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2013 DIGILAW 780 (JK)

Mohd. Din v. Mohd. Yousaf

2013-12-31

DHIRAJ SINGH THAKUR

body2013
1. The present petition has been filed under Section 104 of the Constitution of Jammu and Kashmir, for quashing the order dt. 24.10.2013, passed by the learned 2nd Addl. District Judge, Jammu, in the file No. 38/Civil, whereby the appeal filed by the appellants-respondents herein against an order dt. 10.9.2013, passed by the learned Sub Judge, Jammu, has been accepted and the parties have been directed to maintain status quo with respect to the suit property. 2. It appears that a civil suit for permanent prohibitory injunction was filed by predecessor in interest of the respondents herein against the petitioners before this court from interfering in land measuring 8 kanals comprised under khasra No. 2264, situate at village kote, tehsil and district Jammu. An interim order dt. 29.06.2013, came to be passed by the learned Sub Judge, Judicial Magistrate, Ist Class, Jammu, ordering maintenance of status quo on spot. Subsequently, upon written statement having been filed by the defendants-petitioner herein, interim directions aforementioned were vacated by virtue of order dt. 10.09.2013. 3. An appeal was preferred against the order dt. 10.09.2013, by the appellants-respondents herein before the learned 2nd Addl. District Judge, Jammu, who passed the order impugned herein, directing the parties to maintain status quo. 4. Challenging the aforementioned order passed by the appellate court, counsel for the petitioners urged that the order impugned was contrary to the pleadings and that by passing the same, the main relief itself had been granted. It was further urged that material facts had been suppressed by the appellants-respondents herein which would disentitle them from claiming the relief as they had earlier approached the Custodian and thereafter have filed the civil suit without disclosing about the said proceedings before the learned trial court or the appellate court. 5. Heard counsel for the parties. 6. The appellate court specifically dealt with the issue of possession of land measuring 8 kanals comprised in khasra No. 2264 at village kot, Jammu, and came to a conclusion that it was not the case of the petitioners before the appellate court that they were in possession of land falling under khasra No. 2264, rather, it was the case of the appellants-respondents herein that they were in possession of the land measuring 10 marlas falling under khasra No. 2264 min., aforementioned over which they had constructed their houses. It was in those circumstances that the appellate court held that the trial court was not justified in vacating the order of status quo with regard to the whole of the land measuring 8 kanals merely on the assertion of the respondents 1and 2 before the appellate court that they are in possession of land measuring 10 marlas comprised in khasra No. 2264 min. 7. After weighting the pros and cons of the matter on the touchstone of balance of convenience, irreparable loss and injury, the appellate court directed the parties to maintain status quo with regard to the suit property measuring 8 kanals comprised in khasra No. 2264 till the disposal of the main suit. This was done with a view to preserve the position on spot. 8. On a pointed question to the counsel for the petitioners herein as to whether the petitioners were in possession of 10 marlas of land comprised in khasra No. 2264 min., the reply was in affirmative. If that be so, the order of status quo in regard to land falling under khasra no. 2264, as directed by the appellate court would not work prejudice to the interests of the petitioners herein. The main issues could be determined at the trial of the suit. 9. The scope of powers exercisable by this court under Article 227 of the Constitution of India read with section 104 of the Constitution of Jammu and Kashmir, is no longer res integra. 10. In Shalini Shyam Shetty and another v. Rajendra Shankar Patil, (2010) 8 SCC 329 , the Apex Court on a complete analysis of the various judgments rendered by it, carved out the principles to be followed by the High Court's while exercising jurisdiction under Article227 of the Constitution and in paragraph Jurisdiction 49 of the judgment held as under:- "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 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 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. This 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 Court 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, acts 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 Court 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 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 has 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. (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 Courts. 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 be exceeded 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. (n) This reserve and exceptional power of judicial intervention is not be exceeded 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 frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality. 11. Testing the order impugned passed by the learned appellate court on the touchstone of the principles formulated by the Apex Court notice above, it is seen there is no perversity in the said order nor there appears to be any manifest failure of justice or violation of principles of natural justice. The appellate court, in its wisdom, thought it fit to order maintenance of status quo by the parties on spot, which does not have the effect of taking away the possession of that party of the property which is in possession of the petitioners herein. The order impugned, cannot be said to be in any manner perverse nor it can be said that the court below failed to exercise its jurisdiction necessitating this court to exercise power under Section 104 of the Constitution of Jammu and Kashmir. 12. This court cannot persuade itself to take a view different than the one taken by the appellate court in passing the order impugned. 13. As a sequel to the above, this petition is found to be without merit and is dismissed.