Gujarat High Court
L.H. Of Lt. Khodabhai Pamabhai Harijan , ... vs Dineshbhai Hargovindbhai Patel on 31 January, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1269 of 2025
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L.H. OF LT. KHODABHAI PAMABHAI HARIJAN , KHUSHALBHAI
KHODABHAI HARIJAN
Versus
DINESHBHAI HARGOVINDBHAI PATEL & ORS.
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Appearance:
RAJAT R GADHVI(9438) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 31/01/2025
ORAL ORDER
1. Heard Learned advocate for the petitioner, Mr.Rajat R.
Gadhvi.
2. He would submits that impugned application was filed under
Order XVIII Rule 17A of the Code of Civil Procedure, 1908
(hereinafter referred to as "the Code, 1908") asking for the
additional witness summons to be examined by the plaintiff, which
is wrongly rejected by the trial court.
2.1. He would submits that there is a gross error committed by
the trial court while rejecting the application without appreciating
the fact that earlier, the witness, which was called and submitted
the document, was the Mamlatdar, and now, as per the prayer
made in the present application, the petitioner/plaintiff has
requested for issuance of witness summons to a person who is
known in the office of Deputy Collector Dhrangadhra in relation to
the suit property in question.
2.2. He would submits that ld. trial court has erroneously
rejected impugned application without appreciating entire set of
facts. So, he would request this court to interfere with the
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impugned order.
3. No other from the submissions are made by the learned
advocate for the petitioner.
4. The present petition is filed under Article 227 of the
Constitution of India seeking the following relief:-
"(A). Your Lordship may be pleased to issue a writ of mandamus
and/or writ of certiorari and/or any other writ, order or direction in
the nature of mandamus and or certiorari quashing and setting aside
the order passed by the Ld. Principal Civil Judge, Patdi, District:
Surendranagar dated 20.12.2024 passed below Exh: 139 in Regular
Civil Suit No. 159 of 2014 (Annexure-A); further be pleased to allow
the petitioners to examine the proposed witness along with the official
records of land in question.
(B). Pending admission, hearing and final disposal of the present
petition this Hon'ble Court may be pleased to stay the further
proceedings in the Regular Civil Suit No. 159 of 2014;
(C). To pass such other further order as deemed fit in the facts and
circumstances of the case."
5. Before adverting to the whole issue germane in the present
petition, this Court would like to remind itself and would like to
refer decision of the Hon'ble Supreme Court of India in the 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]
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The jurisdiction exercised is in the nature of correctional
jurisdiction to set right grave dereliction of duty or flagrant
abuse, violation of fundamental principles of law or justice. The
power under Article 227 is exercised sparingly in appropriate
cases, like when there is no evidence at all to justify, or the finding is
so perverse that no reasonable person can possibly come to such a
conclusion that the Court or tribunal has come to. It is axiomatic that
such discretionary relief must be exercised to ensure there is no
miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court
in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v. Dass
Estate (P) Ltd., (2001) 8 SCC 97] has observed : (SCC pp. 101-102,
para 6)
"6. The scope and ambit of exercise of power and jurisdiction
by a High Court under Article 227 of the Constitution of India is
examined and explained in a number of decisions of this Court.
The exercise of power under this article involves a duty on the
High Court to keep inferior Courts and tribunals within the
bounds of their authority and to see that they do the duty
expected or required of them in a legal manner. The High Court
is not vested with any unlimited prerogative to correct all kinds
of hardship or wrong decisions made within the limits of the
jurisdiction of the subordinate Courts or tribunals. Exercise of
this power and interfering with the 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."
7. It is deplorable that the provision, which was already omitted
from the statute book, has been pressed into service by petitioner.
The Order 18 Rule 17A is in relation to the production of the
evidence, not previously known or which could not have been
produced despite due diligence, is already omitted from the Code
of Civil Procedure, 1908, with effect from 17.02.2002. Only on this
ground alone, this petition is required to be rejected with costs.
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7. Be that as it may, I would like to further examine the
submissions of the petitioner on merits.
7.1 After going through the impugned order passed by the trial
court, it seems that the plaintiff is not at all interested to proceed
with his own suit filed in the year 2014, as it is at the stage of
cross-examination of Defendant no.2, and despite request being
made to the learned advocate of the plaintiff to cross-examine the
Defendant no.2 who was available on 29th November 2024, the
learned advocate for the plaintiff/petitioner has refused to cross-
examine Defendant no.2. This fact has been observed in the
impugned order. It is well settled that any judgment and order
passed by any competent court is sacrosanct and cannot be
doubted by anyone.
7.2. The impugned application is filed at the stage of cross-
examination of the Defendant no.2 which is belated stage as the
plaintiff could have done this exercise, at the relevant point of time,
before his right was closed to submit the evidence.
7.3. For any reason best known to the plaintiff, no steps have
been taken when the officer from the Mamlatdar office, Patdi came
and examined at Exhibit 70 and submitted the documents.
7.4. The impugned application was titled as filed under O. XVIII
Rule 17 of the Code, 1908, albeit, prayer made it in the impugned
application would not fall under said provisions. It is apt to refer to
the provisions of Order XVIII Rule 17 of the Code, 1908 which
reads as under:-
ORDER XVIII RULE 17 OF THE CODE, 1908
17. Court may recall and examine witness.--The Court
may at any stage of a suit recall any witness who has been
examined and may (subject to the law of evidence for the
time being in force) put such questions to him as the Court
thinks fit.
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The plain reading of the aforesaid provision would indicate
that if the court, at any stage of the suit, recalls any witness, who
has been examined and may put such a question to him as the court
thinks fit.
7.5. If the prayer of the impugned application will be examined,
this is not in consonance with the provisions of Order XVIII Rule
17. It is so evident that plaintiff unmindful of fact that the
provisions of Order XVIII Rule 17A is already omitted but just to
mislead the court by submitting such an application under the
heading as if filed under Order 18 Rule 17, but a prayer which is
made in the impugned application falls under Order XVIII Rule
17A which is already omitted. The plaintiff wants to examine
additional witness as prayer in the impugned application was made
to that effect but its title suggesting, it was filed under aforesaid
provision. This shows that petitioner has filed misconceived
application just to prolong litigation at any cost.
7.6. Even otherwise, at no means, plaintiff can be allowed to fill
the lacuna in the evidence, which has been led by him. This is not
permission in law as held by honourable supreme court of india in a
case of Vadiraj Naggapa Vernekar (D) through LRs Versus
Sharad Chand Prabhakar Gogate, reported in (2009) 4 SCC
410, wherein it has been so held as under,
"29. It is now well settled that the power to recall any witness
under Order 18, Rule 17 C.P.C. can be exercised by the
Court either on its own motion or on an application filed by
any of the parties to the suit, but as indicated hereinabove,
such power is to be invoked not to fill up the lacunae in
the evidence of the witness which has already been
recorded but to clear any ambiguity that may have arisen
during the course of his examination."
emphasized supplied.
So, in view of above said facts and position of law, there is no
merit in the impugned application which is correctly rejected by
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the trial Court.
7.7. It is worth to note the conduct of the plaintiff who has brazenly
refused not to cross-examine defendant no.2 but filed impugned
application then according to this Court, petitioner has not only
wasted trial court but this Court times in such frivolous litigation
for which he is requires to pay cost.
7.8. It is apt to refer to and reply upon the decision of honourable
supreme court of india in a case of Gayathri Vs. M Girish,
reported in (2016) 14 SCC 142, wherein it has been observed as
under,
"10. In this context, we may profitable reproduce a passage
from Shiv Cotex v. Tirgun Auto Plast (P) Ltd., 2011 9 SCC 678
wherein it has been stated: (SCC p.682, 15)
"15. It is sad, but true, that the litigants seek - and the courts
grant -adjournments at the drop of a hat. In the cases where
the Judges are little proactive and refuse to accede to the
requests of unnecessary adjournments, the litigants deploy
all sorts of methods in protracting the litigation. "
The Court has further laid down that: (SCC p.682, para 15)
"15. ....... It is not surprising that civil disputes drag on
and on. The misplaced sympathy and indulgence by the
appellate and revisional courts compound the malady
further."
11. In Noor Mohammed v. Jethanand, 2013 5 SCC 202
commenting on the delay caused due to dilatory tactics
adopted by the parties, the Court was compelled to say:
(SCC p.215, para 28)
"28. In a democratic set-up, intrinsic and embedded faith
in the adjudicatory system is of seminal and pivotal
concern. Delay gradually declines the citizenry faith in the
system. It is the faith and faith alone that keeps the
system alive. It provides oxygen constantly.
Fragmentation of faith has the effect-potentiality to bring
in a state of cataclysm where justice may become a
casualty. A litigant expects a reasoned verdict from a
temperate Judge but does not intend to and, rightly so, to
guillotine much of time at the altar of reasons. Timely
delivery of justice keeps the faith ingrained and
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establishes the sustained stability. Access to speedy
justice is regarded as a human right which is deeply
rooted in the foundational concept of democracy and such
a right is not only the creation of law but also a natural
right. This right can be fully ripened by the requisite
commitment of all concerned with the system. It cannot
be regarded as a facet of Utopianism because such a
thought is likely to make the right a mirage losing the
centrality of purpose. Therefore, whoever has a role to
play in the justice-dispensation system cannot be allowed
to remotely conceive of a casual approach."
And, again: (SCC p.216, para 31)
"31. Thus, from the aforesaid, it is clear as day that
everyone involved in the system of dispensation of justice
has to inspire the confidence of the common man in the
effectiveness of the judicial system. Sustenance of faith
has to be treated as spinal sans sympathy or indulgence.
If someone considers the task to be Herculean, the same
has to be performed with solemnity, for faith is the " lan
vital" of our system."
12. In the case at hand, it can indubitably be stated that the
defendant-petitioner has acted in a manner to cause colossal
insult to justice and to the concept of speedy disposal of civil
litigation. We are constrained to say the virus of seeking
adjournment has to be controlled. The saying of Gita "Awake!
Arise! Oh Partha" is apt here to be stated for guidance of trial
courts."
emphasized supplied.
7.7. Thus, considering the entire set of events and the conduct of
the plaintiff, who has reluctantly refused to cross-examine the
Defendant no.2 and not allowed the suit to proceed further and file
such a frivolous and misconceived application, wasting the court's
time, I am of the view that there is no error committed by the trial
court while rejecting the application filed by the petitioner with a
costs of Rs.1500/-.
7.8. It has not been made clear that whether such costs has been
paid by the plaintiff with DLSA, Patdi as per the impugned order. If
so far not paid, petitioner is hereby directed to pay it forthwith.
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8. In view of the aforesaid discussions and observations, I do not
find any merit in the petition, which is nothing but wasting of
judicial time by the unscrupulous litigant, who wants to ride at the
cost of others. Such behavior of the litigant requires to be stopped,
otherwise the court will be flooded with such type of unwarranted
litigation, which consume judicial time. Thus, keeping in mind the
ratio of aforesaid decisions referred herein above, the present
petition requires to be dismissed with Costs of Rs.10,000/-, which
will have to be deposited by petitioner-plaintiff with DLSA,
Surendranagar within a week from today.
8.1. This will be a condition precedent for the plaintiff to further
cross-examine the defendant no.2 or any other witness to be
examined in the Civil Suit no.159 of 2014 pending before the
Principal Civil Judge, Patdi, Dist : Surendranagar.
8.2. The Compliance of the deposit of the costs imposed by this
court be ensured by the concerned Civil Judge, Patdi before
allowing the plaintiff to cross-examine the Defendant no.2 and any
other witnesses.
9. In view of the above, the present petition is dismissed with cost
as aforesaid.
(MAULIK J.SHELAT,J)
MOHD MONIS
