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2016 DIGILAW 443 (JK)

Bharat Sanchar Nigam Ltd. v. Ganeshi Devi Trust

2016-09-01

TASHI RABSTAN

body2016
ORDER : Tashi Rabstan, J. Petitioners in instant petition under Section 104 of the Constitution of the Jammu and Kashmir, impugn order dated September 17th, 2013, passed by learned 1st Additional District Judge, Jammu, (for brevity "Court below") in a suit titled Smt. Ganeshi Devi Trust and another v. Union of India and others filed by respondents 1 and 2 for ejectment of petitioner No. 2 and proforma respondent from House No. 69 D/C, Gandhi Nagar, Jammu and for recovery of amount of Rs. 11,64,725/-, whereby prayer of the petitioners for amendment of the issues has been declined. 2. It is contended that vide order dated 20-10-2012, learned trial Court settled following issues:- 1. "Whether there is no Privity of Contract between the parties and the suit is filed by incompetent persons as Mr. Tej Ram Gupta who executed the agreement of lease has not been arrayed as a party to the suit and hence the suit is liable to be dismissed? OPD 2. Whether no notice of terminating the tenancy has been issued and as such the suit is premature? OPD 3. Whether the proper court-fees have not been fixed if so, what is the correct fee payable? OPD 4. Whether the plaintiff have stepped into the shoes of Lt. Sh. Tej Ram Gupta by virtue of the sale deed dated 5-5-1992 and registered on 12-5-1992 where by the plaintiff No. 1 is the sole trustee and plaintiff No. 2 is the beneficiary? OPP 5. Whether the defendants were immediately put to notice of the acquisition of suit property and their status as land lord? OPP 6. Whether the defendant Nos. 1 and 2 have not paid after August, 2008? OPP 7. Whether the lease stands terminated vide notice dated 8th of Nov., 2010 but the defendants have failed to vacate the premises without any reasonable cause and excuse? OPP 8. Relief? OPP. 3. It is pleaded that as the issues were not properly framed, petitioner No. 2 and proforma respondent filed application for their amendment and learned trial Court did not amend the issues but on the basis of said application framed two additional issues and out of them four issues were treated as legal issues, which are as under :- 1. Whether there is no Pivity of Contract between the parties and the suit is filed by in-competent persons as Mr. Whether there is no Pivity of Contract between the parties and the suit is filed by in-competent persons as Mr. Tej Ram Gupta who executed the agreement of lease has not been arrayed as a party to the suit and hence the suit is liable to be dismissed? OPD 2. Whether no notice of terminating the tenancy has been issued and as such the suit is premature? OPD 3. Whether the proper Court-fees have not been fixed if so, what is the correct fee payable? OPD 4.1-A. Whether BSNL is a necessary party to the suit and the suit is bad for non-joinder of necessary party. If so, what is its effect on the suit? OPD. 4. Learned trial Court vide order dated 17-9-2013 decided the proposed issues as preliminary issues. Against said order dated 17-9-2013, present petition has been filed on the ground that the issues have not been properly framed and the same are required to be amended on the grounds taken in it. It is argued that non-framing of issues as prayed for in the application resulted in passing impugned order, which is totally against facts and law. It is argued that issues decided vide order dated 17-9-2013 are totally against facts and law, which has occasioned miscarriage of justice. It is contended that contract was between Sh. Tej Ram Gupta and BSNL - petitioner No. 1. The suit could be filed against BSNL, as such, petitioner No. 2 and proforma respondent were neither necessary parties nor proper parties to the suit. 5. On notice, respondents filed objections contending therein that there is neither any error apparent on the face of record nor has order impugned resulted in any gross failure of justice. It is further contended that defendants 1 and 2 in the suit, i.e., petitioner No. 2 and respondent No. 9 herein, filed a joint written statement. However, in the present petition, defendant No. 1 has been arrayed as proforma respondent No. 9, which is not permissible under law. Learned counsel further contended that present petition is abuse of process of law and yet another attempt on the part of petitioners to prolong the trial of ejectment suit filed against them and the same, as such, deserves to be dismissed with costs. Learned counsel further contended that present petition is abuse of process of law and yet another attempt on the part of petitioners to prolong the trial of ejectment suit filed against them and the same, as such, deserves to be dismissed with costs. It is further contended that on the application filed by the petitioners and learned trial Court after hearing the parties and considering the legal position in respect of the preliminary issues decided the same vide its order dated 17-9-2013. It is contended that after framing of additional issues, petitioners did not file any further application for reframing or framing of yet other additional issues and the arguments were advanced on the preliminary issues without any grievance against non-framing of any additional issues. Therefore, it is argued that now after decision of the preliminary issues, petitioners are estopped from challenging the order impugned. It is further contended on behalf of respondents that agreement/lease deed was executed between Shri Tej Ram Gupta and BSNL (A Govt, of India Enterprises) represented by GMT, Jammu, petitioner No. 1 herein. It is contended that before incorporation of BSNL as a company under Company's Act, the Ministry of Telecommunication of the Union of India was managing and looking after all affairs of Telephone Departments. Under the impression that Department of petitioners still came under the Ministry of Telecommunication, the respondents had arrayed Union of India and General Manager, Planning Telecom Department (BSNL) as defendants 1 and 2 in the suit filed by them. It is not denied that lease deed was executed by General Manager, Telecom (BSNL) Jammu with Sh. Tej Raj Gupta. Therefore, the plaint was not bad for non-joinder of any necessary party. It is contended that the Court below after going through the pleadings, documents annexed therewith and after hearing the parties had held that Rule 10(2) of Order 1 of CPC empowers the Court to strike down the name of any person who has been unnecessarily made a party and substitute any other person as a party to the suit for determination of the real matter in dispute. It is also contended that Court on the basis of bona fide mistake of the respondents while deciding the issue No. 1-A in favour of petitioners directed plaintiff to make suitable amendment of by adding BSNL as a party in place of Union of India, which direction stands complied with by the answering respondents by way of filing the amended plaint. Therefore, powers exercised by the Court below in deciding the issue No. 1-A cannot be questioned by way of present petition. The petitioners have failed to point out as to how order impugned has resulted in gross miscarriage of justice or amounts to error apparent on the face of record. The contention of petitioners that non-framing of issues as prayed for in the application resulted in passing impugned order which is totally against facts and law. Contention of respondents is that there is neither any error apparent on the face of record nor has the order impugned resulted in any gross failure of justice. 6. Heard learned counsel for the parties and perused the record. 7. Learned trial Court vide order dated 17-9-2013, decided the preliminary issues identified between the parties. Trial Court identified various issues for adjudication but issues 1 to 3 were ordered to be treated as legal issues. Subsequently, on the application of the petitioners, additional issues were framed and one of those issues was also treated as legal issue. Learned counsel for respondents further contends that present petition is the abuse of process of law and yet another attempt on the part of petitioners to prolong the trial of ejectment suit filed against them and the same, as such, deserves to be dismissed with costs. It is further contended that on the application filed by the petitioners and learned trial Court after hearing the parties and considering the legal position in respect of the preliminary issues, decided the same vide its order dated 17-9-2013. The contention of learned counsel for the respondents is that after framing of additional issues, petitioners did not file any further application for reframing or framing of yet other additional issues and the arguments were advanced on the preliminary issues without any grievance against non-framing of any additional issues. Therefore, now after decision of the preliminary issues, petitioners are estopped from challenging the order impugned. 8. Therefore, now after decision of the preliminary issues, petitioners are estopped from challenging the order impugned. 8. Precisely, the case of the petitioners is that impugned order has been passed in hot haste; without application of mind and without taking into consideration the grounds taken by the petitioners-defendants in the application. 9. Petitioners have not questioned the competence-jurisdiction of the trial Court. Petitioners have also not averred in the petition that trial Court or appellate Court have passed the order without or in excess of jurisdiction. 10. Learned trial Court has passed a well reasoned order which needs no interference by this Court. The learned trial Court has rightly decided the issues vide order dated 17-9-2013. Otherwise also, 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 Amending Act 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 practise is adopted and allowed that will render the aim and object of the amendment infructuous and meaningless. The fact of this Court having vast powers under Article 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. 11. 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 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 Paras 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 ( AIR 2003 SC 3044 ) (supra) and in view of the recent amendment to Section 115 of the Civil Procedure Code by Civil Procedure Code (Amendment) Act, 1999. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev ( AIR 2003 SC 3044 ) (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. Thus 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." 12. The Apex Court in a case titled Kokkanda B. Poondacha and others v. K. D. Ganapathi and another, reported as 2011 AIR SCW 1737 : ( AIR 2011 SC 1353 ), 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 not otherwise. 13. This Court also in case titled Abdul Rehman Dar and others v. Showkat Ali Bhat and others, reported in 2011 (IV) JKJ 334 (HC) while following the aforesaid judgments of the Apex Court has laid down the same principle. 14. If a party which loses the case before the trial Court is allowed to file writ petition and thereafter if such writ petition are 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. 15. 14. If a party which loses the case before the trial Court is allowed to file writ petition and thereafter if such writ petition are 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. 15. In Shalini Shyam Shetty (2010 AIR SCW 6387) (supra) Hon'ble Supreme Court has surveyed judicial pronouncements as to the nature of the power of superintendence and control conferred on the High Courts under Article 227 of the Constitution (Section 104 of the Constitution of Jammu and Kashmir). Hon'ble Supreme Court in this case has started with the constitutional Bench's judgment of the Court in Waryam Singh v. Amar Nath, AIR 1954 SC 215 , where the Court, while relying upon a Special Bench judgment delivered by Harries, C. J., in Dalmia Jain Airway Ltd. v. Sukumar Mukherjee, AIR 1951 Cal 193 , had 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. Hon'ble Supreme Court has also referred to another Constitution Bench judgment in State of Gujarat v. Vakhat Singh Ji Vajesingh Ji Vaggekam, AIR 1968 SC 1481 , in which the Court has opined 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. 16. Before proceeding further to determine the controversy raised in this petition, it would be appropriate to refer the parameters laid down by the Supreme Court of India for exercise of jurisdiction vested in this Court under Section 104 of the Constitution of Jammu and Kashmir, which is in pari materia to Article 227 of the Constitution of India. 17. However, the Hon'ble Supreme Court in Radhey Shyam and another v. Chhabi Nath and others (2015 AIR SCW 1849): ( AIR 2015 SC 3269 ), has taken a different view from one that was taken in Surya Dev Rai v. Ram Chander Rai and others ( AIR 2003 SC 3044 ) concerning jurisdiction of the High Courts under Article 226 of the Constitution of India, against the judicial order of Civil Court. The Hon'ble Supreme Court, while deciding the question referred to in Radhey Shyam's case (supra), held that judicial orders of Civil Courts are not amenable to the writ jurisdiction under Article 226 of the Constitution and that jurisdiction under Article 227 of the Constitution is distinct from the jurisdiction under Article 226 of the Constitution of India. The contrary view taken in Surya Dev's case has, thus, been overruled. However, the position qua jurisdiction of the High Court under Article 227 of the Constitution, elaborately dealt with in Surya Dev Rai's case, has not been changed. 18. Judicial pronouncements as to the object and scope of 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 judgment/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. High Courts in exercise of its power under Article 227 of the Constitution should interfere with the Trial Court orders only to keep 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 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 basic principles of natural justice have been flouted. 20. In view of the settled legal position, it is abundantly clear that the powers of this Court under Article 104 of the Constitution of Jammu and Kashmir are extraordinary power of superintendence and are, therefore, required to be exercised in the rarest of rare cases. 21. 20. In view of the settled legal position, it is abundantly clear that the powers of this Court under Article 104 of the Constitution of Jammu and Kashmir are extraordinary power of superintendence and are, therefore, required to be exercised in the rarest of rare cases. 21. Viewed from the settled position of law, the instant case does not fall in any of the aforesaid parameters laid down by Hon'ble Supreme Court and as such, does not call for any interference. It is reiterated that the powers vested in this Court under Section 104 of the Constitution of J. & K. is not a substitute for the revisional powers vested in the Civil Court under Section 115 of CPC. Once the revision petition against the order passed by the Civil Court is barred, this Court would be loath to exercise jurisdiction under Section 104 of the Constitution of the Jammu and Kashmir unless it is demonstrated that the order impugned is perverse and has occasioned serious miscarriage of justice. 22. As noted above, learned trial Court was correct to hold that petitioner had all opportunities to lead additional evidence, but he had chosen not to do so. The petitioner, as rightly pointed out by trial Court, cannot be allowed to choose time of his own by filing applications after applications and unnecessarily protract the proceedings to their advantage and to the detriment of respondent. Any interference by this Court, at this stage, would only delay the trial, which has already been protracted inordinately. In this regard, it would be appropriate to reproduce Paragraph No. 12 of the judgment passed by the Apex Court in M/s. Bagai Construction Tr. Prop. v. Gupta Building Material Store on 22-2-2013 : ( AIR 2013 SC 1849 ) as under:- "12. After change of various provisions by way of amendment in the CPC, it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. This Court has repeatedly held that courts should constantly endeavour to follow such a time schedule. If the same is not followed, the purpose of amending several provisions in the Code would get defeated. In fact, applications for adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and accpetable reasons, those applications are to be considered. If the same is not followed, the purpose of amending several provisions in the Code would get defeated. In fact, applications for adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and accpetable reasons, those applications are to be considered. We are satisfied that the plaintiff has filed those two applications before the trial Court in order to overcome the lacunae in the plaint, pleadings and evidence. It is not the case of the plaintiff that it was not given adequate opportunity. In fact, the materials placed show that the plaintiff has filed both the applications after more than sufficient opportunity had been granted to it to prove its case. During the entire trial, those documents have remained in exclusive possession of the plaintiff, still plaintiff has not placed those bills on record. It further shows that final arguments were heard on number of times and judgment was reserved and only thereafter, in order to improve its case, the plaintiff came forward with such an application to avoid the final judgment against it. Such course is not permissible even with the aid of Section 151, CPC". 23. It is not the case of the petitioner that trial Court has acted without or in excess of jurisdiction; therefore, the petition cannot stand the test laid down by the Apex Court in the judgments reproduced hereinbefore. Even otherwise, the order passed by the Court below does not warrant interference by exercise of extraordinary or supervisory jurisdiction of the Court, for, neither the decision making process of the Court below suffers from any bias nor does the order cause any miscarriage of justice or otherwise suffers from any error of law. 24. For all what has been discussed above, it is abundantly clearly that there has been a deliberate effort on the part of petitioner to unnecessarily protract the proceedings before the trial Court. The order impugned was passed by the trial Court to check this also. That being the position, impugned order passed by the learned trial Court calls no interference. 25. Accordingly, this petition fails and is dismissed as such along with connected MP, if any.