Gujarat High Court
Vikesh Chandrakant Patel vs Bimalkumar Chandrakant Patel on 24 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2260 of 2025
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VIKESH CHANDRAKANT PATEL
Versus
BIMALKUMAR CHANDRAKANT PATEL & ANR.
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Appearance:
MR JAMSHED KAVINA(11236) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 24/02/2025
ORAL ORDER
1. The present petition has been filed by the petitioners
under Article 227 of the Constitution of India, seeking following
reliefs : -
"17(A). Your Lordships may be pleased to issue a writ of
mandamus / certiorari or a writ in the nature of mandamus /
cerrtiorari or any other appropriate writ, order or direction quashing
and setting aside imparting order dated 16.11.2024 passed by the
Principal Civil Judge, Dakor below Exh. 43 in Regular Civil Suit No.
22 of 2009 (ANNEXURE - G') in the interest of justice.
(B) During the pendency and final disposal of the present
petition, Your Lordships may be pleased to stay the
implementation of the order dated 16.11.2024 passed by the
Principal Civil Judge, Dakor below Exh. 43 in Regular Civil Suit No.
22 of 2009 (ANNEXURE - G')"
2. The present petitioner is the original plaintiff No.2 in
Regular civil Suit No. 22 of 2009 filed in the Court of the
Principal Civil Judge, Dakor, against the respondent No. 1
herein, whereas the respondent No.2 happens to be the original
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plaintiff No.1 in the suit, which is pending at the stage of cross-
examination of the plaintiffs.
3. It is the case of the plaintiffs that after framing of the
issue, examination in the form of affidavit in lieu of examination-
in-chief of the plaintiff has been filed in the year 2022, and after
granting more than sufficient opportunities to the defendants,
the defendants had not cross-examined the plaintiffs. The right
of the respondent No.1 - original defendant to cross-examine
the plaintiffs has been closed on 03.02.2024 due to an
application filed by the plaintiff below Exh.42. The defendant
has filed the an application below Exh.43 on 08.02.2024 to
reopen his right to cross-examine the plaintiffs. The petitioner
has objected such request by putting his endorsement of
objection on the application itself.
4. After hearing the parties, the trial Court vide its impugned
order dated 16.11.2024, opened the right of the defendant to
cross-examine the plaintiffs, subject to payment of cost of
Rs.200/-.
5. Being aggrieved and dissatisfied with the impugned order
dated 16.11.2024 passed by the Principal Civil Judge, Dakor
below Exh.43 in Regular Civil Suit No.22 of 2009, only plaintiff
No.1 - Vikesh Chandrakant Patel has filed the present petition.
6. Learned advocate Mr. S.P. Majmudar, appearing for the
petitioner submits that the impugned order is a non-speaking
order, as no reasons are assigned by the trial Court while
accepting the prayer of the defendant to open his right to cross-
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examine the plaintiffs.
7. Learned advocate Mr. Majmudar, appearing for the
petitioner submits that more than 20 months have been passed
after filing of examination-in-chief by the plaintiffs and during
this period, except taking adjournments, the defendant was
remained silent and negligent to cross-examine the plaintiffs.
8. Learned advocate Mr. Majmudar would further submit
that there is no cause, much less any sufficient cause made out
by the defendant, which prevented him to cross-examine the
plaintiffs.
9. Learned advocate Mr. Majmudar would further submit
that a very causal explanation coming forth in the impugned
application filed by the defendant and in a very causal manner,
such prayer has been accepted by the trial court, which caused
serious injustice to the plaintiffs, who are waiting to seek justice
having filed civil suit in the year 2009.
10. To buttress his arguments, learned advocate Mr.
Majmudar has relied upon the case of Ishwarlal Mali Rathod
Versus Gopal reported in 2021 (12) SCC 612, and requested
this Court to allow the present petition. No further submissions
have been made.
11. 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
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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.
(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.
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(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 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
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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. 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."
(Emphasis supplied)
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12. The same question was considered by another Bench in
Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8
SCC 329 : (2010) 3 SCC (Civ) 338] , and it was held: (SCC
pp. 347-49, para 49)
"(a) A petition under Article 226 of the
Constitution is different from a petition under
Article 227. The mode of exercise of power by
the High Court under these two articles is also
different.
(b) In any event, a petition under Article 227
cannot be called a writ petition. The history
of the conferment of writ jurisdiction on High
Courts is substantially different from the
history of conferment of the power of
superintendence on the High Courts under
Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat,
in exercise of its power of superintendence
under Article 227 of the Constitution,
interfere with the orders of tribunals or
Courts inferior to it. Nor can it, in exercise
of this power, act as a Court of appeal over
the orders of the Court or tribunal subordinate
to it. In cases where an alternative statutory
mode of redressal has been provided, that would
also operate as a restrain on the exercise of
this power by the High Court.
(d) The parameters of interference by High
Courts in exercise of their power of
superintendence have been repeatedly laid down
by this Court. In this regard the High Court
must be guided by the principles laid down by
the Constitution Bench of this Court in Waryam
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
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Benches and various other decisions of this
Court.
(e) According to the ratio in Waryam Singh
[Waryam Singh v. Amarnath, AIR 1954 SC 215] ,
followed in subsequent cases, the High Court in
exercise of its jurisdiction of superintendence
can interfere in order only to keep the
tribunals and Courts subordinate to it, 'within
the bounds of their authority'.
(f) In order to ensure that law is followed by
such tribunals and Courts by exercising
jurisdiction which is vested in them and by not
declining to exercise the jurisdiction which is
vested in them.
(g) Apart from the situations pointed in (e)
and (f), High Court can interfere in exercise
of its power of superintendence when there has
been a patent perversity in the orders of the
tribunals and Courts subordinate to it or where
there has been a gross and manifest failure of
justice or the basic principles of natural
justice have been flouted.
(h) In exercise of its power of superintendence
High Court cannot interfere to correct mere
errors of law or fact or just because another
view than the one taken by the tribunals or
Courts subordinate to it, is a possible view.
In other words the jurisdiction has to be very
sparingly exercised.
(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.
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(j) It may be true that a statutory amendment
of a rather cognate provision, like Section 115
of the Civil Procedure Code by the Civil
Procedure Code (Amendment) Act, 1999 does not
and cannot cut down the ambit of High Court's
power under Article 227. At the same time, it
must be remembered that such statutory
amendment does not correspondingly expand the
High Court's jurisdiction of superintendence
under Article 227.
(k) The power is discretionary and has to be
exercised on equitable principle. In an
appropriate case, the power can be exercised
suo motu.
(l) On a proper appreciation of the wide and
unfettered power of the High Court under
Article 227, it transpires that the main object
of this article is to keep strict
administrative and judicial control by the High
Court on the administration of justice within
its territory.
(m) The object of superintendence, both
administrative and judicial, is to maintain
efficiency, smooth and orderly functioning of
the entire machinery of justice in 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
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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."
(Emphasis supplied)
13. The last decision in a case 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
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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 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
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can possibly come to such a conclusion,
which the Court or tribunal has come to."
(Emphasis supplied)
14. It is true that the plaintiffs have filed a suit in the year
2009, and in the year 2022, they have submitted their
examination-in-chief - oral evidence. It is also equally true that
sufficient opportunities were given to the defendant to cross-
examine the plaintiffs. Nonetheless, on the application filed by
the plaintiffs below Exh.42, when the right of cross-examination
was closed by the trial Court on 03.02.2024, the defendant has
submitted an application below Exh.43 on 08.02.2024 to reopen
his right to cross-examine the plaintiffs. It further appears that
the application filed by the plaintiffs below Exh.42 was neither
served upon the defendant nor seen by the learned advocate for
the defendant, as the case may be, it can be seen from reading
application Exh. 42 and the order passed by the trial Court
thereon whereby right of the defendant was closed. Prima facie,
such order was passed in violation of principles of natural
justice.
15. Be that as it may, after going through the impugned
application and endorsement of the plaintiff thereby objected
the prayer made in the impugned application, the trial Court has
exercised its discretion in favour of the defendant, whereby the
right of the defendant to cross-examine the plaintiffs was reopen
albeit with costs.
16. The trial Court has positively exercised its discretion in
favour of the defendant then, this Court would not like to
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interfere with exercise of the positive discretion by the trial
Court by exercising its power under Article 227 of the
Constitution of India.
17. It is further required to be noticed that no serious
prejudice would be caused to the plaintiffs, if the right of the
defendant to cross-examine them is reopened by the trial Court,
inasmuch as, such right was closed on 03.02.2024 and in no
time, the defendant has moved the trial Court, vide impugned
application dated 08.02.2024, which was decided by the trial
Court vide its impugned order dated 16.11.2024. Even from
verifying from the learned advocate Mr. Majmudar, till date, the
cross-examination of the plaintiffs were not begun because the
plaintiffs want to challenge the impugned order before this
Court by way of the present petition.
18. If the plaintiffs were concerned about the early hearing of
the suit, he could have requested the trial Court to complete his
cross-examination at the earliest, rather lately approaching this
Court.
19. The observations of the Hon'ble Apex Court made in the
case of Ishwarlal Mali Rathod (supra), is required to be taken
note by the every Civil Court while granting the adjournments
and to see that there would be early adjudication of the civil suit
without delaying on any grounds. When the facts of Ishwarlal
Mali Rathod (supra), are considered, it appears that despite
giving several opportunities to the defendant to cross-examine
the witness of plaintiffs, even after imposing the costs and
granting last adjournments, such opportunity were not availed
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by the defendant and further, it appears that the High Court has
also granted such opportunities, the defendant was negligent
enough in course of trial. In the peculiar facts and
circumstances of the case, the Hon'ble Apex Court has not
granted any liberty in favour of the defendant to cross-examine
the witness of the plaintiff. The relevant observations made by
the Hon'ble Apex Court requires to be considered, which reads
as under : -
"4. As observed hereinabove, present is a classic
example of misuse of adjournments granted by the
court. It is to be noted that the respondents
herein - original plaintiffs filed the suit for
eviction, arrears of rent and mesne profit as far
as back in the year 2013. That thereafter despite
the repeated adjournments sought and granted by the
court and even twice the adjournments were granted
as a last opportunity and even the cost was
imposed, the defendant failed to cross examine the
plaintiff's witness. Although the adequate liberty
was given to the defendant to cross examine the
plaintiff's witness, they never availed of the same
and went on delaying the proceedings by repeated
prayers of adjournment and unfortunately the Trial
Court and even subsequently the High Court
continued to grant adjournment after adjournment
and as such contributed the delay in disposal of
the suit which as such was for eviction. Such
approach is wholly condemnable. Law and
professional ethics do not permit such practice.
Repeated adjournments on one or the other pretext
and adopting the dilatory tactics is an insult to
justice and concept of speedy disposal of cases.
Petitioner - defendant acted in a manner to cause
colossal insult to justice and to concept of speedy
disposal of civil litigation.
5.6 In view of the above and for the reasons
stated above and considering the fact that in the
present case ten times adjournments were given
between 2015 to 2019 and twice the orders were
passed granting time for cross examination as a
last chance and that too at one point of time even
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a cost was also imposed and even thereafter also
when lastly the High Court passed an order with
extending the time it was specifically mentioned
that no further time shall be extended and/or
granted still the petitioner - defendant never
availed of the liberty and the grace shown. In fact
it can be said that the petitioner - defendant
misused the liberty and the grace shown by the
court. It is reported that as such now even the
main suit has been disposed of. In view of the
circumstances, the present SLPs deserve to be
dismissed and are accordingly dismissed."
20. So far as the impugned order being non-speaking order is
concerned, it is true that the order is very brief but at the same
time, the trial Court in its impugned order observed that it has
examined the contents of the impugned application as well as
endorsement made by the plaintiffs objecting such application
then after, it has granted relief. It further appears that initially
it was placed for reply but no reply was filed by the plaintiffs.
According to this Court, considering nature of proceeding, it
would not be correct to say that impugned order is non-
speaking order.
21. So, considering these peculiar facts and circumstances of
the case, when the trial Court has reopened the right of the
defendant to cross-examine the plaintiffs, this Court would not
like to disturb the impugned order on technical reasons, as it is
settled legal position of law that the technicality should not
override the substantial justice. Moreover, the rule of procedure
is handmaid of justice and hyper technical approach requires to
be taken at back by the Court while imparting substantial
justice.
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22. In view of the aforesaid observations and discussions, this
Court is of the view that there is no gross error of law or
jurisdictional error committed by the trial Court while allowing
the impugned application, whereby the right of defendant to
cross-examine the plaintiffs was reopened.
23. Considering the ratio of in the case of Sameer Suresh
Gupta TR PA Holder (supra), Shalini Shyam Shetty
(supra) and Garment Craft (supra), this Court would not like
to interfere with the impugned order passed by the trial Court.
The present petition lacks merits, requires to be dismissed and
is hereby DISMISSED. No order as to costs.
24. Before parting, it is observed that the trial Court should
take note of the fact that the suit is of the year 2009, an
endeavor should be made by all the concern and to cooperate
trial Court, thereby the suit can be adjudicated at the earliest.
No unnecessary adjournment should be granted to any of the
parties to the suit. It is desirable that such old suit be taken
priority by the Civil Courts, whereby it can be adjudicated as
early as possible. If the parties and their advocates will
cooperate to the trial Court, it is requested to the trial Court to
adjudicate the suit as early as possible preferably on or before
30.06.2026.
(MAULIK J.SHELAT,J)
AMAR SINGH
