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2024 Supreme(Online)(GUJ) 4222
HIGH COURT OF GUJARAT
J. C. DOSHI, J
BHAVNABEN PARESHBHAI BRAHMBHATT – Appellant
Versus
ALKABEN W/O NITINBHAI LALLUBHAI PATEL – Respondent
R/SPECIAL CIVIL APPLICATION NO. 8946 of 2024
The High Court's supervisory jurisdiction under Article 227 does not extend to re-evaluating evidence or facts, but only to correcting grave legal errors.
Headnote:(A) Constitution of India - Article 227 - Civil Procedure Code, 1908 - Order 26 Rule 10A - Petition for quashing order rejecting application for scientific investigation of telephonic conversation - The petitioner, a defendant in a civil suit, sought to introduce evidence of a telephonic conversation with the deceased plaintiff to support her claim of co-ownership of property. The trial court rejected the application, citing lack of timely evidence and potential for delaying proceedings. (Paras 1, 4, 13)
(B) Jurisdiction of High Court - The High Court's supervisory jurisdiction under Article 227 is limited to correcting grave derelictions of duty or flagrant violations of law, not to re-evaluate evidence or facts. (Paras 14, 15)
Facts of the case:
The petitioner filed a petition under Article 227 challenging the trial court's order rejecting her application for scientific investigation of a telephonic conversation with the deceased plaintiff, who had filed a suit for possession against her. The petitioner claimed the conversation was crucial to her defense of co-ownership of the disputed property.
Findings of Court:
The trial court found that the application was an attempt to prolong the trial and that the evidence was not timely presented.
Issues: The main issues were whether the trial court erred in rejecting the application for scientific investigation and whether the High Court should intervene under Article 227.
Ratio Decidendi: The court upheld the trial court's decision, emphasizing that the High Court's role is not to substitute its judgment for that of the lower court unless there is a clear miscarriage of justice.
Result: Petition dismissed.
1.By way of this petition under Article 227 of the Constitution of India , the petitioner has prayed for following reliefs :-
- "(A) Your Lordships may be pleased to admit and allow this petition.
- (B) Your Lordships may be pleased to quash and set and aside the impugned order dated 16/01/2024 Annx. C passed below Exh.144 by the Ld. 3rd Addl. Sr. Civil Judge, Gandhinagar in Sp.C.S No. 146/2013.
- (C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay further proceedings of the suit being Sp.C.S No.146/2013 pending before the 3rd Addl. Sr. Civil Judge, Gandhinagar and further be pleased to stay the AC impugned order dated 16/01/2024 Annex. C below Exh.144, passed by the 3rd Addl. Sr. Civil Judge, Gandhinagar in Sp.C.S No. 146/2013.
- (D) Your Lordships may be pleased to grant ad-interim relief in terms of Para (c).
- (E)Your Lordships may be pleased to grant any other and further reliefs under the facts and circumstances of this case."
2.Facts taken from pleadings in nutshell are as under :-
2.1.The respondents has filed Special Civil Suit at Gandhinagar being S.C.S.No.146/2013 seeking recovery of possession against the present petitioner. The petitioner herein is the original defendant in the civil suit being S.C.S.No.146/2013 pending adjudication before the Ld. 3rd Addl. Sr. Civil Judge, Gandhinagar. At present the civil suit being S.C.S. No.146 of 2013 is at the stage of cross-examination of the defendant.
2.2.That the petitioner herein filed an application on 16.12.2023 below Exh.144 under Section 75 along with Order 26 Rule 10A of the Code of Civil Procedure, 1908 for scientific investigation of the electronic device being primary evidence of the defendant herein being Vivo telephone and alleged telephonic conversation of late Nitinbhai and petitioner.
2.3.That the Ld. 3rd Addl. Sr. Civil Judge, Gandhinagar rejected the application filed by the defendant below Exh. 144 on 16.01.2024.
2.4.Hence, present petition.
3.Heard learned Senior Advocate Mr.Y.N.Oza with learned advocate Mr.Pinakin Raval for the petitioner and learned advocate Mr.P.Y.Divyeshwar with learned advocate Mr.D.V.Kansara for the respondent.
4.Learned Senior Advocate Mr.Oza for the petitioner would submit that original plaintiff - deceased Nitinbhai has filed Special Civil Suit No.146 of 2013 against the petitioner seeking relief to evict her. It is further submitted that proceedings of the suit are going on, meanwhile, Nitinbhai expired on 10.05.2021. It is further submitted that currently, the suit is at the stage of leading evidence of defendant i.e. present petitioner and in which the petitioner has filed application Exh.144 seeking relief that telephonic conversation as well as mobile phone which took place between the petitioner and late Nitinbhai recorded in mobile of late Nitinbhai and the petitioner be send for FSL, Gandhinagar for scientific investigation. Learned Senior advocate Mr.Oza would submit that sending of this telephonic conversation recorded in two mobiles give material importance as this telephonic conversation reduced into transcription from talk of late Nitinbhai and the petitioner and it indicates that petitioner who was living with Nitinbhai in live-in relationship paid Rs.20 lakhs to late Nitinbhai and promised to pay Rs.25 lakhs to get transfer suit property in her name. It is further submitted that learned Trial Court has seriously erred in rejecting application Exh.144 on flimsy and superficial grounds. It is further submitted that it is consistent defence of the defendant that she was living with the deceased Nitinbhai in in-live relationship. They were doing business together in partnership and petitioner had paid Rs.20 lakhs helping late Nitinbai in purchasing disputed property.
4.1.Taking this Court to written statement, which is amended for more than once, it is submitted that it is defence of the defendant since beginning. Referring to page no.552 to page no.556 of the paper book, learned
