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2013 DIGILAW 706 (JK)

Rajinder Singh v. Madan Lal

2013-12-04

DHIRAJ SINGH THAKUR

body2013
1. The present petition has been filed seeking an appropriate relief for quashing the order dt. 11.10.2011, passed by the learned Principal District Judge, Jammu, in an appeal filed against the order of 3rd Civil Subordinate Sub Judge (Excise Magistrate), Jammu, dt. 30.6.2009, whereby the learned trial court in a suit for injuction has vacated its earlier order of injunction dt. 3.9.2008, and dismissed the application filed by the plaintiff-petitioner herein. Vide impugned order, the appellate court accepted the appeal filed by the appellant-petitioner herein. The operative part of order impugned is reproduce below:- "Accordingly, from the discussion referred hereinabove and the import of law pronounced by various Hon'ble High Courts and the Hon'ble Apex Court of the country, I am satisfied that the order drawn by the trial court is unjustified and cannot be sustained in the eyes of law. The appeal is allowed and both the parties are directed to maintain status quo on spot. The appellant shall not misuse the order of this court and will not try to take over the possession unless statement of patwari and girdawar is recorded. The finding is not returned regarding the possession. This can only be done after framing of issues and providing opportunity to the parties to lead the evidence. Appeal is disposed of accordingly and shall be consigned to records.." 2. The grounds on which the petitioner challenges the order impugned aforementioned is that the finding recorded by the `appellate court that the appellant shall not misuse the order of this court and will not try to take over the possession unless statement of patwari & girdawar is recorded' is perverse. It is urged that once the appellate court had ordered maintenance of status quo by the parties, it was unnecessary to place such a restriction on the petitioner. 3. Heard learned counsel for the parties. 4. The scope of interference by this court in writ jurisdiction against the orders passed by the civil courts is no longer res integra. The Apex court in the case reported as Shalini Shyam Shetty and Anr. v. Rajendra Shankar Patil, (2010) 8 SCC 329 , while dealing with the said issue laid down the principles regarding exercise of supervisory jurisdiction by the High Courts. The Apex court in the case reported as Shalini Shyam Shetty and Anr. v. Rajendra Shankar Patil, (2010) 8 SCC 329 , while dealing with the said issue laid down the principles regarding exercise of supervisory jurisdiction by the High Courts. In paragraph 56, it was held as under:- "56 (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 fact 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) xxxxxxx (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 above said 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 the 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 evolution of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character." 5. In view of the ratio of the judgment supra, I am of the opinion that no case is made out for exercise of supervisory jurisdiction by this court in the present case. In view of the ratio of the judgment supra, I am of the opinion that no case is made out for exercise of supervisory jurisdiction by this court in the present case. The appellate court committed no perversity in ordering maintenance of status quo on spot and also cautioning the appellate-petitioner herein from taking over the possession especially when according to the wisdom of the appellate court, it had not returned any finding regarding the possession. Maintenance of status quo was, therefore, apt in the facts and circumstances of the case. The order impugned, thus, calls for no interference. 6. This petition is misconceived and is, accordingly, dismissed.