Mayurbhai Dhirajlal Viradiya vs Parshottambhai Bhikhabhai Chakrani & 4 Others

A.J. Shastri, J

Present Appeal from Order is filed under Order 43 Rule 1(r) of the Code of Civil Procedure for the purpose of challenging the legality and validity

of the order dated 19.7.2016 passed below Exh.5 in Special Civil Suit No.432 of 2013.

The case of the appellant- original plaintiff is that the suit came to be instituted, being Special Civil Suit No.432 of 2013 before learned Principal

Senior Civil Judge, Surat for declaration and permanent injunction and also for setting aside the sale document dated 18.4.2013. The said controversy

is with respect to the land bearing Survey No.157/2 Paiki, Block No.139, admeasuring 82.05 Sq. Mtrs. of old tenure situated at Village Valak of

Kamrej Taluka in Surart District. Pursuant to the injunction application, which has been preferred, the original defendants appeared before the Court

and contested the suit and the registered owner, i.e. one of the defendants, has submitted that he became the lawful owner of the property in question

by way of registration of sale document and with payment of full consideration. An amount is already said to have been paid to the extent of

Rs.2,31,00,000/-, which has been narrated in the sale document dated 18.4.2013 and with respect to further payment, details have been provided that

the amount has been transferred either through bank account or through RTGS to the account of the present petitioner- plaintiff. Further payment of

Rs.51,97,500/- was also made on 22.4.2013 through RTGS and which fact is not appearing to be disputed by the bank. In view of the circumstances

which are prevailing, the Court found that irrespective of the aforesaid payment, the amount of sale consideration of Rs.1,26,57,500/- has not been

able to be determined, as found by the Court below. As a result of this, learned Judge, having found no prima facie case nor balance of convenience in

favour of the appellant-plaintiff, has not exercised the power and has rejected the application Exh.5 vide order dated 19.7.2016. It is this order against

which the present Appeal from Order is presented before this Court.

Learned advocate Mr. Dhirendra Mehta appearing on behalf of the appellant- plaintiff has submitted that there is a gross irregularity committed by

the Court below in not considering the factum of payment which has already been made and even some of the payments is made through RTGS,

which indicates that the transaction took place and therefore, under this set of circumstance, order of interim injunction ought to have been passed.

Even otherwise, status-quo order ought to have been granted by the Court below. Mr. Mehta has further submitted that there are triable issues which

are yet to be examined by the Court below and during of such suit, status-quo deserves to be obtained with a view to protect the suit property by

referring to some of the relevant paragraphs contained in the order.

To meet with the stand taken by learned advocate for the appellant, learned advocate Mr. Manan Shah appearing on behalf of the contesting

respondents has submitted that the Trial Court has assigned just, proper and cogent reasons. It has been considered that payment of consideration,

which was fixed of Rs.1,26,57,500/-, has not been established at all as is evident from the conclusion arrived at by the Court below. Learned advocate

has further submitted that by virtue of the registered sale deed, the present appellant has further not disputed the transaction which took place on

21.8.2018 in the form of sale document. As a result of this, learned Trial Judge has not committed any error in passing the impugned order. This has

taken place during the pendency of the proceedings which has no adverse impact on the legitimate right of the present appellant in claiming even

remote right. As a result of this, the appeal lacks merits and deserves to be dismissed.

Having heard learned advocates and having gone through the material produced on record, it ex-facie appears to the Court that learned Trial Judge

has passed the order after examining every material which has been brought on record. So much so, the proposition of law which has been cited by

tendering several decisions, as narrated in para 5 of the order, learned Judge has exercised the discretion, which is vested in him. It further appears

that there is a clear distinction between prima facie case and prima facie title and both cannot be confused. Prima facie case has to be examined

during the course of trial. As a result of this, grant of interim relief against the sale deed holder would tantamount to be affecting the right of true

owner prejudicially. This Court is of the opinion that no error appears to have been committed nor the order can be said to be perverse in any form. In

this view of the matter, it appears that the appellant has not made out any case in his favour to seek interim relief. The issues regarding payment of

part amount, as has been tried to be pleaded, will be examined and given effect to when ultimate order is passed in the suit proceedings. In view of the

aforesaid set of circumstances, there is hardly any material adduced on record which necessitated this Court to exercise the appellate jurisdiction.

Additionally, it is also clear from the proposition of law that once the property is sold, the person loses the right to claim anything out of the sale

proceeds of the land and that has been fortified by several decisions delivered by the High Court, including the decision which is delivered in Special

Civil Application No.5051 of 2016 dated 30.4.2018. The Division Bench while dealing with First Appeal No.2400 of 2012 on 31.7.2012 has also opined

clearly that in respect of the aforesaid proposition of law, as the appellant has lost the right from the land in question by virtue of the aforesaid

registered document dated 21.8.2018, there is hardly any right available in favour of the appellant. This additional circumstance is also weighed with

the Court for not entertaining the appeal.

Additionally, the Court is of the opinion that the scope of interfering with the discretionary order is well defined by series of judgments, some of

them are considered by this Court. As a result of this, the relevant observations contained in the following decisions would govern the ultimate

conclusion of this Court:-

(a) In the case of Mohd. Yunus v. Mohd. Mustaqim and others reported in AIR 1984 SC 38, the Apex Court has held and observed in para 7 as

under:-

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 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.

(b) In the case of Sameer Suresh Gupta TR PA holder Vs. Rahul Kumar Agarwal reported in (2013)9 SCC 374, the Apex Court has held and

observed in para 6 and 7 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 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.

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.

In view of the aforesaid proposition of law, which has been laid down, this Court is of the opinion that there is a no prima facie case made out by

the appellant nor balance of convenience and irreparable loss aspects are found in favour of the appellant. Still however, by virtue of effect of

registered transaction, which took place on 21.8.2018, it is hardly possible for this Court to consider the request for grant of stay against the registered

and true owner. The issues related to the so-called right of the appellant will be examined during the course of trial. Hence, no case is made out to

grant any interim relief. Considering this set of circumstance, the impugned order is not disturbed and the present appeal deserves to be dismissed.

However, parting with the order, it will be open for the appellant as well as the respondents to approach learned Judge concerned for expeditious

disposal of the suit considering the fact that the suit is of the year 2013. As and when such request is made, learned Judge concerned will give some

priority according to the roster. However, it is made clear that learned Judge while dealing with the suit shall decide the suit proceedings without being

influenced by the present order as well as the observations made in the impugned order and same shall be decided independently on the basis of the

evidence which will be led before him.

In view of the above, the Appeal from Order stands dismissed.

Since the main Appeal from Order is disposed of, the Civil Application does not survive and stands disposed of accordingly.