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Judgment
A.J. Shastri, J
Present petition under Article 226 of the Constitution of India is filed for the purpose of seeking following reliefs :
“A. Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to quash and set aside the impugned judgment and order dated August 3, 2018; recorded by the Ld. Second Additional Sessions Judge, Nadiad, below Exh.23 in Regular Appeal No.23 of 2014.’
B. Pending admission and final disposal of the present petition, be pleased to stay the implementation, operation and execution of the impugned judgment and order dated August 3, 2018; recorded by the Ld. Second Additional Sessions Judge, Nadiad, below Exh.23 in Regular Appeal No.23 of
2014;
C. Be pleased to pass such other and further orders as may be deemed fit and proper.”
The case of the petitioners — original defendants is that the respondents filed the suit in the court of learned Principal Civil Judge (J.D.), Dakor being Civil Suit No.35 of 2004 for seeking possession of rented premises from the petitioners which is consisting of ground floor and the first floor. As per the say of the petitioners, the original plaintiffs gave the suit premises in the year 1982, more particularly the ground floor portion at a monthly rent of Rs.20/ and the first floor was never rented out to the petitioners and the petitioners have unauthorizedly occupied the said premises. As a result of this, on the issue of bonafide requirement and the arrears of rent from September,1992 to April,2004, the suit came to be filed.
2.1 It is further the case of the petitioners that petitioners appeared before the court; filed the written statement at Exh.11 and contended that the ground of arrears of rent is not available in view of the fact that money order was sent on 14.4.1997 which was not accepted, consisting of the payment of rent upto 23.10.1996 and, therefore, it cannot be said that petitioners are in arrears of rent. It has further been pointed out that there is no bonafide requirement of landlord — plaintiffs and the premises have been rented out including the first floor as well. The learned Judge, on the basis of such pleadings and the stand taken by respective parties, has framed six issues and thereafter, passed judgment and order on 16.1.2014 and feeling aggrieved by and dissatisfied with the same, the petitioners preferred an appeal before the District Court, Kheda at Nadiad which was registered as Regular Civil Appeal No.23 of 2014.
2.2 During the pendency of the said appeal, the petitioners preferred an application Exh.23 for seeking permission to produce the additional evidence in the nature of tax receipts of the rented premises and the said application came to be rejected vide order dated 3.8.2018 and it is this order which is made the subject matter of present petition under Article 226 of the Constitution of India.
2.3 The Court on 4.12.2018 was pleased to issue notice, pursuant to which learned advocate for the contesting respondent appeared and the matter, with the aforesaid background, was taken up for hearing.
Mr.B.M.Mangukia, learned advocate appearing on behalf of the petitioners, has vehemently contended that the documents which are sought to be produced are the public documents and the same ought not to have been refused from being produced. Learned advocate has further submitted that while passing the impugned order, the Court has not assigned any finding on the issue of Rule 27 (a), (aa) of Order 41 and, therefore also, a serious error is committed while exercising the jurisdiction. It has further been contended that whenever there is a conflict between the substantial justice and technical consideration, the substantial justice must be given a predominance and, therefore, since the entire exercise of jurisdiction is based upon mis interpretation and mis-construction of Order 41 Rule 27(a),(aa), the error committed deserves to be corrected. Learned advocate has submitted that the appeal which has been filed in a substantive form i.e. Regular Civil Appeal No.23 of 2014 needs to be adjudicated at length, since there is a substantial right involved of the petitioners and to arrive at a just decision, the presence of aforesaid documents which are sought to be produced, deserve to be an expedient to be considered. That being so, by refusing said request, the learned Judge has frustrated the very object of Order 41 Rule 27 of the CPC.
3.1 Mr.B.M.Mangukia, learned advocate, has further submitted that in catena of decisions, by virtue of which it can be said that at any stage of the proceeding, the litigant can produce the document if the same are touching the root of controversy. Learned advocate has cited following decisions to be considered to substantiate his contentions.
(I) N. Kamalam (dead) & Anr. v. Ayyaswamy & Anr., reported in AIR 2001 SC 2802.
(II) Adil Jamshed Frenchman (Dead) by LRs. v. Sardar Dastur Schools Trust & Ors., reported in (2005) 2 SCC 476.
(III) Union of India v. Ibrahim Uddin & Anr., reported in (2012) 8 SCC 148.
By referring to above decisions, learned advocate for the petitioner has requested to allow the present petition, by granting the prayers as prayed for.
No other submissions have been made.
To these submissions, Mr.H.J.Karathiya, learned advocate for the contesting respondents, has vehemently opposed the petition and has specifically contended that this is nothing but a clear device of delaying the proceedings, which have ripen for final disposal. Learned advocate has submitted that here is a case in which the ground floor portion was d Mr.H.J.Karathiya, learned advocate for the contesting respondents, has deadly in need of the landlord and the first floor has been unauthorizedly occupied and the tenants are in arrears and in such a situation, in a casual and routine manner, a request is being made to produce the documents without any due diligence, such request cannot be considered. It has further been contended that the original suit is of 2004. The decision which has been taken in the suit is after a considerable long time i.e. in the year 2014. So, after almost a period of dragging the suit for 10 more years, it was not noticed by the petitioners that tax receipts are the documents which are expedient. Be that as it may, even the appeal which has been filed is in the year 2014 and this application under Order 41 Rule 27 is filed in the month of August,2018 which is reflecting on page 32. Learned advocate has submitted that why these documents are necessary, the same has not been able to be produced and there is no error about exercise of due diligence and, therefore, in the absence of these elements, this request which has been made at a belated stage, is nothing but an attempt clearly to drag on the litigation further and, therefore, this being against the very spirit of Order 41 Rule 27, the same cannot be allowed in such a routine manner. Therefore, there is no error committed by the court below in refusing such request.
4.1 Mr.H.J.Karathiya, learned advocate for the contesting respondents, has further submitted that the very requirement of Order 41 Rule 27 is the exercise of due diligence and that being completely missed, no error can be found to have been committed by the court below. Learned advocate has relied upon the decision of the Apex Court in case of Jasmin Minerals Pvt. Ltd. v. State of Gujarat, reported in 2016 (0) AIJELÂHC 236559 and has pointed out that in the absence of any due diligence, no such request can be entertained. Hence, in the absence of any material irregularity or illegality, there is hardly any case made out by the petitioners to call for any interference. Learned advocate has submitted that in any case, this being a petition under Article 226 of the Constitution of India, even if another view is possible, normally the same cannot be substituted in the absence of any perversity or material irregularity. Accordingly, the impugned order does not reflect any illegality, the same cannot be interfered with.
4.2 It has further been submitted that the decisions which have been relied upon by the learned advocates are of a different circumstance and, therefore, not possible to be applied as a straitjacket formula. On the contrary, there is a clear message given under the Statute that after amending the provision of CPC, not to allow such type of delay which may likely to cause on account of such request. Hence, the order in question does not call for any interference.
Having heard the learned advocates appearing for the respective parties and having gone through the material on record, it appears that while exercising the discretion, the learned Judge has not committed any irregularity, on the contrary, has justifiably assigned the reasons as to why the request is not possible to be acceded to. While passing the impugned order, the learned Judge has specifically dealt with the relevant provision of Order 41 Rule 27 of the CPC and only thereafter, the order is passed and, therefore, the same cannot be construed as perverse in any form.
Apart from this, even independently if the application which has been filed is to be seen which is reflecting on page 32, just a four line application does not disclose the relevancy of the documents nor disclosing any explanation or reason as to why these documents are necessary and further, there is no whisper about the due diligence. When that be so, it is not possible for the Court to consider the request, as has rightly not been considered by the court below.
The Division Bench of this Court while dealing with this very issue in a decision in case of Jasmin Minerals Pvt. Ltd. (Supra), has clearly observed that as to what are the requirements. The observations made in Para.11.2 since relevant, are reproduced hereinafter :
“11.2 O-41 R-27 makes it obligatory on the party seeking to produce additional evidence to establish that the evidence which such party seeks to produce as additional evidence was not within his knowledge or could not, after exercise of due diligence, able to produce when the decree appealed was passed. On going through the record of the case, it is apparent that the applicant was very much aware of the existence of the documents which the applicant seeks to adduce as additional evidence. The observations made in the judgment of the trial Court on pages 35 to 37 would clearly indicate that the documents were very much within the knowledge of the applicant. The applicant is unable to satisfy this Court about due diligence on his part to procure the documents even when the suit was remanded to the trial Court and was pending decision.”
In addition to this, a clear reading of clauses contained in Rule 27 of Order 41 makes it clear that at least this kind of application in absolutely brief form has rightly not been entertained. The opinion which has been formulated by the court below as such cannot be considered to be irregular in any
form. On the contrary, it appears that at a much belated stage, this attempt is made to bring on record the tax receipts and if they are the public documents, the same ought to have been produced as a vigilant litigant. In the absence of any due diligence and in the absence of any reason for justification, this Court is not inclined to consider the request and is of the considered opinion that there is no error committed by the court below, as well.
The judgments which are cited are no doubt reflecting the discretion in an exceptional circumstance, can be exercised. But then the observations are also to the effect that the Court should exercise such power under Order 41 Rule 27 only in exceptional circumstance and should exercise judicially and with circumspection and only where any of prerequisite conditions are satisfied as reflects in Rule 27.
The judgments which are cited by learned advocate for the petitioners are, on the contrary, suggesting that application in the manner in which it has been submitted is not possible to be entertained at all. One judgment is sufficient enough to distinguish the stand of the petitioners is a decision cited by the petitioners themselves in case of Ibrahim Uddin (Supra) and the conjoin reading of observation contained in Para.36 to 49 are sufficient enough to indicate that at least this is not a fit case in which such powers deserve to be exercised, particularly when application is absolutely silent on prerequisite contained under Order 41 Rule 27 of the CPC.
Additionally, the Court has also considered the observations of the Apex Court in case of Sameer Suresh Gupta TR PA Holder V/s. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374. The observations made in Para.6 of the said decision, since relevant, deserve to be quoted hereinafter :
“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 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 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.
In view of the observations which have been contained in the said paragraph, the Court deems it proper not to exercise the power.
In view of the aforesaid premise and in view of the circumstances which are prevailing on record, this Court is of the clear opinion that this is not a fit case to entertain the request. Hence, the petition being devoid of merit, stands dismissed with no order as to costs. Notice is discharged.
While parting with the present order, the Court is of the opinion that on the contrary, the Regular Civil Appeal which is of 2014, deserves to be dealt with as expeditiously as possible and the learned Judge is requested to deal with same without any undue delay.