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Judgment
The present group of petitions are filed under Article 227 of the Constitution of India, raising similar issue of facts and law. As a result of this, upon
request of the learned advocate, all the 3 petitions are taken up together and dealt with by present common order, by treating Special Civil Application
No.11601 of 2019 as a lead matter.
So far as SCA No.11601 of 2019 is concerned, the same is filed challenging the legality and validity of an order dated 7.5.2019 passed below
Exh.47 in Civil Suit No.310 of 2006, whereby a request for seeking amendment came to be refused by a detailed order, as stated above.
2.1 Same is the case with SCA No.11602 of 2019, in which also a request for amendment came to be rejected by passing order below Exh.62 on
7.5.2019 in Civil Suit No.309 of 2006, whereas SCA No.11603 of 2019 is concerned, the request under Order 6 Rule 7 of the CPC came to be
rejected by order dated 7.5.2019 passed below Exh.53 in Civil Suit No.313 of 2006.
Insofar as SCA No.11601 of 2019 is concerned, which is a lead matter, the facts, in brief, are that present petitioner â€" plaintiff instituted the Civil
Suit No.310 of 2006 against the respondent â€" defendant for seeking declaration and injunction essentially to the effect that respondent had illegally
entered in the property being Flat No.25/B, Gokulnagar, Amraiwadi, Ahmedabad which is owned by the plaintiff and by breaking open the lock, the
possession is taken away. Hence, the suit came to be filed being Civil Suit No.310 of 2006.
Pursuant to the summons having been issued by the respondent â€" defendant, the suit came to be contested, wherein the controversy has arisen
with regard to the issuance of documents such as allotment letter, share certificate and possession letter said to have been issued in the name of
defendant No.3 and on the basis of such, even the defendant No.3 sold the suit flat to defendant No.4 by a registered sale deed date 30.9.2006 and
thereby, the defendant No.4 allegedly has committed a trespass which has given rise to filing of the suit. This suit is of the year 2006 in which the
petitioner â€" plaintiff has sought an amendment by submitting an application at Exh.47. This application is filed only on 31.7.2017 with respect to the
registered sale deed that of 30.9.2006 and for seeking setting aside the said registered sale deed, amendment is sought. This application has been dealt
with by the learned Judge in which by order dated 7.5.2019, the request came to be turned down which has given rise to present petition under Article
227 of the Constitution of India.
Mr.Kunjal D. Pandya, learned advocate appearing on behalf of the petitioners, has vehemently contended that with a view to avoid multiplicity of
proceedings, the relief ought to have been granted as prayed for in Exh.47 application. It has further been submitted that issues involved are related to
the very same property and the dispute encircling around the very same property, as a result of which, if the amendment is allowed no serious
prejudice is likely to cause. It has further been submitted that it is settled position of law that amendment can be allowed at any stage of the
proceeding before even pronouncement of the judgment in the suit and, therefore also, there is hardly any justifiable reason assigned by the learned
Judge to dismiss the application. It has further been submitted that this exercise which has been undertaken by the court is nothing but a clear
erroneous approach contrary to the very object of Order 6 Rule 17 of CPC and such exercise of jurisdiction, therefore, deserves to be corrected by
setting aside the impugned order. Learned advocate for the petitioner has submitted that during the course of examination, this has been noticed and,
therefore also, the reason which has been assigned by the court below is not justifiable. Simply because the application is submitted after some period
of time, the same cannot be the sole criteria for refusing the request. On the contrary, even if the nature of the suit will change, then also the courts
are empowered to consider the request for amendment in the larger interest of justice. The learned Judge has not assigned any valid reason in
exercising the discretion. Resultantly, the error committed by the court below is material enough to set aside the impugned order. No other submissions
have been made.
Having heard the learned advocate appearing on behalf of the petitioners and having gone through the material on record, it would appear from the
proceedings that in a suit for relief of declaration and injunction which was filed in the year 2006, an amendment is sought to set aside the registered
sale transaction which took place between defendant No.3 and defendant No.4 and thereto, the said registered transaction was of 30.9.2006. It is
undisputed proposition of law that registration of document is a deemed knowledge to the party and this deemed knowledge is attributable to the
petitioners in September,2006 the moment document in question came to be registered and, therefore, to give an application after almost a period of
more than 11 years, would be entertaining a belated application which would otherwise bar by principle of delay and laches. Further, the learned Judge
has also taken note of clearly that if this relief is allowed to be granted, the nature of the suit would be changed from its basic substratum and,
therefore, the original suit which is filed merely for the purpose of bringing injunction on the basis of valuation of Rs.300/Â, the suit base will change
and would turn out to be a suit for setting aside the registered sale document and that is prevented by the learned Judge, which, in considered opinion
of this Court, is not irregular or perverse exercise in any manner.
The Court is taking note of a situation that civil suit is of the year 2006, wherein the issues have been framed at Exh.45 and the trial has begun
pursuant to it and, therefore, now to allow after a period of more than 11 years the very nature of the suit would change and the same would be not
only prejudicial to the defendants but, would be allowing a deemed knowledge of 2006 of the petitioner to be ignored. If this principle is to be applied,
then a belated amendment is casually allowed which is impermissible.
Time and again the Apex Court has propounded that no doubt, the powers can be exercised under Order 6 Rule 17 of the CPC to avoid multiplicity
of proceedings, but that would not mean that after a period of more than 11 years, in a routine and casual manner, the litigant, without any just cause,
may be permitted to mould the relief and the nature of the suit. In fact, the proposition of law which has been laid down by the Apex Court which is
reported in (2010) 15 SCC 570 as well as (2018) 11 SCC 722, if to be looked, the combined effect of judgment, it would appear that there appears to
be no perversity nor any material irregularity of any nature committed by the court below. That being so, the petition lacks merit, deserves to be
dismissed.
Additionally, the petition is under Article 227 of the Constitution of India and as such, in the absence of any perversity or material irregularity, it is
not open for the writ Court to just in a routine manner, substitute the finding even if another view is possible. Therefore, keeping such proposition of
law in mind also, this Court is of the opinion that no case is made out by the petitioner to call for any interference. Such proposition of law is well spelt
out by the Apex Court in the decisions reported in AIR 1984 SC 38 as well as in a decision reported in (2013) 9 SCC 374. Since the aforesaid
observations are kept in mind by the Court while dealing with the present petition, the Court deems it proper to reproduce the same.
(1) In the case of Sameer Suresh Gupta Through Holder v. Rahul Kumar Agarwal reported in (2013) 9 SCC 374, the Apex Court, in para 6 and 7 has
observed as under :Â
“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 01Â07Â2002 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 selfÂevident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated
argument or a longÂdrawn 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 aboveÂsaid 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 reÂappreciation 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 ont he 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.
9.1. In the case of Mohd. Yunus v. Mohd. Mustaquim and Ors., reported in AIR 1984 SC 38, more particularly in para 7, the Apex Court has
observed as under :Â
“7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited “to seeing that an inferior Court or
Tribunal functions within the limits of its authority†and not to correct an error apparent on the face of the record, much less, an error of law. In this
case, there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned
Subordinate Judge to exercise jurisdiction nor did he act in disregard he act in disregard of principles of natural justice. Nor was the procedure adopted
by him not in consonance with the procedure established by law. In exercising the supervisory power under Art. 227, the High Court does not act as
an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be
based or to correct errors of law in the decision. “
In above set of circumstance, the petitioner has not made out any case to call for any interference. Accordingly, the present petition stands
dismissed with no order as to costs.
The other two petitions are also governed by the aforesaid proposition and accordingly, the same are also dismissed by virtue of present common
order.