Ravjibhai Ambalal Patel vs Decd. Ambalal Parsotamdas Patel ...
2023 Latest Caselaw 2632 Guj

     C/SCA/4739/2019                                    ORDER DATED: 29/03/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 4739 of 2019

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                    RAVJIBHAI AMBALAL PATEL
                             Versus
          DECD. AMBALAL PARSOTAMDAS PATEL THRU HEIRS
                BHUPENDRAKUMAR AMBALAL PATEL
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Appearance:
MR VISHAL C MEHTA(6152) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
MR. JAY M THAKKAR(6677) for the Respondent(s) No. 1.1,1.2
NOTICE SERVED for the Respondent(s) No. 1.3,1.4
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                            Date : 29/03/2023

                               ORAL ORDER

1. By way of present petition, the petitioner herein has challenged the order dated 03.11.2018 passed by the 4 th Ad- hoc Additional District Judge, Anand in Civil Misc. Application No.149 of 2018 whereby, the trial Court rejected the application preferred by the petitioner seeking condonation of delay in preferring the appeal, preferred by the petitioner, against the final decree passed by the Court of Principal Civil Judge, Umreth dated 13.02.2017 without considering the chain of events transpires between the parties.

2. Being aggrieved by the aforesaid order rejecting the said application, the petitioner herein has preferred the present petition seeking following reliefs:

"(a) A writ of certiorari or any other appropriate writ, order or direction may kindly be issued quashing and setting aside the

C/SCA/4739/2019 ORDER DATED: 29/03/2023

judgment and order passed by the Court of the 4th Ad-hoc Additional District Judge, Anand in Civil Misc. Application No.149 of 2018 dated 03.11.2018 at Annexure - 'G' and to allow the application for condonation of delay at Annexure - 'D' herein as prayed for, in the interest of justice.

(b) Pending hearing and final disposal of the present Special Civil Application, further proceedings of the Execution Petition No.4 of 2018 pending before the Court of the Principal Civil Judge, Umreth may kindly be ordered to be stayed.

(c) Any other and/or further orders that may be deemed necessary in the interest of justice may kindly be passed."

3. Heard Mr. Vishal Mehta, learned advocate appearing for the petitioner and Mr. Jay Thakkar, learned advocate appearing for the respondent Nos.1.1 and 1.2.

4. The appellate Court while passing the impugned order dated 03.11.2018 rejecting the Civil Misc. Application No.149 of 2018 seeking condonation of delay, held as under:

"[4] The following points arise for determination of present applications-

(1) Whether the applicant is eligible for the relief as prayed in the application? (2) What order ?

[5] The findings on the above points are as under.

Point no.1.....In the negative.

Point no.2.....As per the final order.

[6] POINT NOS. 1 & 2 1-

The applicant has filed the present application for condonation of delay, but present applicant has not narrated all actual circumstances arisen in his life which prevail him in filing appeal against the final decree passed by the Trial Court in the suit. As per the pleading of applicant, applicant was not in knowledge about passing of final decree in RCS No.181/1988 and later on, applicant has got the knowledge of it after service of notico in execution proceeding under the final decree. Ld.Advocate of Opponent has filed certain documents at list Exh.4. If we consider the order passed in RCS No.181/1988 below Exh.175, then Trial Court has allowed the application and passed order for drawing final decree on 13-02-2017. It is also notable point that Ld. Advocate of plaintiff and defendant has taken notice of this order and they have put their signatures below order passed in Exh. 175 on dt. 13- 02-

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2017. Present applicant has not initiated any legal proceeding against his lawyer engaged in RCS No.181/1988. Further, Ld. Advocate of Opponent has submitted copy of registered notice issued in the name of Ravjibhai Ambalal Patel who is present applicant about declaring and informing of final decree passed by Trial Court in RCS No.181/1988 on 16-02-2017. Further, Ld. Advocate of Opponent has submitted zerox copy of acknowledgment which shows that this notice was received by Ravjibhai Ambalal Patel and therefore, present applicant was in knowledge after service of this notice 1.e. dt. 16- 03-2018.

Ld. Advocate for the applicant has relied on citation 1999 (2) GCD 1290 (Guj), a case of State of Gujarat & Ors. Vs. Legal Heirs of Ismali H. Ranza & Ors. and Ld. Advocate of Opponent has relied on citation AIR 1998 SUPREME COURT P-2276, a case of P.K.Ramcachandran Vs. State of Kerala and another, AIR 2010 SUPREME COURT P-3043, a case of Balwant Singh (Dead) Vs. Jagdish Singh & Ors.

I have considered the principles laid down in the above citations, but in the present matter, the conduct of applicant is not clean before this Court. Applicant has not narrated all true facts about knowledge acquired by him for final decree passed in the suit and therefore, conduct of present applicant is to prolong the matter by filing such type of litigation and to keep away from enjoying the fruits under the decree by the Opponent. Looking to all facts and circumstances, applicant has obtained malafide practice and subtract material facts and therefore, there is no sufficient and reasonable ground for condonation of delay for filing the appeal and therefore, reply of Point No.1 is given in the negative" and in reply to Point No.2. following order is passed in the interest of justice.

ORDER

Civil Misc. Application No.149 of 2018 is hereby dismissed."

5. By aforesaid order dated 03.11.2018, the 4 th Ad-hoc Additional District Judge, Anand declined to condone the delay of 4 days considering the fact that the applicant was not in knowledge about passing of final decree in Regular Civil Suit No.181 of 1988. The appellate Court considered the said application below Exh.175 whereby the trial Court allowed the application and passed the order for drawing final decree on 13.02.2017 which was duly signed by the learned advocate appearing for the plaintiff and the defendant. It was also considered by the appellate Court that the applicant had the

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knowledge of the said decree passed by the trial Court after service of notice in execution proceedings. The registered notice was issued in the name of Ravjibhai Ambalal Patel, who is present petitioner, about declaring and informing of final decree passed by the trial Court in Regular Civil Suit No.181 of 1988 on 16.02.2017. The appellate Court considered the conduct of the petitioner and declined to condone the delay in challenging the final decree passed in Regular Civil Suit No.181 of 1998.

6. 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 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

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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."

7. In view of above, this Court does not deem it fit to consider the prayers as prayed for by the petitioner for the reason that the approach of the petitioner can be said to be callous. In such circumstances, this Court is not inclined to exercise supervisory jurisdiction under Article 227 of the Constitution of India.

8. The petition stand dismissed accordingly.

(VAIBHAVI D. NANAVATI,J)

NEHA