Gujarat High Court
Sunilkumar Babarbhai Patel vs Naginbhai Nathabhai Patel on 2 January, 2025
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C/SCA/13485/2023 ORDER DATED: 02/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13485 of 2023
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SUNILKUMAR BABARBHAI PATEL & ORS.
Versus
NAGINBHAI NATHABHAI PATEL & ORS.
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Appearance:
MR PA JADEJA(3726) for the Petitioner(s) No. 1,2,3,4,5,6
BHAVESH C PATEL(8798) for the Respondent(s) No. 1
MONTUBHAI G PATEL(9299) for the Respondent(s) No. 1,2
MR BHAVESH J PATEL(6801) for the Respondent(s) No. 1,2
NOTICE SERVED for the Respondent(s) No. 10,3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 02/01/2025
ORAL ORDER
1. Heard Mr. P.A.Jadeja, learned advocate for the petitioners
and Mr Bhavesh J. Patel, learned advocate with Mr.Montubhai G.
Patel, learned advocate appearing for respondent Nos.1 and 2.
Though served, none appears for the rest of the respondents.
2. The present petition is filed under Article 227 of the
Constitution of India for the following relief:-
a. To admit this petition and to allow the same;
b. To quash and set aside the order dt. 06.07.2023 (Annexure C Colly)
passed below Exh.51 by the Ld. Addl. Civil Judge Lunawada in Regular
Civil Suitno.34 of 2022.
C. Pending admission, hearing and final disposal of the present
petition to be placed to stay the operation and implementation of the
order dt. 06.07.2023 passed below Exh.51.
d. To grant any other appropriate and just relief/s;"
3. The present petitioners are original defendant Nos.1 to 6,
whereas respondent Nos.1 and 2 are original plaintiffs, and the rest
of the respondents are original defendant Nos.7 to 14.
4. Wherever necessary, the parties will be referred to as per
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their original positions before the Trial Court.
5. The plaintiffs have filed a suit as Regular Civil Suit No.34 of
2022 against the present petitioners (defendants Nos.1 to 6) before
the Principal Senior Civil Judge, Mahisagar, seeking declaration
and injunction against the defendants. Pending the suit, the
plaintiffs have preferred an application below Exhibit 51 under
Order XXVI Rule 9 read with Sections 75/151 of Civil Procedure
Code, 1908 (hereinafter referred to as C.P.C.), seeking
appointment of District Inspector Land Record for the
measurement of the suit land in question. The application has been
objected to by the present petitioners. After hearing the parties,
the learned Trial Court vide its impugned order dated 06.07.2023,
allowed the application and appointed DILR, Lunavada as a Court
Commissioner to measure the suit land and directed it to submit its
report in Court.
6. Being aggrieved and dissatisfied with the impugned order
dated 06.07.2023 passed by the Additional Civil Judge, Lunavada
below Exhibit 51 in Regular Civil Suit No.34 of 2022, the present
petition is filed.
7. Mr.P.A.Jadeja, learned advocate appearing for the petitioners
would submit that the impugned application filed by the original
plaintiffs does not fall within the purview of Order XXVI Rule 9 of
the C.P.C., as plaintiffs are required to prove their case, and the
callection of evidence in the form of a report by DILR is not
permissible under law.
7.1 Learned advocate for the petitioners would further submit
that plaintiffs could have requested DILR to measure the land in
question, and thus, such a report as evidence could have been
submitted by the plaintiffs in support of their case.
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7.2 Learned advocate for the petitioners would lastly submit
that the impugned order is not passed in consonance with the
provisions of law, and thereby, exceeding the jurisdiction, the
learned Trial Court has erroneously exercised it power by
appointing DILR for the measurement of the suit land. Further, to
buttress his argument, learned advocate for the petitioners has
relied upon the decision of this court in the case of Shanti Life
Space Pvt. Ltd. through authorised person Nitin Chunibhai
Gajera Vs. Umang Satishbhai Chokhawala reported in 2020
(4) GLR 2594.
8. Per contra, Mr. Bhavesh J. Patel, learned advocate appearing
for the original plaintiffs would submit that there is no error
committed by the Trial Court while adjudicating the impugned
application. He will further submit that there is a subjective
satisfaction recorded by the Trial Court while allowing the
application. The Trial Court is also of the opinion that, to resolve
the controversy involved in the suit, the report of DILR is
necessary.
8.1 Learned advocate appearing for the original plaintiffs
would further submit that an application was filed by the plaintiffs
to bring on record the correct position of land held by the parties,
and no prejudice will be caused to the defendants - petitioners
herein when an independent officer of DILR has been appointed by
the Trial Court. So, he would request this Court not to entertain the
present petition, which has been filed under Article 227 of the
Constitution of India, wherein there is a limited scope of
interference.
9. Heard learned advocates for the respective parties at length
and have gone through the documents placed on record, more
particularly, the impugned application and the order passed by the
Trial Court. No other or further submissions are made.
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10. The Trial Court, after hearing the parties and considering the
fact that there is a controversy regarding the area of land held by
the respective parties, thought it fit to appoint DILR to measure the
suit land. The recourse, which has been adopted by the Trial Court
is in consonance with Order XXVI Rule 9 of the C.P.C., which reads
as under:
"9. Commissions to make local investigations.--In any suit in which
the Court deems a local investigation to be requisite or proper for the
purpose of elucidating any matter in dispute, or of ascertaining the
market-value of any property, or the amount of any mesne profits or
damages or annual net profits, the Court may issue a commission to
such person as it thinks fit directing him to make such investigation
and to report thereon to the Court:
Provided that, where the State Government has made rules as to the
persons to whom such commission shall be issued, the Court shall be
bound by such rules."
11. It has been observed by the Trial Court, while allowing the
impugned application, that when there is a dispute about the suit
land and to resolve the controversy between the parties, an
independent agency like DILR is required to be appointed, which
can act independently in measuring the suit land possessed. This
way, the truth will come on record.
12. At this stage, it is apt to refer and rely upon the case of
Mahedranath Parida V/s. Purnanda reported in AIR 1988 Ori.
248, the Honourable High Court has held that when the
controversy relates to identification, location and measurement of
the land or premises, Court Commissioner can be appointed for
local investigation.
13. After going through the impugned order, I am of the view
that the order passed by the Trial Court is innocuous, and it cannot
be said that the Trial Court has facilitated the plaintiffs in
collecting evidence by appointing DILR. It is always open for the
Trial Court to appoint a commissioner for the effective resolution of
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the controversy involved in the suit.
14. Moreover, when an independent agency has been appointed
by the Trial Court to measure the land in question, no prejudice
will be caused to the petitioners. Hence, I do not find any
jurisdictional error committed by the Trial Court while allowing the
impugned application.
15. Furthermore, the judgment relied upon by the petitioners
does not match with the facts of the present case and not germane
to the issues involved in the present petition.
16. Considering the facts of the matter and after going through
the application and the order, this Court does not find any
substantial error of law on the part of the Trial Court while
allowing the application. This Court, having its limited jurisdiction
to entertain a petition filed under Article 227 of the Constitution of
India, which is well settled by the Hon'ble Supreme Court of India
in the case of Sameer Suresh Gupta v. Rahul Kumar Agarwal,
(2013) 9 SCC 374, wherein it has been held 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 [(2003) 6 SCC 675] . After considering various facets of the
issue, the two-Judge Bench culled out the following principles: (SCC
pp. 694-96, para 38)
"(1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in
Section 115 of the 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 CPC Amendment Act 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
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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 a 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 thereagainst and
entertaining a petition invoking certiorari or supervisory
jurisdiction of the 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 convert itself into a court of appeal and
indulge in reappreciation or evaluation of evidence or correct
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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. 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.
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(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.
(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."
17. In view of the above, there is no merit in the petition and I do
not find any substantial error committed by the Trial Court while
passing the impugned order, which requires any interference by
this Court under Article 227 of the Constitution of India.
18. It is made clear that this Court has not gone into the merits
of the claim made by the respective parties in the suit, which shall
be independently decided by the Trial Court in accordance with
law.
19. With the aforesaid observations, the petition is dismissed. No
order as to costs.
(MAULIK J.SHELAT,J)
MOHD MONIS
