Posted On by &filed under Gujarat High Court, High Court.

Gujarat High Court
Rajeshkumar vs Shantilal on 20 December, 2010
Author: Md Shah,&Nbsp;
   Gujarat High Court Case Information System 







SCA/13862/2009	 5/ 5	ORDER 






CIVIL APPLICATION No. 13862 of 2009


JAYANTILAL PATEL & 1 - Petitioner(s)


JADAVJI JAGANI & 5 - Respondent(s)

Appearance : 
Petitioner(s) : 1 - 2. 
NOTICE SERVED for Respondent(s) : 1 - 3. 
JAYANT P BHATT for Respondent(s) : 1 - 2. 
Respondent(s) : 1 - 2. 
MS SEJAL K MANDAVIA for Respondent(s) :
SERVED BY AFFIX.-(R) for Respondent(s) : 4, 
Respondent(s) : 5 - 6. 






: 14/12/2010 



1. By way of this
petition, the petitioners – proposed defendant nos.5 and 6
challenge the order dated 08.12.2009 passed by the learned Additional
Senior Civil Judge, Rajkot below Exh.157 in Regular Civil Suit
No.1491 of 1993.

2. Application –

Exh.157 was filed by the original plaintiffs praying that the present
petitioners be impleaded as additional defendants in Regular Civil
Suit No.1491 of 1993. Learned Trial Court vide order dated
08.12.2009 allowed the said application. Being aggrieved by the said
order, present petitioners have preferred present petition.

3. It
is submitted by Mr.Patel, learned Advocate for the petitioners that
it was within the knowledge of respondents herein – original
plaintiff that they were in possession of the suit property since
1997 – 1998 and inspite of that they did not choose to prefer
application for joining present petitioners as party and therefore,
qua present petitioners the suit is time barred. It is also
submitted that application for joining present petitioners as party
defendants is preferred on 03.10.2009 and without considering this
aspect learned Trial Court has allowed the application and committed
error in allowing the said application. It is also submitted that
learned Trial Court committed error in holding that suit has been
filed for possession and therefore, petitioners are required to be
joined as party, but, in fact there was no prayer for possession in
the plaint. Therefore, it is requested to allow the petition.

4. Petition is
opposed by Mr.Jayant Bhatt, learned Advcoate for respondent Nos.1 and

2. It is submitted by Mr.Bhatt that original plaintiffs filed
application Exh.157 for impleading present petitioners as proposed
defendants to the suit. It is submitted that it was pleaded that the
suit land, during the pendency of the suit, has been transferred in
favour of proposed defendants. It is submitted that therefore, they
were necessary and proper party and are required to be impleaded as
party defendants to the suit. It is submitted by Mr.Bhatt, that
during pendency of suit and though injunction was granted against
original defendants they have transferred two shops of suit property
to the present petitioners. Therefore, it is requested to dismiss
the petition.

5. Heard
learned Advocates for the parties.

6. This Court has
gone through the impugned order passed by the learned Trial Court.
The suit is filed in the year 1993 and though injunction was granted
and was in operation in favour of respondents herein – original
plaintiffs, original defendants have transferred two shops of suit
property to proposed defendants. The contention on behalf of the
petitioner with regard to issue of limitation is concerned, it can be
raised before the learned Trial Court and it can only be decided
during trial by the learned Trial Court.

7. Learned
Advocate for the petitioners herein has failed to show that order
passed by the learned Trial Court is without jurisdiction and in
opinion of this Court, no jurisdictional error has been committed by
the learned Trial Court. Hence, under Article 227 of the
Constitution of India, question does not arise to entertain this
petition as no error has been committed by the learned Trial Court.

8. Hon’ble
Supreme Court in the case of Jai Singh and Others v/s.
Municipal Corporation of Delhi and Ors. reported in (2010)
9 SCC 385 in para 15 has observed as under :-

“15. We
have anxiously considered the submissions of the learned counsel.
Before we consider the factual and legal issues involved herein, we
may notice certain well recognized principles
governing the exercise of jurisdiction by
the High Court under Article 227 of the Constitution of India.
Undoubtedly the High Court, under this Article, has the
jurisdiction to ensure that all subordinate courts as well as
statutory or quasi judicial tribunals, exercise the powers vested in
them, within the bounds of their authority. The High Court has the
power and the jurisdiction to ensure that they act in accordance with
well established principles of law. The High Court is vested with the
powers of superintendence and/or judicial revision, even in matters
where no revision or appeal lies to the High Court. The jurisdiction
under this Article is, in some ways, wider than the power and
jurisdiction under Article 226 of the Constitution of India. It is,
however, well to remember the well known adage that greater the
power, greater the care and caution in exercise thereof. The High
Court is, therefore, expected to exercise such wide powers with great
care, caution and circumspection. The exercise of jurisdiction must
be within the well recognized constraints. It can not be exercised
like a ‘bull in a china shop’, to correct all errors of
judgment of a court, or tribunal, acting within the limits of its
jurisdiction. This correctional jurisdiction can be exercised in
cases where orders have been passed in grave dereliction of duty or
in flagrant abuse of fundamental principles of law or justice. The
High Court cannot lightly or liberally act as an appellate court and
re-appreciate the evidence. Generally, it can not substitute its own
conclusions for the conclusions reached by the courts below or the
statutory/quasi judicial tribunals. The power to re-appreciate
evidence would only be justified in rare and exceptional situations
where grave injustice would be done unless the High Court interferes.
The exercise of such discretionary power would depend on the peculiar
facts of each case, with the sole objective of ensuring that there is
no miscarriage of justice.”

9. Now
so far as factual aspect and evidence is concerned, this Court has
very limited power to interfere and so this Court is not giving any
opinion regarding merits of the case and issues involved in the case.

10. In
view of above, present petition is dismissed. Rule discharged. At
this stage, learned Advocate for the petitioner requests that interim
relief granted by this Court be continued for 4(four) weeks. The
request is granted. Interim relief granted by this Court to continue
for 4(four) weeks.





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