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2015 DIGILAW 44 (JK)

Nimrata Kumari v. Ajay Kumar

2015-02-23

TASHI RABSTAN

body2015
JUDGMENT : Tashi Rabstan, J.:- 1. Through the medium of this petition, filed under Section 104 of the Constitution of Jammu & Kashmir, the petitioner-Nimrata Kumari is seeking setting aside of order dated 19.07.2014 passed by the learned Additional District Judge (Matrimonial Cases) Jammu, whereby the trial Court while allowing the application of respondent-Ajay Kumar permitted him to file the amended divorce petition under Section 13 of the Hindu Marriage Act. The facts-in-brief are that respondent has filed a petition before the trial Court under Section 13 of the Hindu Marriage Act for seeking divorce in his favour, in which the petitioner herein has also filed objections. The trial Court has also framed the issues. However, during the pendency of said petition, the respondent filed an application for amendment of the petition, to which the petitioner herein also filed her response. The trial Court vide order dated 19.07.2014, while allowing the application, permitted the respondent herein to file the amended divorce petition. It is this order which is challenged by the petitioner through the medium of present petition. 2. The precise ground taken by the petitioner is that under Order VI Rule 17 of the Code of Civil Procedure no power of amendment can be exercised by the trial Court; the order impugned therefore is without jurisdiction and is contrary to the rules. It has also been contended by the learned counsel for petitioner that the order impugned is not speaking one as no detailed reasons have been given in the order. In support of his contention, he has relied upon a case reported as Ali Mohammad Magloo v. Abdul Hamid Magloo, 2007 (3) JKJ 58 [HC]. 3. On the other hand, learned counsel for respondent contended that the trial Court after exhaustively examining the proceedings and hearing the parties allowed the application for amendment of the petition under Section 13 of the Hindu Marriage Act. He further argued that the petition was not on the verge of conclusion and the trial Court was well within its powers to hear and allow the application. To substantiate his contention, he relied upon cases reported as Usha Devi v. Rijwan Ahmad, (2008) 3 SCC 717 and Surender Kumar Sharma v. Makhan Singh, (2009) 10 SCC 626 . 4. Heard learned counsel. 5. To substantiate his contention, he relied upon cases reported as Usha Devi v. Rijwan Ahmad, (2008) 3 SCC 717 and Surender Kumar Sharma v. Makhan Singh, (2009) 10 SCC 626 . 4. Heard learned counsel. 5. 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 power of 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 order impugned is neither appealable nor revisable under Section 115 of the CPC. Petitioner has thus chosen to file this petition under Section 104 of the Constitution of J&K which corresponds to Article 227 of the Constitution of India. 6. Judicial pronouncement as to the object and scope of the power of the High Court under Article 227 of the Constitution of India (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 a right of another appeal to the aggrieved party. Nor the power can be invoked to point out an error of law or fact in the order or decision of a 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. 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 have to be utilized very cautiously, carefully, sparingly and in rarest of the rare cases. 7. The Apex Court in case titled Shalini Shyam Shetty v. Rajendra Shankar Patil, 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 Courts as the highest Courts of justice within their jurisdiction will adhere to them strictly." 8. The Apex Court in a case titled Kokkanda B. Poondacha v. K.D. Ganapathi, 2011 AIR 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. 9. That 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. 10. 10. The Apex Court in Shalini Shyam Shetty (supra) has surveyed judicial pronouncement as to the nature of power of superintendence and control conferred on the High Court by the Constitution under Article 227 (Section 104 of the Constitution of J & K). While referring to constitutional Bench's judgment in Waryam Singh v. Amar Nath, AIR 1954 SC 215 , and Special Bench judgment in Dalmia Jain Airway Ltd. v. Sukumar Mukherjee, AIR 1951 Cal. 193 , it has been held that the power of superintendence conferred by Article 227 is to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. Also while referring to another constitution Bench judgment in State of Gujarat v. Vakhat Singh Ji Vajesingh Ji Vaggekam, AIR 1968 SC 1481 , it has been observed that the supervisory power under Article 227 is meant to keep the subordinate Tribunal within the limits of their authority and to ensure that they obey law. 11. The Apex Court also held that if the litigating parties are private and not State functionaries, the writ is 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. The Apex Court after analyzing the aforesaid decisions has in paragraph 62 formulated the following principles on the exercise of High Courts' power under Article 227 of the Constitution and the same is reproduced hereunder: "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. (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. (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. (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. (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. (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." 12. Parties in this case are private persons and not the State and, therefore, a question arises as to whether Writ Petition is maintainable between two individuals/parties in their personal capacities to determine the inter se civil dispute? The answer is in negative. 13. 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 the Government 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 appropriate to reproduce relevant paragraph 64 of the judgment passed in case Shalini Shyam Shetty (supra) hereunder:- "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." 14. I have also examined the judgments referred to by the learned counsel for respondent. 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." 14. I have also examined the judgments referred to by the learned counsel for respondent. It would be relevant to reproduce paragraph 13 of the judgment Usha Devi (supra) hereunder: "13. Mr. Bharukha, on the other hand, invited our attention to another decision of this Court in Baldev Singh v. Manohar Singh. In para 17 of the decision, it was held and observed as follows: "Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion on the court to allow an amendment of the written statement at any stage of the proceedings." 15. It would also be relevant to reproduce paragraph 5 of the judgment Surender Kumar Sharma (supra) hereunder: "5 As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the Court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the Court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse amendment. 6. It is also well settled that even if the amendment prayed for is belated, while considering such belated amendment, the Court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by cost or otherwise.." 16. I have also examined the judgments referred to by the learned counsel for petitioner. In my view the same have no relevance to the facts of present case. 17. In view of above discussion, this petition is not maintainable. Accordingly, the petition filed by the petitioner-plaintiff is dismissed. However, learned trial Court is directed to expedite the matter as early as possible.