Ramsang Dhanabhai Solanki Since Died Through Lh vs Naharsinh Naranbhai Solanki & 2 Others

A.J. Shastri, J

Present petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of seeking following reliefs :

“A. Your Lordships may be pleased to admit and allow the present Special Civil Application;

B. Your Lordships may be pleased to issue writ of certiorari or any other appropriate writ, order or direction and be pleased to quash and set aside the

order dated 19.2.2018 passed below Exh.80 in Regular Civil Suit No.29 of 2012 passed by learned Additional Civil Judge & Judicial Magistrate First

Class, Borsad at AnnexureÂ​B to this petition.

C. Your Lordships may be pleased to allow the application at Exh.80 in Regular Civil Suit No.29 of 2012 at AnnexureÂ​A to the petition.

D. Your Lordships may be pleased to pass any appropriate order, direction or relief, which may be deemed fit in the facts and circumstances of the

present case.â€​

It is the case of the petitioners that Regular Civil Suit No.29 of 2012 was filed by the petitioners for the purpose of seeking permanent injunction

against the original defendants, interÂalia, restraining them from obstructing the way which is used for bullock carts and other animals from house for

passing through from the house situated on Survey No.26/4 in village Kathana, District Anand.

2.1 It is further the case of the petitioners that defendants have made an attempt to obstruct the way by attempting to put construction of wall and to

block the way which was being used since long. Along with the said suit, an injunction application also came to be filed under Order 39 Rule 1 and 2 at

Exh.5 which came to be allowed by virtue of an order dated 27.1.2015 and the said order was passed by the learned 4th Additional AdÂhoc Civil

Judge and JMFC, Borsad. Simultaneously, a panchnama was also prepared below Exh.14/2 along with map at Exh.14/3 on 11.2.2012 which indicate

clearly that there was a way.

2.2 It is the case of the petitioners that petitioner No.1 has submitted an affidavit at Exh.69. The petitioners were also crossÂexamined on 28.9.2015.

But, in the meantime, on account of obstruction being made by the defendants, an application was constrained to have been filed on 11.1.2017,

indicating the breach of injunction and by submitting such application, simple imprisonment was sought by way of punishment for breach of injunction

and also a requested was made for removing the construction which has been created. Accordingly, relying upon the said application, the panchnama

was prepared and the Court Commissioner, who was appointed, has submitted the report at Exh.89/2 and Exh.89/3. But then, the application came to

be rejected on 19.2.2018 below Exh.80 which order dated 19.2.2018 is made the subject matter of present petition under Articles 226 and 227 of the

Constitution of India.

Mr.Ramnandan Singh, learned advocate appearing on behalf of the petitioners, has vehemently contended that there is a clear breach of injunction

granted by the concerned court and the same is reflecting from the contents of panchnama which has been executed. It has been submitted that

taking advantage of lapse on the part of petitioners, during interregnum period, when the injunction was not in operation, the defendants have made out

the construction and as such, this is nothing but overreaching the process of the Court and, therefore, the learned Judge has not properly construed the

material on record which clearly indicates violation of interim order.

3.1 Learned advocate for the petitioners has further submitted that while taking up the cause, the petitioners have pointed out clearly that simply

because for a period of 6 months and 4 days, there was no order of statusÂquo, it was not opened for the defendants to capitalize the said

circumstance and originally the interim order was granted, the defendants cannot take undue advantage and that has not been even properly

appreciated by the trial Judge. Hence, such material error in exercising the jurisdiction deserves to be corrected. 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, particularly the order at

Exh.80, it appears that while exercising discretion the learned Judge has applied its mind and has found clearly that for a period of 6 months and 4

days, there was no order of statusÂquo in operation and there may be a possibility that during such period, the construction might have taken place.

But, for that purpose, about violation of interim order, the learned Judge clearly found that plaintiff has miserably failed to point out any circumstance

by way of material to indicate that there is a clear breach of order. The learned Judge found that the plaintiffs have not produced anything on record

to justify the plea of breach of injunction. It has further been found that even in second panchnama also, the learned Judge found that there is no

material alteration visible which may even infer a clear breach of injunction. When that be so, there is hardly any case made out by the petitioners to

justify the grievance of breach of injunction.

The learned Judge while passing an order on 19.2.2018 has thoroughly gone through the panchnamas which are made part of the record; has also

gone through the relevant dates on Exh.5 application and has also examined the continuance of the statusÂquo order and has clearly found that the

petitioners have not produced any material to indicate the breach of injunction order. The report of the Court Commissioner at Exh.89 has been

analyzed and only thereafter, when the court has concluded and arrived at a satisfaction which is based upon analysis of material, it cannot be said

that the order suffers from vice of perversity or material irregularity. When that be so, even if another view is possible, the same cannot be substituted

by allowing the petitioners to invoke extraordinary jurisdiction. Had it been the case, the learned Judge might not have examined the material at all and

might not have properly construed the relevant dates, in that eventuality possibility of perversity might have been reflected. But here is a case where

everything is meticulously examined by the court below which is clearly reflecting from the material placed before it. As a result of this, when the

learned Judge has categorically considered the material, such finding deserves to be substituted in exercise of writ jurisdiction, the extraordinary

powers how to be exercised and in what circumstances is clearly spelt out by the Apex Court in some of the decisions and keeping the observations

contained therein, this Court is of the opinion that petitioner has not made out any confident case of breach of injunction, this Court is not inclined to

exercise extraordinary equitable jurisdiction. The law laid down on such exercise of jurisdiction can well be visualized from the following two

decisions, wherein the observations contained are reproduced by this Court hereinafter:Â​

(1) 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 7 as under:Â​

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.

(2) 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: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 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 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 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 the circumstance aforesaid and in view of the submissions made by learned advocate, the petitioners appear to have miserably failed in making

out a case of breach of injunction and hence, the Court is not inclined to exercise the jurisdiction and the petition being meritless, the same stands

dismissed hereby, with no order as to costs. Notice is discharged.

However, while parting with the order, as per the request of learned advocate for the petitioners, it is observed that the main suit proceedings in this

peculiar set of circumstance, deserves to be expedited and for that purpose, the liberty is reserved for the petitioners to make appropriate request to

the learned Judge to deal with and decide the main suit proceedings on its own merit, in accordance with law.