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2014 DIGILAW 376 (JK)

Deepa Shangloo v. Sunil Shangloo

2014-09-04

TASHI RABSTAN

body2014
1. Petitioner through the medium of this petition under Section 104 of the Constitution of the Jammu and Kashmir has invoked the writ jurisdiction of this Court for setting aside order dated 16.09.2013 passed by learned Additional District Judge (Matrimonial Cases), Jammu, i.e., respondent No. 2 in an application filed under Section 13 of the J&K Hindu Marriage Act, 1980 titled Dr. Sunil Shangloo v. Dr. Deepa Shongloo (hereinafter for short as `impugned order') by virtue of which respondent No.1 has been permitted to place on record the original documents and to produce further proof in support thereof if he so chooses subject to payment of costs of Rs. 500/- on the grounds taken in the memo of petition. 2. As per averments made in the petition, it appears that respondent No.1 had filed petition under Section 13 of the Hindu Marriage Act at Ghaziabad (Uttar Pradesh) against the petitioner, which stood transferred before the Court of learned Additional District Judge (Matrimonial Cases), Jammu on the directions of Hon'ble Supreme Court. It is contended on behalf of respondent No.1 that he was under the impression that the original documents had been filed by his counsel along with divorce petition, but when he appeared as his own witness, he came to know that his counsel had not filed the original documents at the time of filing the divorce petition nor have the same been filed before framing the issues. Thereafter, respondent No.1 after giving his statement in the Court, filed application dated 04.07.2013 for placing on record the original documents, which was resisted by the petitioner on the grounds that the documents sought to be placed on record have been prepared and fabricated after the institution of the divorce petition, therefore, the same are false and sought to be placed on record with mala fides intention to negate the certificate issued by. Dr. Alpana Aggarwal dated 05.04.2001 certifying the miscarriage and D&C treatment provided to her. It is contended on behalf of petitioner that filing of petition without giving list of documents or mentioning the detail of documents to be relied upon was contrary to the provisions of Order XIII of the Code of Civil Procedure read with section 23 of the J&K Hindu Marriage Act. It is contended on behalf of petitioner that filing of petition without giving list of documents or mentioning the detail of documents to be relied upon was contrary to the provisions of Order XIII of the Code of Civil Procedure read with section 23 of the J&K Hindu Marriage Act. Vide order dated 16.09.2013, learned Additional District Judge (Matrimonial Cases), Jammu after hearing both the parties, granted leave to bring on record the original documents and also to produce further proof in support thereof. It is contended that the order impugned has been passed by ignoring the express provisions of Order XIII of the code of Civil Procedure thereby referring the provisions of Sub-Rule 3, Rule 14 of Order VII of the CPC, which governs the provisions regarding plaint whereas the provisions regarding production of documents are contained in Order XIII of the CPC. It is this order, which is called-in-question in the present petition. 3. Heard learned counsel for the parties and perused the record. 4. Learned counsel for the petitioner argued that the documents are fabricated by respondent No.1, which have been prepared after the filing of the divorce petition, therefore, those documents being forged and not genuine cannot be permitted to be placed on record at the belated stage of the proceedings. It is also argued that no sufficient cause has been shown by respondent No. 1 for not annexing the original documents with the divorce petition on or before settlement of the issues. 5. It may be noticed that as per Order VII, Rule 14(3) of the Code of Civil Procedure, the document which ought to be produced in the Court by the plaintiff/petitioner, when the plaint/petition is presented, or which is required to be entered in the list to be added or annexed to the plaint or to the petition, but, if not produced or entered, cannot be produced without the leave of the Court and cannot be received in evidence at the hearing of the Suit. Order VII, Rule 14 (3) CPC is reproduced or under:- "A document which ought to be produced by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint, but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit". 6. From the plain reading of aforesaid Rule, it is clear that a document, which is not produced in the Court at the time of filing the plaint or petition or is not entered in the list to be added or annexed to the plaint, cannot ordinarily be produced at the time of hearing of the suit/petition, but the Court can grant leave to produce the documents so not produced or entered in the list, if sufficient cause is shown to the Court for not producing the same at the time of filing the plaint or petition or entered in the list annexed with the plaint/petition. 7. It is argued by the learned counsel for respondent No.1 that the respondent No. 1 has sufficient cause to show because petition has been initially filed in the Court at Ghaziabad, and he was under this impression that he has filed the documents with the petition, but, later on, the case has been transferred from Ghaziabad to Jammu on the directions of the Hon'ble Supreme Court, therefore, he could not produce the documents at or before the settlement of issues under the impression that the documents might have already been filed with the petition, but when he led his evidence, this fact came to his knowledge and immediately thereafter he resorted to available remedy. 8. Precisely, the case of the petitioner is that impugned order has been passed by the Matrimonial Court in hot haste without application of mind and without taking into consideration the grounds taken by the petitioner in the objections filed to the application for placing on record the original documents. It is contended that while passing order impugned, the Matrimonial Court has failed to appreciate the relevant circumstances as well as legal provision, which are applicable to a situation for production of documents at the stage of recording of the evidence of the respondent No.1. 9. It may be noticed that as per interpretation of Statute everything is permitted unless there is a specific bar under the procedural law. Under the Code of Civil Procedure, there is no explicit bar for not permitting any party to place on record documents or for Court to receive documents at any stage of the Suit. 9. It may be noticed that as per interpretation of Statute everything is permitted unless there is a specific bar under the procedural law. Under the Code of Civil Procedure, there is no explicit bar for not permitting any party to place on record documents or for Court to receive documents at any stage of the Suit. Order XIII Rule 1 or Order VII Rule 14(3) of CPC permits a party to place on record documents after the first hearing of suit subject to leave of the Court. Learned trial Court after taking into consideration all these aspects of the matter passed the order impugned. 10. Now, before deciding the controversy raised in the present petition, the question for consideration would be whether the present petition filed under Section 104 of the Constitution of State of Jammu & Kashmir would be maintainable? The answer is negated for the following reasons. 11. Petitioner has not questioned the competence jurisdiction of the trial Court. Petitioner has also not averred in the petition that trial Court or appellate Court has passed the order without or in excess of jurisdiction. 12. The maintainability of the petition is put under cloud by its very own averments on the ground that Civil Procedure Code has undergone a sea change with the amendment of 2009. The amendment has restricted the powers of the revisional Court. Virtually, petition is in the nature of revision petition and if such a practice is adopted and allowed that will render the aim and object of the amendment infructuous and meaningless. The fact of this Court having vast powers under Articles 226 and 227 is undisputed, but care has to be taken when the same is warranted to be exercised, because the powers under such Articles has to be utilized very cautiously, carefully, sparingly and in rarest of the rare cases. 13. The Apex Court in case titled Shalini Shyam Shetty v. Rajendra Shankar Patil reported as 2010 AIR SCW 6387 has observed that there is tendency in High Courts to entertain petition under Article 227 of the Constitution against the orders against which revision is barred in terms of amended Act of CPC. It is apt to reproduce paragraph Nos. 80, 81 and 82 of the judgment supra herein:- "80. It is apt to reproduce paragraph Nos. 80, 81 and 82 of the judgment supra herein:- "80. We may also observe that in some High Courts there is tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev (supra) and in view of the recent amendment to Section 115 of the Civil Procedure Code by Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 of CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law. 81. As a result of frequent interference by Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. 82. This Court hopes and trusts that in exercising its power either under Article 226 or 227. Hon'ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Court's as the highest Courts of justice within their jurisdiction will adhere to them strictly." 14. The Apex Court in a case titled Kokkanda B. Poondacha & others v. K. D. Ganapathi & another reported as AIR 2011 SCW 1737, held that invoking of writ or supervisory jurisdiction against interlocutory orders is permissible only when subordinate Court has acted without or in excess of jurisdiction and not otherwise. 15. This Court also in case titled Abdul Rehman Dar and others v. Showkat Ali Bhat and others reported in 2011 (4) JKJ 334 [HC] and in case titled Kuldip Singh and others v. Krishna Devi and others passed by the Hon'ble Division Bench of this Court in LPAOW No. 30/2013 dated 16.04.2013, while following the aforesaid judgments of the Apex Court has laid down the same principle. 16. 16. If a party which loses the case before the trial Court or before the appellate Court is allowed to file writ petition and thereafter if such writ petition is entertained without any check and balance that will amount to beating litigation and in breach of the purpose, aim and object of the legislation which was made basis for amendment of the CPC. 17. Apex Court in case Shalini Shyam Shetty supra also held that if the litigating parties are private and not State functionaries, the writ is also not maintainable and a distinction has been made with respect to the powers of High Court under Article 226 and 227 of the Constitution of India. It is apt to reproduce paragraph No.62 here as under:- "62. 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 (supra) and the principles in Waryam, Singh (supra) have been repeatedly followed by subsequent Constitution (Benches and various other decisions of 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 (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 fern the situations pointed, in (e) and (f), High Courts 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 & others, reported in (1997) 3 SCC 261 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 moto. 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 moto. (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." 18. Parties in this case are private persons and not the State and, therefore, a question arises as to whether Writ Petition is maintainable against an individual in his personal capacity? The answer is in negative. 19. It is beaten law of the land that Writ Petition is a remedy in public law, which can be filed by any person, but the main respondent should either be Govt. Agency or a State or its instrumentalities within the meaning of Article 10. Private persons cannot be said to be the State or instrumentalities of the State and all the respondents in the writ petition cannot be private parties. Agency or a State or its instrumentalities within the meaning of Article 10. Private persons cannot be said to be the State or instrumentalities of the State and all the respondents in the writ petition cannot be private parties. Under Article 226 of the Constitution of India, High Court can issue writ against any person, but the persons must have some statutory or public function to perform. It is apt to reproduce paragraph No. 64 of the judgment passed in case Shalini Shyam Shetty (supra) herein as under:- "64. It is well settled that a writ petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform." 20. Moreover, the Apex Court in its latest judgment titled as Jacky v. Tiny alias Antony and others reported in 2014 AIR SCW 2235 has also held in paragraph No. 17 as under:- 17. A petition under Article 226 or Article 227 of Constitution of India can neither be entertained to decide the landlord-tenant dispute nor it is maintainable against a private individual to determine an intense dispute including the question whether one party harassing the other party. The High Court under Article 227 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 but it was not the case of the 1st respondents that the order passed by the Munsiff Court was without any jurisdiction or was so exercised exceeding its jurisdiction. If a suit is not maintainable, it was well within the jurisdiction of the High Court to decide the same in appropriate proceedings but in no case power under Articles 226 and 227 of Constitution of India can be exercised to question a plaint." 21. If a suit is not maintainable, it was well within the jurisdiction of the High Court to decide the same in appropriate proceedings but in no case power under Articles 226 and 227 of Constitution of India can be exercised to question a plaint." 21. It is not the case of the petitioner that trial Court has acted without or in excess of jurisdiction; nor is the State party herein, therefore, the writ petition cannot stand the test laid down by the Apex Court in the judgments reproduced hereinbefore. 22. Viewed thus, this petition fails and is, accordingly, dismissed along with connected CMA(s), if any.