordingly with no order as to costs.

[ A. C. Joshi, J. ] hiren