Gujarat High Court
Nanji Kanji Songra vs Vasram Natha Dabhi on 6 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1548 of 2025
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NANJI KANJI SONGRA
Versus
VASRAM NATHA DABHI & ORS.
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Appearance:
MR DHRUVIN N DOSSANI(10528) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 06/02/2025
ORAL ORDER
1. Heard learned advocate Mr. Dhruvin N. Dossani for the
petitioner.
2. The present petition is filed seeking following reliefs:
"9.A) Be pleased to quash and set aside dated order below
Exhibit 27 dated 23.01.2025 passed by Ld. Additional
Senior Civil Judge, Dwarka in Execution Petition No.9 of
2018.
B) Pending Admission, Hearing and Final disposal of this
Petition, be pleased to stay order below Exhibit 27 dated
23.01.2025 passed by Ld. Additional Senior Civil Judge,
Dwarka in Execution Petition No.9 of 2018.
C) Pending Admission, Hearing and Final disposal of this
Petition be pleased to stay further proceedings pending
before Ld. Additional Senior Civil Judge, Dwarka in
Execution Petition No.9 of 2018.
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D) Costs of this Petition be awarded.
E) Such further and other relief, order or direction which
may be just, fit, proper and equitable in the facts and
circumstances of the Petition."
3. Learned advocate Mr. Dossani would submit that the
impugned order passed by the executing Court below Exh.27
thereby possession warrant has been issued under Order 21
Rule 35 of the Code of Civil Procedure, 1908, is bad in law in
as much as, the decree which is passed by the appellate Court
is subject matter of Second Appeal No.58 of 2020 being filed
by the petitioner, which was dismissed for default by this
Court vide order dated 20.03.2014.
3.1 He would further submit that the petitioner has already
preferred a restoration application before this Court thereby
requested for restoring back the aforesaid Second Appeal, is
pending and next date is 11.03.2025. So, he would request this
court that till final outcome of restoration application and any
order passed by the co-ordinate bench of this Court in Second
Appeal, the impugned order is required to be stayed.
3.2 He would further submit that the petitioner is not having
any other accommodation except suit property. Considering the
peculiar facts and circumstances of the case, this Court may, at
this stage, stay the impugned order.
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No other and further submissions are made by the
learned advocate for the petitioner.
4. 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
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
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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.
(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.
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(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 drawing
inferences or correct errors of mere formal or technical
character.
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(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
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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
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
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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 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.
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(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."
4.1 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
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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)
"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
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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."
5. I have gone through the impugned orders passed by the
executing Court. At present, there is no stay granted in favour
of the petitioner in any proceedings including the aforesaid
Second Appeal No.58 of 2020, albeit, the same is dismissed for
default. It is true that restoration application is pending before
this Court. On inquiry that learned advocate for the petitioner
he would fairly state that no substantial question of law has
been framed so far in the Second Appeal but at the relevant
point of time, only notice was issued in the Second Appeal
and this Court has permitted the petitioner to seek
adjournment before the executing Court.
5.1 The executing Court has dealt with the objections so
raised by the petitioner against the execution and answered it
correctly that such objections are not germane in the execution
because of the fact that it is answer in the judgment and
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decree passed in the execution which is confirmed in the
appeal.
5.2 When the petitioner's Second Appeal is dismissed for
default and even prior thereto, no substantial question of law
has been framed by this Court then, in view of the settled
legal position, no stay could have been granted in favour of
the petitioner in the appeal. It is also well settled legal
position of law that the things cannot be done directly, cannot
be done indirectly. Once no protection has been granted by
this Court when Second Appeal was taken up for hearing
except giving liberty to seek adjournment in the execution
proceedings, such so called relief in favour of the petitioner
ends when the Second Appeal dismissed for default by this
Court.
6. In view of the aforesaid discussion and reasons, I am of
the view that there is no error in the impugned order passed
by the executing Court thereby issued possession warrant
against the petitioner.
7. When there is not gross error and / or jurisdictional error
committed by executing Court while passing impugned order,
this Court while exercising its powers under Article 227 of the
Constitution of India cannot be interfered with by this Court as
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I am bound by the decisions of the Honourable Supreme Court
in case of Sameer Suresh Gupta TRPA Holder (supra) and
Garment Craft (supra).
8. So, the upshot of the aforesaid observations, discussion
and findings leads to only one conclusion that there is no
merits in the matter and the same is hereby dismissed. No
order as to costs.
(MAULIK J.SHELAT,J)
DRASHTI K. SHUKLA
