Gujarat High Court
M/S Alibhai Haji Ahemadbhai Co vs Lh Of Decd Alibhai Haji Ahemadbhai on 5 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15786 of 2024
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M/S ALIBHAI HAJI AHEMADBHAI CO
Versus
LH OF DECD ALIBHAI HAJI AHEMADBHAI & ORS.
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Appearance:
MR SHAKEEL A QURESHI(1077) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 05/02/2025
ORAL ORDER
1. Learned advocate Mr. Shakeel A. Qureshi appearing for
the petitioner has placed a draft amendment signed by him on
06.08.2024, thereby the petitioner wants to continue with the
present petition in her own name as the power of attorney
died. The draft amendment is allowed and the same shall be
carried out forthwith.
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 this petition.
(B) YOUR LORDSHIPS MAY BE PLEASED TO allow this petition by
quashing and setting aside the impugned order passed by the
learned Lower Court in Exh.151 and thereby be pleased to direct
to record the deposition of plaintiff as prayed in application
Exh.151, in the interest of justice.
(C) YOUR LORDSHIPS MAY BE PLEASED TO pending admission
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hearing and final disposal of this petition stay the implementation,
execution and operation of the impugned order in Exh.151 in the
interest of justice.
(D) YOUR LORDSHIPS MAY BE PLEASED TO grant such other and
further relief(s) which may deem fit to this Honourable Court in
the interest of justice."
3. The short facts of the case are as under:-
3.1 The petitioner is the plaintiff of Regular Civil Suit
No.453 of 2015, who has filed the suit through her power of
attorney. The power of attorney of the plaintiff was examined
before the trial court in the suit. Thereafter, the evidence of
the plaintiff and the defendants got over. The plaintiff, having
felt so, that considering the controversy involved, in her own
capacity, the plaintiff requires to be allowed to tender her
evidence in place of her power of attorney. At the stage of the
final argument of the parties, an impugned application below
Exhibit 151 has been filed by the plaintiff, thereby seeking a
prayer to reopen the right of the plaintiff to lead evidence as
prayed for in the application.
3.2 After hearing the parties, the trial court has rejected
the application.
3.3 Being aggrieved and dissatisfied with the judgment and
order dated 22.04.2024, passed by the Principal Civil Judge,
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Baruch, in Regular Civil Suit No. 453 of 2015, the present
application has been filed.
4. Learned advocate Mr. Shakil Qureshi, appearing for the
petitioner, submits that the plaintiff initially pursued the case
through a power of attorney. Thereafter, the power of attorney
was examined on behalf of the plaintiff, but after the death of
the power of attorney, it was felt by the petitioner-plaintiff to
tender evidence, thereby the case of the plaintiff got effectively
put before the trial court, and so the impugned application
was filed, which ought to have been allowed by the trial
court.
4.1 Learned advocate Mr. Qureshi would further submit
that the impugned order is erroneous, as the ground on which
the impugned application has been rejected is neither made
out from the application nor from the argument of anyone.
4.2 Learned advocate Mr. Qureshi would submit that if,
with reasonable cost, the right of the plaintiff can be reopened
to lead the evidence, it would meet the ends of justice, as in
the absence of a power of attorney, when the party wants to
tender evidence, the same ought to have been allowed by the
trial court.
5. No other and further submissions are made.
6. Heard learned advocate Mr. Qureshi appearing for the
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petitioner at length.
7. Before adverting to the issue involved in the matter, I
would to remind myself scope and power available to this
Court while exercising its power under Article 227 of the
Constitution of 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.
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(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 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
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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 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
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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
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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 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
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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.
(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
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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."
Emphasized supplied.
8. The second decision in a case of Garment Craft v.
Prakash Chand Goel, reported in (2022) 4 SCC 181, wherein
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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 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)
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" 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 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."
Emphasized supplied.
9. It appears that the suit is at the final hearing stage, and
before the commencement of the hearing, the impugned
application has been filed by the plaintiff to reopen her right
to examine herself, though her evidence was already over and
the evidence of the defendant was also over long back. It has
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been observed in the impugned order that after one year of
the death of the power of attorney, the impugned application
has been filed at the stage of final argument. It has also been
observed that due to change of lawyer by the plaintiff, such an
application has been filed by the plaintiff.
10. In view of the aforesaid facts and circumstances of the
case, when the suit is at the stage of final hearing and when
the evidence of the plaintiff is already recorded, albeit, of her
power of attorney, I do not find any reason to interfere with
the impugned order. There is no gross error or judicial error
committed by the trial court while rejecting the impugned
application.
11. In view of the aforesaid discussion and reasons, the
petition lacks merit and is hereby DISMISSED. No order as to
costs.
(MAULIK J.SHELAT,J)
MOHD MONIS
