Gujarat High Court
Ishvarlal Girdharlal Pabari vs Legal Heirs Of Decd. Maniben ... on 31 August, 2023
Bench: J. C. Doshi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19891 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ISHVARLAL GIRDHARLAL PABARI
Versus
LEGAL HEIRS OF DECD. MANIBEN JASHBAI
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Appearance:
MR RC KAKKAD(389) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
MR PRATIK Y JASANI(5325) for the Respondent(s) No. 4
MS MINI M NAIR(2689) for the Respondent(s) No. 2
SERVED BY RPAD (N) for the Respondent(s) No. 1.1,1.2,1.3,1.4,1.5,3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 31/08/2023
ORAL JUDGMENT
1. Rule. Learned advocate Ms Mini Nair waives service of rule
for respondent No.2 and learned advocate Mr. Pratik Jasani
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waives service of rule for the respondent No.4.
2. By way of this petition under Article 227 of the
Constitution of India, the petitioner challenges order dated
22.9.2021 passed by the learned 9th Addl. Senior Civil Judge,
Jamnagar below application Exh.318 in Regular Civil Suit
No.853 of 2002.
3. The facts required for deciding the controversy are briefly
stated that the petitioner filed Regular Civil Suit No.853 of 2002
(Old Special Civil Suit No.116 of 1996) before the learned 9 th
Addl. Senior Civil Judge, Jamnagar for the relief of specific
performance in regards to the agreement to sell executed qua
land bearing survey No.28/1 admeasuring 6 acre and 37 guntha
situated at village Deral, Dist: Jamnagar (in short "the suit
land"). The suit land was sold to the respondent No.4 under the
registered sale deed dated 20.3.2010. Therefore, an application
Exh.260 under Order 1 Rule 10 of the Code of Civil Procedure,
1908 (in short "CPC") came to be filed before the court below for
joining him as a party. The application of the new purchaser was
rejected by the learned court below vide order dated 11.1.2013.
It came to be challenged before this court by way of filing SCA
No. 3019/2013. Vide order dated 5.7.2017. This Special Civil
Application was allowed and Mr. Pravinsinh Hemantsinh Zala,
who was purchaser of the suit land was allowed to join as a
defendant.
4. Said Mr. Pravinsinh Hemantsinh Zala filed written
statement at Exh.304 on 14.3.2018. Meanwhile, the defendant
No.1 of the suit has expired and therefore, an application was
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moved to join his legal heirs vide Exh.309, which was allowed.
The defendant No.4 Mr. Pravinsinh Hemantsinh Zala as had
been ordered to join as a party in the suit, necessary amendment
was carried out by the plaintiff in his plaint joining Mr.
Pravinsinh Hemantsinh Zala as a party defendant and also
added relief in terms of para 6(D) to cancel the sale deed
executed in his favour pending the suit. Subsequent thereto, an
application at Exh.318, came to be filed by Mr. Pravinsinh
Hemantsinh Zala for recalling the witnesses of the plaintiff and
the plaintiff for cross-examination. The learned court below after
hearing learned advocate for both the sides, was pleased to allow
application Exh.318 and by order dated 22.9.2021 permitted the
defendant No.4 to cross examine the plaintiff.
5. Being aggrieved and dissatisfied, by the impugned order,
the original plaintiff is before this court by filing present petition.
6. Heard learned advocate Mr RC Kakkad for the petitioner,
learned advocate, Ms. Mini Nair for the respondent Nos.1 to 3
and learned advocate Mr Pratik Jasani for the respondent No.4.
7. Learned advocate Mr. Kakkad would argue that suit is filed
in the year 1996. The deposition of the plaintiff is filed
somewhere in 2005 and he has been cross examined by the
defendant who was arraigned at that time. Thus, the deposition
of the plaintiff was completed in 2009. He would further submit
that in the present case, allowing Exh.318, the learned court,
below materially erred and virtually put the trial in denovo. The
plaintiff, who is seeking for the specific performance since 1996,
has been put back to the stage of producing his evidence by the
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impugned orders. He would further submit that while seeking
relief for recalling the witnesses, respondent No.4 herein has not
mentioned any provision of law before the learned trial court.
Yet, the learned trial Court heavily overlooked this aspect, has
committed error. He would further submit that in view of Order
18 Rule 17 of the CPC, recalling of the witnesses is permissible,
but within the parameters stated therein. He would further
submit that the impugned order has adversely affected the case
of the plaintiff. Learned trial Court by allowing application for
recalling has put the plaintiff to very initial stage of suit. He
would submit that the learned trial Court adopting such course
has totally misread the proposition of law. Relying upon the
judgment of K.K. Velusamy Vs. N. Palanisamy reported in (2011)
11 SCC 275, he would submit that power to recall witnesses,
which is already examined, and cross-examined, is limited and
the court while exercising such power has to be circumspect.
Upon such submissions, he prays to allow this petition and to
set aside the impugned order.
8. Learned advocate Ms. Mini Nair for the respondent
supported the arguments canvassed by learned advocate Mr.
Kakkad.
9. Learned advocate Mr. Pratik Jasani would submit that
while allowing the present petition to join the proceedings before
the court below, this court has categorically observed that the
respondent No.4 has acquired interest in the suit land. He would
further submit that subsequent thereto, the plaintiff has
amended the plaint and also sought the relief against respondent
No.4 and sought cancellation of the sale deed executed in favour
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of the respondent No.4. Thus, the pleadings indicates that the
plaintiff has also asked the relief against respondent No.4. He
would further submit that the respondent No.4's entry to the
suit proceeding is far subsequent to the evidence of the plaintiff
and his witnesses are recorded. However, once the respondent
No.4 is joined as a party automatically, he gets right to
participate in the proceedings and to put forward his defence
and to adduce evidence to establish his defence, which includes
the cross-examination of the plaintiff and his witnesses while
supporting the impugned judgment and order. He would further
submit that in the limited jurisdiction under Article 227 of the
Constitution of India, this court cannot reassess the impugned
orders as no material error is committed. Upon his submission,
he prays to dismiss this petition.
10. Having heard, learned advocate for both the sides, at the
outset, let refer para 6 of the order passed in Special Civil
Application No.3019/2013, by which, the respondent No.4 was
joined as party in the suit. The order reads as under:-
"The Court having heard learned advocates for both the
parties finds that as stated in the application at exhibit
260, and as submitted by learned advocate Mr.Jasani,
the petitioner claim to have acquired interest in the suit
land under the registered sale deed in his favour
pending the suit of respondent No.1. The respondent
No.4 who also claims to have purchased the suit land
from respondent no.2 is joined as party defendant in the
suit of respondent No.1. In such view of the matter, the
Court finds that simple delay in making the application
to be joined as party would not be a ground to reject the
application of the petitioner as when respondent No.4 is
allowed to be joined as party defendant in the suit,
same way the petitioner could have been allowed to be
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joined as party defendant in the suit. Ultimately,
respondent No.4 as also the petitioner both claim to be
transferee of the suit land pandente lite."
11. The petitioner plaintiff has not challenged the above
findings of this court before the higher forum and as such, such
findings have attained the finality. This court has categorically
believed that respondent No.4 is a transferee pandente lite. The
respondent No.4' case is that by way of registered sale deed, he
has acquired interest in the suit land. To be noted that pursuant
to the order dated 5.7.2017, the plaintiff has amended the suit
and also sought relief against the defendant No.4. The defendant
No.4 has also filed written statements against the plaintiff and
advanced his objection to the suit. He became party to the suit
challenging the pleading of the suit. Joining of respondent No.4
in the suit has put him to the position of party defendant, who
averse the plaintiff's claim/relief. In the circumstances, natural
principle of natural justice demands that defendant number
No.4 be given fullest opportunity to put his case or to prove his
case which includes cross-examination of the witnesses which
are already examined by the plaintiff.
11.1 Order 18 Rule 17 of the CPC spells following:-
"17. Court may recall and examine witness. -
The Court may, at any stage of suit, recall any witness
who has been examined and may (subject to the law of
evidence for the time being in force), put such questions
to him as the Court thinks fit."
12. The provision contained expression "may" enabling the
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court to recall any witness at any stage subject to the law of
evidence for the time being in force and permit to put any such
question to him as it thinks fit. The power to recall any witness
under Order 18 Rule 17 can be exercised by the court either on
its own motion or on the application filed by any of the parties to
the suit, requesting the court to exercise such power. if we go by
the facts of this case, it is undisputed that respondent No.4 was
allowed to contest the suit by joining as a party defendant by
this court by order dated 5.7.2007. The relief against him also
claimed subsequent thereto. Prior to said proceedings, the
plaintiff had examined his witnesses, including himself. It is apt
to note that once an order allowing the application to join party
defendant in absence of challenge to such order, it has attained
finality. The respondent No.4 being newly added party, obtains
right to participate in trial of the suit. To be noted at the cost of
repetition that the respondent No.4 has also challenged those
pleadings by way of filing written statement.
In so far as the plaintiff is concerned, the case would go
back to the pleading stage and may continue to run from that
stage. The order is not carried to challenge. The plaintiff was
permitted to amend the suit and allowed to ask relief against the
defendant No.4. Under these circumstances, the plaintiff and his
witnesses has to enter into the witness box offering them for
cross examination to be done by defendant No.4. The plaintiff
and his witnesses cannot hide. Natural justice as stated
hereinabove demands so. To be noted that in this established
fact, allowing the witness to be cross examined, no right or
obligation of the party to the controversy in the suit is being
decided or concluded. The parties would be at the stage or
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chance to produce their best evidence, which would permit the
court to decide the controversy inter se. Therefore, the judgment
relied upon by the learned advocate for the petitioner renders no
assistance to the petitioner. In the judgment of K.K. Velusamy
(supra), the Hon'ble Apex Court held that Order 18 Rule 17 of
the CPC gives Court to put question to answers. This judgment
does not provide any assitance to the petitioner.
13. At the outset, let refer the nature of scope of the
supervisory jurisdiction under Article 227 of the Constitution of
India, which is enlightened in case of Garment Crafts Vs.
Prakash Chand Goel reported in (2022) 4 SCC 181, wherein the
Hon'ble Apex Court in para 15 and 16, held 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 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 [Celina Coelho Pereira (Ms) and Others v. Ulhas
Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217]. The
jurisdiction exercised is in the nature of correctional1
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.
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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. 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."
14. In the result, the petition fails and stands dismissed. Rule
is discharged.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
