M.R. Shah, J.:— By way of this petition under Article 227 of the Constitution of India, the petitioners herein - original plaintiffs have prayed for an appropriate writ or order to quash and set aside the impugned order passed by the learned Judge, Commercial Court, Vadodara, dated 03.11.2017, below Ex. 71, in Commercial Civil Suit No. 247/2016, by which the learned Judge has rejected the said application preferred by the original plaintiffs which was preferred under Order VII Rule 14 read with Section 151 of the Code of Civil Procedure, 1908 (“CPC” for short) for seeking permission to place certain documents on record and further to seek permission to exhibit those documents, which were produced vide list at Ex. 72.
2. The facts leading to the present Special Civil Application in nutshell are as under:
3. That the petitioners herein - original plaintiffs (hereinafter referred to as the original plaintiffs) initially instituted Special Civil Suit No. 51/2011 against the respondents - railway authorities, in the Court of learned Principal Senior Civil Judge, Dahod, for recovery of Rs. 36,89,79,820/- along with interest @ 18% p.a. It appears that the said amount is claimed as due towards the usage of water from “Kali” river for domestic and non-domestic purposes by the defendants - railway authorities. It is the case on behalf of the plaintiffs that for the aforesaid purpose, an agreement has been entered into between the parties on 15.07.1971 and the rates were also fixed payable on monthly basis. It is the case on behalf of the plaintiffs - State authorities that the Railways - original defendants had constructed a dam across Kali river. It is the case on behalf of the plaintiffs, so stated in the suit, that river Kali would fall in the category of being a notified river under Section 5 of the Bombay Irrigation Act, as per the map and Yadi of Notified rivers. It is also stated in the Plaint that Kali river flows from village Sakarada which confluences with river Suki at the overhead villages Jekot and Kharod and thereafter at a distance of thirty kilometers, river Kali confluences with river Anas and therefore, river Kali is a notified river. It is further case on behalf of the plaintiffs that earlier, the defendants - railway authorities never denied or disputed the payment till June 1995 and as such, they abided by the terms and conditions of the agreement and they paid the bill amount for river Kham and river Hadap. However, thereafter, the amount of bill in terms of the agreement has not been paid for the water usage from Kali river and therefore, the plaintiffs instituted the aforesaid suit claiming usage charges from the defendants - railway authorities. It appears that thereafter, the learned trial Court framed the issues in the year 2012. Parties to the suit also led the evidence. However, thereafter, the suit came to be transferred to the Commercial Court, Vadodara, where it has been numbered as Commercial Civil Suit No. 247/2016. In the said suit, the plaintiffs submitted the application Ex. 71 for seeking permission to place certain documents on record and to seek permission to exhibit the said documents. Along with the application, the plaintiffs submitted certain documents vide list Ex. 72. By the said application, the plaintiffs proposed to rely upon the following documents and requested to exhibit said documents:
Sr. No. Particulars Date 1 Copy of Notification issued by Shri B.D. Mirchandani, Secretary to Government vide No. MNB.5756(vii) 26/09/56 2 A Memorandum No. WTR-1058/7072(P) issued by Shri D.R. Shankara Iyer, Under Secretary to the Government of Gujarat, Public Works Department 08/12/61 3 Letter issued by Executive Engineer, Baroda Irrigation Circle, Baroda to the Chief Engineer, Public Works Department (Irrigation), vide No. PB/PTD/9 21 of 1961 together with above notification vide No. 2 21/12/61 4 Letter issued by Government of Gujarat, Public Works Department to the General Manager, Gujarat State Cooperative Land Development Bank Ltd. along name of river notified under Section 5 of the Bombay Irrigation Act 11/02/71 5 A Map showing Kali-1 Dam location jointly prepared by Water Resources Department, Gandhinagar and Department of Science and Technology, Government of Gujarat, Gandhinagar
4. It appears that the said application was preferred under Order VII Rule 14 read with Section 151 of the CPC. The said application was opposed by the defendants by submitting that as those documents were not produced along with suit, the same cannot be permitted to be relied upon subsequently. It was also further submitted that though the trial Court has specifically framed Issue No. 2, namely, “whether the plaintiffs prove that ‘Kali river’ is a notified river under Section 5 of the Bombay Irrigation Act?” and though it is the duty cast upon the plaintiffs to prove the said issue, the plaintiffs have not led any evidence and/or produced any evidence due to sheer negligence and therefore, when the plaintiffs have submitted the closing Purshis, thereafter the plaintiffs may not be permitted to produce on record the document and/or documents which were not produced along with the suit. It was also submitted that even the plaintiffs have also not produced the original documents. That by impugned order, the learned Judge, Commercial Court, Vadodara, has rejected the said application Ex. 71 on the grounds that the said application has been filed at a belated stage; that the documents are not pleaded in the Plaint; that the said documents are true copies and not the original ones; that the provisions of Order VII Rule 14 of the CPC shall not be applicable to the Commercial Courts; and that if such type of application is entertained at belated stage, then the object of enacting the Commercial Courts Act would be defeated as the very object of the Act is to decide the matters expeditiously.
5. Feeling aggrieved and dissatisfied with the impugned order passed by the learned Judge, Commercial Court, Vadodara, rejecting the application under Ex. 71, the original plaintiffs - State of Gujarat and others have preferred the present Special Civil Application under Articles 226 and 227 of the Constitution of India.
6. At this stage, it is required to be noted that as such, the present petition is against the impugned order passed by the learned Civil Court - Commercial Court and as per the decisions of the Hon'ble Supreme Court, a petition against the order passed by the learned Civil Court/Commercial Court would be only under Article 227 of the Constitution of India and therefore, the present petition is to be treated as having been filed under Article 227 of the Constitution of India.
7. Shri Kamal B. Trivedi, learned Advocate General, has appeared on behalf of the petitioners herein - original plaintiffs and Ms. Archana Amin, learned advocate, has appeared on behalf of the respondents - original defendants.
8. A preliminary objection is raised by Ms. Amin, learned advocate appearing on behalf of the respondents - railway authorities on the maintainability and/or entertainability of the present petition under Article 227 of the Constitution of India against the impugned order passed by the learned Commercial Court, Vadodara, below Ex. 71.
9. It is vehemently submitted by Ms. Archana Amin, learned advocate appearing on behalf of the respondents - railway authorities that as such, the impugned order passed by the learned Judge, Commercial Court, Vadodara, below Ex. 71, can be said to be an interlocutory order and therefore, considering the bar contained in Section 8 of the Commercial Courts Act, the present petition shall not be entertained and therefore, the same is not required to be entertained by this Court.
10. Ms. Archana Amin, learned advocate appearing on behalf of the respondents - railway authorities has heavily relied upon Section 8 of the Commercial Courts Act which provides that no civil revision application or petition shall be entertained against any interlocutory order of a Commercial Court, including an order on the issue of jurisdictional challenge. It is further submitted that the object of Section 8 of the Commercial Courts Act is to provide the time-frame stipulated for case management hearing from becoming redundant by the frequent filing of civil revision applications and petitions against every interlocutory order and the Commercial Court is enacted to ensure the expedited disposal of cases. It is submitted that therefore, considering Section 8 of the Commercial Courts Act, the present petition which as such is against the interlocutory order is not required to be entertained and therefore, it is requested to dismiss the same, leaving it open to the plaintiffs to take such a ground in the appeal against the final judgment and decree passed by the learned trial Court and if at all the plaintiffs are aggrieved.
11. In support of her above submissions, Ms. Archana Amin, learned advocate appearing on behalf of the respondents - railway authorities has heavily relied upon the decision of the Delhi High Court in the case of HPL (India) Limited v. QRG Enterprises- dated 14.02.2017 in FAO (OS)(COMM) NO. 12/2017 and CM No. 1002/2017 (Paragraph-37). She has also heavily relied upon the decision of the Bombay High Court in the case of Sigmarq Technologies Pvt. Ltd. v. Manugrah India Limited dated 14.09.2017, passed in Commercial Appeal No. 40/2016 in Notice of Motion No. 494/2014 in Suit No. 516/2013 (Paragraphs-17, 52 and 53).
12. It is further submitted by Ms. Archana Amin, learned advocate appearing on behalf of the respondents - railway authorities that even otherwise, in the facts and circumstances of the case, the learned Judge, Commercial Court, Vadodara, has not committed any error in rejecting the application Ex. 71 and by not permitting the plaintiffs to produce certain documents produced along with the list at Ex. 72 and not permitting the plaintiffs to rely upon the said documents which as such were not produced along with the suit and even not pleaded in the Plaint.
13. It is further submitted by Ms. Archana Amin, learned advocate appearing on behalf of the respondents - railway authorities that as rightly observed by the learned Judge, the provisions of Order VII Rule 14 of the CPC shall not be applicable to the Commercial Courts and therefore also, the learned Judge has rightly rejected the application Ex. 71 which was filed under Order VII Rule 14 of the CPC.
14. Ms. Amin, learned advocate appearing on behalf of the respondents - railway authorities has further submitted that if at all, it is held that the bar contained in Section 8 of the Commercial Courts Act shall not be applicable to the writ petitions under Articles 227 of the Constitution of India against interlocutory orders, then in that case, there will be flood-gate of the petitions before the High Court under Article 227 of the Constitution and it may defeat the object and purpose of the creation of the Commercial Court Act and it will defeat the purpose of expeditious disposal of commercial disputes. It is submitted that therefore also, the present petition may not be entertained.
15. It is further submitted by Ms. Archana Amin, learned advocate appearing on behalf of the respondents - railway authorities that even if the present petition is not entertained and the impugned order passed by the learned Commercial Court is not interfered at this stage, in that case also, the original plaintiffs shall not be remediless as it will always be open for the plaintiffs to take such ground before the appellate Court against the final judgment and decree.
16. It is further submitted by Ms. Archana Amin, learned advocate appearing on behalf of the respondents - railway authorities that even otherwise, as the application submitted was at a belated stage and after the closing Purshis was submitted by the plaintiffs and the parties even completed the evidence and the documents produced were the true copies and not the original copies, the learned Judge has rightly rejected the said application and has rightly observed that if such an application is allowed at this stage, then in that case, the purpose and object of establishment of the Commercial Courts shall get frustrated. It is submitted that therefore also, the impugned order passed by the learned Judge is not required to be interfered with by this Court in exercise of Article 227 of the Constitution of India. It is submitted that the present submission is made as an alternative submission and without prejudice to the rights and contentions of the defendants that in view of bar under Section 8 of the Commercial Courts Act, the present petition is not required to be entertained.
17. To the aforesaid objections raised by learned advocate appearing for the original defendants, Shri Kamal B. Trivedi, learned Advocate General appearing on behalf of the original plaintiffs has vehemently submitted that as such, the bar under Section 8 of the Commercial Courts Act shall not be applicable to the petitions under Article 227 of the Constitution of India.
18. It is further submitted by Shri Kamal B. Trivedi, learned Advocate General that the bar under Section 8 of the Commercial Courts Act shall be applicable only against the entertainability of the revision application/revision petitions against the interlocutory orders passed by the Commercial courts. It is submitted that Section 8 of the Commercial Courts Act does not speak about the petition under Article 227 of the Constitution of India. It is submitted that a remedy provided under Article 227 of the Constitution of India is a constitutional right guaranteed under the Constitution of India and therefore, the same cannot be taken away by any statute and/or a special statute and/or by any legislation.
19. Shri Kamal B. Trivedi, learned Advocate General appearing on behalf of the petitioners has taken us through the recommendations of the Law Commission of India, while recommending to enact a law like Commercial Courts Act, more particularly, Paragraphs 3.23.2, 3.24.6 and 3.24.7 and Paragraphs 4.3(k)(xvii) and (xviii) in support of his submission that when there is a reference to the “revision application” or “petition” in Section 8 of the Commercial Courts Act, it may be construed that “civil revision application” or “civil revision petition” and it may not be construed to be a ‘petition’.
20. Shri Trivedi, learned Advocate General, has further submitted that in many High Courts, there are different nomenclatures and in many High Courts, civil revision applications are named as civil revision petitions. For the aforesaid, Shri Trivedi, learned Advocate General, has relied upon the Standing Orders of the High Court of Madras, in which the civil revision under Section 115 of the CPC has been named as civil revision petition. It is submitted that therefore, in Section 8, the legislature has used the words “civil revision application or petition”. It is submitted that the wordings used are not “petition under Article 227 of the Constitution of India”. Shri Trivedi, learned Advocate General appearing on behalf of the plaintiffs, has submitted that if the submission on behalf of the defendants that even the petition under Article 227 of the Constitution of India is barred as per Section 8 of the Commercial Courts Act, then in that case, even such a provision can be said to be ultra vires the Constitution. It is submitted that the power of the Court under Articles 226 and 227 of the Constitution remains unimpaired and such power cannot be affected by any legislative provisions. It is submitted that Article 227 of the Constitution provides that all courts and Tribunals situate within the territorial jurisdiction of the High Court are subject to the superintendence of the High Court.
21. It is further submitted by Shri Kamal Trivedi, learned Advocate General, that as observed by the Hon'ble Supreme Court in a catena of decisions and more particularly, in the case of L. Chandra Kumar v. Union of India reported in (1997) 3 SCC 261, the jurisdiction conferred upon the High Courts under Article 226/227 and upon the Hon'ble Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of the Constitution.
22. Making above submissions, and further relying upon the following decisions, it is vehemently submitted by Shri Kamal Trivedi, learned Advocate General, that Section 8 of the Commercial Courts Act does not affect the writ petitions under Article 227 of the Constitution of India and therefore, the bar contained in Section 8 of the Commercial Courts Act against the entertainability of the civil revision application or petition against the interlocutory order shall not be applicable to the writ petition/petitions under Article 227 of the Constitution of India:—
(i) Surya Dev Rai v. Ram Chander Rai reported in (2003) 6 SCC 675
(ii) Shalini Shyam Shetty v. Rajendra Shankar Patil reported in (2010) 8 SCC 329,
(iii) Kaikhusroo Phirozshah Doctor v. State of Bombay reported in AIR 1955 BOMBAY 220
(iv) State of Gujarat v. Vakhatsinghji Vajesinghji Vaghela (Dead) By His Legal Representatives reported in AIR 1968 SC 1481
(v) K. Kannadasan v. Ajoy Khose reported in (2009) 7 SCC 1.
23. Heard learned counsel appearing for the respective parties at length.
24. A preliminary objection is raised on behalf of the respondents herein on the entertainability of the present petition under Article 227 of the Constitution of India.
25. It is the case on behalf of the respondents that in view of the bar contained in Section 8 of the Commercial Courts Act, the present petition shall not be entertained. Therefore, the first question which is posed for the consideration of this Court is whether the bar contained in Section 8 of the Commercial Courts Act shall be applicable to the petition under Article 227 of the Constitution of India? The question which is posed for the consideration of this Court is whether Section 8 of the Commercial Courts Act affects the powers of the High Court under Article 227 of the Constitution of India?
26. While considering the aforesaid questions, few decisions of the Hon'ble Supreme Court on the powers of the High Court under Article 227 of the Constitution of India are required to be referred to and considered.
27. In the case of L. Chandra Kumar v. Union of India (supra), the Hon'ble Supreme Court has specifically held that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and Tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. It is further held and observed by the Hon'ble Supreme Court that in respect of the power of judicial review, the jurisdiction of the High Courts under Articles 226/227 of the Constitution of India cannot wholly be excluded. In the case before the Hon'ble Supreme Court, the Hon'ble Supreme Court was considering the exclusion of the writ jurisdiction under Articles 226 and 227 of the Constitution of India against the decision of the Tribunals and direct appeals were provided from the decisions of all Tribunals to the Hon'ble Supreme Court under Article 136 of the Constitution of India. To that, the Hon'ble Supreme Court observed that the decisions of the Tribunals are amenable to the supervisory jurisdiction of the High Courts under Articles 226/227 of the Constitution of India and it observed and held that the aggrieved party will be entitled to move the High Court under Articles 226/227 of the Constitution of India. The relevant observation and discussion by the Hon'ble Supreme Court on the powers of the High Courts under Articles 226 and 227 of the Constitution of India are in Paragraphs 79, 90 and 92 in the case of L. Chandra Kumar v. Union of India (supra).
28. In the case of Surya Dev Rai v. Ram Chander Rai (supra), the Hon'ble Supreme Court had an occasion to consider the effect of the amendment in Section 115 of the CPC on the jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India and the Hon'ble Supreme Court has observed and held that the amendment cannot and does not in any manner affect the jurisdiction under Articles 226/227 of the Constitution of India. In the aforesaid decision, it is held by the Hon'ble Supreme Court that the decision of the subordinate Court shall be subjected to the supervisory jurisdiction of the High Courts under Article 227 of the Constitution. In the aforesaid decision, it is further observed that Articles 226/227 of the Constitution of India, being part of the basic structure, cannot be tampered, not even by constitutional amendment, much less by an act of legislature. It is observed and held that despite the amendment in Section 115 of the CPC, the aggrieved party can seek such Writ of Certiorari or invoke powers of superintendence of the High Court under Articles 226/227 of the Constitution of India. In Paragraphs 29 to 39, the Hon'ble Supreme Court in the case of Surya Dev Rai v. Ram Chander Rai (supra) has observed and held as under:
“29. The Constitution Bench in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, dealt with the nature of power of judicial review conferred by Article 226 of the Constitution and the power of superintendence conferred by Article 227. It was held that the jurisdiction conferred on the Supreme Court under Article 32 of the Constitution and on the High Courts under Articles 226 and 227 of the Constitution is part of the basic structure of the Constitution, forming its integral and essential feature, which cannot be tampered with much less taken away even by constitutional amendment, not to speak of a parliamentary legislation. A recent Division Bench decision by Delhi High Court (Dalveer Bhandari and H.R. Malhotra, JJ.) in Criminal Writ Petition Nos. 758, 917 and 1295 of 2002, Govind v. State (Govt. of NCT of Delhi) decided on April 1, 2003 (reported as (2003) 6 ILD 468) makes an in-depth survey of decided cases including almost all the leading decisions by this Court and holds - “The power of the High Court nder Article 226 cannot be whittled down, nullified, curtailed, abrogated, diluted or taken either by judicial pronouncement or by the legislative enactment or even by the amendment of the Constitution. The power of judicial review is an inherent part of the basic structure and it cannot be abrogated without affecting the basic structure of the Constitution.” The essence of constitutional and legal principles, relevant to the issue at hand, has been correctly summed up by the Division Bench of the High Court and we record our approval of the same.
30. It is interesting to recall two landmark decisions delivered by High Courts and adorning the judicial archives. In Balkrishna Hari Phansalkar…(Original Accused), Applicant; v. Emperor*, AIR 1933 BOMBAY 1 the question arose before a Special Bench whether the power of superintendence conferred on the High Court by Section 107 of Government of India Act 1915 can be controlled by the Governor-General exercising its power to legislate. The occasion arose because of the resistance offered by the State Government to the High Court exercising its power of superintendence over the Courts of Magistrates established under Emergency Powers Ordinance, 1932. Chief Justice Beumont held that even if power of revision is taken away, the power of superintendence over the courts constituted by the ordinance was still available. The Governor-General cannot control the powers conferred on the High Court by an Act of Imperial Parliament. However, speaking of the care and caution to be observed while exercising the power of superintendence though possessed by the High Court, the learned Chief Justice held that the power of superintendence is not the same thing as the hearing of an appeal. An illegal conviction may be set aside under power of superintendence but - “we must exercise our discretion on judicial grounds, and only interfere if considerations of justice require us to do so.”
31. In Manmatha Nath Biswas v. Emperor (1932-33) 37 CWN 201 a conviction based on no legal reason and unsustainble in law came up for the scrutiny of the High Court under the power of superintendence in spite of right of appeal having been allowed to lapse. Speaking of the nature of power of superintendence, the Division Bench, speaking through Chief Justice Rankin, held that the power of superintendence vesting in the High Court under Section 107 of the Government of India Act, 1915 is not a limitless power available to be exercised for removing hardship of particular decisions. The power of superintendence is a power of known and well-recognised character and should be exercised on those judicial principles which give it its character. The mere misconception on a point of law or a wrong decision on facts or a failure to mention by the Courts in its judgment every element of the offence, would not allow the order of the Magistrate being interfered with in exercise of the power of superintendence but the High Court can and should see that no man is convicted without a legal reason. A defect or jurisdiction or fraud on the part of the prosecutor or error on the “face of the proceedings” as understood in Indian practice, provides a ground for the exercise of the power of superintendence. The line between the two classes of case must be, however, kept clear and straight. In general words, the High Court's power of superintendence is a power to keep subordinate Courts within the bounds of their authority, to see that they do what their duty requires and that they do it in a legal manner.
32. The principles deducible, well-settled as they are, have been well summed up and stated by a two-Judges Bench of this Court recently in State through Special Cell, New Delhi v. Navjot Sandhu Afshan Guru, (2003) 6 SCC 641 : JT 2003 (4) SC 605, para 28. This Court held:
(i) the jurisdiction under Article 227 cannot be limited or fettered by any Act of the State Legislature;
(ii) the supervisory jurisdiction is wide and can be used to meet the ends of justice, also to interfere even with interlocutory order;
(iii) the power must be exercised sparingly, only to move subordinate courts and Tribunals within the bounds of their authority to see that they obey the law. The power is not available to be exercised to correct mere errors (whether on the facts or laws) and also cannot be exercised “as the cloak of an appeal in disguise”.
33. In Shiv Shakti Co-op. Housing Society, Nagpur v. Swaraj Developers, (2003) 6 SCC 659 : (2003) 4 Scale 241, another two-Judges bench of this Court dealt with Section 115 of the C.P.C. The Court at the end of its judgment noted the submission of the learned counsel for a party that even if the revisional applications are held to be not maintainable, there should not be a bar on a challenge being made under Article 227 of the Constitution for which an opportunity was prayed to be allowed. The Court observed,- “If any remedy is available to a party, no liberty is necessary to be granted for availing the same.”
34. We are of the opinion that the curtailment of revisional jurisdiction of the High Court does not take away - and could not have taken away - the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court nor the power of superintendence conferred on the High Court under Article 227 of the Constitution is taken away or whittled down. The power exists, untrammelled by the amendment in Section 115 of the CPC, and is available to be exercised subject to rules of self discipline and practice which are well settled.
35. We have carefully perused the Full Bench decision of the Allahabad High Court in Ganga Saran's case relied on by the learned counsel for respondent and referred to in the impugned order of the High Court. We do not think that the decision of the Full Bench has been correctly read. Rather, vide para 11, the Full Bench has itself held that where the order of the Civil Court suffers from patent error of law and further causes manifest injustice to the party aggrieved then the same can be subjected to writ of certiorari. The Full Bench added that every interlocutory order passed in a civil suit is not subject to review under Article 226 of the Constitution but if it is found from the order impugned that fundamental principle of law has been violated and further such an order causes substantial injustice to the party aggrieved the jurisdiction of the High Court to issue a writ of certiorari is not precluded. However, the following sentence occurs in the judgment of the Full Bench:—
“Where an aggrieved party approaches the High Court under Article 226 of the Constitution against an order passed in civil suit refusing to issue injunction to a private individual who is not under statutory duty to perform public duty or vacating an order of injunction, the main relief is for issue of a writ of mandamus to a private individual and such a writ petition under Art. 226 of the Constitution would not be maintainable.”
36. It seems that the High Court in its decision impugned herein formed an impression from the above-quoted passage that a prayer for issuance of injunction having been refused by trial Court as well as the appellate Court, both being subordinate to High Court and the dispute being between two private parties, issuance of injunction by High Court amounts to issuance of a mandamus against a private party which is not permissible in law.
37. The above quoted sentence from Ganga Saran's case cannot be read torn out of the context. All that the Full Bench has said is that while exercising certiorari jurisdiction over a decision of the court below refusing to issue an order of injunction, the High Court would not, while issuing a writ of certiorari, also issue a mandamus against a private party. Article 227 of the Constitution has not been referred to by the Full Bench. Earlier in this judgment we have already pointed out the distinction between Article 226 and Article 227 of the Constitution and we need not reiterate the same. In this context, we may quote the Constitution Bench decision in T.C. Basappa v. T. Nagappa, (1955) 1 SCR 250 and Province of Bombay v. Khushaldas S. Advani (dead) by LRs., 1950 SCR 621, as also a three Judge Bench decision in Dwarka Nath v. Income-tax Officer, Special Circle, D Ward, Kanpur, (1965) 3 SCR 536, which have held in no uncertain terms, as the law has always been, that a writ of certiorari is issued against the acts or proceedings of a judicial or quasi-judicial body conferred with power to determine questions affecting the rights of subjects and obliged to act judicially. We are therefore of the opinion that the writ of certiorari is directed against the act, order of proceedings of the subordinate Court, it can issue even if the lis is between two private parties.
38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as here-under:—
(1) Amendment by Act No. 46 of 1999 with effect from 1-7-2002 in Section 115 of the 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 (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.
(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.”
29. In the case of Shalini Shyam Shetty v. Rajendra Shankar Patil reported in (2010) 8 SCC 329, after considering the history of High Court's power of superintendence under Article 227 of the Constitution of India and considering the various decisions of the Hon'ble Supreme Court on the point, including that of the Constitution Bench in the case of State of Gujarat v. Vakhatsinghji Vajesinghji Vaghela (Dead) By His Legal Representatives (supra) and even the decisions of the Hon'ble Supreme Court in the case of Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand reported in (1972) 1 SCC 898 and Surya Dev Rai v. Ram Chander Rai (supra), ultimately, in Paragraph-49, the Hon'ble Supreme Court has observed, held and concluded as under:
“49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:
(a) 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.
(c) 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 Singh (AIR 1954 SC 215) (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), 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 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 v. Union of India, reported in (1997) 3 SCC 261 : (AIR 1997 SC 1125 : 1997 AIR SCW 1345) 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 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 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.
30. In the case of Kaikhusroo Phirozshah Doctor v. State of Bombay (supra), a Full Bench of the Bombay High Court has observed and held that if the legislature attempts to make the decision of any Tribunal final, it cannot by doing so prevent the High Court from issuing the proper writ either under Article 226 or under Article 227.
31. In the case of State of Gujarat v. Vakhatsinghji Vajesinghji Vaghela (Dead) By His Legal Representatives (supra), it was submitted that Section 12 of the Abolition Act makes the decision of the Tribunal final and conclusive and therefore the High Court has no jurisdiction to interfere with the said decision. Not accepting the said contention, the Hon'ble Supreme Court has observed and held that Article 227 of the Constitution gives the High Court the power of superintendence over all courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. The jurisdiction cannot be limited or fettered by any Act of the State Legislature. It is further observed that the supervisory jurisdiction extends to keeping the subordinate Tribunals within the limits of their authority and to seeing that they obey the law.
32. Considering the law laid down by the Hon'ble Supreme Court in the aforesaid decisions, we are of the opinion that bar contained under Section 8 of the Commercial Courts Act shall not affect the jurisdiction of the High Court under Article 227 of the Constitution of India. If the contention on behalf of the respondents that considering Section 8 of the Commercial Courts Act, even the writ jurisdiction under Article 227 of the Constitution of India is barred, in that case, such a provision would suffer from the vice of unconstitutionality as observed by the Hon'ble Supreme Court in the aforesaid decisions. The power vested in the High Courts to exercise judicial superintendence over the decisions of the courts and Tribunals within their respective jurisdictions is part of the basic structure of the Constitution and no legislature can take away such power of superintendence conferred under Article 227 of the Constitution of India. It is required to be noted that therefore, even the legislature, while enacting Section 8 of the Commercial Courts Act, seems to have wisely not used the word “maintainable” but has used the word “entertained”. At this stage, it is also required to be noted that where the statute specifically provided that against the decision of the Tribunal, only an appeal under Article 136 of the Constitution before the Hon'ble Supreme Court would be maintainable, the Hon'ble Supreme Court in the case of L. Chandra Kumar v. Union of India (supra) has specifically observed and held that the powers of the supervisory jurisdiction of the High Court under Article 227 of the Constitution against the decision of the Tribunals shall still be available and the aggrieved party can approach the High Court under Article 227 of the Constitution. Therefore, it is observed and held that Section 8 of the Commercial Courts Act shall not affect the powers of the High Court under Article 227 of the Constitution of India against the order passed by the Commercial Court. However, at the same time, the powers under Article 227 of the Constitution of India must be exercised sparingly and in exceptional cases only, more particularly, looking to the object and purpose of Section 8 of the Commercial Courts Act, i.e. speedy disposal of commercial disputes.
33. Even otherwise, considering the wordings used in Section 8 of the Commercial Courts Act, there is a serious doubt whether the bar under Section 8 of the Commercial Courts Act shall be applicable to the petitions under Article 227 of the Constitution of India. Section 8 of the Commercial Courts Act reads as under:
“8. Bar against revision application or petition against an interlocutory order - Notwithstanding anything contained in any other law for the time being in force, no civil revision application or petition shall be entertained against any interlocutory order of a Commercial Court, including an order on the issue of jurisdiction, and any such challenge, subject to the provisions of section 13, shall be raised only in an appeal against the decree of the Commercial Court.”
34. As per Section 8 of the Commercial Courts Act, notwithstanding anything contained in any other law for the time being in force, no civil revision application or petition shall be entertained against any interlocutory order of a Commercial Court, including an order on the issue of jurisdiction, and any such challenge subject to the provisions of Section 13 thereof, shall be raised only in an appeal against the decree of the Commercial Court. Therefore, Section 8 of the Commercial Courts Act firstly talks about notwithstanding anything contained in any other law for the time being in force. It does not talk about notwithstanding anything contained in the Constitution of India. It also speaks about “civil revision application or petition”. Therefore, if Section 8 of the Commercial Courts Act is read as it is, on fair reading thereof, it can be said that it bars the “civil revision application or petition” notwithstanding anything contained in any other law for the time being in force. The word “petition” in the Section will go along with the words “civil revision application” and the word “petition” used in Section 8 cannot be said to be a “writ petition” under Article 227 of the Constitution of India. In many High Courts, civil revision applications are named/titled as “Civil Revision Petitions” and therefore, on true interpretation of Section 8 of the Commercial Courts Act, it can be said that the bar under Section 8 of the Commercial Courts Act shall be applicable only with respect to the “civil revision application or petition” provided in any other law for the time being in force. It does not take away the jurisdiction of the High Court under Article 227 of the Constitution of India. Therefore, the bar contained in Section 8 of the Commercial Courts Act against entertaining of civil revision application or petition provided under any other law for the time being in force shall not be applicable with respect to the petitions under Article 227 of the Constitution of India and the same shall not affect the rights of the aggrieved party to invoke the jurisdiction of the High Court under Article 227 of the Constitution of India.
35. Now so far as the submission on behalf of the respondents that if against the interlocutory order passed by the subordinate Court/Commercial Court, the writ petition under Article 227 of the Constitution is held to be entertainable, in that case, the same shall be against the object and purpose of establishment of Commercial Courts, i.e. speedy disposal of commercial disputes and it would open the flood-gates of such litigation is concerned, such submission has not been accepted by the Hon'ble supreme Court in the case of Coal India Ltd. v. Saroj Kumar Mishra reported in (2007) 9 SCC 625; Zee Telefilms Ltd. v. Union of India reported in (2005) 4 SCC 649; Guruvayoor Devaswom Managing Committee v. C.K. Rajan reported in (2003) 7 SCC 546, and K. Kannadasan v. Ajoy Khose (supra).
36. In the case of Zee Telefilms Ltd. v. Union of India (supra), where similar submissions were made, the Hon'ble Supreme Court in Paragraphs 268 and 279 has observed and held as under:
“268. Mr. Venugopal vehemently argued that if the Board is held to be a State within the meaning of Article 12 of the Constitution, the doors of this Court and the High Courts would be knocked at very frequently questioning all and single action of the Board which may include selection of players for Indian Team, day to day functioning et al. We do not agree. Recently in Virendra Kumar Srivastava (supra), this Court held:
“Before parting with the case, it is necessary for us to clarify that even though a body, entity or Corporation is held to be a ‘State’ within the definition of Article 12 of the Constitution what relief to the aggrieved person or employee of such a body or entity is to be granted is a subject-matter in each case for the court to determine on the basis of the structure of that society and also its financial capability and viability. The subject of denial or grant of relief partially or fully has to be decided in each particular case by the court dealing with the grievances brought by an aggrieved person against the bodies covered by the definition of ‘State’ under Article 12 of the Constitution.”
269. The “in terrorem” submission of Mr. Venugopal that a floodgate of litigation would open up if the Board is held to be a State within the meaning of Article 12 of the Constitution cannot also be accepted. Floodgate arguments about the claimed devastating effect of being declared a State must be taken with a grain of salt. The courts, firstly, while determining a constitutional question considers such a question to be more or less irrelevant. [See Guruvayoor Devaswom Managing Committee v. C.K. Rajan [(2003) 7 SCC 546, para 69]. Secondly, as would be noticed hereinafter that this Court has evolved principles of judicial restraint as regards interfering with the activities of a body in policy matters. It would further appear from the discussions made hereinbefore that as all actions of the Board would not be subject to judicial review. A writ would not lie where the lis involves only private law character.”
37. In the case of Coal India Ltd. v. Saroj Kumar Mishra (supra), the Hon'ble Supreme Court has observed that only because there is a possibility of flood-gate litigation, a valuable right of a citizen cannot be permitted to be taken away. It is further observed by the Hon'ble Supreme Court that such argument appears to be an argument desperation. In Paragraph-19, the Hon'ble Supreme Court has observed and held as under:
“19. The floodgate argument also does not appeal to us. The same appears to be an argument of desperation. Only because, there is a possibility of floodgate litigation, a valuable right of a citizen cannot be permitted to be taken away. This Court is bound to determine the respective rights of the parties.”
38. As observed by the Hon'ble Supreme Court in a catena of decisions, the High Court would exercise the supervisory jurisdiction under Article 227 of the Constitution of India 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. As observed by the Hon'ble Supreme Court in the case of Surya Dev Rai v. Ram Chander Rai (supra), care, caution and circumspection needs to be exercised when the supervisory jurisdiction 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 thereagainst and entertaining a petition invoking supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. However, the High Court may feel inclined to intervene where the error is such, as if not correct 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 would result in prolonging of the lis. Therefore, while exercising supervisory jurisdiction under Article 227 of the Constitution of India, the High Court will consider the object and purpose of enactment of the Commercial Courts Act, i.e. speedy disposal and may exercise power sparingly and only in appropriate cases. Therefore, the submission on behalf of the respondents that against the interlocutory orders passed by the Commercial Courts if writ petitions under Article 227 of the Constitution are held to be entertainable, in that case, the same shall open the flood-gates of litigation in the High Court, cannot be a ground not to exercise supervisory jurisdiction by the High Court in an appropriate case where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice would occasion. On the aforesaid ground, the supervisory powers of the High Court under Article 227 of the Constitution of India cannot be taken away and/or restricted.
39. Now so far as reliance placed upon the decision of the Bombay High Court in the case of Sigmarq Technologies Pvt. Ltd. v. Manugrah India Limited (supra), by the learned advocate appearing on behalf of the respondents is concerned, at the outset, it is required to be noted that Bombay High Court was considering the appeal under Section 13 of the Commercial courts Act against the interlocutory order and the Bombay High Court had no occasion to consider the issue which is posed in the present case, namely, whether against the interlocutory order passed by the Commercial Court a writ petition under Article 227 of the Constitution of India shall be maintainable or not?
40. Similarly, the decision of Delhi High Court in the case of HPL (India) Limited v. QRG Enterprises (supra), shall not be applicable to the facts of the case on hand and/or the issue involved in the present petition. Even before the Delhi High Court, the dispute was with respect to the exercise of powers under Section 13 of the Commercial courts Act.
41. In view of the above and for reasons stated above and considering the decisions of Hon'ble Supreme Court referred to hereinabove, our conclusions in nutshell are as under:—
(1) The bar contained under Section 8 of the Commercial Courts Act against entertainability of “civil revision application or petition” against the interlocutory orders passed by the subordinate/Commercial Courts, shall not be applicable to the writ petitions under Article 227 of the Constitution of India.
(2) The bar contained in Section 8 of the Commercial Courts Act shall not affect the supervisory jurisdiction of the High Courts under Article 227 of the Constitution of India in respect of the orders, including interlocutory orders, passed by the Commercial Court and writ petitions under Article 227 of the Constitution of India may be entertainable, however, subject to the following observations and restrictions:—
(a) 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.
(b) The supervisory jurisdiction under Article 227 of the Constitution of India may not be exercised to correct mere errors of fact or of law and may be exercised only when 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
(c) 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.
(d) 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 above said 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.
(3) Though while exercising supervisory jurisdiction under Article 227 of the Constitution of India, the High Court may annul or set aside the act, order or proceedings of the subordinate courts, it may not substitute its own decision in place thereof.
(4) 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.
(5) That while exercising powers under Article 227 of the Constitution of India, the High Court would have to consider the observations made by the Hon'ble Supreme Court in Paragraph-39 in the case of Surya Dev Rai v. Ram Chander Rai (supra), which are as under:
“39. Though we have tried to lay down broad principles and working rules the fact remains that the parameters for exercise of jurisdiction under Article-226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self-restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where a stitch in time would save nine’. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge”.
42. Now so far as the legality and validity of the impugned order passed by the learned Commercial Court is concerned, from the impugned order, it appears that the learned Commercial Court has rejected the application submitted by the original plaintiffs to produce certain documents vide list Ex. 72 merely on the ground that those documents were not produced along with the suit and that Order VII Rule 14(3) of the CPC shall not be applicable to the Commercial Court proceedings under the Commercial Courts Act. The same is also refused on the ground of delay. It is true that provisions of Order VII Rule 14(3) of the CPC shall not be applicable to the Commercial Court disputes and the proceedings under the Commercial Courts Act. However, at the same time, Order XI Rule 1(5) of the CPC applicable to the commercial dispute shall be applicable. Order XI Rule 1(5) is as under:
“1. Disclosure and discovery of documents.
(1) …. …. ….
(5) The plaintiff shall not be allowed to rely on documents, which were in the plaintiff's power, possession, control or custody and not disclosed along with plaint or within the extended period set out above, save and except by leave of Court and such leave shall be granted only upon the plaintiff establishing reasonable cause for non-disclosure along with the plaint.”
43. Thus, by leave of the Court and subject to compliance of the conditions mentioned under Order XI Rule 1(5) of the CPC (applicable to the Commercial Courts Act), the plaintiff can be permitted to rely upon the documents not disclosed along with the Plaint. In the present case, the most important document which is sought to be produced is the Government Notification/Government record being more than 40 years old. The documents which were sought to be produced are as under:—
“1. Copy of Notification dated 26.09.1956 issued by Shri B.D. Mirchandani, Secretary to Government vide No. MNB.5756 (vii).
2. A Memorandum No. WTR-1058/7072(P) issued by Shri D.R. Shankara Iyer, Under Secretary to the Government of Gujarat, Public Works Department on 08.12.1961.
3. Letter issued by Executive Engineer, Baroda Irrigation Circle, Baroda to the Chief Engineer, Public Works Department (Irrigation), vide No. PB/PTD/9 21 of 1961 dated 21.12.1961 together with above notification vide No. 2.
4. Letter dated 11.02.1971 issued by Government of Gujarat, Public Works Department to the General Manager, Gujarat State Cooperative Land Development Bank Ltd. along name of river notified under Section 5 of the Bombay Irrigation Act.
5. A Map showing Kali-1 Dam location jointly prepared by Water Resources Department, Gandhinagar and Department of Science and Technology, Government of Gujarat, Gandhinagar.”
44. The dispute in the suit is whether “Kali river” is a Notified river under Section 5 of the Bombay Irrigation Act, or not. The plaintiffs - State of Gujarat and others have filed the suit against the defendants - Railway authorities, for recovery of an amount of Rs. 36,89,79,820/- along with interest @ 18% p.a. for using the water for domestic and non-domestic purposes by the Railway authorities from river “Kali” which according to the plaintiffs, is a notified river under Section 5 of the Bombay Irrigation Act. Even a specific issue is framed, namely, “whether the plaintiffs prove that “Kali river” is a notified river under Section 5 of the Bombay Irrigation Act?” Therefore, the aforesaid documents which are more than 40 years old which are sought to be produced are necessary documents which go the root of the matter and which can clinch the issue, more particularly, the issue, namely, whether the plaintiffs prove that “Kali river” is a notified river under Section 5 of the Bombay Irrigation Act or not. Ultimately, the Court will have to ensure that all documents which assist it to resolve the controversy before it in an efficient manner are available for perusal. Unless the Court comes to a conclusion that the facts are so gross that the only inference that can be drawn from the conduct of the party is that the documents which are sought to be produced are manufactured, the Court should not generally deny leave to produce documents because ultimately, it is always open to the other side to cross-examine the party who produces the documents to establish that the said documents are not relevant or that the case based on the said documents is not true. In our opinion and more particularly, considering the documents which are sought to be produced which are Government documents, at this stage, it is not possible to come to a conclusion that the documents sought to be produced are manufactures. However, that does not preclude the defendants, if they so desire, to cross-examine the plaintiffs and persuade the Court to hold so. Therefore, in the facts and circumstances of the case, we are of the opinion that if the plaintiffs are not permitted to produce the aforesaid documents, grave injustice is likely to be caused to the plaintiffs. Therefore, we are of the opinion that in the facts and circumstances of the case, the learned Commercial Court has failed to exercise jurisdiction vested in it, more particularly, contained in Order XII Rule 1(5) of the CPC (applicable to the Commercial Courts Act and the commercial disputes). On imposition of reasonable cost and subject to proving the same in accordance with law, the learned Commercial Court ought to have permitted the plaintiffs to produce the documents sought to be produced vide list Ex. 72 and ought not to have allowed the application Ex. 71. Therefore, we are of the opinion that in the facts and circumstances of the case, interference of this Court in exercise of powers under Article 227 of the Constitution is called for.
45. In view of the above and for the reasons stated hereinabove, the present petition succeeds. The impugned order dated 03.11.2017 passed by the learned Commercial Court below Ex. 71 in Commercial Civil Suit No. 247/2016 is hereby quashed and set aside and application Ex. 71 is hereby allowed. The plaintiffs are permitted to produce the documents produced vide list Ex. 72, however, subject to proving the same in accordance with the provisions of the Indian Evidence Act, 1872, and in accordance with law, and subject to payment of costs, which is quantified at Rs. 25,000/-, to be deposited with the learned Commercial Court, Vadodara, within a period of four weeks from the date of receipt of the certified copy of the present judgment and order. Rule is made absolute to the aforesaid extent.
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