Gujarat High Court
Dipakbhai Kalidas Kothari vs Samir Hasam Rajjab on 22 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3294 of 2022
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DIPAKBHAI KALIDAS KOTHARI & ANR.
Versus
SAMIR HASAM RAJJAB & ANR.
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Appearance:
MR VICKY B MEHTA(5422) for the Petitioner(s) No. 1,2
MR MANAN A SHAH(5412) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM HONOURABLE MR. JUSTICE MAULIK J.SHELAT
:
Date : 22/04/2025
ORAL ORDER
1. Rule returnable forthwith. Learned advocate Mr.
Manan A. Shah waives service of notice of rule on behalf of
respondent No.1. The presence of other respondent is not
required.
2. Heard learned advocate Mr. Vicky B. Mehta for the
petitioners and learned advocate Mr. Manan A. Shah for
respondent No.1.
3. The present writ application is filed under Article 227 of
the Constitution of India seeking following relief :-
"a) Your Lordships may be pleased to admit this Special Civil
Application.
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b) Your Lordships may be pleased to issue appropriate writ, order
or directions to quash and set aside the order dated 10.12.2021 below
Ex.92 passed by learned 13th Addl. Senior Civil Judge, Surat in
Regular Civil Suit no. 96 of 2019.
c) Pending admission hearing and final disposal of this petition
your Lordships may be pleased to stay further proceedings in Regular
Civil Suit no. 96 of 2019.
d) Your lordships may be pleased to pass any other appropriate
and just order/s in the interest of justice."
4. The parties will be referred as far as possible as per
their original position in the suit.
Facts of the case :
5.0 The petitioners herein are the original defendants No. 1
& 2 of Regular Civil Suit No. 96 of 2019 filed by the
respondent No.1 herein against them as well as respondent
No.2 herein.
5.1 The suit is filed for specific performance of agreement
to sale alleged to have been executed by the mother of the
present petitioners in favour of predecessor of the
respondent No.1 herein - plaintiff.
5.2 It is a specific defence set up by the petitioners-
defendant No.1 & 2 in their written statement that mother
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of the petitioners were never signed the documents and only
put her thumb impression as she was illiterate.
5.3 After framing of the issues, evidence of the plaintiff has
been recorded and thereafter, defendant's cross
examination got over.
5.4 After completion of the cross examination of the
defendants No. 1 & 2, the impugned application below Exh.
92 came to be filed by petitioners herein thereby, sought
leave of the Court to produce the documents in support of
their defence. The impugned application is objected by the
original plaintiff and after hearing the parties, the trial Court
vide its order dated 10.12.2021 has rejected the impugned
application. The defendants No. 1 & 2 have challenged the
aforesaid order by way of the present writ application.
Submission of the petitioners - defendants No. 1 & 2
6. Learned advocate Mr. Vicky Mehta for the petitioners
would submit that, the trial Court has not appreciated the
impugned application and wrongly rejected it by taking
hyper technical approach. He would submit that as per Order
8 rule 1A (3) of CPC, the Court is not required to consider the
intention of the parties but to advance the substantial
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justice, leave ought to have been granted by the trial Court
in favour of the defendants No. 1 & 2. He would further
submit that, no prejudice will be caused to the plaintiff if
production of documents as sought for, would have been
granted.
6.1 Learned advocate Mr. Mehta would further submit that,
rule of procedure is handmaid of justice and hyper technical
approach may be avoided by the trial Court while
adjudicating such application.
6.2 Learned advocate Mr. Mehta would refer and rely upon
the decision of the Hon'ble Apex Court in the case of
Sugandhi (Dead) by Lrs. and another Vs. Rajkumar Rep. By
his Power Agent Imam Oli reported in (2020) 10 SCC 706.
6.3 Making the above submissions, learned advocate Mr.
Mehta requested this Court to allow the present writ
application.
Submission of respondent No.1- plaintiff
7. Per Contra, Learned advocate Mr. Manan Shah for
respondent No.1 would submit that, the trial Court has not
committed any gross error and or any jurisdictional error
while adjudicating the impugned application. He would
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further submit that defendants No. 1 & 2 were within the
knowledge of documents which are now sought to be
produced i.e. registered Will of their mother as well as an
application tendered before the Mamlatdar on 14.09.2006.
Thereby, production as sought for at the end of their
evidence is uncalled for and correctly rejected by the trial
Court.
7.1 Learned advocate Mr. Shah would further submit that,
defendants No.1 & 2 have not come out with a proper
explanation and rather made a false and incorrect statement
to the effect that the documents which are sought to be
produced are recently made available which is factually
incorrect as in the Will, defendant No.1 - petitioner No.1
herein has counter signed, thereby, verified thumb
impression of his mother. So, documents sought for
production were in fact within knowledge of defendant No.1
& 2.
7.2 Learned advocate Mr. Shah would further submit that,
plaintiff has already completed his evidence and if such a
production of document could be allowed, it would cause
great prejudice and hardship to the plaintiff who is awaiting
for final adjudication of his suit, which was filed in the year
2019.
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7.3 Learned advocate Mr. Shah would further submit that,
the provisions of CPC though not mandatory and held to be
directory in nature but at the same time, the Court is
required to exercise its discretion in favour of the party who
is vigilant during the course of the trial and in absence of any
cogent reason set out in the application, no relief can be
granted in favour of the defendants No.1 & 2.
7.4 Lastly, learned advocate Mr. Shah would submit that,
the decisions so cited by the learned advocate Mr. Vicky
Mehta for the petitioners in the case of Sugandhi (supra)
would not be applicable to the facts of the present case, as
in the aforesaid case before the Hon'ble Apex Court, cogent
reasons were set out by the defendants, thereby, Hon'ble
Apex Court in the facts of the case has allowed the
application of the defendants.
7.5 Making the above submissions, learned advocate Mr.
Shah requested this Court to reject the present writ
application.
8. No other and further submissions made by any of
learned advocates appearing for the respective parties.
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Point for determination :
9. Whether the trial Court has committed any gross error
of law or jurisdictional error while rejecting the impugned
application filed below Exh. 92 by defendant No.1 & 2
thereby denied production of documents ?
Analysis :
10. The facts which are set out hereinabove are not in
dispute. The impugned application came to be filed by the
defendants No.1 & 2 after cross examination of the
defendants got over and at the stage where evidence of
defendants were on verge of its completion. The reasons so
set out in the impugned application is quite surprising as
defendants No.1 & 2 since inception and having put their
defence in the written statement stated that mother of
defendants No.1 & 2 was not signing the document being
unlettered but, have chosen not to submit any documentary
evidence in support of their case alongwith their written
statement and so also before commencement of their oral
evidence. Further, it has been so stated in impugned
application that after cross-examination of defendants, it
was felt to submit the documents.
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10.1 Further, incorrect statement has been made by
defendants No.1 & 2 in the impugned application to the
effect that documents which are sought to be produced are
recently available to them, which is not only a statement but
contrary to the documents itself i.e. copy of the registered
Will wherein it can be seen that defendant No.1 has signed
his signature, thereby, verified thumb impression of his
mother. When defendant No.1 having identified thumb of his
mother on Will, it would be hard to believe that such fact
was neither in knowledge of defendant No.1 & 2 nor such
document not available to them at given point of time.
10.2 The reason of such production of documents so
stated in the impugned application that after cross
examination of the defendants, it was felt that such
documents are required to be produced on record.
According to me, this would nothing but to fill up the lacuna
remains all throughout during the course of trial at the
hands of the defendants to prove their defence.
10.3 Be that as it may, when the documents which are
sought to be produced on record, are not only known to
defendants No.1 & 2 but have easily submitted by them
along with written statement but reason best known to
them they have not submitted at the relevant point of time.
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As such explanation coming forth in impugned application
would not show any sufficient and cogent reasons which is
sine qua none to grant such kind of impugned application.
10.4 It is true that rule of procedure is handmaid of
justice and it is well settled legal position of law and the
decision so cited by the learned advocate Mr. Vicky Mehta
for the petitioners in the case of Sugandhi (supra) has
emphasized such issue. At the same time, according to my
view, two things which are required to be considered while
appreciating the ratio of the Hon'ble Apex Court in the case
of Sugandhi (supra).
(i) Firstly, the Hon'ble Apex Court has categorically
observed that, if the procedural violation does not seriously
cause prejudice to the adversary party, courts must lean
towards doing substantial justice rather than relying upon
procedural and technical violation. In the case in hand, when
defendants No.1 & 2 have set up their defence that mother
has not signed any document being unlettered then, burden
was upon them to prove such fact. They could have easily
produced the documents with their written statement which
was not done so. At the same time, plaintiff has already
concluded his oral evidence. The defendants having not been
able to prove the defence as once cross examination were
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over, granting such leave in favour of the defendants No.1 &
2 nothing but to fill up lacuna which remains in their
evidence which ultimately caused serious prejudice to the
advisory party i.e. plaintiff.
(ii) Secondly, the Hon'ble Apex Court has also observed
that, if cogent reasons are assigned in the application while
seeking leave of the Court, such request of the defendants
can be considered. As such as observed hereinabove, the
impugned application having not stated correct facts and as
such cogent reasons are also missing, rather incorrect
statement has been made by the defendants No.1 & 2, as
regards to no knowledge of the documents which are sought
to be produced. It has been so stated in impugned
application that after cross-examination of defendants, it
was felt to submit the documents. So, in absence of cogent
reasons set out in impugned application, no relief can be
granted in favour of defendant No.1 & 2.
11. It is equally well settled legal position of law that when
the party is requesting the Court to exercise its discretion in
favour of him, he has to come out with clean hands, failing
which discretion can not be exercised in favour of the party.
When incorrect statement made in impugned application,
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defendants No. 1 & 2 would not entitle to receive any
discretionary relief in their favour.
12. To avoid delay in completion of trial of civil suit, it
would be an endeavor of everyone to see that no
unnecessary lapses remains and parties would fulfill all their
obligation as per respective provisions of CPC. So,
considering the scope and ambit of Order 8 rule 1A (3) of
CPC read with Order 13 of CPC, it would not be absolute
discretion to be exercised by the trial Court as a matter of
course in favour of the defendants, who at relevant point of
time, consciously with reason best known to them not
submitted the documents and once no cogent reasons are
assigned by them for not producing such documents at given
point of time, the trial Court was not supposed to exercise
judicial discretion in favour of them, when stage of such
production already over long back. It is settled that any
discretionary power is required to be exercised judicially and
not mechanically.
13. At this stage, it is apt to refer and rely upon the
decision of the Hon'ble Apex Court in the case of Atcom
Technologies Ltd vs Y.A. Chunawala And Co. reported in
(2018) 6 SCC 639, more particularly Para-17, wherein held
thus :-
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"17. We fail to persuade ourselves with this kind of reasoning given
by the High Court in condoning the delay, thereby disregarding the
provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908
and the spirit behind it. This reason of the High Court that delay was
condoned 'by balancing the rights and equities' is far- fetched and, in
the process, abnormal delay in filing the written statement is condoned
without addressing the relevant factor, viz. whether the respondents
had furnished proper and satisfactory explanation for such a delay.
The approach of the High Court is clearly erroneous in law and cannot
be countenanced. No doubt, the provisions of Order VIII Rule 1 of the
Code of Civil Procedure, are procedural in nature and, therefore, hand
maid of justice. However, that would not mean that the defendant has
right to take as much time as he wants in filing the written statement,
without giving convincing and cogent reasons for delay and the High
Court has to condone it mechanically........"
(emphasis supplied)
14. Thus, even if rule of procedure is to be considered as
handmaid of justice still in a case where litigant slept over
for quite long time, not exercise its right in time, allows the
things to happen and later on at verge of trial wake from
slumber having felt to introduce his evidence when other
side has already completed his evidence, in such factual
situation, more particularly in absence of any convincing and
cogent reasons of none production of documents/evidence
by party at given point of time, ordinarily Court should not
allow such production of documents even by imposing cost.
15. At last, I would like to remind myself the scope, ambit
and power available to this Court while adjudicating writ
application filed under Article 227 of the Constitution of
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India which is succinctly discussed in following two decisions
of Honourable Supreme Court of India. First one in a case of
Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar
Agarwal, reported in 2013 (9) SCC 374, 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 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
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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 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 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
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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 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 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
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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 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 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.
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(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 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."
(emphasis supplied)
15.1 The second decision in a case 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.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 High Court under Article 227 of
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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 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
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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."
(emphasis supplied)
16. Having so considered entire set of facts and case law on
the issue germen including relevant provisions of CPC, I am
of the view that there is no gross error much less any
jurisdictional error committed by the trial Court while
rejecting the impugned application. Hence, no interference is
required by this Court while exercising its power under
Article 227 of the Constitution of India.
17. Thus, in view of aforesaid reasons, I do not find any
merit in the present writ application which requires to be
dismissed, it is hereby dismissed. Notice is discharged. No
order as to costs. Interim relief granted earlier, if any, stands
vacated forthwith. It is now open for the trial Court to
proceed with suit and see to it that same be adjudicated in
accordance with law without being influenced by any of
reasons so set out herein above albeit, after giving them
reasonable opportunity of hearing.
(MAULIK J.SHELAT,J)
SALIM/
