Gujarat High Court
Momba Takhuji Chavda vs Arunbhai Kantilal Bhavsar on 11 February, 2025
NEUTRAL CITATION
C/SCA/7527/2023 JUDGMENT DATED: 11/02/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7527 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 7527 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
==========================================================
Approved for Reporting Yes No
==========================================================
MOMBA TAKHUJI CHAVDA & ORS.
Versus
ARUNBHAI KANTILAL BHAVSAR
==========================================================
Appearance:
ULLASH N GOHIL(8357) for the Petitioner(s) No. 1,2,3,4
MR VIRAL K SALOT(3500) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 11/02/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. Viral K.
Salot waives service of notice of rule on behalf of sole
respondent.
2. The present application is filed under Article 227 of the
Constitution of India seeking following reliefs:
"(A) YOUR issue in LORDSHIPS may be pleased to a writ
of mandamus or a writ the nature of mandamus or other
NEUTRAL CITATION
C/SCA/7527/2023 JUDGMENT DATED: 11/02/2025
undefined
appropriate writ, order directions quashing and aside
impugned order setting dated 28.03.2023 passed by Hon'ble
Small Causes Court in Civil Miscellaneous Application no.
60 of 2020;
(B) During the disposal of pendency and final the present
petition, YOUR LORDSHIPS may be pleased stay further to
operation, implementation and execution of impugned
order dated 28.03.2023 passed by Hon'ble Small Causes
Court in Civil Miscellaneous Application No.60 of 2020
(Annexure-D hereto) and further may be pleased to pass an
order directing the respondent to maintain property: Status
Quo qua the suit
(C) Pass any such other and/or further orders that may be
thought just and proper, in the facts and circumstances of
the present case;"
3. Facts:
3.1 The petitioners herein are legal heirs of original tenant -
defedant against whom an ex parte decree of eviction has been
passed by the Small Cause Court No.2, Ahmedabad on
02.07.2019 in HRP Civil Suit No.165 of 2018. The respondent
herein is original landlord / plaintiff of aforesaid suit.
3.2 The defendant was served in the suit but having not
appeared, after dealing with the issues framed by the trial
Court a decree of eviction has been passed on answering such
issues in favour of the landlord i.e. arrears of rent, acquired
alternative accommodation by the tenant etc.
NEUTRAL CITATION
C/SCA/7527/2023 JUDGMENT DATED: 11/02/2025
undefined
3.3 It is the case of the petitioners that as tenant was not
aware about passing of such judgment and eviction decree
which came to his knowledge when he was served with the
summons in the execution proceedings on 23.12.2019 then, it
was followed by possession warrant. At this stage, the original
tenant has preferred an appeal before the Small Cause Court,
Ahmedabad wherein there was delay of 204 days in filing the
appeal. The appellate Court has rejected the delay application
consequently not registered the appeal and stay application
filed with it.
3.4 It further appears that during the pendency of the present
application, the possession of the premises has been taken by
the landlord through executing the eviction decree a remedy
which was available after passing of such decree. So, as on
date, landlord is occupying the suit premises. The original
tenant died during pendency of the appeal, survived by his
legal heirs, who happens to be petitioners
4. Being aggrieved and dissatisfied with the judgment and
decree dated 23.03.2023 passed by the appellate bench of
Small Cause Court in Civil Misc. Application (for delay) No.60
of 2020, legal heirs of original tenant has preferred the present
application.
NEUTRAL CITATION
C/SCA/7527/2023 JUDGMENT DATED: 11/02/2025
undefined
5. Submissions of the petitioners:
5.1 Learned advocate Mr. Ullash N. Gohil appearing for the
petitioners would submit that the original tenant - defendant
was not properly served with the summons of HRP Suit No.165
of 2018 filed by the landlord which ultimately resulted into
exparte decree of eviction.
5.2 He would submit that the original tenant was not at all
aware about the aforesaid eviction suit and came to know
about such eviction decree when received notice for execution
proceedings on 23.12.2019 and then within short period of
time preferred an appeal on 17.02.2020. So, learned counsel
would submit that considering the length of delay and aspect
of exparte decree, which has been passed against the tenant, a
liberal approach ought to have been taken by the appellate
Court while adjudicating the delay application filed by the
original tenant.
5.3 Learned advocate Mr. Gohil would submit that aspect of
improper service, pendency of other suit against the tenant
which was instituted by the landlord as well as the efforts
which were made by the tenant after passing of the decree has
been elaborately mentioned in the stay application which was
filed along with the appeal.
NEUTRAL CITATION
C/SCA/7527/2023 JUDGMENT DATED: 11/02/2025
undefined
5.4 Thus, he would submit that considering the peculiar facts
and circumstances of the case and taking into account a liberal
approach, the delay of 204 days ought to have been condone
in the interest of justice. Making above submission, he would
request this Court to allow the present petition.
6. Submissions of the respondent
6.1 Per contra, learned advocate Mr. Viral K. Salot appearing
for the respondent - original landlord would submit that the
present application has became infructuous as during the
pendency of the present application, the possession of the suit
premises has already taken by the landlord through execution
proceedings. So nothing survived in the present matter.
6.2 Learned advocate would submit that it is settled principle
of law that length of delay is not material but cause of delay
which is required to be taken into consideration by the Court
while deciding the delay application.
6.3 He would further submit that there is no sufficient cause
made out in the impugned application, which is bereft of any
material particular. He would further submit that it is settled
legal position that merits of the matter would not be gone into
by the Court while deciding the delay application. The
NEUTRAL CITATION
C/SCA/7527/2023 JUDGMENT DATED: 11/02/2025
undefined
appellate Court has considered the conduct of the original
tenant and after examining the record of the case, ultimately
not exercised the discretion in favour of the original tenant
thereby rejected the delay application.
6.4 He would submit that this Court being appellate Court
may not exercise its power under Article 227 of the
Constitution of India merely because second view is possible in
the matter. Thus, learned advocate for the respondent would
submit that this Court may not entertain the present petition.
No other and further submissions are made by any of the
parties.
7. Analysis:
7.1 At the outset, I would like to remind myself and required
to take note of the ratio of following decisions of the
Honourable Supreme Court in a case of Sameer Suresh Gupta
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:-
NEUTRAL CITATION
C/SCA/7527/2023 JUDGMENT DATED: 11/02/2025
undefined
"[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
NEUTRAL CITATION
C/SCA/7527/2023 JUDGMENT DATED: 11/02/2025
undefined
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 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
NEUTRAL CITATION
C/SCA/7527/2023 JUDGMENT DATED: 11/02/2025
undefined
entertaining a petition invoking certiorari or supervisory
jurisdiction of High Court would obstruct the smooth
flow and/or early disposal of the suit or proceedings.
The High Court may feel inclined to intervene where
the error is such, as, if not corrected at that very
moment, may become incapable of correction at a later
stage and refusal to intervene would result in travesty
of justice or where such refusal itself would result in
prolonging of the lis. (
(8) The High Court in exercise of certiorari or
supervisory jurisdiction will not covert itself into a
Court of Appeal and indulge in re-appreciation or
evaluation of evidence or correct errors in drawing
inferences or correct errors of mere formal or technical
character.
(9) In practice, the parameters for exercising jurisdiction
to issue a writ of certiorari and those calling for
exercise of supervisory jurisdiction are almost similar
and the width of jurisdiction exercised by the High
Courts in India unlike English Courts has almost
obliterated the distinction between the two jurisdictions.
While exercising jurisdiction to issue a writ of certiorari
the High Court may annul or set aside the act, order or
proceedings of the subordinate Courts but cannot
substitute its own decision in place thereof. In exercise
of supervisory jurisdiction the High Court may not only
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.
NEUTRAL CITATION
C/SCA/7527/2023 JUDGMENT DATED: 11/02/2025
undefined
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
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
NEUTRAL CITATION
C/SCA/7527/2023 JUDGMENT DATED: 11/02/2025
undefined
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
NEUTRAL CITATION
C/SCA/7527/2023 JUDGMENT DATED: 11/02/2025
undefined
(Amendment) Act, 1999 does not and cannot cut down
the ambit of High Court's power under Article 227. At
the same time, it must be remembered that such
statutory amendment does not correspondingly expand
the High Court's jurisdiction of superintendence under
Article 227.
(k) The power is discretionary and has to be exercised
on equitable principle. In an appropriate case, the
power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered
power of the High Court under Article 227, it transpires
that the main object of this article is to keep strict
administrative and judicial control by the High Court on
the administration of justice within its territory.
(m) The object of superintendence, both administrative
and judicial, is to maintain efficiency, smooth and
orderly functioning of the entire machinery of justice in
such a way as it does not bring it into any disrepute.
The power of interference under this article is to be
kept to the minimum to ensure that the wheel of justice
does not come to a halt and the fountain of justice
remains pure and unpolluted in order to maintain public
confidence in the functioning of the tribunals and
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.
NEUTRAL CITATION
C/SCA/7527/2023 JUDGMENT DATED: 11/02/2025
undefined
(o) An improper and a frequent exercise of this power
will be counterproductive and will divest this
extraordinary power of its strength and vitality."
7.2 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
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
NEUTRAL CITATION
C/SCA/7527/2023 JUDGMENT DATED: 11/02/2025
undefined
: (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 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."
8. It is undisputed fact that notice of the eviction suit was
served upon the tenant, albeit at an address which was other-
than the tenanted premises. It has been fairly submitted by
learned advocate Mr. Gohil that such summons was received
by daughter in law of the original tenant, as the elder son is
NEUTRAL CITATION
C/SCA/7527/2023 JUDGMENT DATED: 11/02/2025
undefined
residing separately from the original tenant. Having not
appeared before the trial Court, after framing of the issue and
examining the original landlord, a decree of eviction was
passed by the trial Court on several grounds which are so
referred herein above.
8.1 When the eviction decree was passed against the tenant
the landlord has right to file execution wherein after getting
the notice in the execution, tenant has filed an appeal with
delay application. This Court has gone through the delay
application which has been submitted with this petition at
Annexure G on page 67 and after going through the same,
prima facie, it appears that except narrating the fact that an
ex-parte decree has been passed, and the advice which they
have received to file an appeal nothing has been stated
explaining the dealy of 204 days. It is true that each and
every day of delay is not required to be explained by the
applicant but at the same time sufficient cause is required tobe
made out from bare reading of delay application.
8.2 At this stage, it is also required to be considered that
much details and emphasize has been made on the averments
made in the stay application field with appeal but unless the
delay would have been condoned, the question of examining
the merits of the main appeal would not arise. Despite there is
NEUTRAL CITATION
C/SCA/7527/2023 JUDGMENT DATED: 11/02/2025
undefined
delay in filing appeal the executing Court as stated the decree
even though there is not formal registration of appeal by the
appellate Court.
8.3 Be that as it may, when the delay application filed by
the original tenant in the appeal was bereft of the material
particulars and no sufficient cause is made out, question of
condoning the delay of 204 days would not arise.
8.4 At this stage, it is required to be considered that when
the trial Court and / or appellate Court as the case may be has
not positively exercised the discretion so vested in it, unless
and until a case is made out by the applicant to show that
such non exercising of discretion positively in favour of the
applicant is arbitrary, erroneous and perverse, this Court while
exercising the powers under Article 227 of the Constitution of
India, would not like to take different view then the view
taken either by the trial Court or the first appellate Court, as
the case may be.
8.5 Another factor which is also required to be considered
that today, the landlord has already taken over the possession
of the suit premises thereby considering peculiar facts and
circumstances of this case, equity has been tilted in favour of
the landlord which is also one of the additional factor in
NEUTRAL CITATION
C/SCA/7527/2023 JUDGMENT DATED: 11/02/2025
undefined
favour of the respondent rather than tenant.
8.6 It is profitable to rely upon a decision in case of Hameed
Kunju vs. Nazim reported in 2017 (8) SCC 611, wherein
Honourable Supreme Court has observed in para 33 as under;
"33. In our considered view, once the possession had
been delivered and decree was recorded as satisfied in
accordance with law, the litigation had come to end
leaving no lis pending. In these circumstances, in the
absence of any prima facie case having been made out on
any jurisdictional issue affecting the very jurisdiction of the
Court in passing the eviction decree, the High Court should
have declined to examine the legality of four orders
impugned therein."
8.7 Thus, in view of the aforesaid, I am of the view that
there is no jurisdictional or any other error committed by the
appellate Court while rejecting the impugned delay application
filed by the petitioner as no sufficient cause has been made
out.
9. In view of aforesaid discussion, observation and reasons,
the present application deserves to be dismissed and the same
is hereby dismissed. Rule is discharged. There shall be no
order as to costs.
NEUTRAL CITATION
C/SCA/7527/2023 JUDGMENT DATED: 11/02/2025
undefined
10. In view of disposal of main application, Civil Application
does not survive and disposed of accordingly.
(MAULIK J.SHELAT,J)
DRASHTI K. SHUKLA
