Research › Search › Judgment

J&K High Court · body

2015 DIGILAW 332 (JK)

Akbar Ali v. Mohd Ashraf Sheikh and others

2015-07-09

TASHI RABSTAN

body2015
JUDGMENT : 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 quashing order dated 21.04.2015 passed by learned 2nd Additional District Judge, Jammu in Appeal titled National Welfare Foundation Trust, Sunjwan and another v. Akbar Ali (hereinafter for short as 'impugned order') by virtue of which order of injunction dated 21.07.2014 granted by 2nd Additional Munsiff, Jammu has been set aside on the grounds taken in the memo of petition. 2. As per averments made in the petition, it appears that the petitioner had filed a Civil Suit before lower Court for permanent prohibitory injunction against respondents 1 and 2 restraining them from interfering in the peaceful possession of the petitioner and from raising any sort of construction or creating any third party interest in the suit property, i.e., land measuring 20 kanals falling under Khasra No. 39 (11 kanals 03 marlas), 40 (08 kanals 11 marls) and 42 min (03 marlsa) situated at Sunjwan, Jammu to the extent of petitioner’s share, i.e., 10 kanals only. Along with Suit, an application for grant of Temporary Injunction was also filed and learned trial Court on the presentation of the Suit, after considering the material produced by the petitioner vide its order dated 29.05.2014 had directed both the parties to maintain status quo on spot with respect to the suit land. 3. Respondents 1 and 2 filed written statement as well as objections and learned trial Court after considering written statement and objections besides documents relied upon by respondents 1 and 2 as well as material placed by petitioner on file vide its order dated 21.07.2014 made order dated 29.05.2014 absolute till the final disposal of the suit. Against this order, Appeal came to be filed before. 2nd Additional District and Sessions Judge, Jammu, which was allowed vide order dated 21.04.2015 and it is this order which is impugned in this petition. Hence, this petition on the grounds taken in it. 4. Heard learned counsel for the parties and perused the record. 5. Learned counsel for the petitioner has assailed the impugned order on the ground that the same is illegal, having been passed in violation of the principles governing the field. Hence, this petition on the grounds taken in it. 4. Heard learned counsel for the parties and perused the record. 5. Learned counsel for the petitioner has assailed the impugned order on the ground that the same is illegal, having been passed in violation of the principles governing the field. It is further contended that respondent No. 3 who had filed Appeal before the Appellate Court was not party before the trial Court nor any permission was obtained for filing the same. It is further contended that learned Appellate Court despite having knowledge that respondent No. 3 was not party before the trial Court passed the order impugned. It is also contended that order has been passed without application of mind and without examining the record. 6. On the other hand, learned counsel for respondents while arguing submitted that so far as plea of the petitioner that respondent No. 3 was not a party before the trial Court is not well founded because respondent No. 3 was arrayed as defendant in the Suit on an application filed by the petitioner vide order dated 18.07.2014. It is further contended that there is no jurisdictional error in the impugned Order nor is it perverse as the same was based on the material available before the appellate Court, which include Khasra Girdawaris, Lease Deed, Order of Allotment of respondent Trust. Learned counsel further submitted that no case for invoking the supervisory jurisdiction of this Court under Section 104 of the Constitution of Jammu and Kashmir has been disclosed in the petition nor it is made out. Learned counsel also submitted that mere dissatisfaction of a party with a decision or order of a Court or Tribunal is no ground for invoking supervisory jurisdiction of the High Court. Learned counsel further submitted that supervisory jurisdiction of the High Court cannot be invoked for setting aside an order passed by the trial Court and can be exercised only in a case where larger public interest is involved. He relied upon a judgment Shalini Shyam Shetty v. Rainder Shankar Patil, (2010) 8 SCC 329 . 7. In this behalf, learned counsel for the petitioner submitted that even in a petition under Section 104 of the State Constitution, this Court has the power to set aside an illegal order of a lower Court by issuance of a writ of Certiorari. 7. In this behalf, learned counsel for the petitioner submitted that even in a petition under Section 104 of the State Constitution, this Court has the power to set aside an illegal order of a lower Court by issuance of a writ of Certiorari. He further submitted that this Court has superintendence and control over all the Courts for the time being subjected to its Appellate or Revisional jurisdiction and all such Courts shall be subordinate to this Court. It has the Jurisdiction to call for the return from such Courts the prescribed forms and rules regulating practice and proceedings of such Courts. The power of superintendence is not confined to administrative superintendence only, but such power includes the power of judicial review also. This High Court under Section 104 of the State Constitution has to ensure that the lower Courts subordinate to this Court have done what they are required to do. This Court can interfere with subordinate Courts in cases of erroneous assumptions or acting beyond its jurisdiction, refusal to exercise jurisdiction, commission of error of law apparent on record where its conclusions are perverse based on no evidence. Thus, the learned counsel for the petitioner contended that this Court can interfere by exercising the powers under Section 104 of the Constitution of Jammu and Kashmir. 8. Precisely, the case of the petitioner is that impugned order has been passed in hot haste; without application of mind and while passing order impugned, the appellate Court has failed to appreciate the relevant circumstances as well as legal provision, which are applicable to a situation. 9. 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? 10. 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. 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 having vast powers with this Court 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 have 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 petitions 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. 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. 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 Courts as the highest Courts of justice within their jurisdiction will adhere to them strictly.” 14. The Apex Court in another case titled Kokkanda B. Poondacha & others v. K.D. Ganapathi & another reported as AIR SCW 2011, 1737, has also 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 (IV) 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. If a party which loses the case before the trial Court or before the Appellate Court is allowed to file any petition and thereafter if such 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 has 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 a/so different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The mode of exercise of power by High Court under these two Articles is a/so 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 a/so 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 and by not declining to exercise the jurisdiction which is vested in them. (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 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. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in tine, case of L, Chandra Kumar vs. 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. (I) 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. In an appropriate case, the power can be exercised suo moto. (I) 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. Judicial pronouncements as to the object and scope of the power of the High Courts under Article 227 of the Constitution (Section 104 of the State Constitution) would leave little scope to interfere with the orders of the subordinate courts as a matter of routine. This power cannot be taken as right of another Appeal to the aggrieved party. Nor this power can be invoked to point out an error of law or fact in the Order or judgement/decision of Subordinate Court as has been sought by the petitioner in this case. This power cannot be used to make out that the decision of the Subordinate Court could have been or must have been other than what it is. 19. This power cannot be used to make out that the decision of the Subordinate Court could have been or must have been other than what it is. 19. High Courts in exercise of its power under Article 227 of the Constitution should interfere with the trial Court orders only to keep the Tribunals and Courts subordinate to it, within the bounds of their authority and to ensure that law is followed by such Tribunals and Courts by exercising jurisdiction which is vested in them and not declining to exercise the jurisdiction which is vested in them. Apart from the above, 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 basis principles of natural justice have been flouted. 20. 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. 21. 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 12. 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. 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." 22. Moreover, Apex Court in 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 inter se 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.” 23. Apex Court in its latest judgment dated 26.02.2015 passed in Civil Appeal No. 2548 of 2009 titled Radhey Shyam and another v. Chhabi Nath and others with SLP (C) No. 25828 of 2013 titled Jagdish Prasad v. Iqbal Kaur and others has also taken the same view. 24. In this backdrop, it is not the case of the petitioner that the Appellate Court (2nd Additional District and sessions Judge) has acted without or in excess of jurisdiction; nor is the State party herein. Therefore, this petition cannot stand the test laid down by the Apex Court in the judgments reproduced hereinbefore. 25. Viewed thus, this petition fails and is, accordingly, dismissed along with connected MP(s), if any.