Rubinabanu Gulam Yasin Malek vs Ziyaratali Abdul Shah
2023 Latest Caselaw 3207 Guj

       C/SCA/1714/2023                              ORDER DATED: 24/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 1714 of 2023

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                         RUBINABANU GULAM YASIN MALEK
                                     Versus
                             ZIYARATALI ABDUL SHAH
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Appearance:
MR VAIBHAV N SHETH(5337) for the Petitioner(s) No. 1,2
MR NA SHAIKH(1098) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 24/04/2023

                                 ORAL ORDER

1. The present petition is filed by the petitioners -

original defendants No.1 and 2 challenging the impugned

order dated 03.12.2022 passed below application Exh.6 in

Regular Civil Suit No.105 of 2002 by the trial Court i.e. 2 nd

Additional Civil Judge, Ankleshwar, whereby the trial Court

has allowed the said application for appointment of Court

Commissioner for carrying out panchnama in relation to one

room situated towards northern side out of four rooms of a

residential premises bearing Revenue Survey No.34 Paiki Plot

No.3-A-B admeasuring 23.23 sq.mtrs., situated at Village :

Kapodara, Tal. Ankleshwar, District Bharuch.

2. Heard learned advocates.

C/SCA/1714/2023 ORDER DATED: 24/04/2023

3. Draft amendment is allowed. To be carried out

forthwith.

4.1 Mr.Vaibhav Sheth, learned advocate for the

petitioners - original defendants No.1 and 2 has drawn the

attention of this Court towards earlier suit filed by the

present respondent being Regular Civil Suit No.123 of 2011

and has submitted that the said suit was filed claiming for

occupation and possession of one room of the premises in

question, which was rejected under Order VII Rule 11 of the

Code of Civil Procedure, 1908 by the trial Court.

4.2 That order is challenged by way of Regular Civil

Appeal No.9 of 2014 before the appellate Court below by the

present respondent, which is pending before the concerned

appellate Court below for adjudication. It is reported that in

the appeal proceedings, there is no stay in favour of the

appellant - present respondent.

4.3 Being a judgment creditor, the petitioner No.1 has

also filed one suit being Regular Civil Suit No.302 of 2015

inter alia praying for handing over the vacant and peaceful

possession of the suit premises in occupation on the basis of

the oral leave and license. The said suit was partly allowed

by the trial Court vide its judgment and decree dated

C/SCA/1714/2023 ORDER DATED: 24/04/2023

08.01.2021.

4.4 The present respondent has filed another suit i.e.

Regular Civil Suit No.105 of 2022 before the trial Court for

declaration and permanent injunction and for specific relief of

oral agreement to sell, by specifically making averments in

the said suit that they are in occupation of the suit premises

i.e. four rooms, total admeasuring 92.83 sq.mtrs., and he has

enjoyed the possession of the said premises since last fifteen

years. That averments are inconsistent with the earlier

averments made in the suit filed by the same plaintiff being

Regular Civil Suit No.125 of 2011, which was dismissed and

in this background, the present application under Order XXVI

Rule 9 of the Code of Civil Procedure, 1908 by the present

respondent, which was allowed by the trial Court. The trial

Court has granted that application whereby also, the present

petitioner has prayed for inventory of the entire premises

that is averred in the suit premises that means four rooms.

The said application is strongly opposed by the present

petitioners - original defendants, however, the trial Court has

mechanically passed the order by appointing the Court

Commissioner and directed to pay Rs.2,000/- before it vide

order dated 03.12.2022. He has submitted that that order is

none speaking order and without assigning any reasons,

merely because the Court has recorded that looking to the

C/SCA/1714/2023 ORDER DATED: 24/04/2023

dispute between the parties, it is required to appoint Court

Commissioner and therefore, on that ground only, the

impugned order requires interference.

4.5 He has further submitted that moreover,

considering the fact that the original plaintiff - present

respondent has also not filed the second suit by disclosing

the correct facts before the trial Court and by making wrong

claims contrary to the pleadings made in the earlier suit. He

has submitted that even the suit is nothing but the abuse of

process of law and therefore also, considering the same, the

present petition deserves to be allowed.

5. Mr. Shaikh, learned advocate for the respondent

has submitted that the order impugned is just and proper.

He has relied upon the decision of the Hon'ble Apex Court in

the case of Kokkanda B. Poondacha and others versus K.D.

Ganapathi and Another reported in AIR 2011 SC 1353 by

submitting that this Court should not interfere in the

interlocutory order by exercising the powers under Article 227

of the Constitution of India. He has submitted that with a

view to find out the real controversy between the parties, the

trial Court has passed the impugned order. He has submitted

that this petition may be dismissed.

C/SCA/1714/2023 ORDER DATED: 24/04/2023

6.1 Considering the rival submissions made by the

learned advocates for the respective parties and the

averments made in this petition, this Court fins that the

present respondent has filed earlier suit being Regular Civil

Suit No.123 of 2011 for same relief qua same property in

question in the year 2011. The said suit was rejected under

Order VII Rule 11 of the Code by the trial Court. Against

which the appeal is preferred by the present respondent and

is pending before the appellate Court below without any stay

of that judgment and decree, as reported by the learned

advocates for the respective parties.

6.2 Being a judgment creditor and since there is no

stay against the said judgment and decree of the trial Court

by the appellant Court below, the petitioner No.1 has filed a

suit being Regular Civil Suit No.302 of 2015 for handing

over the vacant and peaceful possession of the suit premises,

which was partly allowed by the trial Court vide its

judgment and decree dated 08.01.2021 and against that, there

is no appeal by the other side and it has attained finality,

as reported by the learned advocates for the respective

parties.

6.3 Since there is no relief in favour of the present

respondent by any Court of law, the present respondent has

C/SCA/1714/2023 ORDER DATED: 24/04/2023

again filed a suit being Regular Civil Suit No.105 of 2022

before the trial Court against the same party i.e. present

petitioners for declaration and permanent injunction and for

specific performance of oral agreement to sell, along with an

application for interim injunction at Exh.5.

6.4 The present respondent has also filed an

application for appointing Court Commissioner at Exh.6 under

Order XXVI Rule 9 of the Code before the trial Court, which

is allowed by the trial Court by the impugned order and

therefore, the present petition is filed by the original

defendants No.1 and 2 - present petitioner before this Court

to oppose the same.

6.5 There are other chequered history of the suit

premises between the parties, however, the same need not be

mentioned, at this stage in this order.

6.6 This Court has perused the impugned order passed

by the trial Court below Exh.6 in Regular Civil Suit No.105

of 2022.

6.6.1 At this stage, it is required to be noted the

provisions of Order XXVI Rule 9 of the Code of Civil

Procedure, 1908 as under :

C/SCA/1714/2023 ORDER DATED: 24/04/2023

"Order XXVI - Commissions to examine witnesses

Rule 9 : Commissions to make local investigations.-- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."

6.6.2 Further, at this stage, it would be fruitful to refer

to Article 227 of the Constitution of India, which is as

under:

"227. [(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

(2) Without prejudice to the generality of the foregoing provision, the High Court may--

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) prescribe forms in which books, entries and

C/SCA/1714/2023 ORDER DATED: 24/04/2023

accounts shall be kept by the officers of any such courts.

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:

Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces."

6.6.3 Further, the High Court can exercise supervisory

powers in such matter and accordingly, it is a fit case where

this Court can exercise its powers under Article 227 of the

Constitution of India. The Hon'ble Apex Court has recently,

in the case of M/s. Garment Craft versus Prakash Chand

Goel reported in (2022) 4 SCC 181, more particularly in paras 15 to 17, observed as under :

"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

C/SCA/1714/2023 ORDER DATED: 24/04/2023

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, 1 Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217 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., (2001) 8 SCC 97 has observed:-

"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.

C/SCA/1714/2023 ORDER DATED: 24/04/2023

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."

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

C/SCA/1714/2023 ORDER DATED: 24/04/2023

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 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."

6.7 On conjoint consideration of above, it is observed

that this Court can certainly interfere in the impugned order,

if it is ex-facie illegal and without giving any reasons, more

particularly when the finding of the Court amounts to create

prejudice to the other side. Moreover, considering the conduct

of the present respondent also, who has made attempt to

abuse the process of law by filing one more suit by making

C/SCA/1714/2023 ORDER DATED: 24/04/2023

a proof in his pleadings contrary to the earlier pleadings

made in that suit filed by him in the year 2011. This Court

should not encourage such litigant and should stop the abuse

of process of law and therefore, the present petition deserves

to be dismissed.

7. In view of above, the following order is passed.

7.1            This petition is allowed.



7.2            The impugned order dated 03.12.2022 passed below

application Exh.6 in Regular Civil Suit No.105 of 2002 by

the 2 nd Additional Civil Judge, Ankleshwar is quashed and

set aside.

7.3 The trial Court concerned is directed to look into

the matter by considering the earlier pleadings / proceedings.

8. It is open for the petitioner to claim appropriate

cost against the respondent before the trial Court.

Direct service is permitted.

(SANDEEP N. BHATT,J) M.H. DAVE