Research › Search › Judgment

J&K High Court · body

2015 DIGILAW 101 (JK)

Dinesh Mahajan v. Narinder Sharma

2015-03-13

BANSI LAL BHAT

body2015
JUDGMENT : Bansi Lal Bhat, J. 1. This petition is directed against the order dated 17.11.2014, passed by the Court of learned 2nd Additional District Judge, Jammu, in Civil Suit filed by the respondent against the petitioner, whereby while framing issues in the suit for ejectment titled Narinder Sharma v. Dinesh Mahajan, two applications dated 04.09.2010 and 15.10.2013 filed by the respondent seeking recovery of arrears of rent from August, 2009 onwards have been allowed and the petitioner has been directed to deposit the arrears of rent amounting to Rs. 1660/- for the month of August, 2009 and 10,53,586/- as arrears of rent upto September, 2013, within a period of 15 days from the date of the order. The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India read with Section 104 of the Constitution of Jammu and Kashmir for issuance of a writ of certiorari for quashing the aforesaid order dated 17.11.2014. 2. The factual matrix of the case may briefly be adverted to Respondent filed a petition under Section 11(A) and 11(B) of the Jammu and Kashmir Houses and Shops Rent Control Act, (for short 'Act') before the trial court praying for restoration of possession. On consideration of the matter, the trial court in terms of order dated 07.05.2009 dismissed the same. Feeling aggrieved of the order dated 07.05.2009 passed by the learned Chief Judicial Magistrate, (Rent Controller), Jammu, the respondent preferred an appeal against the same before the learned Principal District Judge, Jammu, who, after considering the matter, passed the order dated 09.10.2012 dismissing the appeal observing that the order of the trial court does not suffer from any illegality and has not infracted any provisions of law. It is stated that during the pendency of the suit for ejectment, the respondent filed two applications dated 04.09.2010 and 15.10.2013 for recovery of arrears of rent outstanding against the petitioner. It appears that the court of learned 2nd Additional District Judge, Jammu, after considering the matter passed the impugned order dated 17.11.2014, whereby the petitioner has been directed to deposit the arrears of rent detailed in the preceding paragraph. The impugned order dated 17.11.2014 has been assailed by the petitioner on various grounds. It appears that the court of learned 2nd Additional District Judge, Jammu, after considering the matter passed the impugned order dated 17.11.2014, whereby the petitioner has been directed to deposit the arrears of rent detailed in the preceding paragraph. The impugned order dated 17.11.2014 has been assailed by the petitioner on various grounds. He has stated that the impugned order is not legally permissible because while framing issues the trial court cannot allow the two applications filed by the respondent with respect to recovery of arrears of rent and it could have been done only after deciding the issues framed by the trial court. It is also stated that whether the respondent is entitled to any arrears of rent is a main issue, which can be determined at the final stage. It is contended that the trial court has virtually allowed the civil suit filed by the respondent. It is further stated that arrears of rent claimed by the respondent were time barred and thus are not legally recoverable. It is also stated that the impugned order suffers from non application of mind and does not have any legal sanctity. 3. I have heard learned counsel for the parties and considered the matter. 4. Before proceeding further in the matter, it would be appropriate to have a look on the issue with regard to maintainability of the writ petition under Article 227 of the Constitution of India read the Section 104 of the Constitution of Jammu & Kashmir State. A petition filed under Article 227, stricto sensu is not a writ petition. The nature of exercise of power under Article 227 stands on substantially different footing. Jurisdiction under Article 227 is neither original nor appellate. Article 227 vests jurisdiction in the High Court both for administrative control and judicial superintendence over the courts and tribunals subordinate to it. Jurisdiction under Article 227 can be exercised to substitute the order impugned by an order which the inferior tribunal should have passed. This is apart from annulling the proceedings or quashing of the order impugned. The power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. Interference by the High Court under Article 227 is to keep the subordinate courts within the bounds of their jurisdiction. This is apart from annulling the proceedings or quashing of the order impugned. The power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. Interference by the High Court under Article 227 is to keep the subordinate courts within the bounds of their jurisdiction. However, mere errors of fact or of law cannot be corrected by taking recourse to writ of certiorari or exercise of supervisory jurisdiction unless such error is manifest or apparent on the face of the proceedings and a gross failure of justice has occasioned thereby. Such powers are to be exercised sparingly and in appropriate cases where the judicial conscience of the Court dictates it to act to bring failure of justice to halt. Caution and circumspection is to be exercised when such jurisdiction is sought to be invoked, during the pendency of any suit/proceedings before a subordinate court and the error is capable of being corrected at the conclusion of proceedings though calling for correction. I am fortified in this view by a judgment of the Apex Court in a case titled Shalini Shyam Shetty and another v. Rajendra Shankar Patil, (2010) 8 SCC 329 . The Hon'ble Apex Court after analyzing various decisions rendered by it, formulated the following, principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution. "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. (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. (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. 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 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. 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." 5. Admittedly, in view of the amendment to Section 115 of Code of Civil Procedure, no revision lies against the impugned order passed by the learned District Judge. However, the remedy by way of revision being not available would not stand in the way of invoking jurisdiction under Article 227 of the Constitution, if the impugned order suffers from error on the face of record, i.e., the order is in utter disregard of the provisions of law and has occasioned gross failure of justice. The power of superintendence vested in this Court under Article 227 cannot be curtailed by any statute. Invoking of such power would be justified in a case of patent perversity in the order of the subordinate court. Curtailing of scope of Section 115 of Code of Civil Procedure in terms of the amending Act of 2009, in any case, does not result in expanding High Courts power of superintendence. In exercise of its jurisdiction under Article 227 of the Constitution of India, this Court has to follow the regime of law notwithstanding the curtailment or barring of jurisdiction under Section 115 of the CPC. 6. The question which arises for determination and consideration is as to whether the impugned order is perverse and suffers from grave error and has occasioned a failure of justice. The emphatic answer is in negative. In the first place, it is futile to contend that the impugned order is bad merely because the two applications filed by the respondent under Section 12(4) of the Act have been clubbed with the main suit file and a composite order has been passed in regard to disposal of these applications and framing of issues in the main suit. It is not understandable as to how some prejudice can be claimed to have been caused to the petitioner on this score. The impugned order has been assailed only to the extent of disposal of aforesaid two applications, one of which related to claim for arrears of rent for the month of August, 2009 amounting to Rs. 1660/- and from September, 2009 to July, 2010, totaling to Rs. The impugned order has been assailed only to the extent of disposal of aforesaid two applications, one of which related to claim for arrears of rent for the month of August, 2009 amounting to Rs. 1660/- and from September, 2009 to July, 2010, totaling to Rs. 2,02,531/- and the second application covered arrears of rent accumulated to Rs. 10,53,586/- covering the entire period with effect from August, 2009 to September, 2013. It is also not in dispute that the 2nd application claiming arrears of rent came to be filed while the 1st application covering the period from August, 2009 to July, 2010, was already pending consideration. Therefore, it is futile to contend that claim for arrears of outstanding rent was hit by limitation as under Article 81 of the Limitation Act claim for arrears of rent could be made within three years from the date right to claim such arrears accrued. Merely, because respondent included the claim for arrears of rent being the subject matter of 1st application dated 04.09.2010 in the 2nd application dated 15.10.2013, while the first was still pending, does not make the claim for accumulated arrears of rent time barred. Objections raised on this score being devoid of any merit are overruled. 7. It is seen that under Section 12(4) of the Act, a landlord is vested with the right to set up a claim and apply for an order directing the tenant to deposit the arrears of rent due and also month to month rent at the same rate at which it was being paid previously. A tenant would lose the right to contest the landlord's suit for ejectment if he fails to pay the admitted rent, past or present. Statutory protection will be available to the tenant only so long as he discharges his obligation in regard to payment of rent. In the case at hand, the factum of tenancy of demised premises has not been disputed by the petitioner. Once he claimed that the landlord did not receive the rent, he cannot be heard to say that the arrears of rent are not outstanding against him. The case of the respondent in regard to arrears of rent is clear and specific in regard to amount of arrears of rent and the period for which the same was due. Once he claimed that the landlord did not receive the rent, he cannot be heard to say that the arrears of rent are not outstanding against him. The case of the respondent in regard to arrears of rent is clear and specific in regard to amount of arrears of rent and the period for which the same was due. In view of the petitioner's plea that the respondent did not receive the rent when tendered by the petitioner, it cannot be said that such arrears were not outstanding. The claim being barred by limitation, having been found without substance, the impugned order cannot be termed erroneous muchless perverse. It cannot be, therefore, said that the impugned order has occasioned failure of justice. Viewed so, I find no perversity in the impugned order passed by the learned 2nd Additional District Judge, Jammu, which has exercised its jurisdiction within the bounds of law. In the aforementioned backdrop, this petition being devoid of any force is dismissed along with connected CMAs.