Friends Co-Operative Housing Society Limited vs Sarang Builders

Ashutosh J. Shastri, J

Rule. Mr.Parthiv B. Shah, learned advocate waives service of notice of rule on behalf of the respondents.

Present petition under Articles 226 and 227 of the Constitution of India is filed for quashing and setting aside the order dated 20.9.2018 passed

below Exh.32 and the order dated 30.11.2018 passed below Exh.53 in Special Civil Suit No.289 of 2006 and consequently, prayed for opening of the

petitioners’ right to cross- examine in the suit of 2006, referred to above.

The background of facts which has given rise to the present petition is that there was a premise of the petitioner No.1 in the name of Alkapuri Club

and for renovation of that hall, the society has entered into a construction agreement on 10.5.2004 for renovation of the club. This renovation work

has, upon completion, generated a grievance which has resulted into filing of a suit in August 2006, being Special Civil Suit No.289 of 2006, in the Civil

Court at Vadodara for recovery of an amount of Rs.12 lac with interest, claimed to have remained unpaid by the petitioners. In this proceedings,

initially, after certain adjournments in court below, on 29.9.2006, an application at Exh.15 was filed by the petitioners under Section 8 of the Arbitration

and Conciliation Act, 1996 (for short, ‘the Arbitration Act’). Simultaneously, one another application at Exh.14 was filed for granting time to

submit written statement. Later on, it appears from the record that the said application under Section 8 of the Arbitration Act came to be rejected on

8.1.2018. As a result of this, further step in the suit came to be initiated. According to the petitioners, on 20.7.2018, the respondent filed affidavit in lieu

of examination-in-chief at Exh.32 along with the list of documents at Exh. 34 and Exh.35 application was filed for seeking exhibition of the documents.

Thereafter, according to the petitioners, the suit came to be adjourned and in between, notice has been given and on 20.9.2018, the application Exh.35

came to be partly allowed about exhibiting the documents but, then, on the same day, Exh.32 application came to be ordered, whereby the right of

cross-examination by the petitioners came to be closed and then the matter was adjourned to 5.10.2018. According to the petitioners, on coming to

know about this fact, on the very next day, i.e. after 20.11.2018, the petitioners filed an application at Exh.53 for opening of the right of cross-

examination and simultaneously, vide Exh.54, a request was made for enlarging the time to file written statement. The main grievance of the

petitioners is that the affidavit as well as the list of documents came to be served only on 20.11.2018 and 30.11.2018, the petitioners’ application

Exh.53 for opening of the right of cross-examination came to be rejected.

It is in this background, the petitioners have invoked the extraordinary jurisdiction of this Court for challenging the legality and validity of both the

orders, i.e. order dated 20.9.2018 at Exh.32 and order dated 30.11.2018 below Exh.53, whereby the right of cross-examination is not permitted to be

opened.

This petition received consideration before the Hon’ble Court wherein both learned advocates appearing for the parties to the proceedings have

requested that since the circumstances are interconnected, all petitions be heard together and upon their request, the Court has heard the matter and

as per their request, kept the matter for orders after hearing at length.

Learned advocate Mr. Salil M. Thakore appearing for the petitioners in this petition, has vehemently contended that whenever there is a conflict

between substantial justice and technical consideration, substantial justice must be given predominance and therefore, right of defence ought not to

have been curtailed by passing the impugned order. It has been contended that the chronology of events is such that there was a settlement talk going

on, but same having not been finalized, the petitioners were required to defend the suit proceedings and therefore, even if bonafidely, some time has

taken place, such delay should not be allowed to come in the way of the petitioners to meet with the suit. It has been further contended that closing of

right of cross-examination initially on 20.9.2018 would not arise, especially when the petitioners were never served either with the affidavit in lieu of

examination-in-chief or the documents which are exhibited. The same have been supplied only on 20.11.2018 and therefore, there is a clear illegality in

passing the impugned order.

Learned advocate Mr. Thakore has further submitted that in between, i.e. from 20.7.2018 to 20.9.2018, only three dates had taken place and

therefore, there was absolutely no reason valid for the Court below to close the right of defence, i.e. cross-examination. It has further been contended

that the impugned order can never be passed on the day when the respondent’s application for exhibiting the documents is coming on record and

therefore, the impugned order is absolutely unreasonable and in this set of circumstance, the request for reopening the right of cross-examination ought

to have been considered by the Court below. It has further been contended by Mr. Thakore that non-granting of this request would tantamount to

irreparable harm to the petitioners and therefore, in such a situation, no technicality could have been allowed to be operated. Mr. Thakore has

contended that on the contrary, the main concentration was about the application under Section 8 of the Arbitration Act, but that having been rejected,

the petitioners are constrained to take this step so as to defend the said proceedings at least without prejudice. As a result of this, interest of justice

demands that request of the petitioners be considered. Mr. Thakore while making this submission has also referred to one of the decisions delivered by

Karnataka High Court reported in ILR 2002 Karnataka 260 and thereby has contended that the request of the petitioners deserves to be considered.

Mr. Thakore has reiterated that this is not a case in which any malafide intent is reflecting of the petitioners and it is only when the settlement talks

have not attained finality, this step in the interest of justice deserved to be taken by the petitioners and a request is made to allow the petition by

granting the reliefs as prayed in the petition. No other submissions have been made.

To meet with the stand taken by the petitioners, learned advocate Mr. Parthiv Shah, appearing on behalf of the contesting respondent, has

vehemently opposed the petition and a specific stand has been taken by Mr. Shah that simultaneous documents which have been produced on the

record of all these petitions, if harmoniously considered, then it is not open for the petitioners to hide their deliberate negligence and whiling away of

time. Mr.Shah has further contended that if chronologically, the documents attached to the petition, if to be co-related to rojkam entry, it would make

quite clear that more than enough opportunities have been given to the petitioners and therefore, no undue sympathy be shown to the petitioners. It is

clearly visible from the initial stage of these proceedings that under one pretext or the other, recovery is being avoided. Hence, on this conduct itself,

the petitioners’ petition deserves to be dismissed. No extraordinary jurisdiction equitable in nature be exercised. Mr. Shah has further submitted

that here is a case in which even after dismissing of Section 8 application in the month of January 2018, more than adequate opportunities have been

given and further, vide order dated 6.9.2018, a specific notice was issued giving further opportunity to the petitioners and therefore, even despite that

fact, if the petitioners have not availed the opportunity, they must have thanked themselves. Law of equity will not come in their rescue. Mr. Shah has

further submitted that even after having specifically come out with the stand of the plaintiffs, they have chosen not to cooperate with the hearing. The

detailed order has clearly reflecting such opportunity having been given.

Learned advocate Mr. Shah has vehemently contended that with a view to get undue sympathy, a serious attempt is made to misguide the

Hon’ble Court. It is not correct to state that they were not served with the affidavit in lieu of examination-in-chief nor the exhibited documents.

The same on the contrary were given well in advance, which is very much evident from the other attended circumstances. Mr. Shah has further

submitted that in these proceedings, issues have already been framed and on 20.7.2018, examination-in-chief came to be filed by the plaintiffs and

simultaneously, on 20.9.2018, certain documents have also been exhibited and therefore, there is no question of serving the petitioners much after that.

On the contrary, in another petition, on page 89, i.e. Special Civil Application No.4931 of 2019, a closing pursis has been produced on record, which

indicates that on 5.10.2018, the plaintiff has given closing pursis and when that be so, there is no question of serving either examination-in-chief

affidavit or the documents in the month of November 2018. Simply because, some date is mentioned by the petitioners, same cannot take place of

truth, especially when the other attending documents are clearly demolishing the stand of the petitioners about service in the month of November 2018

and therefore, there is no illegality, no irregularity nor any perversity is shown by the Court below in passing the order. Mr. Shah has further submitted

that by virtue of the provisions, the Civil Court was entrusted with the jurisdiction to exercise the discretion and when the discretion has been

exercised well within the bounds of the authorities and in consonance with the relevant records, then the said ultimate conclusion may not be

substituted by invoking the extraordinary jurisdiction at the instance of the petitioners who have not come with clean hands. As a result of this, Mr.

Shah has vehemently opposed the petition and requested that the petition being merit-less, be dismissed.

Learned advocate Mr. Shah has further submitted that the procedural laws are also meant to administer justice and therefore, when the plaintiffs

are expected to abide by procedural obligation, then simultaneously, the defendants are also under an obligation to maintain the parameters of such

procedural laws and for contending this, Mr. Shah has referred to the relevant provisions about Order 8 of Civil Procedure Code and thereby

contended that no case is made out by the petitioners to call for any interference.

Having heard learned advocates appearing for the parties and having gone through the material on record, following few circumstances are not

possible to be unnoticed by this Court:-

(1) First of all, the suit which has been submitted is filed way back in August 2006 for recovery of an amount of Rs.12 lac with interest for the work

which has already been undertaken by the original plaintiff. Apart from that, after submission of the application under Section 8 of the Arbitration Act,

it appears that attempts have been made to dribble the litigation under one pretext or the other. It appears from the relevant dates which are reflecting

from the record that for a pretty long period, opportunities have been extended to submit reply, to prosecute the applications given one by one and

lastly, when Section 8 application came to be rejected on 8.1.2018, a further opportunity has also been given, which is very much visible from the

record. On 6.9.2018, in addition to other dates, specific notice was given to remain present for evidence. But then also, the record indicates that the

petitioners have chosen not to cooperate with the hearing, as it appears.

(2) Additionally, from the record of Special Civil Application No.4931 of 2019, which is relied during the course of hearing by both learned advocates,

it is visible that on 20.8.2018, a specific notice has been given to remain present on 6.9.2018 and that notice was already served upon the petitioners as

per the Bailiff report as well.

(3) Further, it appears that even after submission of examination- in-chief in the form of affidavit as well as the documents which have been exhibited,

a closure pursis has also been given on 5.10.2018, which is also much prior in point of time, and therefore, the theory which has been projected by the

petitioners that examination-in- chief as well as the documents have been served only on 20.11.2018 is not possible to be accepted by this Court at all

since the said date, as a mere countersigned, is not supported by any other documents. On the contrary, it goes much against the record if the other

documents are to be analysed and therefore, to that extent, learned advocate Mr. Shah appears to be justified that the petitioners have not come with

clear stand, rather an attempt is made not to put absolutely the correct facts before the Court.

(4) Additionally, it appears further that after 6.9.2018, also approximately more than on six occasions, the proceedings have been adjourned as viewed

by the trial court, but still the petitioners have not availed any opportunity and therefore, this attempt which has been made by the petitioners is not

appreciable. On the contrary, it appears that no cogent or convincing explanation is given to consider the request of the petitioners. The Trial Court

appears to have perfectly justified in exercising the discretion against the petitioners. Perusal of the relevant record posted before the Court is also to

be analyzed. As a result of this, in the considered opinion of this Court, no case is made out.

This Court ordinarily might have considered the request but then, a substantial grievance is made that the order cannot be passed in any

circumstance, especially when the examination-in- chief and the documents have been served only in November 2018 and this plea which has been

put forth before the Court is not found to be well supported by the other attending documents, as referred to above. The rojkam of the case, closure

pursis and its date, submission of the affidavit and execution of the documents are the circumstances which are clearly dismantling the stand of the

petitioners. Therefore, this Court would not like to exercise the extraordinary jurisdiction which is equitable in nature.

The Court is also of the opinion that there is some sanctity to be observed even to the procedural laws. There is a purpose underlying behind such

provision in prescribing the procedure. A conjoint reading of the entire relevant order would clearly suggest that to regulate the adjudicating process of

the suit and to see that no undue delay can take place, the provisions have been made in this regard and therefore, the litigants are under an obligation

to observe such provisions which are meant for administering justice. The record of the present case has revealed that enormous delay has taken

place and further there is no justified explanation, cogent enough, given which would permit this Court to exercise the extraordinary jurisdiction and

therefore, no case is made out by the petitioners.

Additionally, in view of the aforesaid peculiar set of circumstance, when the facts are totally different from that decision which has been relied

upon by learned advocate for the petitioners, this Court is of the opinion that the said decision of Karnataka High Court has no applicability as a

straitjacket formula. The reason is that the law of precedent is suggesting that if there is a slight change in the facts, same would make a world of

difference in applying and therefore, the said judgment of Karnataka High Court is of no avail to the petitioners.

Additionally, the Court is also of the opinion that there are some imposed limitations in exercising the extraordinary jurisdiction and unless and until

there is any patent illegality or any perversity is reflected in the order under challenge, the Court ordinarily would not substitute the discretion exercised

by the Court below well within the limits of its jurisdiction. Here is a case in which the Court has not seen any such eventuality by virtue of which, the

exercise undertaken by the Court below deserves any interference. The parameters which are prescribed for exercising such extraordinary

jurisdiction under Articles 226 and 227 of the Constitution of India are well defined in one of the decisions delivered by the Apex Court in the case of

Sameer Suresh Gupta through PA Holder V/s. Rahul Kumar Agarwal, reported in (2013) 9 SCC 37 4and the principles which are mentioned in

relevant paragraphs are sufficient enough to indicate that this is not a fit case in which such jurisdiction deserves to be exercised. Para 6 and 7 of the

said decision read 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 vs. Ram Chander Rai and others (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 CPC

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.

(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 above-said 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 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.

The same question was considered by another Bench in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 SCC 329, and it was

held:

(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 and the principles in

Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh, 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 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.

(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.

Accordingly, in the considered opinion of this Court, no case is made out. On the contrary, the case was already ordered to be placed for

argument. At this stage, the Court would not like to intercept the adjudicating process of the suit. Hence, the petition being devoid of merits, stands

dismissed with no order as to costs. Rule is discharged.