Gujarat High Court

Hansraj Chandiram Bajaj S/O Late ... vs Ahmedabad Municipal Corporation on 19 October, 2023

Bench: Devan M. Desai

                                                                                 NEUTRAL CITATION



     C/SCA/7840/2022                             JUDGMENT DATED: 19/10/2023


                                                                                  undefined




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
               R/SPECIAL CIVIL APPLICATION NO. 7840 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE DEVAN M. DESAI
================================================================
      Whether Reporters of Local Papers may be allowed
 1                                                                    No
      to see the judgment ?

 2 To be referred to the Reporter or not ?                            Yes

      Whether their Lordships wish to see the fair copy
 3                                                                    No
      of the judgment ?
   Whether this case involves a substantial question
 4 of law as to the interpretation of the Constitution                No
   of India or any order made thereunder ?
================================================================
 HANSRAJ CHANDIRAM BAJAJ S/O LATE KALAWATI D/O CHANDUMAL
              SAKUMAL W/O CHANDIRAM BAJAJ
                          Versus
           AHMEDABAD MUNICIPAL CORPORATION
================================================================
Appearance:
MR ANAND B GOGIA(5849) for the Petitioner(s) No. 1,2
MR BB GOGIA(5851) for the Petitioner(s) No. 1,2
MR RITURAJ M MEENA(3224) for the Respondent(s) No. 1
NOTICE NOT RECD BACK for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 3
RAVINDRA R BHARAI(9489) for the Respondent(s) No. 2.1
SIDDHARTH R KHESKANI(9483) for the Respondent(s) No. 2.1,2.2,2.3
===============================================================
  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 respondents No.2.1 to

2.3 and 3.

NEUTRAL CITATION

C/SCA/7840/2022 JUDGMENT DATED: 19/10/2023

undefined

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

petitioners 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 02.08.2021 passed by the learned City Civil Court,

Ahmedabad in Civil Application No.4585 of 1991 below

Exhibit 83 and 84. The petitioners before this Court are the heirs

of the plaintiff No.1. Learned advocate for the petitioners

submitted that parties to the suit i.e. plaintiffs and defendant

No.2 are relatives inter se.

4.1 Learned advocate for the petitioners submitted that the

petitioners are the heirs of original plaintiff No.1, and petitioners

filed an application under Order 1 Rule 10 of the Code of Civil

Procedure to implead them in the suit. The original suit No.4585

of 1991 came to be dismissed for default by the learned Trial

NEUTRAL CITATION

C/SCA/7840/2022 JUDGMENT DATED: 19/10/2023

undefined

Court on 26.02.2003, thereafter the suit came to be restored on

31.08.2019. The heirs of the deceased plaintiff No.1 moved an

application Exhibit 83 on 15.02.2020. Vide Exhibit 84, an

application under Order 22 Rule 3 came to be preferred by the

present petitioners. By common order below Exhibit 83 and 84,

the learned Trial Court dismissed the applications on

02.08.2021. Learned advocate for the petitioners has placed

reliance on the decision of Patel Ramjibhai Bhagvanbhai

Khusalbhai Vs. Jethabhai Joitaram Patel deceased Throlegal

Heirs; 2016(0) AIJEL-HC 240634. Learned advocate for the

petitioners has submitted that petitioners are necessary and

proper party in the suit. It is further submitted that the proposed

heirs were not aware about the proceedings pending before the

Court.

5. The learned Trial Court has observed in the order

impugned that the suit against the defendant No.2 came to be

abated on 13.02.2003. It is worthwhile to note here that plaintiff

No.2 also preferred application to bring the heirs of the plaintiff

NEUTRAL CITATION

C/SCA/7840/2022 JUDGMENT DATED: 19/10/2023

undefined

No.1 and the defendant No.2 in the said suit. However, the

applications came to be dismissed by the learned Trial Court and

the order is challenged in Special Civil Application No.7978 of

2022.

6. The learned Trial Court has rightly observed that the

present petitioners claimed to be the heirs of Kalavati

Chandiram Bajaj. But neither death certificate is produced nor

date of death is mentioned in the application. Upon the notice

issued by learned Trial Court Exhibit 72, it has come on record

of learned Trial Court that plaintiff has expired before 10 years.

As the plaintiffs and the defendant No.2 were relatives, it is

therefore, not believable that the petitioners were not aware

about the pending proceedings and no knowledge of death of

defendant No.2 on 27.12.2001.

7. The decision of Patel Ramjibhai Bhagvanbhai Khusalbhai

(supra) has been placed reliance by the learned advocate for the

petitioners. In the said decision, the Co-ordinate Bench of this

Court has observed that what is to be considered is the

NEUTRAL CITATION

C/SCA/7840/2022 JUDGMENT DATED: 19/10/2023

undefined

justification given for condonation of delay is to be considered

and not a length of delay. In the present case on hand, for a

moment, if the length of delay is not taken into account then the

justification which are canvassed by the petitioners creates

doubt for;

(i) The parties are relatives, hence it leaves no room for the

petitioners to plead ignorance of the date of death.

(ii) The suit against the defendant No.2 came to be abated way

back on 13.02.2003 and thereafter, the suit was dismissed for

default and ultimately, the suit came to be restored on

31.08.2019

(iii) There is no reference about the date of death of plaintiff

No.1 in the application. Thus, the application being very

vague and seems to be an afterthought because the power of

attorney of the plaintiff No.2 also moved an application below

Exhibit 74 which was came to be dismissed.

(iv) A review application under Order 47 Rule 1 which was

filed by the heirs of plaintiff No.1 which was came to be

NEUTRAL CITATION

C/SCA/7840/2022 JUDGMENT DATED: 19/10/2023

undefined

dismissed on 16.12.2021. Thus, the facts in the case of Patel

Ramjibhai Bhagvanbhai Khusalbhai (supra) and the facts

involved in the present case on hand are totally different.

Hence, the decision of Patel Ramjibhai Bhagvanbhai

Khusalbhai (supra) has been placed reliance by the petitioners

is not helpful to the petitioners.

8. It is also to be noted here that the petitioners have

preferred two application under two different provisions i.e. one

under Order 1 Rule 10 and the second one under Order 22 Rule

3 of the Code of Civil Procedure. There is no explanation

forthcoming from the side of the petitioners as to for what

purpose, two application under two different provisions came to

be preferred but this Court has taken the conduct of the

petitioners very seriously. It seems that the intention of the heirs

of the plaintiff No.1 was nothing but to misguide the learned

Trial Court and also by taking the learned Trial Court in a

different direction with a view to get a favourable order. This

conduct also debars the petitioners for any relief in this petition.

NEUTRAL CITATION

C/SCA/7840/2022 JUDGMENT DATED: 19/10/2023

undefined

9. 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 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 Paragraph-62 as

NEUTRAL CITATION

C/SCA/7840/2022 JUDGMENT DATED: 19/10/2023

undefined

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 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 (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction

NEUTRAL CITATION

C/SCA/7840/2022 JUDGMENT DATED: 19/10/2023

undefined

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 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 & others, reported in (1997) 3 SCC 261 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

NEUTRAL CITATION

C/SCA/7840/2022 JUDGMENT DATED: 19/10/2023

undefined

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 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 power will be counter-productive and will divest this extraordinary power of its strength and vitality."