A.J. Shastri, J
1. Present petition under Article 226 of the Constitution of India is filed for the purpose of seeking following reliefs:-
(a) Admit, hear and allow this appeal.
(b) Quash and set aside order datced 11.06.2019 passed by the learned 13th Additional Senior Civil Judge and ACJM, Surat in application below
Exhibit 5 in Special Civil Suit No.45 of 2019.
(c) …......â€
2. It is the case of the petitioner that the petitioner is engaged in the business of dyed cloths at Surat, holding GST number and the respondent is
carrying on the cloth business with her son Udit Baveja. The petitioner and the respondent are living in the very same apartment and they know each
other and the respondent and her son introduced themselves to the petitioner as traders in cloth business. The respondent and her son got in touch with
the petitioner to buy cloths from them. In respect of the said transaction, the respondent herein had purchased dyed cloths worth Rs.1,36,74,925/- from
the petitioner on different dates against various bills in the year 2017-18. Against the said transaction, the respondent has paid Rs.72,98,599/- and as
per the ledger account of the petitioner, still the respondent is bound to pay an amount of Rs.63,76,326/- plus interest of Rs.5,44,039/-. To recover the
said amount, cheques have been handed over and assured the petitioner that same will be honored and the petitioner will receive the payment.
However, the said cheques for want of sufficient fund returned. As a result of this, notice was issued under the provisions of the Negotiable
Instruments Act and then the petitioner was required to file suit, being Special Civil Suit No.45 of 2019 in the Civil Court at Surat. On account of
default, deliberately being committed by the respondent and her son, according to the petitioner, he has been placed in a great financial crisis and the
respondent somehow is trying to sell away the property, i.e. flat No.F-204, Aagam Residency-F, situated on Final plot No.135, Town Planning Scheme
No.1 (Vesu), Revenue Survey Nos.54/1 and 54/2, old Survey Nos.59 and 60, Mouje Vesu, City Surat, District Surat, admeasuring 750 Sq. Ft. Since
that was apprehended by the petitioner, the petitioner preferred an application under Order-38 Rule 5 of the Code of Civil Procedure ('the Code' for
short) for seeking attachment of the said property. Learned Judge however did not consider the same and by reasoned order, rejected the application
by order dated 11.6.2019 and the said judgment is made the subject matter of the present petition.
3. Learned advocate Mr. Malkan appearing on behalf of the petitioner has submitted that on account of the transaction, huge amount is remaining
outstanding to be paid to the petitioner and the respondent is likely to run away from the property by selling it away which would cause enormous
prejudice to the interest of the petitioner. It has been submitted that learned Trial Judge is sufficiently cached with the power under Order 38 Rule 5 of
the Code, by virtue of which, either security to be offered by the respondent or for attaching the property. Considering the aforesaid huge liability
which has been incurred, at least the Court ought to have considered the request and the property ought to have been attached. That having not been
done, serious error is committed by the Court below. Mr. Malkan has vehemently submitted that the entire approach shown by the Court below is also
not just and proper in view of the objects provided under the aforesaid provisions. It is in this view of the matter, the very exercise of jurisdiction
deserves to be deprecated. Mr. Malkan has submitted that even the reasons which are assigned by the Court below are not sufficient enough to
indicate that the conclusion arrived at is just and proper. That be so, the order in question deserves to be quashed and set aside.
4. Having heard learned advocate for the petitioner and having gone through the order, which has been passed, it appears that the property in question
which is sought to be attached is already gifted on 19.6.2018, i.e. much prior to filing of the suit. The suit has been filed on 31.1.2019, whereas the gift
deed which has been registered is dated 19.6.2018. It further appears that learned Trial Court found that there is no material sufficient enough
provided to exercise the jurisdiction under Order 38 Rule-5 of the Code. The condition precedent of dishonest intention just to defeat or deny possible
decree has to be proved with some material and the discretion under Order 38 Rule 5 of the Code cannot be exercised mechanically and therefore,
here is a case in which there is a satisfaction arrived at by the Court below that after filing of the suit, there is no apprehension voiced out and the
same was not possible in view of the fact that in the month of June 2018 itself, the property has already been gifted. Be that as it may, even learned
Trial Judge found from the affidavit and counter affidavit that there is no material produced by the petitioner which necessitated learned Judge to
exercise the jurisdiction under Order 38 Rule 5 of the Code.
The object of attachment before judgment is to prevent any attempt on the part of the defendant to defeat realization of the decree that may be passed
against him. But, here is a case in which the property in question is not apprehended to be passed on or changed the hands since prior to filing of the
suit, the same is already passed on. That being so, the conclusion arrived at by the Court below appears to be in consonance with the provisions and
cannot be said to be perverse or irregular in any form. There is no justification found to have been shown by the petitioner to learned Judge about the
ownership of the property, which is sought to be attached. When the property itself is not within the hands of the respondent- defendant, there is
hardly any circumstance available for learned Judge to pass any order of attachment before judgment as contained in Order 38 Rule 5 of the Code.
Detailed discretion arrived at by learned Judge is making it clear that the present petitioner has not made out any case to call for interference under
Order 38 Rule 5 of the Code, since the condition precedent and the ingredients which are prima facie to be established have not been able to be
pointed out by the petitioner. As a result of this, the discretion which has been exercised by the Court below cannot be said to be illegal or irregular in
any form. That while sitting in extraordinary jurisdiction equitable in nature on the Court, on the basis of the very same nature, it is not possible to
substitute the finding or conclusion even if possible. Unless and until there is any perversity or jurisdiction error, exercise of extraordinary jurisdiction is
normally not to be exercised. Now, in that view of the matter, the Court is unable to examine the matter any further as not only on the basis of very
same fact, the Trial Court has come to the conclusion against the petitioner and during the course of hearing before this Court also, no such
circumstance is reflected which calls for any interference. As a result of this, such stringent power in the midst of adjudicating process of the suit does
not deserve to be exercised.
Accordingly, the petition lacks merits.
5. Additionally, the Court is of the view that the extraordinary jurisdiction cannot exercised in a routine or casual manner unless and until there is any
perversity is reflected and only in such rare circumstance, error committed by the Court below deserves to be corrected. Here is a case in which the
Court is not finding any such circumstance which warrants exercise of extraordinary 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:-
(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 7 as under:-
7. 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.
7. 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.
6. In the wake of the aforesaid position of law prevailing and in view of the circumstances on record, this Court is not inclined to exercise the
extraordinary jurisdiction. The petition, being devoid of merit, stands dismissed with no order as to costs.
