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2015 DIGILAW 461 (JK)

Mohd. Rajab Dar v. Gh. Mohammad Dar

2015-09-02

MOHAMMAD YAQOOB MIR

body2015
JUDGMENT : Mohammad Yaqoob Mir, J. 1. Impugned are the two orders passed by appellate court (ld. District Judge, Budgam), one dated 01.01.2015 where-under Misc. Appeal has been dismissed and another dated 3rd February, 2015 where-under application seeking clarification of the order dated 01.01.2015 has been disposed of. On 30th July, 2015, petition was adjourned so as to enable learned counsel for the petitioner to justify maintainability of the revision petition in view of amendment to Section 115 CPC. When again matter was taken up on 31st July, 2015. Learned counsel conceded that the revision petition is not maintainable in view of Division Bench judgment of this Court, however, he prayed for conversion of revision petition to petition under Section 104 of the Constitution of J&K. Case, as such, was adjourned to be listed on 4th August, 2015 so as to enable the ld. Counsel to satisfy the Court that such conversion is permissible. 2. While hearing learned counsel for the petitioner on the question of conversion of revision petition into petition under Section 104 of the Constitution of J&K, need arose for hearing the matter on merits so as to ascertain whether grounds exist for invoking powers under Section 104. 3. Admittedly, in terms of order dated 22.12.2014, passed by the trial court (Munsiff, Chadoora), application for grant of temporary injunction has been disposed against which Civil Misc. Appeal has been filed which has been disposed of vide order impugned. Revision against such orders, admittedly, is barred by Proviso to Section 115 CPC. After amendment to Section 115 CPC, the revisional powers of the High Court have been curtailed but such curtailment would not control powers of the Court exercisable under Article 226 and 227 of the Constitution of India. Article 227 corresponds to Section 104 of the Constitution of J&K State. 4. The Hon'ble Apex Court has laid down principles governing exercise of jurisdiction of the High Court under Article 227 of the Constitution of India in the judgment rendered in case Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil, reported in 2010 AIR SCW 6387. In this connection, Para 62 of the judgment is relevant to be quoted: 62. 4. The Hon'ble Apex Court has laid down principles governing exercise of jurisdiction of the High Court under Article 227 of the Constitution of India in the judgment rendered in case Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil, reported in 2010 AIR SCW 6387. In this connection, Para 62 of the judgment is relevant to be quoted: 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 order 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'. (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 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. 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. (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. (Emphasis supplied) It is in the backdrop of para (e), (g), (j) and (k) as emphasized hereinabove, the present case has to be considered. 5. The factual background which has given rise to the present litigation precisely is that the respondent (hereinafter referred to as the plaintiff) and the petitioner (hereinafter referred to as the defendant) are neighbours. Plaintiff is owner in possession of land measuring 1 kanal 7 marlas covered by survey No. 178 situated at Manganwaji Tehsil Bagati Kanipora District Budgam. Two storied residential house of the plaintiff existed thereon. Adjacent to the said land, towards east is the land measuring 1 kanal covered by survey No. 176/1 which is in ownership and possession of the defendant. The said area was badly hit by the devastative floods of September, 2014. Foundation of the house of plaintiff was strong, it did not collapse whereas house of the defendant collapsed. Adjacent to the said land, towards east is the land measuring 1 kanal covered by survey No. 176/1 which is in ownership and possession of the defendant. The said area was badly hit by the devastative floods of September, 2014. Foundation of the house of plaintiff was strong, it did not collapse whereas house of the defendant collapsed. Faced with such situation, defendant started construction of the house. While raising plinth up to ground level, simultaneously earth filing was done around it which was noticed one feet above the plinth level of the plaintiff's residential house. Completion of the plinth level would reach to a height of about five feet from the plinth level of the plaintiff's residential house. In addition thereto, defendant was noticed not to have maintained any gap towards plaintiff's house. 6. Plaintiff's filed a suit for declaration and injunction before the Court of Munsiff, Chadoora, alongside an application for grant of temporary injunction was also filed. Trial court after hearing both the parties has identified the dispute by stating in the order that the two storied residential house of the plaintiff exist, defendant is to raise construction of his residential house adjacent to the house of the plaintiff for which he has raised level of the plinth above the plinth level of plaintiff s house which will adversely affect the rights of the plaintiff, therefore, defendant shall be restrained from raising level of the plinth above the level of plinth of the plaintiff's house whereas defendant has projected that his residential house collapsed due to recent floods and in order to save himself from such fate in future, he has decided to raise his plinth higher than what was before. 7. On appreciating the entire material and rival contentions on the touchstone of golden principles governing grant or otherwise of the interim relief, trial court has come to the conclusion that the plaintiff has not carved out a prima-facie case and balance of convenience also does not appear to till, in his favour. The defendant is homeless, needs shelter immediately. Application was accordingly dismissed. The trial court while dismissing the application has also taken care of the interests of the plaintiff by recording that the defendant is directed to execute an undertaking within two days of the order to the effect that in case plaintiff succeeds in his suit, then defendant would compensate the plaintiff. Application was accordingly dismissed. The trial court while dismissing the application has also taken care of the interests of the plaintiff by recording that the defendant is directed to execute an undertaking within two days of the order to the effect that in case plaintiff succeeds in his suit, then defendant would compensate the plaintiff. The defendant will also undertake that he will leave four feet gap in between the common wall and his residential house and that no rain water or snow of his residence should enter the premises of the plaintiff. The order shall not be construed as final nor it shall effect the final outcome of the suit. 8. Aggrieved by this order, plaintiff filed Civil 1st Miscellaneous Appeal under Order 43 CPC before the appellate Court (Principal District Judge, Budgam). The appellate court after appreciating the rival contentions has concluded that the order dated 22.12.2014 passed by the trial court is within four corners of law so is upheld. While doing so has added that the defendant will maintain the level of the plinth and compound with the level of the plinth and compound of plaintiff so that their user/habitation is not affected. With this additionally defendant was not satisfied, he filed an application seeking clarification of said order which has been disposed of vide order dated 03.02.2015 observing therein that the Court has disposed of the appeal by upholding order passed by the learned Munsiff Chadoora with slight modification that the defendant will maintain the level of the plinth and compound with the plaintiff so that their user/habitation is not effect; therefore, there is no need to make any modification. 9. Learned counsel for the revisionist (defendant) would submit that trial court on proper appreciation of fact and law and after considering golden principles governing grant or otherwise of the interim relief has concluded that the case is not made out by the plaintiff, despite that while rejecting application has also taken care of interests of the plaintiff by directing defendant to furnish undertaking to the effect that he will leave four feet gap in between common wall and his residential house and no rain water or snow of his residence should enter the premises of the plaintiff. When appellate court after appreciating submissions and after noticing the proper exercise of discretion by the trial court upheld the order of the trial court, there was no requirement of making an addition, as has been made, which otherwise is impracticable because the defendant has already raised plinth up to one feet above the level of the plinth of the plaintiffs residential house, how could the defendant then maintain the level, it would operate as a mandate for him to pull down one feet already raised. 10. According to learned counsel for the revisionist, learned appellate court has exceeded its jurisdiction. On one hand appellate court has observed that he is conscious there is little scope for interfering with the discretion exercised by the trial court when same is exercised judiciously but on the other hand, in a way, has made a modification of the order which in turn has given rise to an uncertain situation. Appellate court once holding that the trial court order is upheld being within four corners of law and discretion having been judiciously exercised, how could appellate court carve out scope for addition which addition, as referred to above, has given rise to uncertainty. This is where learned appellate court has exceeded its authority warranting interference by invoking powers of superintendence as permissible under Section 104 of the Constitution of J&K. 11. The situation as has arisen attracts applicability of the principles laid down by the Hon'ble Apex Court as referred to above, more particularly para (e) and (n). This is where learned appellate court has exceeded its authority warranting interference by invoking powers of superintendence as permissible under Section 104 of the Constitution of J&K. 11. The situation as has arisen attracts applicability of the principles laid down by the Hon'ble Apex Court as referred to above, more particularly para (e) and (n). Learned appellate court in the factual background of the case has held order of the trial court to be within four corners of law, but the addition styled as "modification" after upholding it, in effect, has resulted into an uncertain situation to the detriment of the interests of the defendant who already is a flood victim and is in the process of constructing a residential house at the place where his earlier devastated house existed and in the background of a reasonable protection extended to the plaintiff by the trial court ordering defendant to furnish an undertaking to leave four feet gap in between common wall and his residential house with a further condition that no rain water or snow of his residence shall enter into the premises of the plaintiff with a further undertaking to the effect that in case plaintiff succeeds in the suit, he will be compensated by the defendant. 12. In the stated facts, interference with the order of the appellate court is warranted by exercising power of superintendence. It being so, the revision petition is converted and treated as petition under Section 104 of the Constitution of J&K State, Registry to diarize the same accordingly. Petition allowed, order of the appellate court dated 01.01.2015 to the extent it provides that the defendant will maintain the level of the plinth and the compound with the level of the plaintiff's plinth is set aside. The parties shall be strictly governed by the order of the trial court dated 22.12.2014, as has been upheld by the appellate court. Petition succeeds, shall, accordingly, stand disposed of.