IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4778 of 2012 For Approval and Signature:
HONOURABLE MS JUSTICE SONIA GOKANI =================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law
4 as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================= NARENDRAKUMAR RAVJIBHAI PATEL - Petitioner(s) Versus VADIBHAI BHALABHAI PATEL & 2 - Respondent(s) ================================================= Appearance :
MS SHALINI S MEYER for Petitioner(s) : 1, MS TRUSHA K PATEL for Respondent(s) : 1, None for Respondent(s) : 2 - 3.
================================================= CORAM : HONOURABLE MS JUSTICE SONIA GOKANI Date : 10/09/2012 CAV JUDGMENT
1. Petitioner Narenderkumar Ravjibhai Patel has averred in the petition that in the year 1961 his father inherited 12 vighas of agricultural land, which belonged to the father of the present petitioner. It consists of Survey Nos.85,207,209 in block number 197 of Mouje Aslali, taluka-Daskroi, District: Ahmedabad and the same has been recorded in village form No.6 as Entry No.6209, was mutated in the year 1961 itself.
2. In the year 2005, the petitioner came to know about the intention of his father to dispose of the ancestral property and therefore, he requested to separate his share. However, the same was not done and agreement to sale was executed with the third party on 21.2.2005 and, therefore, the petitioner filed a Regular Civil Suit No.148 of 2005 on 23.2.2005 before learned Principal Senior Civil Judge.
In an application of injunction after bipartite hearing, prima facie the Court granted stay against further stay, alienation or any transfer of any manner.
During the pendency of the litigation respondent no.1 herein purchased the said property from the father of the petitioner on 11.4.2005 knowing fully well the pendency of the litigation. On 6.9.2009 the petitioner filed the suit for declaration and injunction against the purchaser as also against the mother and brother of the petitioner, seeking relief of cancellation of transfer of properties.
3. Application for interim relief had been requested for, which was rejected by the trial Court vide its order dated 19.4.2011.
4. Civil Appeal No.60 of 2011 had been filed before 7th Additional District Judge, Mirzapur and the same was also rejected confirming the order of the trial Court. Resultantly, present petition under Article 227 of the Constitution of India is preferred.
5. On various grounds enumerated in the present petition, the impugned order of the appellate forum has been challenged. It is submitted by the learned advocate for the petitioner that there is indefeasible right of the petitioner in the ancestral property and he is entitled to get the injunction. Though the purchaser was aware of the earlier suit, the sale deed was executed behind his back and the Court ought to have considered such vital aspect before rejecting the request of injunction. It is further urged that the Court failed to appreciate the claim of the petitioner as also his share in the HUF as the same is prima facie indicative from the material placed before the Court and entered in the revenue record, which clearly indicates the equal share of the petitioner in the year 1990. An affidavit preferred before the revenue authority clearly indicates that the petitioner has been successor of the said property and, therefore, the ancestral property would be divided after his father's death equally amongst all the heirs.
6. As the properties have been purchased by respondent No.1 without the consent of the petitioner, and the respondent being fully aware of the nature of the property and the pendency of the litigation, the petitioner ought to have been protected by the Court.
7. Learned advocate Mr.Trusha Patel appearing for respondent No.1 pointed out to this Court that the suit filed in November, 2009 is ex facie time barred. The purchase made by respondent No.1 also was known to the petitioner, who is a lawyer and is well aware of all the intricacies of law. She also pointed out the language used in maligning the Judicial Officer when the petitioner did not get the favourable result. She also pointed out that concealing vital facts, the petitioner has cleverly drafted the registered sale deed, which had been in effect from on 6.9.2005. There has been no suit preferred for his share in the property. The equity Courts have rightly not considered the claim of the petitioner. She also pointed out as to how before this Court also the list at Exhibit No.43 has been deceptively produced. She urged, therefore, not to interfere in the supervisory jurisdiction, as not only there is absence of any illegality but the petitioner, by his very conduct, has dissentitled himself in getting any equitable relief.
8. On thus, hearing learned advocates for the parties and on closely examining the material on record, it emerges that, in the earlier suit preferred, being Regular Civil Suit No.148 of 2005, by the present petitioner, the Court has held that the suit land is ancestral property and father of the present petitioner got share on partition, which was effected on 28.3.1961. The Court after noting down all the factual details, prima facie held in favour of the petitioner on the ground that he is the son of the defendant of that suit and from the very partition he would have separate right in the ancestral property. Of course, it was noted that the suit was not meant for partition but only for injunction. However, as present petitioner was making endeavour to get his share separated from ancestral property, the Court deemed it appropriate to safeguard the said property till the petitioner prefers or till the petitioner takes recourse of the suit for his share in the ancestral property and resultantly, it granted the application of injunction in respect of the suit property directing the father of the petitioner and others not to transfer or alienate in any mode or manner the same. Such order was passed on 16.9.2006 and the said suit is pending till the date.
She also urged that the brother of the petitioner and his mother are colluding with him, otherwise, the petitioner would not be privy to such a document, which is sought to be produced at Exh.43 where in fact, on the record of the trial court, such a document is not given. She further urged that only with a view to get more amount of consideration, subsequent suit has been preferred by the members of the same family in collusion with one another. Following are the decisions, which have been sought to be relied upon by learned advocate Ms. Patel:-
1). Lalubhai Hirabhai Patel and Anr. vs. Indo-Japan Industries and Ors., 2001(1) G.L.H. 77.
2). Veetrag Holding Co.Ltd. vs. Gujarat State Textile Corporation Ltd, 1996(3) GLR 536.
3). Lachhman Dass vs. Jagat Ram and others, (2007) 10 SCC 448.
4). Janardhanam Prasad vs. Ramdas, (2007) 15 SCC 174.
5). Bhanwar Singh vs. Puran and others, (2008) 3 SCC 87.
6). State of Haryana vs. Manoj Kumar, AIR 2010 SC 1779.
7). Chhagan Ranchod Kukvava vs. General Manager, Westerrn Railway, Bombay & Anr., 1998(1) G.L.H. 461.
8). Envision Engineering vs. Sachin Infa Enviro Ltd. and ors., 2002(3) GLR 2227.
9). Sanjay Verma vs. Manik Roy, AIR 2007 SC 1332.
9. It is noted by the Court that the suit land is consisting of 12 vighas and is undivided property of HUF in 1961. The father of the present petitioner inherited the same being the ancestral property. When attempt was made by the father to sell the said property, Regular Civil Suit was preferred in the year 2005 and injunction is in operation in favour of the present petitioner. However on 6.9.2005 a registered sale deed has been executed pursuant to the agreement to sell, which was effected on 21.2.2005. The stamp duty was to be paid on the total consideration which came to nearly 25 to 20 lakhs as price per 1 vighas was Rs.1,21,000/-. However, the total amount of consideration worked out was only 3 lakhs and stamps of the said amount had been paid. A declaration also was prepared on 26.4.2008, which was to the effect that the amount of sale consideration qua the present petitioner was since yet to be paid that was not included in the total amount of sale consideration.
10. It has been noted by the Court that the present suit being Regular Civil Suit No.285 of 2009 has been preferred for cancellation of sale deed dated 6.9.2005, after 4 years, 2 months and 48 days which is registered as No.10399. It has been further noted that prior to the grant of injunction in favour of the petitioner on 16.9.2006, registered sale deed already has been effected in respect of the suit land on 6.9.2005 and that aspect was not disclosed before the Court when instruction was obtained by the petitioner herein.
11. One very noteworthy fact that requires specific mention is that when Regular Civil Suit No.198 of 2005 was preferred by the present petitioner, he has not impleaded respondent No.1 herein-the purchaser as the party defendant in the suit the agreement to sell was already effected, which in fact had been made though the basis for bringing the suit and for getting injunction in his favour. He chose not to implead respondent No.1 as party respondent and both the Courts below were of the opinion that this conduct of the petitioner is reflective of his collusion with respondent No.2/1 and 2/2, as both the brothers namely petitioner and respondent No.2/2 are the lawyers and it is quite unlikely that they would not know the implications of the registered sale deed, as respondent No.2/2 also has put is signature in the registered sale deed.
12. The Court also noted that when there is a question mark with regard to the period of limitation, the equitable relief from overall consideration was not required to be granted in a subsequently preferred suit. Moreover, the possession of the suit land also had been handed over to respondent No.1 during the pendency of the earlier suit being Regular Civil Suit No.148 of 2005 where the petitioner is protected by way of an injunction when the registered sale deed has been challenged in the subsequently preferred suit. The Court also found that any person, who purchased the property, as per the principle of lis pendence, would be fully aware of the possible consequences of such transfer and, therefore, also there would be no requirement of order of injunction being reiterated and thus request of relief of injunction once again was denied specifically.
13. Some of the comments and remarks made in the written submission by the petitioner against the learned Judge of trial Court has been lamented in the judgment of the appellate forum and only on the ground that the trial is pending, the Court deemed it fit not to initiate any action of contempt against the petitioner.
14. It is necessary to make a particular mention at this stage that the petitioner herein is an advocate, who is expected to conduct himself as an officer of the Court and more, particularly, when he is a litigant before the Court, his duty not to indulge into realm of suspicion, enhances. Any order, which is adverse to his cause cannot be termed as having been actuated by any personal interest of the Judicial Officer or designed by unpalatable means. If the petitioner read something more into the judgment delivered by the trial Court with cogent proof, he could take recourse to an appropriate remedy for curbing any such act. However, as rightly pointed out by the appellate forum without any valid basis or substance and in absence of any semblance of proof deliberate use of language derogating the dignity of the office is certainly neither in a good taste nor acceptable. Relevant at this stage is the submission of the learned advocate Ms. Trusha Patel who has fervently objected to the conduct of the petitioner in respect of Exh.43 wherein the list produced before this Court, no reference is made of reply of the notice by defendant No.1. One produced by the learned advocate for the petitioner contained reference of such a reply dated 28.3.2007. According to her, this is wrong production of document at Exh. 43,which is contrary to the record of the trial Court and also argued that it is is also further indicative of ill-design on the part of the petitioner.
It is a fact that learned advocate for the petitioner sought permission of this Court to produce certified copy of Exh.43 which contain 4 documents and the fourth one is the reply of notice to the defendant No.1 dated 28.3.2007 where in fact in the certified copy produced by respondent No.1 such notice is not there.
15. Be that as it may, this Court is not to go into this aspect presently. However, the question that arise for consideration is as to whether any grounds are made out by present petitioner for the Court to interfere in supervisory jurisdiction of Article 227 of the Constitution of India. It would be worthwhile to reproduce some of the observations of the Apex Court as far as exercise of the supervisory jurisdiction under Article 227 of the Constitution of India is concerned in the case of Surya Dev Rai vs. Ram Chander Rai and others reported in (2003) 6 SCC 675, where the Apex Court has held as under:-
“ 38.(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 (iii) 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 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.
16. At the touchstone of the these observations, the facts of the case of the petitioner when are considered, as noted by both the Courts, the petitioner is found dissentitled to the protection by way of injunction in a subsequently filed suit essentially on the ground that the suit has been preferred after the delay of 4 years. The question shall also be answered whether the same is time barred at the time of trial. The Court also noted the conduct of the petitioner, who had not impleaded the purchaser till the year 2009 when in fact, previously filed suit was based on agreement to sale executed by and between the father of the petitioner and respondent No.1 herein in February, 2005. What also emerges from the record is that the prior to the grant of injunction in the earlier suit on 6.9.2005, the registered sale deed had already been effected. Believing it for a moment that the petitioner was unaware of such registered sale deed executed in favour of the present respondent no.1 despite the pendency of the suit, as the entry in the revenue record is already mutated in the name of respondent No.1 long ago, it is unlikely that he would not be aware of such a transfer. The petitioner is already protected by way of injunction in the earlier preferred suit where he later on impleaded present respondent No.1 and, therefore, allegation of mentioning less amount of consideration as also their being aware of pendency of such suit and also applicability of the principle of lis pendence are all the aspects that can be considered by the trial Court at the time of adjudicating the disputes between the parties after framing of the issues. Petitioner's very conduct is questioned while obtaining injunction in his favour in the very first suit. His conduct of delay in the subsequent suit also further raises eyebrows. However, all these aspects cumulatively lead not to interfere with the order impugned. Moreover, in subsequently preferred suit for the various reasons mentioned hereinabove collectively when both the Courts below did not find any justifiable ground or reason to grant equitable relief in favour of the petitioner, nothing is pointed out by the petitioner for this Court to invoke extraordinary jurisdiction in favour of the petitioner. Resultantly, this petition is dismissed.
17. Learned advocate for the petitioner has also urged expeditious hearing of the pending suit, petitioner shall be at liberty to request the trial Court to proceed with the trial of Regular Civil Suit No.148 of 2005. If such an application is made, the Court may consider such a request on overall consideration of circumstances and decide the same on its own merit as this Court has expressed no opinion on such request. Petition stands disposed of in the above terms.
sudhir (Ms.Sonia Gokani, J.)