Rasikbhai Dahyabhai Patel vs Bharatsinh Takhatsinh Jadav
2023 Latest Caselaw 1573 Guj

     C/SCA/3932/2022                             ORDER DATED: 15/02/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 3932 of 2022

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                        RASIKBHAI DAHYABHAI PATEL
                                  Versus
                       BHARATSINH TAKHATSINH JADAV
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Appearance:
MR SHAILESH V RAVAL(2953) for the Petitioner(s) No. 1
MR MANAV A MEHTA(3246) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                             Date : 15/02/2023

                               ORAL ORDER

1. By way of present petition, the petitioner herein has challenged the order passed below Exh.13 by the Principal Senior Civil Judge, Deesa, whereby, the application below Exh.13 for sending the promissory note to FSL under Order XXVI Rule 10-A of the Civil Procedure Code, 1908 and the application below Exh.21 seeking rejection of the plaint under Order VII Rule 11 of the Civil Procedure Code, 1908, came to be rejected by a common order dated 18.12.2021.

2. It is the case of the petitioner that the petitioner herein is the original defendant and the opponent is the original plaintiff in the Special Summary Suit No.4 of 2019 inter-alia demanding Rs.25,00,000/- on the basis of a bogus, fake, wrong, unstamp, forged promissory note. The petitioner herein preferred application below Exh.13 stating that the opponent - original plaintiff was wanting to harass the petitioner - original defendant by filing the suit-in-question. The said suit according

C/SCA/3932/2022 ORDER DATED: 15/02/2023

to the petitioner- original defendant, is based on forged, false and vexatious document i.e. a so called promissory note dated 31.01.2016. By preferring the application below Exh.13, it is contended by the petitioner - original defendant that the promissory note-in-question is required to be investigated by hand-writting expert under Order XXVI Rule 10-A of the CPC. For the aforesaid reason, it is prayed by the petitioner herein to pass an order appointing expert/Commissioner for conducting scientific investigation through Forensic Science Laboratory to investigate the promissory note which, according to the petitioner - original defendant, is fake and forged. The application below Exh.21, which is filed under Order VII Rule 11 seeking rejection of plaint, came to be rejected by the concerned Court and the same is also subject matter of challenge before this Court.

3. Heard Mr. Shailesh Raval, learned advocate appearing for the petitioner and Mr. Manav Mehta, learned advocate appearing for the respondent.

4. Mr. Shailesh Raval, learned advocate appearing for the petitioner, vehemently submitted that if the promissory note- in-question would be sent to FSL, it would be established that the petitioner herein is not the signatory of the promissory note and no further proceedings are required and resultantly, the application below Order VII Rule 11 would also be considered by the Court below.

5. Mr. Manav Mehta, learned advocate appearing for the respondent, raised the preliminary objection with regard to

C/SCA/3932/2022 ORDER DATED: 15/02/2023

maintainability of the order passed below Order VII Rule 11, which is a subject matter of challenge before this Court and submitted that, the petitioner may avail appropriate remedy in accordance with law. So far as the application below Exh.13 is concerned, Mr. Mehta, learned advocate, submitted that the Court below has not adjudicated the application on merits and has rightly held that it is the suit which is filed by the opponent

- original plaintiff and it is for the plaintiff to prove his own case. The said application could be said to be pre-matured.

6. This Court has considered the written statement, which is produced on record by the petitioner at page 12 of the paper- book, wherein the petitioner has on his own volition stated in paragraph 6 that the promissory note-in-question has been signed by the petitioner, which was blank, without having any type of stamp or written on it, only for the purpose of security with a condition to give it back. However, the said promissory note came to be misused by the learned advocate and it was handed over to the opponent - original plaintiff to prefer the present suit and to harass the defendant.

7. The application filed below Exh.21, which is filed challenging the order passed below Exh.1 under Order VII Rule 11 of the CPC wherein the said application came to be rejected by the concerned Court and which is a subject matter of challenge before this Court, in view of this Court, is not maintainable and the writ applicant may avail appropriate statutory remedy to challenge the said order dated 18.12.2021 rejecting the said application preferred by the petitioner below Order VII Rule 11.

C/SCA/3932/2022 ORDER DATED: 15/02/2023

8. While considering the application filed below Exh.13, the trial Court in paragraph 4.1 considered the submissions advanced by the learned advocate appearing for the respective parties and held in paragraph 5 that in absence of submission of any document by the petitioner on the basis of which it can be established that the opponent - original plaintiff is wrong doer and while the original plaintiff still have to prove his own case, the application below Exh.13 was not required to be adjudicated at the said stage. The said order dated 18.12.2021 passed below Exh.13 reads thus:

"(5) Heard both the sides. Read the application, reply, papers on record alongwith ratio of the judgments. Application Exh.13 has been perferred by the defendant for sending the promissory note to FSL Under Order XXVI Rule 10A. However, as per documents on record, son of defendant Mr. Bhavesh Rashikbhai Patel has lodged the complaint against the 4 persons at Sola Police Station, Ahmedabad u/s.406, 420, 467, 468, 471 and 114 of Indian Penal Code wherein plaintiff has been shown as accused no.4 Mr. Bharatsinh Takhatsinh Jadav and investigation of the same has been in progress. Hence, again for the same reason the question promissory note need not to send FSL for verification of its correctness. Applicant/ defendant has not submitted any document on the basis of which he can establish that the plaintiff himself is wrong doer. Still plaintiff has to prove the present case by his own. Therefore, present application at Exh.13 need not require consideration at this stage."

9. At this stage, it is apposite to refer to the ratio laid down by the Hon'ble Supreme Court in the case of M/s. Garment Craft Vs. Prakash Chand Goel, reported in AIR 2022 SC 422, wherein it is observed as under:

"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

C/SCA/3932/2022 ORDER DATED: 15/02/2023

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. 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 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."

10. Having considered the submissions made by the learned advocate appearing for the respective parties and having gone through the order impugned passed by the trial Court dated 18.12.2021, no interference is called for in the order passed by the trial Court dated 18.12.2021 wherein, it is held that the son

C/SCA/3932/2022 ORDER DATED: 15/02/2023

of defendant i.e. Bhavesh Rashikbhai Patel has lodged the complaint against four persons at Sola Police Station, Ahmedabad under Sections 406, 420, 467, 468, 471, and 114 of the Indian Penal Code wherein the opponent - original plaintiff has been shown as accused No.4 i.e. Bharatsinh Takhatsinh Jadav and the investigation of the same is in progress. For the said reason, it is held that the question of sending promissory note for verification of its correctness is not required to be adhere to. The petitioner - original defendant has also not submitted any documents on the basis of which the petitioner can establish that the petitioner himself is wrong doer. The opponent - original plaintiff is yet to have prove his case on his own and therefore, the application below Exh.13 is not required to be adjudicated at this stage. In the opinion of this Court, the application below Exh.13 filed by the petitioner for sending the promissory note to FSL under Order XXVI Rule 10-A of the Civil Procedure Code, 1908 while not being entertained by the learned trial Court, the right of the petitioner cannot be said to have been closed.

11. In view of the aforesaid, in view of this Court, following emerge:

11.1 The order passed below Exh.21, wherein the application below Order VII Rule 11 of the CPC filed by the petitioner herein, came to be rejected having been not maintainable, it is open for the petitioner to avail appropriate statutory remedy as available under the law.

11.2 No        interference   is   called        for   in     the     order       dated





        C/SCA/3932/2022                            ORDER DATED: 15/02/2023




18.12.2021          passed   below   Exh.13    exercising     supervisory

jurisdiction under Article 227 of the Constitution of India.

11.3 This Court would not sit in appeal over the order passed by the trial Court, in the facts of the present case and settled position of law, as referred above, as the impugned order is passed considering the facts of the dispute-in-question.

12. Accordingly, the present petition stands dismissed.

(VAIBHAVI D. NANAVATI,J)

NEHA