Gujarat High Court
Nitin Ratilal Patel vs M/S Sushil Corporation Through ... on 4 May, 2023
Bench: Sandeep N. Bhatt
C/SCA/19766/2021 JUDGMENT DATED: 04/05/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19766 of 2021
With
CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 19766 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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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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NITIN RATILAL PATEL
Versus
M/S SUSHIL CORPORATION THROUGH DECEASED NANDLAL
RAMANLAL THAKKAR THROUGH LEGAL HEIRS AND REPS
==========================================================
Appearance:
MR SHITAL R PATEL(2166) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,1.1,1.2,1.3,1.4,2,3,3.1,3.1.1
MR SALIL M THAKORE(5821) for the Respondent(s) No. 2.1,2.2,2.3,2.4
NOTICE UNSERVED for the Respondent(s) No. 3.1.2,3.2,3.3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 04/05/2023
ORAL JUDGMENT
C/SCA/19766/2021 JUDGMENT DATED: 04/05/2023
1. At the request of learned advocates for the
parties, this petition is disposed of finally. Rule. Learned
advocate Mr.Salil Thakore waives service notice for
respondents.
2. This petition is filed challenging the order
th
dated 3.12.2021 passed below Exh.110 by the learned 5
Principal Senior Civil Judge, Ahmedabad (Rural) at
Mirzapur, Ahmedabad in Special Civil Suit No.25 of
1984.
3. The brief facts leading to filing of this petition
are such that the agreement to sale was entered with
grandfather Pujabhai Ishwarbhai Patel by Sushil
Corporation through Nandlal Ramanlal Thakkar on
21.3.1980 and under the agreement to sale, all legal
permissions including from new to old tenure, ULC
permission for due execution of sale deed had to be
obtained by the plaintiff-Nandlal R Thakkar (now
deceased in 2019). The total sale consideration was fixed
at Rs.2,20,000/- and out of that only Rs.21,000/- was paid
as earnest amount and the duration of agreement to sale
was fixed 12 months and time was essence of the
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contract. However, the deceased plaintiff did not obtain
any permission. The plaintiff filed Special Civil Suit
No.25 of 1984 for specific performance of an agreement
to sale dated 21.3.1980, wherein conditional decree was
passed on 28.6.1983 specifically directing the plaintiff to
obtain all legal permissions and if the owner do not
cooperate either in taking money or in getting permission
or do not execute sale deed, plaintiff was permitted to
get all legal permissions through court commissioner and
was directed to get the sale deed executed. The said
decree was a conditional decree for 30 days, which
expired on 17.7.1993.
3.1 It is further case of the petitioner that after
the expiry of the period, the plaintiff made an
application below Exh.110 in the said civil suit or
extension of time for six weeks in above conditional
decree, which six weeks also expired way back in 1993.
It is further submitted that the said Exh.110 application
was pending for almost ten years and suddenly on
26.8.2002, a one line ex-parte order of extension of six
weeks came to be passed on 5.8.1993. It is submitted
that when the order was passed on 26.8.2002, the
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original exclusive owner on record was already expired
on 5.4.2000 and the legal heirs were not brought on the
record.
3.2 It is further case that after the said extension
order was passed, immediately Execution Application
No.120 of 2022 was filed by the plaintiff, wherein the
order was passed for appointment of Court Commissioner
in 2003. That against the said one line order of
extension and against the appointment of Court
Commissioner, two Special Civil Applications were filed
before this Court, which were admitted and interim
reliefs were granted till final hearing and thereafter,
both the petitions were dismissed. It is submitted that
the said orders of Special Civil Applications were
challenged before the Hon'ble Supreme Court, wherein
the orders passed by this Court as well as the civil
Court were stayed and both the SLPs were converted
into Civil Appeals. Thereafter, vide order dated 24.8.2011,
the order of extension dated 26.8.2002 below Exh.110
application was set aside and the matter was remitted
back to the civil Court, Ahmedabad to decide the
application Exh.110 in accordance with law and on its
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own merits keeping all contentions of the parties open. It
was also mentioned in the order that all the parties
shall remain present before the civil Court, Ahmedabad
on 14.9.2011 without a formal notice from the civil
Court.
3.3 It is the case that the petitioner herein
appeared through advocate, gave applications, copies
placed on record, however, the papers of the main suit
were not traceable. It is submitted that instead of
requesting to hear the application Exh.110, the plaintiff
approached the revenue authority and for the first time,
in March, 2016 the request was made to comply with
the order of the Hon'ble Supreme Court. Thereafter, at
the instance of the defendant-petitioner, the application
Exh.110 was taken up for hearing, again the matter was
sought to be prolonged, applications for legal heirs were
filed by the respective parties etc. Thereafter, on
3.12.2021 the impugned order came to be passed and
even the request for suspension was refused. Hence, this
petition.
4. Heard learned advocate Mr.Shital Patel for the
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petitioner and learned advocate Mr.Salil Thakore for the
respondents.
5. Learned advocate Mr.Patel for the petitioner
submitted that the impugned order is based on a
complete misreading of the decree; that the decree (as
well as clear terms of the agreement to sale) directs the
petitioner to simply cooperate with the plaintiff in
getting the requisite legal permissions and does not
impose any obligation upon the defendant to procure
permissions; the only obligation imposed was that the
when the plaintiff calls the defendant to give signature
for permission for due execution of sale deed, the
defendant to cooperate, however, no evidence is produced
that the defendants were called upon for signature or
permission; that the plaintiff has failed to fulfill his
reciprocal promise of paying the balance sale
consideration and as per Sections 51 and 54 of the
Indian Contract Act, 1872 the defendant is not obliged to
fulfill his part of the decree; that the impugned order is
based on the grounds not stated in the extension
application at Exh.110; that non-filing of reply to
extension application cannot be relevant criteria for
C/SCA/19766/2021 JUDGMENT DATED: 04/05/2023
extension in law; plaintiff was to show in his own
bonafide; plaintiff was to seek extension; plaintiff was
required to deposit in time; that the case on hand is not
an ordinary case of extension; the case on hand is a
case relating to specific performance of prime urban land
of Ahmedabad, where decree is conditional and operative
for mere 30 days considering equitable principal; the
plaintiff ought to have even secured interim/ad interim
order, which was not admittedly done in this case.
5.1 He further submitted that the plaintiff filed
extension application at Exh.110 in the year 1993 (which
itself was filed after the expiry of time limit to deposit
the money on 17.7.1993) and till 2002, he did not pursue
it and allowed it to languish, while the order at Exh.110
was passed on 26.8.2002, the rojkam shows that even
the process fees was not paid till 27.6.2002. He further
submitted that there is no compelling explanation
whatsoever given by plaintiff in order to justify the
delay; allowing extension at this stage is contrary to law
and equity; non compliance of decree for indefinite
period; more so, when mandate of decree self operative;
besides case of urban land; prices sky rocketed during
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the interregnum pending suit and after decree.
5.2 On the aspect of Section 28 of the Specific
Relief Act, the learned advocate for the petitioner has
cited the following judgments:
(1) V.S.Palanichamy V/s C Alagappan reported in 1999(4) SCC
702, para nos.13 and 17.
(2) P.Shyamalal V/s Gundur Mastthan reported in 2023 SCC
Online 184, para nos. 20, 21, 24 and 26.
(3) C.Haridasan V/s Anappath Parakkattu Vasideva Kurup &
Others reported in 2023 SCC Online 36 para nos. 39, 51, 56, 57,
59 and 62
(4) U.N.Krishna Murthy V/s A.M.Krishnamurthy, reported in 2022
Live Law (SC) 588, para nos.38, 39 and 43
(5) Ravi Setia V/s Madanlal, reported in 2019(9) SCC 380, para
nos. 14 to 16
(6) P.R.Yelumalai V/s N.M.Ravi reported in 2015(9) SCC 52 para
nos.13,14 and 16.
5.3 Relying on the above citations, learned
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advocate Mr.Patel submitted that merely because the
judgment debtor has not sought rescission of contract
under Section 28 of the Specific Relief Act, 1963 does
not automatically result in extension of time and the
decree of special performance is a preliminary decree and
court retain control of the suit and even after
preliminary decree of special performance (agreement to
sale), the contract between parties is not extinguished.
5.4 He further submitted, relying on the decision
in the case of Bhupendrakumar V/s Angrej Singh
reported in 2009(8) SCC 766, more particularly,
paragraphs 10, 11, 15, 17, 25 and 26, that plaintiff has
to perform first his obligation to pay or deposit and non-
filing of Section 28 is no excuse for extension.
5.5 He further submitted, relying on the decision
in the case of G.Kesavan V/s B.C.Raman reported in
2013(4) LW 626, paragraphs 11 to 20, whereby the Court
also considered Section 148 of CPC and held that non
filing of application under Section 28 at the relevant
point of time also no ground to allow the extension
application, though after remand Section 28 pressed into
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service in reply.
5.6 Learned advocate for the petitioner also relied
on the judgment in the case of Prem Jeevan v. K. S.
Venkata Raman reported in 2017(11) SCC 57, whereby
the Court has held that non filing of reply, no ground
for decree for specific performance. The plaintiff requires
to be proved his case independently.
5.7 He has relied on the case of Balraj Taneja V/s
Sunil Madan reported in 1999(8) SCC 396, paragraphs
29, 30 and 45 and submitted that any defendant can
raise plea of non-compliance, readiness and willingness of
mandatory requirement under Section 16(C) of the
Specific Relief Act, 1963.
5.8 He has relied on the judgment in the case of
Ram Awadh (dead) By Ltd.and others V/s Acchaibar
Dubey and Others, reported in 2000(2) GLH (SC) 600,
more particularly, paragraphs 6 to 8 and has submitted
that in view of Section 16(c) of the Specific Relief Act,
the balance amount is not paid though the suit is filed
in 1981 and the Court has still not granted decree for
specific purpose.
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5.9 Learned advocate for the petitioner has relied
on the judgment in the case of Venkitalakshmi V/s
K.Raju, reported in 2019(15) SCC 49, more particularly,
paragraph no.9, whereby the Court has held that the
Court's discretion not to decree specific performance,
escalation in price, judicial notice taken, cannot be given
unfair advantage to plaintiff.
5.10 Learned advocate has lastly relied on the
judgment in the case of Najappan V/s Ramasamy and
anr. Reported in 2015(14) SCC 341, more particularly,
paragraphs 10 to 13 and 15 and 16 , which pertains to
inequitable grant any relief when the price in urban
land escalates quickly and in view of 20(2)(b) of the
Specific Relief Act, the Court should not grant such
extension.
5.11 He, therefore, submitted that in view of the
above mentioned position, this Court should interfere by
exercising powers under Article 227 of the Constitution
of India and allow this petition.
6. Per contra, learned advocate Mr.Thakore for
the respondents submitted that the impugned order is a
C/SCA/19766/2021 JUDGMENT DATED: 04/05/2023
well reasoned order; that under Section 28 of the
Specific Relief Act, the civil Court has the power to
grant extension; moreover, in the present case, the
extension application was filed within a very short time
of the decree being passed and there is no gross delay;
that no application is filed by any defendant or by the
petitioner seeking rescission of the contract under Section
28 of the Specific Relief Act and when there is no
rescission of the contract, they have no locus to file this
petition or challenge extension; no reply was filed by the
petitioner or any of the defendants to the Exh.110
application; that by their own inequitable conduct, the
defendants are trying to frustrate a decree passed in
1993 and which is confirmed uptil the Hon'ble Supreme
Court and such conduct disentitles them to invoke the
equitable jurisdiction of this Court under Article 227;
that the defendants have failed to perform their
obligations under the agreement and the decree and they
have no locus to complain about the contesting
respondents' actions, much less, in an equitable
jurisdiction; that the petitioner has been proceeding with
the hearing of the matter without making any attempt
to serve persons who were parties before the trial Court
C/SCA/19766/2021 JUDGMENT DATED: 04/05/2023
and even seeks to delete them, this petition is required
to be dismissed on principles of non-joinder of necessary
parties.
6.1 In support of his submissions, learned advocate
Mr.Thakore relied on the following citations:
(1) Hungerford Investment Trust Ltd. (In voluntary Liquidation) v.
Haridas Mundhra and others reported in AIR 1972 SC 1826
paragraphs 22 and 24.
(2) Sardar Mohan Singh Through Power of Attorney Holder,
Manjit Singh v. Mangilal Alias Mangtya reported in 1997(9) SCC
217 paragraph 14,
(3) Ramankutty Guptan v. Avara reported in 1994(2) SCC 642
and
(4) Asis Nasir Khan V/s State of Maharashtra, reported in 2022
SCC Online Bom. 473
and submitted that in view of these judgments, the
Court has power to extend the time and also submitted
that in absence of any application for rescission by the
petitioner or any defendant, the Court can grant
extension. He has further submitted that there is a
difference between condonation of delay and extension of
time, he has also submitted that the provisions of any
C/SCA/19766/2021 JUDGMENT DATED: 04/05/2023
procedure of CPC is handmade for justice and
technicalities should not stand in the way.
6.2 On the point of Section 148 of the CPC, the
power of Court to extend time, he relied on the
judgment in the case of Nashik Municipal Corporation v.
M/s. R. M. Bhandari reported in AIR 2016 SC 1090,
paragraphs 13 and 15 and submitted that the time limit
for 30 days under Section 148 is not mandatory one.
6.3 Relying on the judgments in the cases reported
in Laxmikant Revchand Bhojwani v. Pratapsingh
Mohansingh Pardeshi reported in 1995(6) SCC 576
paragraphs 9 and in the case of Lal Ram Narain (dead)
through L.R.S. V/s 10th Additional District Judge,
Muradabad and others, reported in 2012 SCC Online All
1516, paragraph 11, 12 and 16 and submitted that the
High Court has limited scope of interference under
Article 227 of the Constitution of India.
6.4 Lastly, relying on the judgment in the case of
N. Balakrishnan v. M. Krishnamurthy reported in
1998(7) SCC page 123, more particularly paragraph 9,
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submitted that when the civil Court decides to grant
extension or condone delay, normally superior Court
would not interfere
6.5 In response to the judgments relied on by
learned advocate for the petitioner in the case of
Common Cause v. Union of India reported in 2017(11)
SCC 757, he submitted that the said judgment is not
applicable in the present case as the plaintiff has
already filed application for extension.
6.6 Also responding to judgment cited by learned
advocate for the petitioner P. R. Yelumalai v. N. M.
Ravi reported in 2015(9) SCC 52, he submitted that the
judgments cited by the petitioners is not applicable to
the present case as in the present case, decree dated
18.6.1993 does not provide that the consequent of not
depositing would result in dismissal of suit and it is not
a self-operative decree which results in dismissal and the
plaintiff has immediately complied with the order upon
extension being granted.
7. Heard learned advocates for the parties and
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also perused the impugned order passed by the learned
trial court below Exh.110, by which the extension order
was passed by the learned trial Court in Special Civil
Suit No.25 of 1984.
Order 20 Rule 12A of CPC reads as under:
"12A. Decree for specific performance of contract for the sale
or lease of immovable property.--
Where a decree for the specific performance of a contract for
the sale or lease of immovable property orders
that the purchase-money or other sum be paid by the
purchaser or lessee, it shall specify the period within which
the payment shall be made."
Section 16 of the Specific Relief Act reads as under:
16. Personal bars to relief.--Specific performance of a
contract cannot be enforced in favour of a person--
[(a) who has obtained substituted performance of contract
under section 20; or]
(b) who has become incapable of performing, or violates any
essential term of, the contract that on his part remains to
be performed, or acts in fraud of the contract, or wilfully
acts at variance with, or in subversion of, the relation
intended to be established by the contract; or
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(c) [who fails to prove] that he has performed or has always
been ready and willing to perform the essential terms of the
contract which are to be performed by him, other than
terms the performance of which has been prevented or
waived by the defendant.
Explanation.--For the purposes of clause (c),--
(i) where a contract involves the payment of money, it is
not essential for the plaintiff to actually tender to the
defendant or to deposit in court any money except when so
directed by the court;
(ii) the plaintiff 4 [must prove] performance of, or readiness
and willingness to perform, the contract according to its true
construction."
Section 28 of the Specific Relief Act reads as under:
28. Rescission in certain circumstances of contracts for the
sale or lease of immovable property, the specific performance
of which has been decreed.--
(1) Where in any suit a decree for specific performance of a
contract for the sale or lease of immovable property has
been made and the purchaser or lessee does not, within the
period allowed by the decree or such further period as the
court may allow, pay the purchase money or other sum
which the court has ordered him to pay, the vendor or
lessor may apply in the same suit in which the decree is
made, to have the contract rescinded and on such
C/SCA/19766/2021 JUDGMENT DATED: 04/05/2023
application the court may, by order, rescind the contract
either so far as regards the party in default or altogether,
as the justice of the case may require.
(2) Where a contract is rescinded under sub-section (1), the
court-- (a) shall direct the purchaser or the lessee, if he
has obtained possession of the property under the contract,
to restore such possession to the vendor or lessor, and (b)
may direct payment to the vendor or lessor of all the rents
and profits which have accrued in respect of the property
from the date on which possession was so obtained by the
purchaser or lessee until restoration of possession to the
vendor or lessor, and, if the justice of the case so requires,
the refund of any sum paid by the vendee or the lessee as
earnest money or deposit in connection with the contract.
(3) If the purchase or lessee pays the purchase money or
other sum which he is ordered to pay under the decree
within the period referred to in sub-section (1), the court
may, on application made in the same suit, award the
purchaser or lessee such further relief as he may be entitled
to, including in appropriate cases all or any of the following
reliefs, namely:-- (a) the execution of a proper conveyance or
lease by the vendor or lessor; 13 (b) the delivery of
possession, or partition and separate possession, of the
property on the execution of such conveyance or lease.
(4) No separate suit in respect of any relief which may be
claimed under this section shall lie at the instance of a
vendor, purchaser, lessor or lessee, as the case may be.
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(5) The costs of any proceedings under this section shall be
in the discretion of the court."
8. The petitioner has contended mainly two
contentions, one that because the judgment debtor has
not sought rescission of contract under Section 28 of the
Specific Relief Act does not automatically result in
extension of time and second contention that decree of
specific performance is preliminary decree, the Court
retained control of the suit, preliminary decree of specific
performance (agreement to sale) contract between the
parties is not extinguished. The petitioner has contended
that the entry of Will was entered in the year 1999 and
validity of Will nor entry of Will (is in public record)
ever challenged by any party.
9. It transpires from the record that though the
judgment and decree is passed long ago dated 18.6.1993,
whereby as per the agreement to sale which is executed
in 1980, the balance consideration is required to be paid
within 12 months or at least within 30 days from the
conditional decree dated 28.6.1983. It is contended by the
petitioner that the price of the land has substantially
increased and therefore such extension granted by the
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trial Court should be declared as improper and the
learned trial Court has no authority to grant such
extension. While going through the record, it transpires
that the such contention sounds very attractive but
considering the provisions of Section 28 of the Specific
Relief Act, the civil Court has power to grant extension.
It is also required to note that the defendants had
agitated that respondent never shown readiness and
willingness to deposit balance amount and get
appointment of Court Commissioner to execute the sale
deed. However, conduct of the petitioner shows that the
petitioner has also dragged the litigation by adopting
various means, which also requires to be considered for
any equitable consideration.
10. Therefore, when the civil Court has exercised
its discretion to grant extension of time after giving
valid reasons for doing so and this Court is also
satisfied that there is no illegality or impropriety
committed by the learned civil Court by using its
discretion, considering the totality of the facts and
circumstances of the present case, this Court would not
normally interfere with the said discretionary order of
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granting of extension.
11. It transpires that such application for
extension is filed within reasonable period from the
decree passed by the trial Court. The contention raised
by the respondent regarding the aspect that no
application has ever been filed by any defendant or by
the petitioner seeking rescission of contract under
Section 28 of the Specific Relief Act and when the
present petitioner or any of defendant have never sought
rescission of the contract, then they have no valid
authority to question such extension which also sounds
good and attractive, but considering the fact that
though the present petition is filed by challenging such
extension and the petitioner being a party to the
proceedings, can certainly agitate his grievance by way of
petition under Article 227 of the Constitution of India. It
is also relevant to note that no reply was filed by the
petitioner or any defendants to the Exh.110 application.
To that extent also, it can be said that the petitioners
have merely agitated the grievance without any proper
action and not filed any application or reply to such
application. It is also relevant to note that when it
transpires from the record that after passing of decree in
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the year 1993, the decree was not implemented either by
discharging their obligation by the present petitioner or
any other defendant, then it also rightly pointed out by
learned advocate for the respondent that one brother i.e.
defendant no.1/2 had not filed any reply for years and
the other two brothers i.e. defendant nos.1/3 and 1/4 had
evaded service despite all residing together and therefore,
considering such proceeding under the Specific Relief Act,
the main consideration is based on equitable
consideration and considering the conduct of the
defendants who had tried to frustrate the decree passed
in 1993, cannot get any relief in the present proceedings.
12. Even in some of the proceedings pending
before the Court, it also appears that the petitioner had
not made any attempt to serve respondent no.3.1.2 as
well as respondent no.3.2 and respondent no.3.3 in the
petition as well as some of the opponents in the civil
application. Considering this aspect, and by considering
the judgments cited at the bar by the learned advocates
for the parties, the present petition deserves to be
dismissed.
13. In view of all the contentions factual and/or
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legal recorded in the earlier portion of the judgment, I
am of the opinion that in absence of any application
made for rescission of the contract as required under
Section 28 of the Specific Relief Act, in an application
filed by the present respondent who is the original
plaintiff, the learned trial Court has used its discretion
by granting extension as decree is not implemented as
the amount is not deposited within the stipulated time
period and therefore the Court has rightly exercised
discretion by granting extension. Accordingly, when the
present respondent has also complied with the direction
given by the court while granting extension, I am of the
opinion that the trial court has used discretion in
appropriate manner.
14. Therefore, in view of the limited jurisdiction of
this Court to interfere with the discretionary order
passed by the learned trial Court and more particularly
in view of Garment Garment Craft V/s Prakash Chand
Goel reported in (2022) 4 SCC 181, whereby the Apex
Court has said that supervisory jurisdiction of High
Court when to be exercised, more particularly, paragraph
15 to 17 which read as under:
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"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. 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.
16. Explaining the scope of jurisdiction under Article 227,
this Court in Estralla Rubber v. Dass Estate (P) Ltd. has
observed:-
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"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."
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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 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
C/SCA/19766/2021 JUDGMENT DATED: 04/05/2023
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."
and in the case of M/s Puri Investments V/s M/s Young
Friends and Co & Ors. Reported in 2022 Law Suit (SC)
306, more particularly, in paragraphs 10 and 11 it is
held as under:
"[10] In the case before us, occupation of a portion of the
subject-premises by the three doctors stands admitted. What
has been argued by the learned counsel for the appellant is
that once the Tribunal had arrived at a finding on fact
based on the principles of law, which have been enunciated
by this Court, and reflected in the aforesaid passages quoted
from the three authorities, the interference by the High
Court under Article 227 of the Constitution of India was
unwarranted. To persuade us to sustain the High Court's
order, learned counsel appearing for the respondents has
emphasized that full control over the premises was never
ceded to the medical practitioners and the entry and exit to
the premises in question remained under exclusive control of
the respondent(s)-tenant. This is the main defence of the
tenant. We have considered the submissions of the respective
counsel and also gone through the decisions of the fact-
finding fora and also that of the High Court. At this stage,
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we cannot revisit the factual aspects of the dispute. Nor can
we re-appreciate evidence to assess the quality thereof,
which has been considered by the two fact-finding fora. The
view of the forum of first instance was reversed by the
Appellate Tribunal. The High Court was conscious of the
restrictive nature of jurisdiction under Article 227 of the
Constitution of India. In the judgment under appeal, it has
been recorded that it could not subject the decision of the
appellate forum in a manner which would project as if it
was sitting in appeal. It proceeded, on such observation
being made, to opine that it was the duty of the
supervisory Court to interdict if it was found that findings
of the appellate forum were perverse. Three situations were
spelt out in the judgment under appeal as to when a
finding on facts or questions of law would be perverse.
These are:-
(i) Erroneous on account of non-consideration of material
evidence, or
(ii) Being conclusions which are contrary to the evidence, or
(iii) Based on inferences that are impermissible in law.
[11] We are in agreement with the High Court's enunciation
of the principles of law on scope of interference by the
supervisory Court on decisions of the fact-finding forum. But
having gone through the decisions of the two stages of fact-
finding by the statutory fora, we are of the view that there
was overstepping of this boundary by the supervisory Court.
In its exercise of scrutinizing the evidence to find out if any
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of the three aforesaid conditions were breached, there was
re-appreciation of evidence itself by the supervisory Court.",
when the trial Court has used discretion which is vested
with it and there is no infirmity, illegality or impropriety
or perversity found in the order passed by the learned
trial Court while granting order of extension which is
impugned in the petition, this petition is required to be
dismissed.
15. Hence, this petition is dismissed. No order as
to cost. Interim relief, if any, granted earlier stands
vacated.
16. In view of the dismissal of the main petition,
no orders are required to be passed in the civil
application. Hence, the same also stands disposed of.
(SANDEEP N. BHATT,J)
SRILATHA
