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2015 DIGILAW 81 (JK)

Mehar Chand v. Rattan Lal and Ors.

2015-03-09

BANSI LAL BHAT

body2015
JUDGMENT Bansi Lal Bhat, J. 1. Petitioner seeks quashment of order dated 26.10.2013 passed by 2nd Additional Munsiff Jammu in suit titled Mehar Chand v. Rattan Lal & Anr. by virtue whereof respondent No. 1 was permitted to file written statement subject to imposition of costs. The impugned order is alleged to be perverse resulting in failure of justice. Facts leading to passing of the impugned order may briefly be noticed. Petitioner filed suit for declaration before Trial Court claiming to be owner in possession of M/s. Rattan wires an industrial unit established on a plot of land measuring 02 kanals underlying Khasra No. 517/2 Khata No. 280 min and Khewat No. 105 min situated at Gangyal Tehsil Jammu along with structure consisting of a hall, four rooms, godowns, office and along with machinery and moveable assets of the premises. He also sought perpetual prohibitory injunction against respondents from interfering, encroaching upon or alienating the subject matter of suit or dispossessing the petitioner. Respondent No. 1 entered appearance before Trial Court on 26.08.2010. He did not file written statement within thirty days of service of summons upon him. Extension of time was sought even after expiry of the extended period of 90 days. On 04.02.2011 respondent No. 1 filed yet another application for extension of time to file the written statement without seeking condonation of delay. Petitioner's case is that he filed objections to the said application and the Trial Court passed the impugned order wrongly imputing it to petitioner that he had not filed objections to the said application. It is contended that the impugned order was passed without screening the record causing patent illegality resulting in failure of justice. 2. Respondent No. 1 has contested the petition on the ground that he appeared before the Trial Court through his Attorney on 27.10.2010 and no on 26.08.2010 as claimed by the petitioner. The case was adjourned from time to time as service of respondent No. 2 had not been effected. On 04.02.2011 respondent No. 1 filed application under Sections 148/151 of CPC seeking extension of time for filing written statement. Petitioner filed objections to the same. Meanwhile Presiding Officer of the Court was transferred and a new Presiding Officer took over. The matter was argued and the application came to be decided on 23.07.2012. On 04.02.2011 respondent No. 1 filed application under Sections 148/151 of CPC seeking extension of time for filing written statement. Petitioner filed objections to the same. Meanwhile Presiding Officer of the Court was transferred and a new Presiding Officer took over. The matter was argued and the application came to be decided on 23.07.2012. It is further pleaded that learned counsel for respondent No. 1 was not present on that date though his presence has been recorded in the order. Respondent No. 1 came to know of the order subsequently and moved an application on 02.01.2013 under Sections 148/151 of CPC for extension of time to file his written statement. Objections were filed by the petitioner after availing adjournments. Finally the application was decided in terms of the impugned order dated 26.10.2013. It is further pleaded that respondent No. 1 has complied with the impugned order and filed his written statement and also deposited the costs. 3. Respondent No. 1 further pleaded that jurisdiction under Section 104 of Constitution of Jammu and Kashmir could not be invoked by the petitioner as no failure of justice has occasioned. 4. Heard and considered. 5. Exercise of jurisdiction under Section 104 of Constitution of Jammu and Kashmir is akin to exercise of jurisdiction under Article 227 of Constitution of India. 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 justitiae or as a matter of right when there is infringement of fundamental rights. However, a petition filed under Article 227, strictu-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 exercised by the High Court suo motu as a 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 air 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 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 Wary am 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) and the principles in Wary am 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 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. 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. (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." 6. It is manifestly clear that this Court, while exercising jurisdiction of superintendence can interfere in order only to keep the Trial Court within the bounds of its authority and to ensure that law is followed by exercising jurisdiction vested in Court or by not declining to exercise jurisdiction vested in it. Such interference would also be warranted when there is patent perversity in the orders of sub-ordinate Court or where failure of justice has been occasioned. The mere error of law or fact would not justify interference. Such interference would not be warranted even where a different view is possible in the facts and circumstances of case than the one taken by the Trial Court. The mere error of law or fact would not justify interference. Such interference would not be warranted even where a different view is possible in the facts and circumstances of case than the one taken by the Trial Court. 7. Applying this settled position of law in the facts and circumstances of this case, be it seen that in terms of order 8 Rule 1 CPC defendant is required to file his written statement within 30 days from the date of service of summons on him. However, such time is extendable at the discretion of Court upto 90 days. The exercise of discretion would depend upon peculiar facts and circumstances of each case dependent upon the difficulty or hardship encountered by defendant in filing written statement of his defense within the prescribed period of thirty days from the date of service of summons upon him. Court is required to record reasons for allowing extension of time which, in no case, can extend beyond ninety days reckoned from the date of service of summons upon the defendant. The Hon'ble Apex Court held in Mohd. Yusuf v. Faij Mohd. and Ors. reported in (2009) SCCR 331 that grant of extension of time beyond thirty days is not automatic. It should be exercised with caution, and for adequate reasons and that the extension of time beyond ninety days of service of summons must be granted only based on a clear satisfaction of justification of granting such extension. The Hon'ble Apex Court emphasized upon the Courts to encourage the belief in litigants that the imperative of Order 8 Rule 1 must be adhered to and that only in rare and exceptional cases, breach thereof will be condoned. Such an approach will carry forward the legislative intent of avoiding delays or at least curtailing the delays in disposal of cases. It, therefore, follows that the Court can invoke powers inhering in it under Section 148 of CPC to extend time beyond ninety days to mitigate genuine hardship. From the perusal of record of Trial Court it comes to fore that the suit came to be instituted on 21.01.2010. It was registered on the same day and summons were issued to respondents-defendants. 8. Respondent No. 1 entered appearance on 26.08.2010 through his learned counsel Ms. Zanib S. Wattali Advocate and sought opportunity to file written statement. From the perusal of record of Trial Court it comes to fore that the suit came to be instituted on 21.01.2010. It was registered on the same day and summons were issued to respondents-defendants. 8. Respondent No. 1 entered appearance on 26.08.2010 through his learned counsel Ms. Zanib S. Wattali Advocate and sought opportunity to file written statement. It is not in dispute that respondent No. 2 did not file written statement within the prescribed period of thirty days of service of summons upon him. Admittedly extension of time was sought even after expiry of period of ninety days which was again followed by filing of another application for extension of time though no formal application was filed for condonation of delay. It further appears that the application of respondent No. 1 for extension of time to file written statement was allowed on 23.07.2012 subject to payment of Rs. 1000 as costs with direction to file written statement within one week. However, the order was not complied with by respondent No. 1, who filed yet another application on 03.01.2013 seeking further extension of time. Defendant No. 2 had already been set ex-parte. This application came to be disposed of in terms of the impugned order dated 26.10.2013 by virtue whereof respondent No. 1 was permitted to place his written statement on record within seven days subject to payment of Rs. 1000 as costs. The learned trial court ignored the objections raised by the petitioner and passed the impugned order wrongly imputing it to petitioner that he had not resisted the motion for extension of time. It is manifestly clear that respondent No. 1 has neither filed the written statement within the prescribed period of thirty days nor within the extended period of ninety days from the date of service of summons upon him. In terms of impugned order the trial court has permitted him to file the written statement after a lapse of more than three year from the date of service of summons upon him. It further appears that despite extension of times, respondent No. 1 did not comply with the requirement of filing written statement and went on seeking extension one after the other without seeking condonation of delay. No adequate reasons appear to have been assigned for seeking such extension. Learned trial court has not assigned plausible reasons justifying granting of such huge extension. No adequate reasons appear to have been assigned for seeking such extension. Learned trial court has not assigned plausible reasons justifying granting of such huge extension. Ignoring the objections raised by respondent No. 1, the trial court did not dwell on the aspect of considering whether a rare and exceptional case was carved out by respondent No. 1 justifying granting of extension and condoning adherence to the imperative of Order 8 Rule 1 CPC. No hardship of exceptional nature warranting condonation of delay for more than three years and allowing extension of time to file written statement after such a huge gap emerges from the impugned order. 9. Viewed thus, the impugned order cannot be supported and the same has to be set aside by exercising the supervisory jurisdiction vested in this court in terms of provisions of Section 104 of Constitution of Jammu and Kashmir read with Article 227 of Constitution of India. This course is adopted as the learned trial court has transgressed the bounds of law and gone haywire. The impugned order is accordingly set aside. 10. Resultantly, respondent No. 1 is precluded from filing written statement in terms of provisions of Order 8 Rule 1 CPC. Since respondent No. 2 has been set ex parte and suit stands undefended on behalf of respondent No. 1, the learned trial court shall pass appropriate orders in relation to the suit as it thinks fit in terms of provisions of Order 8 Rule 10 CPC. Record of the case be remitted back to the trial court with direction to parties to appear before the trial court on March 31, 2015.