Gujarat High Court

Raniben D/O Chandumal Sabumal W/O ... vs Ahmedabad Municipal Corporation on 19 October, 2023

Bench: Devan M. Desai

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     C/SCA/7978/2022                               JUDGMENT DATED: 19/10/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7978 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE DEVAN M. DESAI

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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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RANIBEN D/O CHANDUMAL SABUMAL W/O RAMCHANDRA PESHUMAL
                         Versus
            AHMEDABAD MUNICIPAL CORPORATION
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Appearance:
MR ANAND B GOGIA(5849) for the Petitioner(s) No. 1
MR BB GOGIA(5851) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MR RITURAJ M MEENA(3224) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2.1,2.2,2.3,3.1,3.2
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    CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
                     Date : 19/10/2023
                     ORAL JUDGMENT

1. Rule returnable forthwith. Learned advocate

Mr.Rituraj M. Meena waives service of notice of rule for

the respondent No.1. Though served, none appeared for

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and on behalf of respondent Nos.2.1 to 2.3 and 3.1 to

3.3.

2. With the consent of the learned advocates for the

respective parties, this matter was taken up for final

hearing.

3. Heard learned advocate Mr. Anand B. Gogia for the

petitioner and learned advocate Mr. Rituraj Meena for

respondent No.1. Perused the record.

4. By way of this petition, under Articles 226 and 227

of the Constitution of India, the petitioner has

challenged the order dated 3.2.2020 passed below

Exh.74 and another order dated 16.12.2021 passed

below Exhs.97 and 99 by the learned City Civil Court,

Ahmedabad in Civil Suit No.4585 of 1991. The heirs of

deceased plaintiff No.1 has filed Special Civil Application

No.7840 of 2022 challenging the order dated 2.8.2021

passed below Exhs.83 and 84 by the learned City Civil

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Court in Civil Suit No.4585 of 1991.

5. Learned advocate for the petitioner has submitted

that the plaintiff is the present petitioner alongwith one

Kalavati Chandiram Bajaj filed a suit against defendant

i.e. Ahmedabad Municipal Corporation and Ramchandra

Sinhamal Maherchandani for the reliefs claimed in the

suit. As per the submissions of learned advocate for the

petitioner, plaintiffs and defendant No.2 are relatives of

each other. The said civil suit came to be dismissed for

default on 26.2.2003. Thereafter, an application for

restoration was filed. The said application came to be

allowed by the learned trial Court vide order dated

31.8.2019. After that, an application under Order-1 Rule-

10 of the Code of Civil Procedure, 1908 was preferred by

the Power of Attorney Holder (for short, hereinafter

referred to as `the POA) of plaintiff No.2 on 19.12.2019.

The said application Exh.74 came to be dismissed by the

learned trial Court on 3.2.2020 for want of the date of

death and even for want of death certificate of plaintiff

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No.1. It is further submitted by learned advocate for the

petitioner that due to mistake of the advocate, those

details were not averred in the application. In light of

those facts, the application Exh.74 came to be

dismissed.

6. Thereafter, the POA of plaintiff No.2 filed

application Exhs.97 and 99 for condonation of delay and

bringing heirs of the deceased defendant No.2 on record

respectively on 1.11.2021. The said applications vide

common order dated 16.12.2021 came to be dismissed

by the learned trial Court. Against these orders, the

petitioner has preferred this petition before this Court.

7. Learned advocate Mr. Rituraj Meena states that

the Corporation is a formal party in the present

proceedings and hence no submissions are made on

behalf of respondent No.1.

8. Learned advocate for the petitioner has submitted

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that since the suit was dismissed for default on

26.2.2003 and the said suit came to be restored on

31.8.2019. Immediately thereafter, Exh.74 application

was filed on 19.12.2019. In the said application due to

mistake of the concerned advocate, the important

details that is the date of death was not mentioned and

death certificate was not produced resultantly,

application came to be dismissed on 3.2.2020. It is

further submitted that on 1.11.2021, again application

Exh.97 for condonation of delay and application under

Order 22, Rule 4 of the CPC below Exh.99 came to be

filed. It is submitted by the learned advocate for the

petitioner that the impugned order is not as per the

provisions of law, inasmuch as, the delay period has

wrongly been calculated and it is wrongly observed that

there is a delay of 18 years in preferring the application.

9. It is also vehemently submitted by the learned

advocate for the petitioner that the suit came to be

restored on 31.8.2019 and the application for bringing

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the heirs with condonation of delay was preferred

second time on 1.11.2021. So there is no delay of 18

years as observed by the learned trial Court.

10. At this juncture, provisions of Order 22, Rule 10A of

the Code of Civil Procedure, 1908 would be necessary

which reads as under:

"22(10A). Duty of pleader to communicate to Court death of a party.--

Wherever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist."

11. On perusal of application Exh.99, the plaintiff has

averred that advocate of defendant No.2 by way of

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Purshis Exh.71 on 22.7.2002 has declared the fact of

death.

12. Thus, the knowledge of death of defendant No.2

can be attributed to the plaintiff on 22.7.2002. The sole

contention that the defendant did not inform the

surviving plaintiff about the date of death of defendant

No.2 has no force. So taking into consideration these

factual aspects, it cannot be said that the surviving

plaintiff had no knowledge about the death of defendant

No.2.

13. Coming back to the observations made by the

learned trial Court, the learned trial Court has taken into

consideration all the available submissions of the

petitioner. It is also an important aspect that even the

surviving plaintiff has not taken care to bring the heirs of

deceased plaintiff No.1 on record though defendant No.2

was the relative. Plaintiff No.1 was passed away on

28.5.2006. The learned trial Court has rightly observed

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that there is delay of 19 years, 10 months and 5 days in

making an application for condonation of delay and an

application for bringing legal heirs of deceased

defendant No.2 on record. Even in the application for

condonation of delay, petitioner has sought to condone

delay of 19 years, 10 months and 5 days in filing the

application. Thus, the submission of learned advocate

for the petitioner that learned trial Court has erred in

calculating delay period of 18 years in bringing the legal

heirs of deceased defendant No.2 false flat.

14. During the course of hearing of Special Civil

Application No.7840 of 2022, the learned advocate for

the petitioner took this Court through the order

impugned dated 2.8.2021 wherein the learned trial

Court has observed that Civil Suit No.4585 of 1991 came

to be abated against defendant No.2 on 13.2.2003. In

backdrop of this factual matrix, if the suit is already

abated on 13.3.2003 against defendant No.2 there is a

gross delay in bringing the heirs of deceased defendant

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on record. Moreover, there are no valid and legal reason

for condoning delay. The petitioner has tried to play

smart by throwing the burden on advocate of plaintiff in

making mistake in drafting Exh.74 but plaintiff being the

relative of defendant No.2 but plaintiff being the relative

of defendant No.2 was supposed to have knowledge

about the death of defendant No.2. Thus, in view of the

conduct of plaintiff, this Court is not inclined to entertain

this petition.

15. So far as the scope of entertaining the present

petition, it is pertinent to refer the decision dated

4.7.2018 of Division Bench of this Court rendered in

Special Civil Application No.9010 of 2018 in the case of

Diyorabhanderi Corporation V. Sarine

Technologies Limited, wherein, the reference of the

decision rendered by the Hon'ble Supreme Court in the

case of Shalini Shyam Shetty v. Rajendra Shankar

Patil is made. Relevant paragraph No.9 of the decision

dated 4.7.2018 of Special Civil Application No.9010 of

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2018 is reproduced hereunder for the sake of

convenience.

"9. At this stage, we would like to refer the decision rendered by the Hon'ble Supreme Court in the case of Shalini Shyam Shetty and Anr. Vs. Rajendra Shankar Patil (supra), upon which the reliance is placed by the learned Senior Advocate for respondent No.1 - plaintiff. In the said decision, the Hon'ble Supreme Court has laid down the principles for exercise of powers under Article 227 of the Constitution of India by the High Court in Paragraph62 as under:

"62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:

(a) A petition under Article 226 of the Constitution is different from a petition under Article

227. The mode of exercise of power by High Court under these two Articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the

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conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.

(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.



           (d)     The     parameters              of        interference              by     High
           Courts in          exercise                  of          its         power             of
           superintendence                have been                      repeatedly            laid
           down by         this    Court.          In        this regard            the      High
           Court must         be        guided          by          the principles             laid
           down       by the Constitution Bench of this Court in

Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh

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(supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'.

(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) High Court's power of superintendence under

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Article 227 cannot be curtailed by any statute.

It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L.

           Chandra               Kumar             vs.     Union          of      India           &

           and      therefore abridgment                        by    a        Constitutional
           amendment is also very doubtful.


           (j)     It may be true that a statutory amendment of

a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article

227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this

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Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this

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power will be counterproductive and will divest this extraordinary power of its strength and vitality."

16. Thus, in totality of the facts and in view of the

above decisions of this Court and Hon'ble Apex Court, I

am of the considered view that the order dated

16.12.2021 passed below Exhs.97 and 99 by the learned

trial Court is absolutely in consonance with law and

there is no infirmity or illegality committed by the

learned trial Court.