Yunusbhai Hasanbhai Memon vs Shaheriyar Rustam Anklesariya
2023 Latest Caselaw 2981 Guj

      C/SCA/1671/2023                                        ORDER DATED: 18/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 1671 of 2023

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                          YUNUSBHAI HASANBHAI MEMON
                                    Versus
                        SHAHERIYAR RUSTAM ANKLESARIYA
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Appearance:
HL PATEL ADVOCATES(2034) for the Petitioner(s) No. 1
MS AMRITA M THAKORE(3208) for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 18/04/2023

                                   ORAL ORDER

1. The present petition is filed being aggrieved

and dissatisfied with the judgment and order passed by

the learned City Civil Court, Ahmedabad in Civil

Miscellaneous Application No.516 of 2017 dated 9.1.2020,

by which the application for condonation of delay in

seeking revocation of the Probate or Letters of

Administration under Section 263 of the Indian

Succession Act is rejected.

2. The brief facts of the case as stated in the

petition are such that on 3.3.1998 one Colonel

N.K.Anklesariya, owner of the disputed property gave

power of attorney to one Mr.Pravinchandra Joshi who

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executed an agreement to sell with respect to disputed

property in favour of the petitioner; that on 14.1.2000,

the colonel passed away intestate and on 17.5.2000, the

municipal corporation transferred the disputed property in

the name of R.K.Anklesariya, brother of colonel

N.K.Anklesariya in its record; that on 3.3.2001, CMA

No.607 of 2000 which is filed for granting of letter of

administration of the disputed property, the Court has

issued in a public notice in Gujarati newspaper and

invited objection from the members of the public. On

14.10.2003, the very Court has issued letter of

administration in the name of Mr.R.K.Anklesariya; in

the year 2011, as per the present petitione, when he

came to know about the order dated 14.10.2003 for issuance of letter of administration, filed suit on

7.10.2011 being Civil Suit No.2296 of 2011 seeking

cancellation of letters of administration; that on

29.6.2013, the petitioner's plaint was rejected under the

provisions of Order VII Rule 11 of the Code of Civil

Procedure (`CPC' for short) on the ground that the suit

is barred by limitation and it was also held that the

petitioner has no locus standi to challenge the

proceeding; that on 3.2.2017, the High Court disposed of

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the First Appeal No.1973 of 2013 by which the impugned

order passed under Order VII Rule 11 in the Civil Suit

no.2296 of 2011 was challenged as not pressed with a

liberty to file application for revocation of probate; that

thereafter on 12.10.2017, the petitioner preferred

application being CMA No.516 of 2017 seeking

condonation of delay in preferring application under

Section 263 of the Indian Succession Act; that the said

application was rejected vide order dated 9.1.2020 by the

learned City Civil Court, Ahmedabad in CMA No.516 of

2017; that thereafter, the petitioner has preferred Civil

Revision Application No.108 of 2020 that was permitted

to be converted by order dated 30.1.2023 into Special

Civil Application and accordingly the present Special Civil Application is filed under Article 227 of the

Constitution of India by challenging the impugned order

passed in CMA No.516 of 2017.

3. Heard learned advocate Mr.Vijay H Patel with

learned advocate Mr.Darshan Dave for the petitioner and

learned advocate Mr.Amrita Thakore for the respondents.

3.1 Learned advocate Mr.Vijay H Patel for the

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petitioner has strongly relied on the observation made in

paragraph 18 of the impugned order and has contended

that after observing that the application is barred by

limitation, the Court has further gone into the merits by

observing about the locus standi of the applicant for

seeking revocation of the letters of administration and

has submitted that the same is not permissible and

when the Court is deciding the application for

condonation of delay, the Court should not enter into the

merits of the main proceedings. He has further submitted

that there are several proceedings going on between the

parties and observations of the impugned order made by

the learned trial Court will come in the way which may

cause prejudice to the rights and contentions of the present petitioner. He has further submitted that the

impugned order is otherwise erroneous and against the

well settled principles of law and therefore required to

be interfered with. He has also submitted that the

learned Civil Judge has made some observation that the

petitioner's advocate was not present for hearing of the

application on three occasions i.e. 9.12.2019, 18.12.2019

and 4.1.2020. Further, it has been observed that on

2.1.2020, the learned advocate for the petitioners has

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sought an adjournment at Exh.19, which means, after

hearing the learned advocate for the petitioner, the

matter was adjourned to 4.1.2020. On 4.1.2020, learned

advocate for the opponents had given the reply opposing

the delay application and therefore the petitioner's

advocate had sought adjournment for filing rejoinder to

the reply and thereafter the matter was posted on

9.1.2020. It is further submitted that on 9.1.2020, there

was some personal difficulty on behalf of learned

advocate for the petitioner in the first half and therefore

he had requested to keep the matter after recess but the

learned Judge, without considering the request of the

learned advocate, has straightaway passed the judgment

and order against the present petitioner and therefore he has submitted that the learned Judge has not properly

heard the petitioner and passed the judgment due to

some prejudice against the concerned advocate. Therefore

also, the interference of this Court is called for as the

Court has not given any proper opportunity of hearing to

the present petitioner and therefore he has prayed to

consider the provisions of law in the facts and

circumstances of the present case, more particularly,

when the petitioner is not heard by the learned Court

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below before passing the impugned order. Learned

advocate Mr.Patel further submitted that on the ground

of mistake of the learned advocate, the present petitioner

should not suffer and therefore also, this petition is

required to be considered. He has relied on judgments in

the case of (i) Rafq V/s Munshi Lal reported in 1981(2)

SCC 788; (ii) N.Balakrishnan V/s M.Krishnamurthy reported in 1998(7) SCC 123; (iii) Ram Kumar Gupta V/ s Har Prasad reported in 2010(1) SCC 391 and (iv) Ram Nath Sao @ Ram Nath Sahu V/s Gobardhan Sao reported in 2002(3) SCC 195.

4. Per contra, learned advocate Ms.Thakore for the respondents has supported the impugned judgment and order passed by the learned trial Court. She

strongly relied on the proceedings which were initiated in

the Civil Suit No.2296 of 2011 where the Court has

rejected the plaint under the provisions of Order VII

Rule 11 by order dated 29.6.2013, by considering the

matter on merits and which is reflected in page

nos.8,9,10 an 14 of the judgment passed in SCS No.2296

of 2011 and thereafter the First Appeal which was filed

against the said order i.e. First Appeal No.1973 of 2013

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was ultimately withdrawn with a view to file appropriate

proceeding for revocation of letters of administration and

therefore the said judgment has attained finality. She

has further relied on Article 137 of the Limitation Act

and submitted that the limitation starts from the date of

issuance of probate/ letters of administration and for that

purpose she has relied on the judgment in the case of

Lynette Fernandes V/s Gertie Mathias since deceased By Legal Representatives reported in 2018(1) SCC 271 and submitted that in view of the judgment also, the petition

requires to be dismissed. She has further submitted that

in the impugned order also, the learned trial Court has

discussed in detail about the facts of the present case as

well as the provisions of law in paragraphs 9,10,11, 13 and 14. She, therefore, prays to dismiss the present

petition as no case is made out in which the Court has

to exercise the powers under Article 227 of the

Constitution of India. She submitted that the petitioner

has no locus standi to challenge the grant of probate or

letters of administration issued in favour of the present

respondent beyond the limitation period.

5. I have considered the rival submissions at the

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bar, perused the impugned judgment and order and the

citations cited at the bar by learned advocates for the

parties.

6. On perusal of the impugned judgment and

order, it transpires that the Court has categorically found

that the application which is filed for revocation of the

probate is clearly barred by law of limitation as such

applications are covered under Article 137 of the

Limitation Act and the petition ought to have been

presented within three years from the date when the

right to apply accrues. If the party does not contest the

proceedings for grant of probate within limitation, it

cannot be permitted to challenge it by a collateral attack in different proceedings. The Court has further observed

that the applicant has not given any plausible

explanation to such of such collossal delay in filing the

present application from the year 2003 to 2011. In fact,

all three suits seeking adjudication of rights in disputed

property being Suit No.2296 of 2011 dismissed on

29.6.2013, Suit no.71 of 2011 dismissed on 5.4.2011 and

Suit No.46 of 2012 dismissed on 13.5.2016 and also First

Appeal No.1973 of 2013 is also withdrawn on 3.2.2017.

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The Court has rightly relied on the judgment in the case

of Ramesh Nivrutti Bhagwat V/s Surendra Manohar Parakhe in Civil Appeal No.1399 of 2010 dated 4.10.2019 rendered by the Apex Court and by observing the

relevant portion from the judgment, the Court has also

considered the application for condonation of delay about

the locus of the present petitioner. Moreover, judgments

relied on by learned advocate for the petitioner cannot

be helpful to his case in the facts and circumstances of

the present case.

7. At this stage, it is required to refer to the

judgment of the Apex Court in the case of Garment

Craft V/s Prakash Chand Goel reported in (2022) 4 SCC 181, where it was held that High Courts while exercising powers under Article 227 does not act as appellate

authority and cannot reappreciate evidence and the

jurisdiction exercised is in nature of correctional

jurisdiction to set aside grave dereliction of duty or

flagrant abuse and High Court cannot substitute its own

view on merits. It is held in paragraph nos.15 to 17 as

under:

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"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction 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 decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles 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. has observed:-

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"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority 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 unlimited prerogative to correct all kinds of hardship or wrong decisions 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 injustice 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 face of the record. The High Court can set aside or ignore the findings 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 person can possibly come to such a conclusion, which the court or tribunal has come to."

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17. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects

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which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution."

8. Further, in the case of M/s Puri Investments

V/s M/s Young Friends and Co & Ors. Reported in 2022 Law Suit (SC) 306, it is held that supervisory

jurisdiction canbe exercised if finding of fact would be

perverse (1) erroneous on account of non-consideration of

material evidence; (2) conclusion contrary to evidence; (3)

based on inferences impermissible in law and

reappreciation of evidence is not permissible.

9. In view of the above discussion, I am of the opinion that the Court below has not committed any

error much less grave error and there is no infirmity or

illegality in the impugned order passed by the learned

trial Court. Therefore, this petition is dismissed.

(SANDEEP N. BHATT,J) SRILATHA