Gujarat High Court
Mohommad Ibrahim Hingora vs State Of Gujarat on 3 July, 2025
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C/SCA/8706/2025 JUDGMENT DATED: 03/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8706 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 8722 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 8750 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 8777 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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MOHOMMAD IBRAHIM HINGORA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR HARSHIT S BHATT(12874) for the Petitioner(s) No. 1
MR DHAVAL U TRIVEDI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 03/07/2025
COMMON ORAL JUDGEMENT
1. Rule returnable forthwith. Learned Assistant Government
Pleader Mr. Dhaval U. Trivedi waives service of notice of rule
for the respondents. With the consent of parties, the matter is
taken up for final hearing.
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2. Heard learned Advocate Mr. Harshit S. Bhatt for the petitioner
and learned Assistant Government Pleader Mr. Dhaval U.
Trivedi for the respondents at length.
3. The common issue arise in these batch of Writ Applications,
and accordingly, it is heard together and decided by way of
this common judgment.
4. The short controversy cropped up in the matters about
granting of stay by the Appellate Court against the judgment
and decree impugned in the regular appeal filed by the
respondents, which are filed after about 821 days and as such
at stage of delay application, such stay granted. It is
undisputed fact that regular civil appeal filed by the
respondents herein against the judgment and decree passed
by the Trial Court was filed after the period of limitation as
prescribed under law. So, they have preferred a delay
application as per Order 41, Rule 3A of the C.P.C.
5. The respondents herein have shown urgency in the matter
before the Appellate Court and submitted that the land in
question having minerals worth of crores of rupees and if the
judgment and decree impugned in the appeal will not be
stayed, it would cause loss of the public property. The
Appellate Court appears to have accepted such submissions
and was carried away with such submissions. Thus, granted
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ex-parte ad-interim stay of judgement/decree of trial court till
final disposal of the delay application. Such order passed by
the Appellate Court in the delay application preferred by the
respondents herein is the subject matter of the present Writ
Applications.
6. As noted hereinabove, the regular civil appeal is filed after
about 821 days from the passing of the impugned judgment
and decree by the Trial Court. If the respondents would have
been so concerned about public property, it could not have
preferred appeal after about 821 days of decree passed by trial
court. Nonetheless, the concern of State could have been
taken note by the Appellate Court, if appeal could have been
filed in time.
7. It further appears that the impugned judgment and decree
passed by the Trial Court was ex-parte and the respondents
have chosen not to defend the suit, though it is alleged before
the Appellate Court that the suit land is very precious land.
8. Be that as it may, from the aforesaid facts and the position of
law, the Appellate Court could not have stayed the judgment
and decree passed by the Trial Court unless the regular civil
appeal filed by the respondents have been duly registered, as
it is not filed within the stipulated time prescribed under law.
Ordinarily, when litigant is found to be indolent and not
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coming to the Court within the stipulated time, the question of
granting ad-interim injunction, that too at the stage of hearing
delay application, would be out of place.
9. Nonetheless, in very exceptional and rare circumstances, in a
given case, the Appellate Court may exercise its power,
thereby granting an injunction to preserve the nature of the
suit property instead of granting stay against the judgment
and decree. It would not be out of place to observe that stay
against judgment and decree can be granted by the Appellate
Court while exercising its power under Order 41, Rule 5 of the
C.P.C., which would come into play once the delay condoned
by the Appellate Court and the appeal would have been
treated as filed having then after registered, which is not the
case on hand.
10. There is an express bar under Order 41, Rule 3-A (3) of the
C.P.C. to grant stay so long as the Court does not condoned
delay and heard the appeal. Order 41, Rule 3-A (3) of the C.P.C
reads as under:
"3A. Application for condonation of delay.
(1) When a appeal is presented after the expiry of the
period of limitation specified therefor, it shall be
accompanied by an application supported by affidavit
setting forth the facts on which the appellant relies to
satisfy the Court that he had sufficient cause for not
preferring the appeal within such period.
(2) If the Court sees no reason to reject the application
without the issue of a notice to the respondent, notice
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hereof shall be issued to the respondent and the matter
shall be finally decided by the Court before it proceeds to
deal with the appeal under rule 11 or rule 13, as the case
may be.
(3) Where an application has been made under sub-
rule (1) the Court shall not made an order fact the
stay of execution of the decree against which the
appeal is proposed to be filed so long as the Court
does not, after hearing under rule 11, decide to hear
the appeal."
11. Learned AGP, Mr. Trivedi, would not in a position to dispute
such provision of law but at the same time would submit that
as per Section-151 of the C.P.C., the Appellate Court and/or
any Court, as the case may be, can protect the interest of the
party, as an inherent power available with the Court to pass an
appropriate order in the interest of justice, which is, in fact,
exercised by the Appellate Court in the present case. So,
learned AGP Mr. Trivedi would request this Court not to
interfere with the matter.
12. Per contra, learned Advocate Mr. Bhatt for the petitioner
would submit that when the order impugned in the present
Writ Application is itself without jurisdiction and contrary to
the express provision of law, this Court should exercise its
power under Article 227 of the Constitution of India and quash
this order.
13. It is pointed out to this Court by the learned Advocate for the
petitioner that the impugned judgment and decree passed by
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the Trial Court is, in fact, partially implemented by the
respondents, as the names of the respective petitioners is
incorporated in the 2nd column of revenue record. Learned
AGP Mr. Trivedi is not in a position to dispute such fact.
14. It is now well-settled legal position of law that the power of
Civil Court to be exercised under Section-151 of the C.P.C. is
an inherent power, which can be exercised when there is no
express provision available under the C.P.C. As referred to
hereinabove, the power to stay judgment and decree is
available with the Appellate Court under Order 41, Rule 5 of
the C.P.C., then the question of exercising its power under
Section-151 of the C.P.C. would not arise. Furthermore, it is
equally well settled law that power under Section-151 of the
C.P.C can not be exercised dehors provisions of C.P.C.. It
would be apt to refer and rely upon the decision of Honourable
Supreme Court of India in a case of K.K. Velusamy vs N.
Palaanisamy reported in (2011) 11 SCC 275 wherein law on
the issue summarized thus:
"12......The scope of section 151 has been explained by this
Court in several decisions (See : Padam Sen vs. State of UP-
AIR 1961 SC 218; Manoharlal Chopra vs. Seth Hiralal -
AIR 1962 SC 527; Arjun Singh vs. Mohindra Kumar - AIR
1964 SC 993; Ram Chand and Sons Sugar Mills (P) Ltd. vs.
Kanhay Lal - AIR 1966 SC 1899; Nain Singh vs.
Koonwarjee - 1970 (1) SCC 732; The Newabganj Sugar
Mills Co.Ltd. vs. Union of India - AIR 1976 SC 1152; Jaipur
Mineral Development Syndicate vs. Commissioner of
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Income Tax, New Delhi - AIR 1977 SC 1348; National
Institute of Mental Health & Neuro Sciences vs. C
Parameshwara - 2005 (2) SCC 256; and Vinod Seth vs.
Devinder Bajaj - 2010 (8) SCC 1).
We may summarize them as follows:
(a) Section 151 is not a substantive provision which creates
or confers any power or jurisdiction on courts. It merely
recognizes the discretionary power inherent in every court
as a necessary corollary for rendering justice in accordance
with law, to do what is `right' and undo what is `wrong',
that is, to do all things necessary to secure the ends of
justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, section
151 recognizes and confirms that if the Code does not
expressly or impliedly cover any particular procedural
aspect, the inherent power can be used to deal with such
situation or aspect, if the ends of justice warrant it. The
breadth of such power is co-extensive with the need to
exercise such power on the facts and circumstances.
(c) A Court has no power to do that which is prohibited by
law or the Code, by purported exercise of its inherent
powers. If the Code contains provisions dealing with a
particular topic or aspect, and such provisions either
expressly or necessary implication exhaust the scope of the
power of the court or the jurisdiction that may exercised in
relation to that matter, the inherent power cannot be
invoked in order to cut across the powers conferred
by the Code or a manner inconsistent with such
provisions. In other words the court cannot make use
of the special provisions of Section 151 of the Code,
where the remedy or procedure is provided in the
Code.
(d) The inherent powers of the court being complementary
to the powers specifically conferred, a court is free to
exercise them for the purposes mentioned in Section 151 of
the Code when the matter is not covered by any
specific provision in the Code and the exercise of
those powers would not in any way be in conflict
with what has been expressly provided in the Code or
be against the intention of the Legislature.
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(e) While exercising the inherent power, the court will be
doubly cautious, as there is no legislative guidance to deal
with the procedural situation and the exercise of power
depends upon the discretion and wisdom of the court, and
the facts and circumstances of the case. The absence of an
express provision in the code and the recognition and
saving of the inherent power of a court, should not however
be treated as a carte blanche to grant any relief.
(f) The power under section 151 will have to be used with
circumspection and care, only where it is absolutely
necessary, when there is no provision in the Code
governing the matter, when the bona fides of the applicant
cannot be doubted, when such exercise is to meet the ends
of justice and to prevent abuse of process of court."
(emphasis supplied)
15. Nonetheless, as observed hereinabove, in exceptional and rare
circumstances, an injunction could have been granted by the
Appellate Court to preserve the suit property, which is not
done so by the Appellate Court while passing the impugned
order, as it has simply stayed the judgment and decree
impugned in the appeal, which would be in contravention of
direct and express provision of Order 41, Rule 3-A (3) read
with Rule 5 & 11 of the C.P.C.. So, impugned order is ex facie
illegal, erroneous and without jurisdiction, as passed before
the regular civil appeal register, having not condone delay.
16. In view of the aforesaid, the impugned orders are required to
be interfered with by this Court while exercising its power
under Article 227 of the Constitution of India which are hereby
interfered with in order to keep the subordinate courts within
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the bounds of their authority. [See - Waryam Singh v/s
Amarnath - AIR 1954 SC 215].
17. Having come to the conclusion that the impugned order is ex
facie without jurisdiction and not sustainable in law, it
requires to be quashed and set aside, which is hereby quashed
and set aside passed in each matter.
18. At the same time, considering the nature of the urgency so
expressed by the respondents and as such the learned Mr.
Bhatt appearing for the petitioner states that the notice of the
delay application is already served upon the respective
petitioners and the date for hearing of respective delay
application in respective matters is fixed on 16th July 2025, let
Appellate Court shall hear both the sides on aspect of the
delay in filing appeal and thereafter, decide respective delay
applications in the respective matters within one month from
date of receipt of the copy of this order, albeit, in accordance
with law. It is open for the petitioner to file his reply to delay
applications before the next date of hearing so fixed by the
Appellate Court.
19. It is made clear that this Court has not expressed any opinion
about the merits of the matter, but has interfered with the
impugned order only on the ground that it was passed without
jurisdiction not vested with the Appellate Court and so also
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passed contrary to settle legal position of law.
20. With the aforesaid observations, discussion and reasons, all
these batch of Writ Applications are allowed to the aforesaid
extent. Rule is made absolute to aforesaid extent.
(MAULIK J.SHELAT,J)
Nilesh
