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2015 DIGILAW 35 (JK)

Mohd. Yaseen Teli v. Sajad Ahmad

2015-02-19

B.L.BHAT

body2015
JUDGMENT : Bansi Lal Bhat, J.:- 1. Aggrieved of rejection of application for amendment of the plaint, the petitioner has invoked the writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India read with Sections 103 and 104 of the Constitution of Jammu and Kashmir seeking issuance of a writ of certiorari for quashing the order dated 16.11.2012 passed by the learned Sub-Judge, Shopian, in a suit titled Mohammad Yaseen v. Peer Gul Mohammad Sofi and another. The factual matrix of the case may briefly be adverted to. Petitioner filed a declaratory suit before the learned Sub-Judge, Shopian, against one Peer Gul Mohammad Sofi and Siraj-ul-Uloom Trust to declare the decree passed by learned Sub Judge, Shopian, in file No. 559 titled Siraj-ul-Uloom Trust v. Gul Mohammad Sofi decided on 05.12.1994, as null and void, and for permanent injunction against the defendants from interfering with the possession of petitioner-plaintiff over the land measuring 8 kanals 18 marlas falling under survey No. 24 and 7 kanals 2 marlas under Survey No. 39, situate at Village Gundi Mureed Hillow, Shopian. 2. The aforesaid suit was filed on the averments that the petitioner-plaintiff was owner in possession of the suit land which had been converted into an orchard. However, at the back of the petitioner-plaintiff, the defendants had got the land mutated in the name of defendant No. 1 against which the petitioner preferred an appeal before the Additional Deputy Commissioner, Pulwama, who set aside the mutation in question. But that did not deter the defendants, who filed a collusive suit preferred by Siraj-ul-uloom Trust through Mohammad Yousuf Mantoo against Peer Gul Mohammad Soft which was decreed by the trial court on 05.12.1994. The petitioner in his suit assailed the decree dated 05.12.1994 as being violative of provisions of Agrarian Reforms Act. 3. The defendants therein resisted the suit on the ground that the suit land was State land being held in actual physical possession by Siraj-ul-uloom Trust which had initially been allotted to defendant-Peer Gul Mohammad Sofi who had given it to the Siraj-ul-uloom Trust. 4. In terms of the amendment application, the petitioner sought to incorporate the relief of declaration to declare agreement dated 17.12.1980 as void and to seek possession of the suit land. 5. 4. In terms of the amendment application, the petitioner sought to incorporate the relief of declaration to declare agreement dated 17.12.1980 as void and to seek possession of the suit land. 5. The learned Sub-Judge after hearing the parties arrived at the conclusion that the petitioner had nowhere mentioned in the application as to when he came to know about the execution of the agreement in question and that he had not specifically alleged as to how and when he was dispossessed. He has referred to paragraph 2 of the application wherein it was stated as under: "Later on defendant No. 2 has taken, possession from the plaintiff forcibly." 6. The learned Sub-Judge found that while the defendants had specifically pleaded that the suit land was in physical possession of the defendant-Trust the petitioner-plaintiff had not specified as to how and when he was dispossessed. Thus, finding that the application for amendment was vague and evasive, prayer for amendment was turned down. 7. In this writ petition, respondent No. 2 has filed a detailed reply wherein he has pleaded that the subject matter of dispute was mutated in his favour by virtue of mutation No. 337 which was challenged by the petitioner in appeal. The mutation was set aside but in revision petition preferred by respondent No. 2 before the Jammu & Kashmir Special Tribunal, the mutation was found to be in order. It is further pleaded that the writ petitioner had accepted the possessory rights of Gul Mohammad Sofi father of respondent No. 1 in the mutation proceedings, besides he was a signatory to the mutation order dated 02.05.1981. It was further pleaded that the writ petitioner had executed a surrender deed with regard to the disputed land to the extent of 10 kanals covered by Survey No. 24 (8 Kanals, 18 marlas) and 39 min (1 Kanal, 2 marlas) in lieu of Rs. 20,000/- for establishment of an Islamic Institute namely Siraj-ul-uloom. Subsequently, possessory and other rights of the subject matter of dispute were transferred in favour of respondent No. 2 through a decree of civil court dated 05.02.1994, vesting the subject matter in favour of Siraj-ul-uloom Trust, Shopian. 20,000/- for establishment of an Islamic Institute namely Siraj-ul-uloom. Subsequently, possessory and other rights of the subject matter of dispute were transferred in favour of respondent No. 2 through a decree of civil court dated 05.02.1994, vesting the subject matter in favour of Siraj-ul-uloom Trust, Shopian. It is further pleaded that the petitioner has filed a civil suit assailing the decree dated 05.02.1994 despite knowledge that the suit land has been converted into an orchard and the same was lying in possession of the respondent No. 2. It is further pleaded that the petitioner has also not disputed the execution of surrender deed. Thus, the suit without seeking relief for possession was not maintainable. It was further pleaded that the suit was time barred and the grounds sought to be introduced by way of amendment were available to the petitioner who had failed to seek the appropriate relief at the time of filing of the suit. 8. I have heard learned counsel for the parties and perused the record. 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 Articles 226 and 227 of the Constitution of India read the Sections 103 and 104 of the Constitution of Jammu & Kashmir State. It is well settled that writ jurisdiction under Article 226 of the Constitution of India is extraordinary in nature and the same is not meant for declaring the private rights of the parties. The remedy available under Article 226 is not available unless there is violation of some statutory duty on the part of the statutory authority. A writ petition is a remedy in public law which can be filed by any person but the main respondent should either be the State, Government, governmental functionaries, or its instrumentalities/agencies within the meaning of Article 12 of the Constitution. Private individuals cannot be equated with State or its instrumentalities/functionaries. All the respondents in the writ petition cannot be private individuals. However, private individuals acting in collusion with the State can be respondents in a writ petition. The person against whom writ can be issued must have some statutory or public duty to perform. Power under Article 226 is exercised at the instance of persons or citizens for vindication of their constitutional or statutory rights. However, private individuals acting in collusion with the State can be respondents in a writ petition. The person against whom writ can be issued must have some statutory or public duty to perform. Power under Article 226 is exercised at the instance of persons or citizens for vindication of their constitutional or statutory rights. The relief under Article 226 can be claimed ex debito justified or as a matter of right when there is infringement of fundamental rights. 9. However, 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. While in its jurisdiction under Article 226 the High Court has power to annul or quash an order or proceedings, 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. While power under Article 226 is exercised when a party is affected, the power under Article 227 can be excised by the High Court suo motu as the custodian of justice. Thus the powers conferred under Articles 226 and 227 of Constitution of India are distinct and operate in different fields. 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. 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. In cases where an alternative statutory mode of redressed 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) 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) 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. 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 super-intendance 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. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of super-intendance 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 926 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." 10. 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 Sub 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. 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. 11. In view of foregoing discussions and the law laid down by the apex court in the judgments supra, it is manifestly clear that in absence of State or any of its instrumentalities being a party-respondent to the writ petition, the instant petition would not be maintainable under Article 226 of the Constitution of India read with Section 103 of the Constitution of the Jammu & Kashmir State. 12. In so far as invoking of supervisory jurisdiction vested in this Court under the provision of Article 227 of the Constitution of India read with Section 104 of J & K State is concerned, this Court would not interfere unless the trial court has transgressed the limits of its jurisdiction or adopted procedure unknown to law, thereby resulting in miscarriage of justice. The supervisory jurisdiction vested in this Court can be exercised only to keep the judicial forums seized of the matter within the bounds of law. In the case at hand, the learned trial court has declined to exercise the discretion of allowing amendment of plaint to incorporate relief of declaration to adjudge the agreement dated 17.12.1980 as illegal as also declined to allow the petitioner to incorporate the relief of possession of suit land in the plaint. The reasons have been assigned in the impugned order which are perfectly in consonance with the judicial principles regulating amendment of plaints. Once the trial court was of the view that the petitioner despite being aware of the fact that the respondents had raised the plea of petitioner being out of possession, had slept over the matter and that he had not specified with reasonable exactitude the date, manner and circumstances when he was dispossessed, the amendment proposed could not be allowed. Once the trial court was of the view that the petitioner despite being aware of the fact that the respondents had raised the plea of petitioner being out of possession, had slept over the matter and that he had not specified with reasonable exactitude the date, manner and circumstances when he was dispossessed, the amendment proposed could not be allowed. The respondent No. 2 has placed documents in support of the reply affidavit demonstrating that the petitioner was a signatory to the mutation order No. 337 attested on 02.05.1981 in favour of Peer Gul Mohammad who parted with the possession of the suit land in favour of respondent No. 2 in terms of the decree impugned in the suit. The respondent No. 2 has also placed on record copy of the order passed by the Jammu & Kashmir Special Tribunal dated 18.06.2001 in terms whereof the impugned judgment passed by the Commissioner Agrarian Reforms dated 16.03.1999 setting aside the mutation has been quashed. The petitioner has not even specified in the application seeking amendment of plaint as to when he got the knowledge about the execution of the agreement in question. Same is true about his allegation of being dispossessed from the suit land. In view of these vague pleas sought to be introduced by way of amendment, the rights accrued to the respondents by lapse of time were sought to be taken away and the plea of limitation was sought to be dislodged. Admittedly, revision against the impugned order is not maintainable. In these circumstances, it is impermissible to invoke supervisory jurisdiction vested in this Court. No failure of justice has been brought to the notice of this Court and the trial court is not shown to have transgressed its limits of jurisdiction. I find no perversity in the impugned order passed by the court of learned Sub Judge, Shopian, which has exercised its jurisdiction within the bounds of law. In the aforementioned backdrop, this writ petition being devoid of any merit, is dismissed alongwith the connected CMPs. Interim directions shall stand vacated.