Gujarat High Court
Bhanuben Bhikhalal Makwana vs Ranjanben Ishwarlal Dholakia on 23 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13233 of 2025
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BHANUBEN BHIKHALAL MAKWANA & ORS.
Versus
RANJANBEN ISHWARLAL DHOLAKIA & ORS.
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Appearance:
MR BRIJ V SHETH(10594) for the Petitioner(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 23/09/2025
ORAL ORDER
1. Heard learned Advocate Mr. Brij V. Sheth for the petitioners.
2. The present application is filed under Article 227 of the
Constitution of India, seeking the following reliefs:
"(A) Your Lordships be pleased to admit and allow the present
application of the petitioners;
(B) Your Lordships be pleased to quash and set aside the Order dated
01.08.2025 below Exh. 146 passed in Regular Civil Suit No. 22 of 2006
by the Learned 5th Additional Senior Civil Judge, Junagadh, in the
interest of justice and further be pleased to pass necessary orders or
issue necessary direction for framing of additional issues for proper
adjudication of the suit; Anux. "A".
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(C) Your Lordships be pleased to stay the further proceedings of Regular
Civil Suit No. 22 of 2006, pending before the Learned Additional Civil
Judge, Junagadh, until the present petition is adjudicated, in the interest
of justice and to prevent irreparable harm to the plaintiffs.
(D) The Hon'ble Court be pleased to pass such other orders as may be
deemed just and proper in the circumstances of the case."
3. As far as possible, the parties will be referred to as per their
original position before the Trial Court.
4. THE SHORT FACTS OF THE CASE:
5. The petitioners happen to be the original plaintiffs of Special
Civil Suit No. 22 of 2006, whereas, the respondents herein are
the defendants. The suit is filed seeking specific performance of
agreement to sell executed between the parties on 11th July
2005, which is the subject matter of the suit. After pleading got
over, issues were framed by the Trial Court below Exh.45 on
11th April 2011. The impugned application came to be filed
after about 14 years of the framing of the issues by the
plaintiffs on 4th January 2025. Thereby, the plaintiffs requested
the Trial Court to frame certain additional issues, whereby,
they wanted to cast the burden upon the defendants to prove
certain facts which appear to have been pleaded by the
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defendants in their written statement.
6. The learned Advocate Mr. Sheth would submit that when
defendants have raised certain defenses touches the
jurisdictional aspect of the suit and so also to the fact that in
the future, the defendants should not be allowed to raise such
grievance at the time of execution of the decree that it is a
nullity barred by any provision of law, the impugned
application came to be filed by the plaintiffs.
6.1. The learned Advocate Mr. Sheth would submit that there was
no other purpose and intention of the plaintiffs to file such
impugned application but to avoid any multiplicity of
proceedings and to get the lis decided between the parties as per
the pleadings, impugned application came to be filed, which
was erroneously rejected by the Trial Court.
6.2. So, making the above submissions, the learned Advocate Mr.
Sheth would request this Court to allow the present
application.
7. Having heard the learned Advocate at length and after going
through the impugned application and so also the impugned
order passed thereon by the Trial Court, as such there is neither
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any error much less any gross error of law committed by the
Trial Court while rejecting impugned application.
8. The suit in question is filed seeking specific performance of an
agreement to sell executed between the parties. The plaintiff,
being the agreement holder who sought performance of such
agreement, is required to prove certain facts which are
embodied in Issue Nos. 1 to 3, already framed by the Trial
Court on 11th April 2011.
9. So far as, the case of the defendants is concerned, if they might
have disputed the agreement per se and relief sought by the
plaintiffs on several grounds for which, it appears that Issue
Nos. 4 and 5 were already framed. The parties to the suit
proceeding kept quiet for around 14 years, having not thought
it fit to file any such application for incorporation of additional
issues. Such delay is not explained by the plaintiffs while
submitting the impugned application, except to state that the
cross-examination of the plaintiffs is yet to be over. It is true
that as per Order 14, Rule 5 of CPC, at any stage of the
proceeding, even before the judgment, the court can frame
additional issues. At the same time, such issue germane during
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the course of trial is a sine qua non for framing such issue.
10. The issues which are sought to be incorporated in Exhibit 146,
proposed by the plaintiff, would suggest that in the absence of
any counterclaim/set-off by the defendants, the burden sought
to be shifted upon the shoulders of the defendants, which is not
permissible in law, inasmuch as the plaintiffs requires to prove
their case on their own merit and have to discharge the burden
cast upon them to get relief as prayed in the suit. According to
my view, the application is nothing but a frivolous attempt on
the part of the plaintiffs just to get the trial delayed.
11. Even otherwise, as per the settled legal position of law, it would
be apt to refer to and rely upon the decision of the Honourable
Supreme Court of India in the 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
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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
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.
(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
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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 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
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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.
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
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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.
(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
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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
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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 extraordinary power of its
strength and vitality."
(emphasized supplied)
12. In view of the foregoing reasons, this Court does not find any
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merit in the application. The present application requires to be
rejected, which is hereby rejected. The impugned order dated
1st August 2025 below Exh.146 passed in Special Civil Suit
No.22 of 2006 by the 5th Additional Senior Civil Judge,
Junagadh is hereby confirmed.
(MAULIK J.SHELAT,J)
Nilesh
