Gujarat High Court

Lh Of Decd Ratilal Tribhovandas Mistri vs Lh Of Decd Jamnaben Wd/O Rambhai ... on 3 February, 2025

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                             C/SCA/36908/2024                                   ORDER DATED: 03/02/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                   F/SPECIAL CIVIL APPLICATION NO. 36908 of 2024
                                                        With
                               CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2024
                                  In F/SPECIAL CIVIL APPLICATION NO. 36908 of 2024
                                                        With
                          CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 2 of 2024
                             In CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2024
                                  In F/SPECIAL CIVIL APPLICATION NO. 36908 of 2024
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                                LH OF DECD RATILAL TRIBHOVANDAS MISTRI & ORS.
                                                    Versus
                         LH OF DECD JAMNABEN WD/O RAMBHAI PANCHAL,DECD NAVNITLAL
                                           RAMBHAI PANCHAL & ORS.
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                       Appearance:
                       MR MK TIWARI, WITH MR. PRERAK R BHATT(11381) for the Petitioner(s)
                       No. 1,1.1,1.1.1,1.1.2,1.1.3,1.2,1.3,1.4,1.5,1.6
                       ==========================================================

                          CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                            Date : 03/02/2025

                                                             ORAL ORDER

1. Heard learned advocate Mr. M. K. Tiwari for learned advocate Mr. Prerak R. Bhatt for the petitioners. Learned advocate Mr. Tiwari would submit that the legal heirs of some of respondent are already on record of the execution petition. Consequently, he may not press the Civil Application No.1 of 2024, which is filed for bringing legal heirs on record.

2. Thus, in view of above, Civil Application No.1 of 2024 is

disposed of as not pressed. Since Civil Application No. 1 of

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2024 is disposed of, Civil Application No.2 of 2024 which was

filed for condonation of delay in filing an application of

bringing legal heirs on record does not survive and disposed of

accordingly.

3. As such, the registry has raised objections to bring the legal

heirs of deceased respondent on record. The necessary

application requires to be filed, but after filing it, the

applicants have chosen to withdraw such an application.

Search permission has been granted by this court. The

consequence will be followed.

3. The main petition which is not registered, has been filed

under Article 227 of the Constitution of India with the

following prayers:

"(1) Admit and allow the present petition;

(2) Quash and set aside the order passed below Exhibit 62, dated 25/11/2024 in R/Execution No. 08/2016AT Annexure- G-colly;

(3) Quash and set aside the order passed below Exhibit 64, dated 25/11/2024 in R/Execution No. 08/2016 and also quash and set aside all the consequential steps taken pursuant to the said order:

(4) Quash and set aside the possession warrant Exh-66,

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dated 27/11/2024:

(5) Direct the Principal Senior Civil Judge to decide the objection Exh -62 as per law;

(6) Direct the Principal Senior Civil Judge. Navsari to restore the possession of the Petitioners during the pendency of the present petition;

(7) Stay the further proceeding of the R/Execution No. 08/2016;

(8) And/or pass such other and further order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case."

4. Learned advocate Mr. Tiwari would submit that the

impugned application filed below Exhibit 62 by the petitioners

in Execution Petition No. 8 of 2016 is wrongly rejected by the

executing court vide its order dated 25.11.2024 which requires

to be interfered with by this court under Article 227 of the

Constitution of India.

4.1 Learned advocate Mr. Tiwari would further submit that

present petitioners have also preferred a review application in

the second appeal, wherein some miscellaneous applications are

pending before this Court.

4.2 He would then submit that until such applications will be

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decided by this Court, the possession warrant could not have

issued and stay ought to have been granted by the executing

court. So, he would request this Court to interfere in the

impugned order as prayed for.

4.3 No further submissions are made by the learned advocate

for the petitioners.

5. I have gone through the impugned order passed by the

executing court. The petitioners have lost up to the Hon'ble

Apex Court and in execution also, they have assured the

executing court to hand over possession of suit property and

such undertaking so clearly observed in the impugned order

itself. Thus, possession is required to be taken from the

petitioners, for which the execution petition has been filed.

5.1 It further appears after going through the impugned order

that the petitioners have given an undertaking before the

executing court to hand over possession to the decree holder,

which is referred to by the executing court in its impugned

order. After passing of such order below Exhibit 60, at this

stage, the impugned application came to be filed by the

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present petitioners. After closely going through the impugned

order and considering the fact that there is no stay granted by

any of this Court, and petitioners themselves give undertaking

then, they could not have filed such an impugned application

below Exhibit-62.

5.2 I am in complete agreement with the reasons assigned by

the executing court in its order dated 25.11.2024. It is also

required to be noted here that in the list of events of the

petition at page H, the following statement has been made by

the petitioners.

"That, the petitioners filed objection/stay application before the court below on the same grounds/reasons which are under review before the Hon'ble Court and further that in view of the same the decree is inexecutable and/or to be executed by excluding the area as mentioned the sale-deed 01.05.1914."

So, in view of what is stated in the petition, petitioners

want to ride on two horses at the same time thereby, raised

similar objection so raised before the executing court and so

also before this Court. According to me, such a recourse under

law is not permissible.

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6. Even otherwise, the scope and interference of this Court

while exercising its power under Article 227 of the Constitution

of India is very limited, which is very well defined in the

following decisions of the Hon'ble Supreme Court.

(1) Sameer Suresh Gupta 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

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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 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.

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(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

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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 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.

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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 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

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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.

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(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.

(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

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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."

(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 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

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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."

7. Prima facie, I am of the view that objections which are so

raised before the executing court are the same objections that

the petitioners have raised before this Court in their review

application filed in Second Appeal, so referred herein above

stated in the petition and so also confirmed by the learned

advocate for the petitioners.

7.1 Such an approach on the part of the petitioners is not

permissible. When the petitioners have already filed a review

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application before this Court, which is pending for any reason,