Harijan Murji Aasmal Heirs Of ... vs Sakarben Nemchand Chheda
2023 Latest Caselaw 1422 Guj

     C/SCA/22155/2022                                      ORDER DATED: 10/02/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 22155 of 2022

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 HARIJAN MURJI AASMAL HEIRS OF DECD. HARIJAN AASMAL PUNJA
                          Versus
                SAKARBEN NEMCHAND CHHEDA
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Appearance:
DEVANSHI P MALKAN(9307) for the Petitioner(s) No. 1
VATSAL M PARIKH(9340) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                Date : 10/02/2023

                                 ORAL ORDER

1. By way of present writ-application the writ-applicant herein is aggrieved by the order dated 13.2.2020 passed below Ex.94 in the Regular Civil Suit No.18 of 2011 by the learned Additional Civil Judge, Mandvi-Kachchh.

2. Heard Mr. Jitendra Malkan, the learned advocate appearing for the writ-applicant.

3. It was submitted that the writ-applicant was constrained to institute the Regular Civil Suit No.18 of 2011 for declaratory decree declaring that the land bearing revenue survey No.260 admeasuring Acre 5-16 Guntha (Hectare 2-18-53 Are) known as Ratol as well as land bearing Revenue Survey No.261

C/SCA/22155/2022 ORDER DATED: 10/02/2023

admeasuring Acre 615 Guntha (Hectare 2-57-99 Are) known as Chhabariyoare in the possession of the writ-applicant. The writ-applicant also prayed for a permanent injunction restraining the respondent from interfering or disturbing possession of the writ-applicant or dealing with the said property in any manner. The suit is at the stage of final argument.

4. At the said stage, the writ-applicant preferred application below Ex.94 which is duly produced at page-5. While considering the application below Ex.94 the Court below rejected the same on the ground that the suit proceedings is at the stage of final argument and at such stage an application for drawing panchnama cannot be entertained. The concerned Court held that allowing the said application would not serve the purpose as the Court Commissioner could not be in position to decide the possession of the suit land. Placing reliance on AIR 1996 Karnataka 257 the concerned Court held that the function to ascertain who is in possession of the suit land cannot be relegated by appointing the Court Commissioner. Considering the same, the said application below Ex.94 came to be dismissed on 13.2.2020.

5. Being aggrieved by the order dated 13.2.2020 the writ- applicant herein has approached this Court seeking the

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following reliefs :-

"(a) Admit, hear and allow the pres petition.

(b) Quash and set aside the order passed by the learned Additional Civil Judge, Mandvi-Kachchh below Exhibit 94 in Regular Civil Suit No. 18 of 2011 dated 13.02.2020.

(c) Allow the application below Exhibit 94 in Regular Civil Suit No. 18 of 2011 with cost throughout.

(d) Grant any other relief/s as it may deem fit in the interest of justice."

6. This Court has considered the submissions advanced by Mr. Malkan, the learned advocate appearing for the writ- applicant. No interference is called for exercising supervisory jurisdiction under Article 227 of the Constitution of India in the impugned order dated 13.2.2020 passed below Ex.94 by the trial Court for the reason that suit proceeding is at the stage of final argument and at the belated stage in view of this Court would result in multiplicity of proceedings and reasons given by the trial Court requires no interference. No error of law so as to speak any error of jurisdiction could be said to have been committed by the trial Court while dismissing the said application below Ex.94. The findings arrived at by the trial Court are findings of fact which require no interference

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under Article 227 of the Constitution of India. While exercising supervisory jurisdiction this Court would not act as appellate body or reappreicate evidence. The Court can interfere with the decision of fact finding forum only if the findings are perverse.

7. At this stage, it is apposite to refer to position of law :-

In the case of M/s. Garment Craft v. Prakash Chand Goel, reported in AIR 2022 SC 422, Paragraph-18 reads thus :-

"18. 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 tribunal1. 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

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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. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd.,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

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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."

8. Considering the facts of the present case and position of law, no interference is called for in the impugned order dated 13.2.2020 passed below Ex.94 in the Regular Civil Suit No.18 of 2011 by the learned Additional Civil Judge, Mandvi- Kachchh.

9. In view of above, the present writ-application stands dismissed.

(VAIBHAVI D. NANAVATI,J) K.K. SAIYED