Gujarat High Court
Inayat Hussain Amirminya Bhukhari vs Ahmad Hussain Alihussain Bhukhari on 16 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4137 of 2010
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INAYAT HUSSAIN AMIRMINYA BHUKHARI & ORS.
Versus
AHMAD HUSSAIN ALIHUSSAIN BHUKHARI & ORS.
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Appearance:
MR NV GANDHI(1693) for the Petitioner(s) No. 1,10,2,3,4,5,6,7,8,9
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Respondent(s) No. 2
MR MA BUKHARI(211) for the Respondent(s) No. 1,3,4,5,6,7,8
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 16/04/2025
ORAL ORDER
1. Heard learned advocate Mr. N. V. Gandhi for the
petitioners. None present for the respondents.
2. The present application is filed under Article 227 of the
Constitution of India seeking the following reliefs.
"(a) Your Lordships may be pleased to admit and allow
this petition:
(b) Your Lordships may be pleased to issue appropriate
writ, order or directions and be pleased to quash and set
aside the impugned order below Exhbit 39 dated 2nd
February 2010 passed in Civil Suit No.382 of 1998 by the
Ld. City Civil Judge at Ahmedabad Court No.7.
(c) Pending hearing and final disposal of this petition Your
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Lordships may be pleased to stay the impugned order
below Exhibit 39 dated 2nd February 2010 passed in Civil
Suit No.382 of 1998 by the Ld. City Civil Judge at
Ahmedabad Court No.7 and further pleased to stay the
further proceedings of Civil Suit No.382 of 1998.
(d) Grant such other and further relief/s as the Hon'ble
Court may deem fit."
3. Petitioners happen to be the original defendants of Civil Suit
No.382 of 1998 pending before the Civil Court, Ahmedabad.
The suit was filed seeking declaration having right, title, and
interest in the suit property on the basis of inheritance and by
way of application below Exhibit 39, plaintiffs requested the
trial court to allow them to incorporate a new plea which was
sought to be introduced by way of amendment as regards
claiming right and ownership in the suit property by way of
adverse possession as an alternative plea.
4. After hearing the parties, the trial court vide its order dated
2nd February 2010 has allowed the impugned amendment
application. Such order is challenged by way of present writ
application.
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5. Learned counsel Mr. N. V. Gandhi for the original
defendants - petitioners herein would submit that granting the
impugned amendment application would not only change the
nature of the suit but amendment as sought for could not have
been granted by the trial Court as such introduction of
contradictory plea is not permissible in law.
5.1 Learned counsel Mr. Gandhi would submit that by way of
an amendment thereby plaintiffs are introducing self-
contradictory plea and now wants to introduce plea of adverse
possession which is opposite to main relief sought in the suit is
not permissible in law.
5.2 Learned advocate Mr. Gandhi would submit that as per the
settled legal position, such contradictory plea could not have
been permitted by the trial Court as it goes to the root of the
matter.
5.3 Learned counsel Mr. Gandhi would submit that when the
plaintiffs have claimed declaration on the strength of
inheritance right in the suit property but by introducing new
plea in the form of adverse possession, it would change the
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nature of the suit and such amendment could not have been
allowed by the trial court.
5.4 In support of his submission, he would rely upon the
following decisions:
(1) Kesar Bai vs. Genda Lal reported in 2022 (10) SCC
(2) Dhirubhai Kanjibhai vs. Babiben reported in 2024
(O) GUJHC 44933
5.5 Making above submissions, learned counsel Mr. Gandhi
requested the court to allow the present writ application.
No other and further submissions are made by learned
advocate Mr. Gandhi.
6. The short question which falls for consideration of this Court
would be that whether the trial court has committed any error
while allowing amendment application or not?
6.1 At the outset, I would like to remind myself and required
to take note of the ratio of following decisions of the
Honourable Supreme Court in a case of Sameer Suresh Gupta
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TRPA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9)
SCC 374 wherein the law has been summarized thereby the
scope of the power of the High Court while exercising its
power under Article 227 of the Constitution of India has been
elaborated. The relevant observation of the aforesaid judgment
reads as under:-
"[6] In our view, the impugned order is liable to be set aside
because while deciding the writ petition filed by the
respondent the learned Single Judge ignored the limitations of
the High Court's jurisdiction under Article 227 of the
Constitution. The parameters for exercise of power by the High
Court under that Article were considered by the two Judge
Bench of this Court in Surya Dev Rai v. Ram Chander Rai and
Ors., 2003 6 SCC 675. After considering various facets of the
issue, the two Judge Bench culled out the following principles:
(1) Amendment by Act No. 46 of 1999 with effect from
01-07-2002 in Section 115 of Code of Civil Procedure
cannot and does not affect in any manner the
jurisdiction of the High Court under Articles 226 and
227 of the Constitution.
(2) Interlocutory orders, passed by the Courts
subordinate to the High Court, against which remedy of
revision has been excluded by the Code of Civil
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Procedure Amendment Act No. 46 of 1999 are
nevertheless open to challenge in, and continue to be
subject to, certiorari and supervisory jurisdiction of the
High Court.
(3) Certiorari, under Article 226 of the Constitution, is
issued for correcting gross errors of jurisdiction, i.e.
when a subordinate Court is found to have acted (i)
without jurisdiction - by assuming jurisdiction where
there exists none, or (ii) in excess of its jurisdiction -
by overstepping or crossing the limits of jurisdiction, or
(iii) acting in flagrant disregard of law or the rules of
procedure or acting in violation of principles of natural
justice where there is no procedure specified, and
thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the
Constitution is exercised for keeping the subordinate
Courts within the bounds of their jurisdiction. When the
subordinate Court has assumed a jurisdiction which it
does not have or has failed to exercise a jurisdiction
which it does have or the jurisdiction though available
is being exercised by the Court in a manner not
permitted by law and failure of justice or grave
injustice has occasioned thereby, the High Court may
step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of
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supervisory jurisdiction, none is available to correct
mere errors of fact or of law unless the following
requirements are satisfied: (i) the error is manifest and
apparent on the face of the proceedings such as when it
is based on clear ignorance or utter disregard of the
provisions of law, and (ii) a grave injustice or gross
failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e.
which can be perceived or demonstrated without
involving into any lengthy or complicated argument or
a long-drawn process of reasoning. Where two
inferences are reasonably possible and the subordinate
Court has chosen to take one view, the error cannot be
called gross or patent.
(7) The power to issue a writ of certiorari and the
supervisory jurisdiction are to be exercised sparingly
and only in appropriate cases where the judicial
conscience of the High Court dictates it to act lest a
gross failure of justice or grave injustice should
occasion. Care, caution and circumspection need to be
exercised, when any of the abovesaid two jurisdictions
is sought to be invoked during the pendency of any suit
or proceedings in a subordinate Court and the error
though calling for correction is yet capable of being
corrected at the conclusion of the proceedings in an
appeal or revision preferred there against and
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entertaining a petition invoking certiorari or supervisory
jurisdiction of High Court would obstruct the smooth
flow and/or early disposal of the suit or proceedings.
The High Court may feel inclined to intervene where
the error is such, as, if not corrected at that very
moment, may become incapable of correction at a later
stage and refusal to intervene would result in travesty
of justice or where such refusal itself would result in
prolonging of the lis. (
(8) The High Court in exercise of certiorari or
supervisory jurisdiction will not covert itself into a
Court of Appeal and indulge in re-appreciation or
evaluation of evidence or correct errors in drawing
inferences or correct errors of mere formal or technical
character.
(9) In practice, the parameters for exercising jurisdiction
to issue a writ of certiorari and those calling for
exercise of supervisory jurisdiction are almost similar
and the width of jurisdiction exercised by the High
Courts in India unlike English Courts has almost
obliterated the distinction between the two jurisdictions.
While exercising jurisdiction to issue a writ of certiorari
the High Court may annul or set aside the act, order or
proceedings of the subordinate Courts but cannot
substitute its own decision in place thereof. In exercise
of supervisory jurisdiction the High Court may not only
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give suitable directions so as to guide the subordinate
Court as to the manner in which it would act or
proceed thereafter or afresh, the High Court may in
appropriate cases itself make an order in supersession or
substitution of the order of the subordinate Court as the
Court should have made in the facts and circumstances
of the case.
7. The same question was considered by another Bench in
Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC
329 : (2010) 3 SCC (Civ) 338] , and it was held: (SCC pp.
347-49, para 49)
"(a) A petition under Article 226 of the Constitution is
different from a petition under Article 227. The mode
of exercise of power by the 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, at 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
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Courts inferior to it. Nor can it, in exercise of this
power, act as a Court of appeal over the orders of the
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 their 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 [Waryam Singh v. Amarnath, AIR 1954 SC 215]
and the principles in Waryam Singh [Waryam Singh v.
Amarnath, AIR 1954 SC 215] have been repeatedly
followed by subsequent Constitution Benches and
various other decisions of this Court.
(e) According to the ratio in Waryam Singh [Waryam
Singh v. Amarnath, AIR 1954 SC 215] , 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
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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 the 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) The 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
L. Chandra Kumar v. Union of India [(1997) 3 SCC
261 : 1997 SCC (L&S) 577] and therefore abridgment by
a constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a
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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 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
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Courts subordinate to the 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 counterproductive and will divest this
extraordinary power of its strength and vitality."
6.2 It is also apt to reply upon the decision of Garment Craft
v. Prakash Chand Goel, reported in (2022) 4 SCC 181,
wherein the Hon'ble Supreme Court of India has held as
under:-
15. Having heard the counsel for the parties, we are clearly
of the view that the impugned order [ Prakash Chand Goel v.
Garment Craft, 2019 SCC OnLine Del 11943] is contrary to
law and cannot be sustained for several reasons, but primarily
for deviation from the limited jurisdiction exercised by the
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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. [Celina Coelho Pereira v. Ulhas Mahabaleshwar
Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] 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. [Estralla
Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97] has observed
: (SCC pp. 101-102, para 6)
"6. The scope and ambit of exercise of power and
jurisdiction by a High Court under Article 227 of the
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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."
6.3 Now, adverting to the issue germane in the matter, suit
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was filed in the year 1998 at the stage of framing of issues
when impugned application was filed, and as such trial was
not commenced at the relevant point of time. So, as per the
settled legal position amendment in Order 6 Rule 17 of the
CPC would not be applicable to the present case. Having
considered scope and power of court to grant amendment as
per pre-amended Order 6 Rule 17 of CPC, ordinarily an
amendment which is introduced by the parties to the suit is to
be allowed unless it is hit by any express provision of law
and/or changing the nature of the suit.
6.4 The amendment which is sought by the plaintiff is to the
effect that as an alternative plea, plaintiff wants a declaration
as regards his right, title and interest in the suit property by
way of an adverse possession. The trial court considered
submissions made by learned advocates for their respective
parties and arrived at definite findings having so observed that
trial of the suit is yet to begin and defendants have all rights
to object the suit on its merits. So, trial court has allowed the
amendment.
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6.5 Considering the totality of the facts and circumstances of
the case, at this stage, it would be early to observe that such
contrary plea could not have been raised by plaintiffs, as trial
of suit is yet to begin and as such, defendants may very well
defend the suit on its merits and also challenge such new plea
sought to be introduced by the plaintiffs by filing amended
written statement.
6.6 So far as decision on which reliance has been placed in
case of Kesarbai (supra), issue before the Honourable Apex
Court was somewhat different than the case on hand. In that
case, High Court has held that plea of ownership based on a
sale deed and plea of adverse possession both are contrary to
each other and plaintiff cannot be permitted to take both pleas
at the same time. Nonetheless, High Court has not entertained
the appeal of defendant, who had to travel to the Apex Court
to get his appeal allowed and in that set of facts and
circumstances, Honourable Apex Court has allowed the appeal.
Before the Honourable Apex Court, it was not an issue as to
whether such contrary pleas could have been raised by the
plaintiff or not.
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6.7 Likewise, in case of Dhirubhai (supra), the court was of the
view that if by granting an amendment, nature of suit got
changed, and such amendment cannot be allowed. There is no
cavil on this issue as referred hereinabove, by granting an
amendment, nature of suit is not going to be changed as it is
still remain for declaration. So, aforesaid decision would not
be applicable to facts of the present case.
6.8 Lastly, this court is required to examine the impugned
order in light of scope and ambit of power of this court under
Article 227 and thereby, as it was settled down by Honourable
Apex Court in case of Sameer Suresh Gupta (supra) and
Garment Craft (supra), thereby if the trial court has not
committed any gross error of law or jurisdictional error while
passing the impugned order, this Court is not required to
interfere with the impugned order. Thus, I do not find any
merit in the matter, thereby present writ application deserves
to be dismissed.
7. Before parting with the order, this court would like to
request the trial court to expedite the suit proceedings which is
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filed in the year 1998, as this court is vacating the interim
relief so granted earlier.
8. In view of above, present writ application stands dismissed.
Interim relief if any granted earlier stands vacated. Rule is
discharged. There shall be no order as to costs.
(MAULIK J.SHELAT,J)
DRASHTI K. SHUKLA
