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2014 DIGILAW 304 (JK)

Mohd. Lateef v. Ravinder Singh

2014-07-15

Hasnain Massodi

body2014
1. Petitioner is defendant No. 1 in Civil Suit titled S. Ravinder Singh and another v. Mohd Lateef and others, awaiting disposal before Learned Munsiff, Jammu. Respondent No.1, while filing civil suit for grant of permanent injunction decree, also filed an application under Order 39 CPC for grant of ad-interim injunction. 2. The case set up before the learned Trial Judge was that respondents 1 and 2 (plaintiff in suit) were in possession of a plot of land measuring one kanal ten marlas falling under Khasra No.2285 min situated at Village Sunjwani District Jammu and that petitioner and respondents 3 and 7 (defendants in the Suit) without any right or interest in the suit land were interfering in their peaceful possession over the suit land. 3. Learned Trial Judge vide order dated 20th March 2012 allowed application and made interim order passed earlier on 25th August 2009, absolute. Petitioner and respondents 3 to 7, were accordingly directed not to interfere with suit land, till disposal of the suit, Learned Trial Judge, on going through application and record placed on file, held respondents 1&2 to have made out a prima facie case in their favour as they were shown in possession of suit land in revenue records. It was found that suit land was State land and respondents 1 and 2 could only claim possessory rights over it and that they had a right to have their possessory rights protected against third person. Learned Trial Judge opined that balance of convenience tilted in favour of respondents 1 and 2 and that they were likely to be exposed to irreparable loss in the event interim injunction was withheld. 4. Trial court order dated 20th March 2012 came to be questioned by present petitioner in Civil First Miscellaneous Appeal before Principal District & Sessions Judge, Jammu. Petitioner claimed to be in possession of the suit land and to have even got a case FIR No. 185/2009 under section 447, 323, 427, 382 RPC and 4/25 Arms Act, registered against respondents 1 and 2 at Police Station Bahu Fort, when respondent 1 and 2 on 12.08.2009, with their sympathizers, indulged in rioting and trespassed into suit land and committed other offences alleged in the complaint. It was pleaded that as respondents 1 and 2 were not in possession of suit land, they were not entitled to any protection under Order 39 CPC. It was pleaded that as respondents 1 and 2 were not in possession of suit land, they were not entitled to any protection under Order 39 CPC. The court below was said to have not appreciated the matter in right perspective & also not to have looked at the record available on file. 5. Appellate court did not find any merit in the appeal. It, after discussing and dilating on the prerequisites necessary for exercise of discretion under order 39 Civil Procedure Code, found respondents 1 and 2 to have successfully carved out a prima facie case in their favour According to the Appellate court, other two prerequisites i.e. balance of convenience and irreparable loss ware also in favour of respondents 1&2 (plaintiffs). Appellate court found Trial court order in strict accordance with law and not to be faulted on any count and therefore not warranting any interference. The Civil First Miscellaneous Appeal was, accordingly, dismissed vide order dated 22.05.2012. 6. Petitioner, not discouraged by two consecutive failures, has come up with petition on hand under Article 227 Constitution of India, read with Section 104, Constitution of Jammu and Kashmir. He, in exercise of supervisory jurisdiction, seeks quashment of Trial court order dated 20/03/2012 and Appellate court dated 22/05/2012. Petitioner reiterates the stand taken before Appellate court. It is pleaded that respondent 1 and 2 are not in possession of suit land; that outcome of investigation in case FIR No. 185/2009 vindicates his stand inasmuch as investigation stands concluded as proved against respondents 1& 2 and charge-sheet laid before learned Civil Judge (JMIC) Jammu. It is pleaded that respondents 1 & 2 with assistance of their friends and sympathizers on 12/8/2009 indulged in rioting, using fire arms and made an attempt to trespass into suit land and civil suit was only an effort to get protection for illegal act and escape punishment in criminal case. 7. Respondents 1 & 2, in their reply, claim to be in possession of suit land and to have a right to defend their possession. 7. Respondents 1 & 2, in their reply, claim to be in possession of suit land and to have a right to defend their possession. They allege that petitioner and respondents 3 to 7 and not respondents 1 and 2 are keen to take forcible possession of the suit land and case FIR No. 222 of 2012 under Section 448, 480, 504, 506, 34 R.P.C stands registered against petitioner and respondents 3 to 7 and charge-sheet pending before Special Mobile Magistrate Electricity (Sub-Judge), Jammu Respondents 1 and 2 defend orders impugned in the petition, insisting that the orders have been passed in accordance with law and observations made therein are based on record placed on file. Respondents 1 and 2, while reinforcing their claim, have placed on file extracts of revenue records wherein they are shown to be in possession of suit land as also photocopy of FIR No. 222/2012 Police Station Bahu-Fort under Section 448, 480, 504, 506, 34 R.P.C and connected records. 8. I have gone through the pleadings as also record placed on file. I have heard learned counsel for parties. 9. It is well settled law that supervisory jurisdiction exercisable under Article 227, Constitution of India, read with Section 104, Constitution of Jammu and Kashmir, is not to be mistaken as "appellate jurisdiction" to correct a wrong decision or an error in an order or judgment impugned in the petition. This court, in exercise of jurisdiction under Article 227, Constitution of India, is not to re-appreciate material before the court below and arrive at its own conclusion. It has been held that the jurisdiction under Article 227 is not to be used as a cloak for appeal in disguise Supreme Court in Essen Deinki v. Rajiv Kumar [ (2002)8 SCC 400 ] observed: "Exercise of jurisdiction under Article 227 of the Constitution is limited and restrictive in nature. It is so exercised in normal circumstances for want of jurisdiction, errors of law, perverse findings and gross violation of natural justice, to name a few. It is merely a revisional jurisdiction and does not confer an unlimited authority or prerogative to correct all orders or even wrong decisions made within the limits of the jurisdiction of the courts below. It is so exercised in normal circumstances for want of jurisdiction, errors of law, perverse findings and gross violation of natural justice, to name a few. It is merely a revisional jurisdiction and does not confer an unlimited authority or prerogative to correct all orders or even wrong decisions made within the limits of the jurisdiction of the courts below. The finding of fact being within the domain of the inferior tribunal, except where it is a perverse recording thereof or not based on any Material whatsoever resulting in manifest injustice, interference under article is not called for (para 2) It is clear that error must be that of law and patently on record committed by the inferior tribunal so as to warrant intervention-it ought not to act as court of appeal." 10. The law has been reiterated in State v. Navjot Sindhu (2003) 6 SCC, 641 and a number of judgments rendered thereafter. In Jacky v. Tiny alias Antony and ors [2014 AIR SCW 2235] the Apex Court observing that supervisory jurisdiction under Article 227 is intended to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them within the bounds of their authority referred to the following observation made by the court in Jai Singh and others v. Municipal Corporation of Delhi and another (2010) 9 SCC 385 ; We have anxiously considered the submissions of the learned counsel. Before we consider the factual and legal issues involved herein, we may notice certain well-recognized principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this article, has the Jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. The High Court is vested with the powers of superintendence and/or jurisdiction revision, even in matters where no revision or appeal lies to the High court. The jurisdiction under this article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however well to remember well-known adage that greater the power, greater the care and caution in exercise thereof. The jurisdiction under this article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however well to remember well-known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well-recognised constraints. It cannot be exercised like a "bull in a china shop" to correct all errors of judgment of a courts, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice." 11. In the present case, as a bare look on orders dated 25th August 2009 and 20th March 2012 would reveal, Trial Court as well as First Appellate Court have been conscious of cardinal principles governing exercise of discretion under Order 39 Civil Procedure Code. The case, put forth by respondents 1 and 2 as also present petitioner, has been examined on touchstone of settled legal principles. Trial court as well as Appellate court on an objective analysis of case set up and material available on file, have held respondents 1 and 2 to have successfully established existence of three prerequisites i.e, prima facie case, balance of convenience and irreparable loss, in their favour. The findings returned by courts below cannot be labeled as irrational, arbitrary or perverse or in gross violation of law, unmindful of limits of Jurisdiction, so as to make use of power under Article 227 and prevent miscarriage of justice. This Court cannot use jurisdiction under Article 227, Constitution of India, as a camouflage for an appeal and proceed to sift and analyze material available to the courts below to find out whether other case can be carved out on the basis of pleadings and material placed in support thereof. This is not the role assigned to this court under aforesaid Constitutional provision. 12. For reasons discussed, the petition is bereft of any merit, and is, accordingly, dismissed. It is however to be emphasized that neither parties claims ownership rights over the suit land. There claim is restricted to possessory rights. This is not the role assigned to this court under aforesaid Constitutional provision. 12. For reasons discussed, the petition is bereft of any merit, and is, accordingly, dismissed. It is however to be emphasized that neither parties claims ownership rights over the suit land. There claim is restricted to possessory rights. It would be therefore open to petitioner to approach Trial court with application for direction to respondents 1 and 2 not to change nature of suit land by raising any permanent structure over it or create any third party interest. In the event, such application is filed, it would be dealt with by the trial court on its own merit. 13. However, one aspect of the matter needs attention of Trial court. The suit land is admittedly State land. The documents placed on record by both parties indicate that suit land is recorded in possession of Forest Department. The parties are engaged in litigation to get declared as the possessor of the suit land and enforce possessory rights over suit land. Interim injunction, therefore, is not to prevent State or any of its functionaries to enforce protect rights of the State over the land. The Trial court on its part is expected to find out whether the case is covered by law laid down by Supreme Court in AIR 2011 SC 1123 titled Jagpal Singh & others v. State of Punjab & Ors. 14. Dismissed with CMA No. 1884/2012 and Contempt (OWP) No.149/2013.