Power under Article 227 is discretionary and has to be exercised on equitable principle: Gujarat High Court

 on : Tue Apr 27 21:06:10 IST 2021 C SCA 15899 2019 JUDGMENTIN THE HIGH COURT OF GUJARAT AT AHMEDABADR SPECIAL CIVIL APPLICATION NO. 158919 FOR APPROVAL AND SIGNATURE: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI=======================================1 Whether Reporters of Local Papers may be allowed to see the judgment NO2 To be referred to the Reporter or not YES3 Whether their Lordships wish to see the fair copy of the judgment NO4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder NO=======================================KUNAL VINAYKUMAR RAYLLON VersusDHANSUKH HARJIBHAI PATEL =======================================Appearance:MS TRUSHA K PATEL(2434) for the Petitioner(s) No. 1 2JENIL M SHAH(7840) for the Respondent(s) No. 3MR SK PATEL(654) for the Respondent(s) No. 2NOTICE SERVED(4) for the Respondent(s) No. 1=======================================CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI Date : 27 04 2021 ORAL JUDGMENT1.This petition under Article 227 of the Constitution of India is filed by the petitioners against the order dated 09.08.2019 passed below exhs. 68 and 70 in Special Civil Suit No. 1415 by the learned 4th Additional Senior Civil Judge and Page 1 of 20 on : Tue Apr 27 21:06:10 IST 2021 C SCA 15899 2019 JUDGMENTAdditional Chief Judicial Magistrate Bhuj Kachchh.2.Facts in brief of the case on hand are that the land bearing revenue survey No. 30 and 173P13 of Village: Mirzapur Taluka: Bhuj District: Kachchh is the land in dispute. The said land originally belonged to the respondent No. 1 herein viz. Dhansukhbhai Harjibhai Patel. On 02.05.2000 Dhansukhlal executed a power of attorney in favour of his brother in law namely Dhirajlal. Since Dhansukhbhai Harjibhai Patel was living in Oman his properties were being managed by his brother in law Dhirajlal. On 13.6.2000 on the basis of power of attorney Dhirajlal sold out one of the lands by a registered sale deed. On 14.12.2000 Dhirajlal applied for release of certain lands from the Notification issued by the Forest Department. On 25.07.2001 Dhirajlal Ladhabhai Patel acting as power of attorney holder of Dhansukhbhai applied for conversion of land bearing survey No. 30 paiki A2 30G into old tenure land. On 17.05.2003 Dhansukhbhai executed a power of attorney in favour of the father of the respondent No. 3 Vasudevbhai. After execution of power of attorney in favour of Vasudevbhaifurther communications and proceedings had been carried out by Vasudevbhai only and Dhirajlal had stopped taking any steps. On 22.12.2003 an application was submitted that on 17.05.2003 applicant Dhansukhbhai had executed power of attorney in favour of Vasudevbhai and hence premium would be paid by him and that further communication be made with him. On 01.02.2004 third party published a notice for purchase of land bearing Survey No. 30. On 03.02.2004 Vasudevbhai had acting as a power of attorney holder of Dhansukhbhai published objections against the same. On 23.7.2004 Vasudevbhai paid Rs.36 60 160 for conversion of new tenure land bearing survey Page 2 of 20 on : Tue Apr 27 21:06:10 IST 2021 C SCA 15899 2019 JUDGMENTNo. 30 paiki A2 30G into old tenure land. On 08.09.2004 the Collector passed an order allowing the application. On 10.11.2005 Vasudevbhai issued a cheque for Rs. 30 27 088 in Government treasury for conversion of land bearing survey No. 173 paiki A2 30G into old tenure. On 12.11.2005 the said cheque was realized from the bank account of Vasudevbhai. On 30.11.2005 the Collector passed the order converting survey No. 173 paiki A2 30G into old tenure wherein also name of Vasudevbhai was mentioned as a power of attorney holder of Dhansukhbhai. On 07.12.2005 Vasudevbhai applied for Development Permission and paid Rs. 33 827 to BHADA. On 10.08.2006 Vasudevbhai appeared in the Special Civil Suit No. 2005 as a power of attorney holder of the applicant and is defending the suit on his behalf. Since land bearing survey No. 173 was included in Forest Zone Vasudevbhai had on 30.12.2004 applied for its exclusion from the Forest Zone and inclusion in General Commercial Zone. On 09.05.2007 UD & UH Department State of Gujarat replied to Vasudevbhai to apply to BHADA. On 29.02.2008 one more application was given by Vasudevbhai to BHADA. Thus all throughout Vasudevbhai i.e. father of respondent No. 3 herein was acting as a power of attorney holder of respondent No. 1 i.e. Dhansukhbhai.2.1On 05.06.2009 Vasudevbhai acting as a power of attorney holder of Dhansukhbhai executed a sale deed in favour of Nishant Thakkar i.e. respondent No. 3 herein. However the Sub registrar had referred the said sale deed under section 32A of the Stamp Act for proper valuation. On 19.03.2010 the Deputy Collector Stamp Duty Valuation considered the sale deed as one of N.A. land and hence ordered to pay the stamp duty treating the land as NA land. On 16.11.2010 the order passed by the Page 3 of 20 on : Tue Apr 27 21:06:10 IST 2021 C SCA 15899 2019 JUDGMENTDeputy Collector was confirmed by the CCRA. Nishantbhai filed Special Civil Application No. 29311 before this Court challenging both the above referred orders. On 21.02.2012 this Court allowed the petition and quashed the orders passed by the Deputy Collector and CCRA. On 01.06.2013 after remand the order was passed to pay the deficit stamp duty which was paid and hence the sale deed was ordered to be registered. 2.2Though the lands were already sold out to Nishant Vasudev Thakkar Dhansukhbhai executed registered sale deed in favour of Manish Ambalal Padmaniqua half of the disputed lands on 20.01.2014. On 31.08.2014 a Public Notice was issued at the instance of Dhansukhbhai whereby transaction with Nishantbhai and his father Vasudevbhai were disowned. Hence on 27.09.2014 an F.I.R. being C.R. No. I 1314 came to be lodged by Nishantbhai against Dhansukhbhai. The matter in that regard is pending before this Court. In this background on 08.12.2015 Special Civil Suit No. 1415 came to be filed by Nishant Vasudev Thakkar against Patel Dhansukhlal Harji and Manish Ambalal Padamni seeking reliefs viz.declaration that the defendants have no right to interfere with the rights title and possession of the plaintiff declare that the Sale deed dated 20.01.2014 executed by defendant No. 1 in favour of defendant No. 2 is void and permanent injunction.2.3In the said suit the defendants had appeared and on 01.07.2016 and counter claim came to be filed by Dhansukhbhai Limbani and Manish Padamani who are the defendants in the said suit mainly seeking cancellation of power of attorney deed dated 17.05.2003 registered sale deed dated 05.06.2009 and Page 4 of 20 on : Tue Apr 27 21:06:10 IST 2021 C SCA 15899 2019 JUDGMENTseeking damages of Rs.5 Crore. On 03.02.2018 a registered sale deed came to be executed for the land in dispute by Nishant Thakkar in favour of the petitioners herein i.e. Kunal Rayllon and Dipakbhai P. Thakkar and consideration of Rs.1 15 00 000 was paid. Pursuant to the sale deed dated 03.02.2018 an Entry No. 6452 was posted which is ordered to be certified overruling objections raised by Dhansukhbhai Limbani on 16.05.2018. On 09.04.2018 an application exh. 44 was filed by the original defendant Nos. 1 and 2 to join the present petitioners as party defendants in the counter claim filed by them which came to be allowed and the petitioners herein were joined as defendants in counter claim. On 10.07.2018 an application was filed by Kunal Rayllon vide exh. 68 seeking to join him as plaintiff No. 2 and to amend the plaint by bringing on record the fact of execution of sale deed in his favour. Same day an application was also filed by Dipak Thakkar vide exh. 70 seeking to join him as plaintiff No. 3 and to amend the plaint by bringing on record the fact of execution of sale deed in his favour. The said applications came to be rejected by a common order 09.08.2019 and hence this petition.3.Rule.4.Heard learned advocate Ms. Trusha K. Patel for the petitioners learned advocate Mr. S. K. Patel for the respondent Nos. 1 and 2 and learned advocate Mr. Jenil Shah for the respondent No. 3.4.1The learned advocate for the petitioners vehemently argued that the impugned order is contrary to the express provisions of O.22 R.10 r w. O.1 R.10 of the Civil Procedure Code Page 5 of 20 on : Tue Apr 27 21:06:10 IST 2021 C SCA 15899 2019 JUDGMENT19087 SCC 417 as in the facts and circumstances of the case the said decision has no application. 4.2The learned advocate for the petitioners further submitted that the learned trial Judge has failed to appreciate the provisions of Section 52 of the Transfer of Property Act 1882 as it does not debar joining of parties under O.22 R.10 of the CPC. It is submitted that it would only mean that even if the subsequent purchaser is not joined he would be bound by the decree that may be passed against his predecessor in title. Further in Gujarat for application of section 52 of the Transfer of Property Act lis pendens have to be registered however in the case on hand there is nothing on record to show that the lis pendens is registered and hence Section 52 of the said Act has no application in the present case. It is also submitted that the learned trial Judge has not properly followed the ratio laid down in the decisions of the Hon ble Apex Court in Bibi Zubaida Khatoon v. Nabi Hassan Saheb 2003GLHEL SC 3681 and in Sanjay Verma v. Manik Roy 2006 GLHEL SC 38393 and submitted that decision in Bibi Zubaida KhatoonPage 6 of 20 on : Tue Apr 27 21:06:10 IST 2021 C SCA 15899 2019 JUDGMENTdoes not lay down any law that the purchaser need not be joined. Further it is submitted that though it is specifically observed in the decision in Amit Kumar Shaw v. Farida Khatoon 2005 AIR SC 2209 that a transferee pendente lite is vitally interested in the litigation to the extent he has acquired interest from the defendant the learned trial Judge has not assigned any reasons for not following the ratio laid down in the said decision.4.3The learned advocate for the petitioners further submitted that as per the settled principles of law mentioning of wrong provisions or non mentioning of relevant provisions in an application is immaterial. To substantiate her say she has relied upon a few decisions viz. i)9 SCC 173 paragraph 13 ii)12 SCC 175 paragraph 14 and iii) 2008GLH 553 paragraph 11.4.4So far as the say that the petitioners are necessary and property party in the suit she has relied upon several decision viz. i)1 SCC 787 ii) 2004GLR 106 and iii) 1984 GLH 883. She also drawing attention of the Court to O.8 R.6 CPC submitted that counter claim would have separate entity of being a separate suit.4.5Thus making above submissions it is urged that the impugned order may be set aside and to allow this petition.5.Per contra the learned advocate for the respondent Nos. 1 and 2 has while strongly opposing the present petition and supporting the impugned order submitted that the order impugned herein being well reasoned order supported with the settled principles of law requires no interference. It is submitted Page 7 of 20 on : Tue Apr 27 21:06:10 IST 2021 C SCA 15899 2019 JUDGMENTthat application of the petitioners was under specific provisions i.e. O.1 R.10 r w. Section 151 CPC and the learned trial Court after due application of mind has rejected the said application giving detailed reasons. It is submitted that a petition filed under Article 227 of the Constitution of India has a specific scope for interference in the orders of the lower Court Tribunal and Authority and not for mere correction or error of law. He submitted that the learned trial Court has rejected the application mainly on the ground that the petitioners are already impleaded as a party in the counter suit. It is submitted that it is inadvertently mentioned as counter suit instead of suit. However the fact remains that the petitioners are already party to the proceedings in the form of the defendants before the learned trial Court. It is submitted that if the impugned order is set aside serious prejudice would be caused to the respondents herein. Further the proceedings before the trial Court would be prolonged unnecessarily. It is also submitted that the petitioners are the relatives of the original plaintiff and hence there are all chances that they may collude with each other.5.1The learned advocate for the respondent Nos. 1 and 2 has further submitted that when the application before the learned trial Court was specifically made under O.1 R.10 CPC the petitioners cannot be permitted to argue their case under O.22 R.10 CPC more particularly when the present respondents had no occasion or chance to meet with the case under O.22 R.10 CPC which is now sought to be canvassed before this Court for the first time. The learned advocate for the respondent Nos. 1 and 2 further submitted that wrong referring of any provisions does not vitiate the order passed by the authority if otherwise the authority has power and jurisdiction to pass the order as held by Page 8 of 20 on : Tue Apr 27 21:06:10 IST 2021 C SCA 15899 2019 JUDGMENTthe Hon ble Apex Court in Ram Sunder Ram v. Union of India 13 SCC 255and N. Mani v. Sangeetha Theatres & Ors. 12 SCC 2783 SCC 524.5.3The learned advocate for the respondent Nos. 1 and 2 submitted that as per the settled legal position even if the petitioners are joined as plaintiffs in the main suit they will have to step in the shoes of the plaintiff and they cannot add anything in the suit as held by the Hon ble Apex Court in Thomson PressLtd. v. Nanak Builders & Investors P. Ltd. & Ors. AIR 2013 SC 2389Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff the Court may at any stage of the suit if satisfied that the suit has been instituted through a bona fide mistake and that it is necessary for the determination of the real matter in dispute so to do Page 10 of 20 on : Tue Apr 27 21:06:10 IST 2021 C SCA 15899 2019 JUDGMENTorder any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.section 22 the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons. ”7.2Thus by virtue of O.1 R.10(2) CPC discretion is vested in the Court and the Court may strike out or add parties at any stage of the proceedings either upon or without the application of either party and on such terms as may appear to the Court to be just and order that the name of any party improperly joined whether as plaintiff or defendant be struck out and that the name of any person who ought to have been joined whether as plaintiff or defendant or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions Page 11 of 20 on : Tue Apr 27 21:06:10 IST 2021 C SCA 15899 2019 JUDGMENTinvolved in the suit be added. 7.3Further O.8 R.6A CPC is relevant for the purpose and hence extracted hereunder:“6A.Counter claim by defendant.—(1) A defendant in a suit may in addition to his right of pleading a set off under rule 6 set up by way of counter claim against the claim of the plaintiff any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired whether such counter claim is in the nature of a claim for damages or not: Provided that such counter claim shall not exceed the pecuniary limits of the jurisdiction of the court.andof O.8 CPC it appears that a counter claim shall have the same effect as a cross suit and shall be treated as plaint so as to enable the Court to pronounce a final judgment in the same suit both on the original claim and on the counter claim. Accordingly the counter claim is as good as a cross suit and the Court concerned shall pronounce the judgment on both viz. original claim as well as on the counter claim. Page 12 of 20 on : Tue Apr 27 21:06:10 IST 2021 C SCA 15899 2019 JUDGMENT7.5In the aforesaid prelude if the facts of the case are adverted to by way of counter claim the original defendant Nos. 1 and 2 respondent Nos. 1 and 2 herein have also prayed for declaration and permanent injunction qua the suit property against the original plaintiff. At the cost of repetition it is stated that the petitioners are already joined as defendants in the counter claim which is filed in the original suit meaning thereby they are already there on the record of the counter suit in the main suit. Further the learned advocate for the petitioners has contended that the impugned order was passed expressly in violation of O.22 R.10 r w. O.1 R.10 CPC however a bare reading of O.22 R.10 CPC reveals that it confers a discretion on the Court hearing the suit to grant leave for the person in or upon whom such interest has come to vest or devolve to be brought on record. Bringing of a lis pendens transferee on record is not as of right but is the discretion of the Court. Further as per the settled law though not brought on record the lis pendens transferee remains bound by the decree. However in the present case the petitioners are indisputably the lis pendens transferee and are already on the record of the counter suit in the main suit subject matter of both is the same viz. the suit property for which different sale deeds have been executed and registered. Further the petitioners can very well take all the contentions as defendants in the counter claim application.7.6The above cited provisions viz. O.1 R.10 O.8 R.6A and O.22 R.10 of the CPC are enabling provisions vesting discretion in the Court concerned and are subservient to do the substantial justice. As said earlier the petitioners are already on the record of the counter claim in the suit and thereby it is not a case that they are not a party anywhere in the proceedings which are Page 13 of 20 on : Tue Apr 27 21:06:10 IST 2021 C SCA 15899 2019 JUDGMENTpending or that their right of being heard is taken away. The learned trial Judge relying upon decision of the Hon ble Apex Court in Bibi Zubaida Khatoon and in Sanjay Vermahas come to the conclusion that on consideration of the principles laid down in the said cases present petitioners are not entitled as of right to be made party to the suit. Further the trial Court did not find any reason to use its discretion to add them as plaintiffs in the suit for mere reason that no permission had been obtained by the Court even knowing that the suit property is under lis. Further the trial Court has also observed that the Court had failed to find any loss to the present petitionersif they were not joined as plaintiffs. 7.7The learned advocate for the petitioners has submitted that though it is observed in Amit Kumar Shawthat transferee pendente lite is vitally interested in the litigation to the extent he has acquired interest from the defendant the learned trial Judge has not assigned any reasons for not following the ratio laid down in the said decision however in the opinion of this Court as it observed in the said decision onlythe Court has discretion in the matter which must be exercised judiciously. In the case on hand when the petitioners are already joined as party defendants in the counter claim in the suit and when it is not the case of the petitioners that their right to defend is curtailed in any way and when it is the case of the respondent Nos. 1 and 2 that the original plaintiff and the petitioners are relatives and between whom the sale transaction pendente lite has taken place in the considered opinion of this Court the learned trial Judge has committed no error which requires interference at the hands of this Court. Page 14 of 20 on : Tue Apr 27 21:06:10 IST 2021 C SCA 15899 2019 JUDGMENT7.8Further if the decision of the Hon ble Apex Court in Sadhana Lodhis perused it is observed that the supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision . Thus under supervisory jurisdiction under Article 227 of the Constitution this Court has limited scope. 7.9Further in the decision of Thomson PressLtd.the Hon ble Apex Court while allowing the transferee pendente lite to be joined as party defendant in the suit permitted him to take all such defences which are available to the vendor as the appellant derived title if any from the vendor on the basis of purchase of the suit property subsequent to the agreement with the plaintiff and during the pendency of the suit. Here in the case on hand also the petitioners are the party defendants in the counter claim which is in the main suit only and thus it is not the case that they are not the party to the suit. Further when the learned advocate for the respondent Nos. 1 and 2 has specifically averred that it may be inadvertently mentioned as counter suit instead of suit this Court does not find any reason to interfere in the impugned order.Page 15 of 20 on : Tue Apr 27 21:06:10 IST 2021 C SCA 15899 2019 JUDGMENT7.10So far as the decisions relied upon by the learned advocate for the petitioners on the points of non mentioning the proper provisions or wrong mentioning of the provisions as well as on necessary and proper parties are concerned this Court deems it proper not to discuss the same as not required.7.11Last but not the least it would not be out of place to mention here that supervisory jurisdiction under Article 227 of the Constitution of India is confined only to see whether the subordinate Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of record much less an error of law and the High Court cannot act as an appellate authority and has only to see that an inferior Court has to function within the limits of its authority. In the case of Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil 8 SCC 329 the Hon’ble Apex Court has considered in detail the scope of interference by this Court to hold and observe that Article 227 can be invoked by the High Court Suo motu as a custodian of justice. An improper and a frequent exercise of this power would be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle. Relevant observations made therein read as under: “57.Articles 226 and 227 stand on substantially different footing. As noted above prior to the Constitution the Chartered High Courts as also the Judicial Committee of the Privy Council could issue prerogative writs in exercise of their original jurisdiction.SCC 401 at page 469)].58.However after the Constitution every High Court has been conferred with the power to issue writs under Article 226 and these are original proceeding.para 25 page 690 and also the decision of the Constitution Bench of this Court in Hari Vishnu Kamath vs. Ahmad Ishaque and others A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by 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.High Courts cannot on 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 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 its 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 Singhand the principles in Waryam Singhhave been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.(e) According to the ratio in Waryam Singhfollowed 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.Page 18 of 20 on : Tue Apr 27 21:06:10 IST 2021 C SCA 15899 2019 JUDGMENT(g) Apart from the situations pointed inandHigh Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of 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) 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 the case of L.Chandra Kumar vs. Union of India & others reported in3 SCC 261 and therefore abridgement 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 CodeAct 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 Page 19 of 20 on : Tue Apr 27 21:06:10 IST 2021 C SCA 15899 2019 JUDGMENTand the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to 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 counter productive and will divest this extraordinary power of its strength and vitality.7.12Further in Ouseph Mathai and Ors. v. M. Abdul Khadir AIR 2002 SC 110:MANU SC 0718 2001 it is held as under: “...Only wrong decision may not be a ground for the exercise of jurisdiction under this article unless the wrong is referable to grave dereliction of duty flagrant abuse of power by the subordinate Courts and tribunals resultantly in “grave injustice” to any party.”8.For the aforesaid discussion and observations this petition fails and is dismissed accordingly. Rule is discharged with no order as to costs.8.1However it it is clarified that the petitioners are permitted to take all such defences including the written statement in counter suit which are available to them as the petitioners derived title if any from the on the basis of purchase of the suit property subsequently during the pendency of the suit. [ A. C. Joshi J. ]hirenPage 20 of 20 

Summary: 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. This was said in the case of Kunal Vinaykumar Rayllon vs Dhansukh Harjibhai Patel [C/SCA/15899/2019] by Dr. Justice Ashokkumar C. Joshi in the High Court of Gujarat The facts of the case are that a petition under Article 227 of the Constitution of India is filed by the petitioners against the order dated 09.08.2019 passed by the learned 4th Additional Senior Civil Judge, and Additional Chief Judicial Magistrate The petitioners contended that the impugned order is contrary to the express provisions of O.22 R.10 r/w. O.1 R.10 of the Civil Procedure Code. Secondly, by an order, the petitioners were ordered to be joined as a party defendants in the counter claim only and not in the suit, however, the trial Judge has failed to appreciate the said fact and erred in passing such an order. It was further contended that as per the settled principles of law, mentioning of wrong provisions or non-mentioning of relevant provisions in an application, is immaterial. The respondents contended that the application of the petitioners was under specific provisions i.e. O.1 R.10 r/w. Section 151 CPC and the trial Court, after due application of mind, has rejected the said application giving detailed reasons. Secondly, a petition filed under Article 227 of the Constitution of India has a specific scope for interference in the orders of the lower Court, Tribunal and Authority and not for mere correction or error of law. Further, the wrong referring of any provisions does not vitiate the order passed by the authority if otherwise the authority has power and jurisdiction to pass the order The Court referred to the case of Ouseph Mathai and Ors. v. M Abdul Khadir [AIR 2002 SC 110] wherein it is held that “Only wrong decision may not be a ground for the exercise of jurisdiction under this article unless the wrong is referable to grave dereliction of duty, flagrant abuse of power by the subordinate Courts and tribunals, resultantly in “grave injustice” to any party”.