Gujarat High Court

Bhavikkumar Jagdishbhai Patel vs Seemaben Wd/O Gujwantrai Harihaibhai ... on 11 February, 2025

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                              C/SCA/1700/2025                                   ORDER DATED: 11/02/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                       R/SPECIAL CIVIL APPLICATION NO. 1700 of 2025
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                                        BHAVIKKUMAR JAGDISHBHAI PATEL
                                                    Versus
                               SEEMABEN WD/O GUJWANTRAI HARIHAIBHAI PATEL & ORS.
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                       Appearance:
                       MR NIRAV R MISHRA(6140) for the Petitioner(s) No. 1
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                          CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                            Date : 11/02/2025

                                                             ORAL ORDER

1. 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 and Allow this application.

(B) Your Lordships may be pleased to quash and set aside the impugned order dated 27.11.2024 passed by the Hon'ble Civil Judge, Palsana, Dist. Surat below Exh.36 in Regular Civil Suit No.15 of 2020 (at Annexura-A as the same is illegal, arbitrary, unreasoned and cryptic order and therefore also the same requires to be quashed and set aside.

(C) Your Lordships may be pleased to allow the prayers sought by the petitioner below Exhibit-36 application dated 05.07.2022 thereby deleting the petitioner herein as defendant No.2 in the case of Regular Civil Suit No.15 of 2020 by quashing and setting aside the impugned order dated 27.11.2024 passed by the Hon'ble Civil Judge, Palsana, Dist. Surat below Exh.36 in Regular Civil Suit No.15 of 2020;

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(D) During the pendency, hearing and final disposal of the present application, Your Lordships may be pleased to stay the further execution and implementation of the impugned order dated 27.11.2024 passed by the Hon'ble Civil Judge, Palsana Dist. Surat qua the present petitioner i.e. defendant No.2 therein;

(E) Your Lordships may be pleased to grant ex parte ad- interim relief in terms of paragraph (D). (F) Your Lordships may be pleased to pass such other and further orders as may deem fit in the interest of justice."

2. Short Facts

2.1 The petitioner is defendant No. 2 in Regular Civil Suit

Number 15 of 2020, filed by respondent No. 1 to 4, pending

before the learned Principal Civil Judge, Palsana, Surat, against

the petitioner as well as respondent No. 5, who is joined as

defendant No. 1.

2.2 The suit is filed seeking the cancellation of the sale deed

for the suit land, executed by the predecessor of the plaintiff

in favor of defendant No. 1, and also seeking a declaration

and injunction accordingly.

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2.3 Defendant No. 2 is joined in the suit, wherein allegations

have been made against defendant No. 2 that he is engaged in

the business of stockbroking and due to his wrongful acts, the

predecessor of the plaintiffs had to execute the sale deed in

favor of defendant No. 1. Moreover, serious allegations are

leveled in the plaint against defendant No. 2, including that,

due to a false complaint filed against the predecessor of the

plaintiffs, the predecessor had to execute the sale deed in favor

of defendant No. 1 at the instance of defendant No. 2. It is

alleged that due to duress and coercion on the part of

defendant No.2, predecessor of plaintiffs have to execute sale

deed which is subject matter of the suit.

2.4 The petitioner - defendant No. 2 had filed an application

below Exhibit 19 under Order 7, Rule 11 (d) of the Code of

Civil Procedure, 1908 (hereinafter referred to as 'the Code,

1908'). The prayers made in the application relate to the

deletion of defendant No. 2 from the suit proceedings on the

ground of non-joinder of a necessary party. Accordingly, in

paragraph-13-1, a prayer was made for his deletion from the

suit, and in paragraph 13-2, he also prayed for the dismissal

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of the suit.

2.5 The trial court had rejected the said application vide its

order dated 18th March 2021, wherein it was categorically

observed that the application of defendant No. 2, seeking his

deletion from the suit as well as the dismissal of the suit by

filing an application below Exhibit 19, is rejected.

2.6 It appears that the said order was challenged by the

petitioner - defendant No. 2, before this Court by way of Civil

Revision Application No. 46 of 2022, which was disposed of by

an order dated 13th June 2022. It further appears that, as per

the request made by the learned advocate for the petitioner,

liberty was granted in favor of the petitioner - defendant No.

2, to file an application under Order 1, Rule 10 of Code, 1908.

The trial Court was directed to decide such an application in

accordance with the law without taking into consideration the

observations made in the impugned order in the petition.

2.7 It is required to be noted that the said order was passed by

this court without hearing the plaintiffs, as it appears that it

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was passed on the first day of the hearing of the revision

application.

2.8 After passing of the said order, defendant No. 2 filed an

impugned application below Exhibit 36, titling it as filed under

Order 1, Rule 10 of Code, 1908. The prayer made in

paragraph 13-1 of the impugned application is verbatim the

same as the prayer made in the earlier application filed below

Exhibit 19. After hearing the parties, the trial court rejected

such application by its order dated 27th November 2024.

3. Being aggrieved and dissatisfied with the impugned order

dated 27th November 2024, passed by the Senior Civil Judge,

Palsana, District Surat, below Exhibit 36 in Regular Civil Suit

No.15 of 2020, defendant No. 2 has preferred the present

application.

4. Submissions of the applicant

4.1 At the outset, learned advocate Mr. Mishra submits that no

relief against defendant No. 2 has been prayed for in the suit,

thereby he has been wrongly joined, and the suit, therefore,

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requires his deletion.

4.2 Learned advocate Mr. Mishra further submits that when no

specific prayer is made against defendant No. 2, and he is

neither a necessary nor a proper party, then it would be

cumbersome for defendant No. 2 to continue in the suit

proceedings.

4.3 Learned counsel Mishra submits that in absence of

defendant No. 2, an effective decree can still be passed in

favor of the plaintiffs. Therefore, in such a situation, the trial

court ought to have deleted defendant No. 2 as prayed in the

impugned application.

4.4 Learned advocate Mr. Mishra further submits that the

allegations made in the plaint are not in relation to the

execution of the sale deed but rather in relation to an

agreement to sell, which was executed between the predecessor

of the plaintiffs and defendant No. 2. Thus, there is no

necessity to join defendant No. 2 in the suit proceedings,

which is nothing but an abuse of the process of law.

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4.5 He submits that the impugned order is a non-speaking

order, having not dealt with the contentions raised by

defendant No. 2, and on that count, the impugned order

requires to be quashed and set aside. Making the above

submissions, he requests this court to allow the present

petition.

4.6 No other and further submissions being made by learned

advocate of petitioner.

5. Analysis

5.1 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:-

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"[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

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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 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

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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 English Courts has almost obliterated the distinction between the two jurisdictions.

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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

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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

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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.

(k) The power is discretionary and has to be exercised

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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

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extraordinary power of its strength and vitality."

5.2 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

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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 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

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conclusion, which the Court or tribunal has come to."

6. At the outset, it was pointed out to learned advocate Mr.

Mishra that the prayers made in the Exhibit 19 application and

the application at Exhibit 36 are identical?. He has conceded

that both prayers are verbatim same - identical.

7. A plain reading of the prayers made in paragraph 13-1 of

the application filed below Exhibit 19, as well as the impugned

application at Exhibit 36, reveals that both relate to the

deletion of defendant No. 2 from the suit proceedings. It also

appears that the application filed below Exhibit 19 was already

rejected by the trial court on 18th March 2021 wherein trial

Court has specifically rejected prayer of defendant No.2 to be

deleted from the suit. Of Course, this was the subject matter of

Civil Revision Application No. 46 of 2022, wherein this Court

vide its order dated 13th June 2022 granted liberty in favour

of the petitioner thereby, allowed the petitioner to file an

application under Order 1, Rule 10 of the Code, 1908 albeit,

to decide it in accordance with law.

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7.1 The aforesaid order was passed by this Court ex parte, i.e.

without hearing the plaintiffs, and appears to have been passed

on the first day of the hearing of the revision petition in light

of the submissions made by learned counsel to that effect.

7.2 Be that as it may, this Court only permitted the applicant

to file under Order 1 Rule 10 of the Code, 1908. At the same

time, the trial Court was directed to decide such an application

in accordance with the law.

7.3 It is pertinent to note that while disposing of the revision

application, this court did not disturb the previous order

passed by the trial court. Therefore, the prayer of the

petitioner to be deleted from the suit proceedings has already

been rejected is confirmed.

7.4 Thus, in view of the aforesaid, prima facie, this court is of

the view that the principles of res judicata / constructive res

judicata would apply in the pending proceedings. So, in light

of above, it was put to learned counsel Mr. Mishra to address

on the issue of res judicata / constructive res judicata as

applicable in this case.

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7.5 Learned advocate Mr. Mishra responded that such an aspect

was not considered by the trial court and was not answered,

and therefore, this court may not touch upon this aspect, even

though it is a pure question of law. Nonetheless, learned

advocate Mr. Mishra is not in a position to dispute that

principle of Res-judicata/Constructive Res-judicata would not

apply to the impugned application.

8. As held by the Hon'ble Supreme Court in the case of Barkat

Ali & Anr vs Badri Narain (D) By Lrs reported in AIR 2012 SC

1272, the principle of res judicata and constructive res judicata

applies at every stage of the suit. At this stage, it is profitable

to rely upon the decision of the judgment of the Honorable

Supreme Court of India in the case of Barkat Ali (supra),

wherein, it has been so held as under:-

"13. The principles of res judicata not only apply in respect of separate proceedings but the general principles also apply at the subsequent stage of the same proceedings also and the same court is precluded to go into that question again which has been decided or deemed to have been decided by it at an early stage.

14. In Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] it was observed as follows : (AIR pp. 999-1000, paras 10-11)

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"10. ... Scope of principle of res judicata is not confined to what is contained in Section 11 but is of more general application. Again, res judicata could be as much applicable to different stages of the same suit as to findings on issues in different suits. ...

11. ... where the principle of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides, the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and the relevant factors to be considered before the principle is held applicable."

15. In Satyadhyan Ghosal v. Deorajin Debi [AIR 1960 SC 941] it was observed as follows : (AIR pp. 943- 44, para 8) "8. The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings." (Emphasised supplied).

9. Since the petitioner lost his application filed below Exhibit

19, seeking to delete himself from the suit proceedings, the

subsequent impugned application filed by the petitioner seeking

same identically worded relief is barred by the principle of res

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judicata / constructive res judicata. It is well settled legal

position of law that principle of Res-judicata is based upon

public policy whereby litigant is not permitted to litigate same

issue which was already gets over in earlier application in

earlier point of time, otherwise there would not be any end to