ORDER : Tashi Rabstan, J. Petitioner through the medium of instant petition under Section 104 of the Constitution of the Jammu and Kashmir has invoked the writ jurisdiction of this Court for quashing order dated 16.09.2016 passed by learned Additional District Judge, Jammu in an Appeal titled M/s. Dimpy Enterprises v. Life Insurance Corporation of India and others (hereinafter for short as ' impugned order-) by virtue of which order dated 11.06.2016 passed by learned Sub-Registrar (Munsiff), Jammu in a civil suit titled M/s. Dimpy Enterprises v. Life Insurance Corporation of India and others has been upheld and appeal preferred by the petitioner has been dismissed. 2. The petitioner has called in question impugned order, inter alia, on the grounds that while dismissing the appeal by the learned Additional District Judge, Jammu, respondents-defendants have been given free hand to proceed with the tendering process, which if accomplished would render the suit infructuous thereby causing serious prejudice to the petitioner. The petitioner has also challenged order impugned on the ground that this Court in an earlier round of litigation granted status quo with regard to the installation of DG set and also stayed the operation of impugned orders dated 21.04.2015 and 25.02.2016 in Petition under Section 104 No. 23/2016 titled M/s. Dimpy Enterprises v. Life Insurance Corporation of India and others. Therefore, in view of the interim order dated 10.03.2016 passed by this Court in a Petition under Section 104 No. 23/2016, respondents could not have proceeded with issuance of fresh tender notice, so as to enter into a new contract. To buttress his submission, learned counsel for the petitioner has contended that in an earlier suit petitioner sought decree of declaration declaring order dated 04.12.2013 issued by respondent No. 2 with regard to termination of contract qua 40 KVA DG set installed by the petitioner-plaintiff at LIC Satellite office, Leh, as illegal, unlawful, non est, void ab initio and bad in the eye of law, along with relief of mandatory injunction directing the respondents-defendants to allow petitioner-plaintiff to operate Diesel Generator Set installed by him at different branches/offices of the defendants-respondents pursuant to their requisition and contracts. Learned counsel for petitioner, therefore, contends that it is in that context, this Court in the earlier Petition bearing Pet. u/S. 104, No. 23/2016 stayed operation of impugned orders dated 21.04.2015 and 25.02.2016 and directed parties to maintain status quo. 3.
Learned counsel for petitioner, therefore, contends that it is in that context, this Court in the earlier Petition bearing Pet. u/S. 104, No. 23/2016 stayed operation of impugned orders dated 21.04.2015 and 25.02.2016 and directed parties to maintain status quo. 3. Learned counsel for the petitioner, therefore, contends that calling of fresh tender by respondent No. 2 was in contravention of previous order passed in an earlier suit filed by petitioner, with respect to which petition under Section 104, No. 23/2016 is subjective and order of status quo has been granted by the Court. 4. Per contra, learned counsel for the respondents has stated that the relief claimed in the earlier suit, regarding which petition under Section 104, No. 23/2016 is pending and relief claimed in the subsequent suit, from which instant petition is filed, are entirely different. He has referred to impugned order passed by the learned Additional District Judge, Jammu, in which relief claimed in both the suits have been reproduced. 5. Supporting reasons given by the First Appellate Court, i.e. court of learned Additional District Judge, Jammu, learned counsel for the respondents contends that earlier order of status quo was only of the relief granted therein and same was only restricted to the smooth operation of DG Sets, installed at LIC Satellite office, Leh, only and that there was no order of restrain from any Court muchless from this Court to restrain from going ahead with the fresh tender. It was also contended that to the fresh tender notice, issued by respondents, petitioner too has responded and participated. That being so, there is no prima facie case set up in the plaint by the petitioner, as such, learned Trial Court and First Appellate Court were right in denying the interim relief to the petitioner. 6. Heard learned counsel for the parties and perused the record. 7. Before considering the rival contentions of the parties, it would be advantageous to advert to the legal position pertaining to the exercise of power of superintendence by this Court in terms of Section 104 of the Constitution of Jammu and Kashmir. 8. The Apex Court in Kokkanda B. Poondacha & others v. K.D. Ganapathi & another, reported as 2011 AIR SCW, 1737, has held that invoking of writ or supervisory jurisdiction against interlocutory orders is permissible only when subordinate Court acts without or in excess of jurisdiction and not otherwise. 9.
8. The Apex Court in Kokkanda B. Poondacha & others v. K.D. Ganapathi & another, reported as 2011 AIR SCW, 1737, has held that invoking of writ or supervisory jurisdiction against interlocutory orders is permissible only when subordinate Court acts without or in excess of jurisdiction and not otherwise. 9. This Court also in 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. 10. If a party which loses the case before the trial Court is allowed to file writ petition and thereafter if such writ petitions 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. 11. In Shalini Shyam Shetty v. Rajendra Shankar Patil, reported as 2010 AIR SCW 6387, the 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). The 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 of the Constitution of India, 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. The 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. 12.
12. 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 Section 227 of the Constitution of India. 13. However, the Supreme Court in Radhey Shyam and another v. Chhabi Nath and others (2015 AIR SCW 1849), has taken a different view from one that was taken in Surya Dev Rai v. Ram Chander Rai and others concerning jurisdiction of the High Courts under Article 226 of the Constitution of India, against the judicial order of Civil Court. The 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. 14. 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. 15. High Court, in exercise of its power under Article 227 of the Constitution, should interfere with 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, the 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. 16. From the above 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. 17. Viewed from the settled position of law, the instant case does not fall in any of the aforesaid parameters laid down by the 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. 18. 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 interference by exercise of extra-ordinary 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. 19. Considering the controversy raised in this petition and the grounds of challenge in the memorandum of petition, it is abundantly clear that both the impugned orders do not suffer either for want of jurisdiction or the orders have been found to be contrary to the settled legal proposition.
19. Considering the controversy raised in this petition and the grounds of challenge in the memorandum of petition, it is abundantly clear that both the impugned orders do not suffer either for want of jurisdiction or the orders have been found to be contrary to the settled legal proposition. Both the courts below having found no prima facie case in favour of petitioner, as rightly observed by learned trial court that the contract between petitioner and respondents had already been terminated due to afflux of time and that respondents cannot be forced to enter into further contract with petitioner. It is for the respondents to decide as to whether they would allow to continue with the same contract or they would go for fresh tender. In any case, as noted by learned trial Court the petitioner has already responded to fresh tender and therefore, is well within his rights to participate in the tendering process and compete with the others. 20. Order of learned trial court is reasoned order and has been rightly upheld by learned Additional District Judge vide its order dated 16.09.2016. Order passed by the learned Additional District Judge, Jammu, is reasoned one, noting the fact that the contract between the petitioner and respondents had already expired, and therefore, under the position of law, respondents cannot be compelled to review the aforesaid contract or enter into fresh contract exclusively with the petitioner on the terms and conditions dictated by the petitioner. Since in the earlier order passed in the Petition u/S. 104, No. 23/2016, there is no restrain on the respondents to issue fresh notice except with regard 40 KVA DG Set installed at Leh, the tender process initiated by respondents cannot be said to be in violation of interim order dated 10.03.2016 passed by this Court in Pet. u/S. 104, No. 23/2016, which is subjective. 21. On the basis of aforesaid reasoning and others contained in the impugned order dated 16.09.2016, learned Additional District Judge, Jammu, did not find favour with the arguments raised by the petitioner and dismissed the appeal accordingly. 22.
u/S. 104, No. 23/2016, which is subjective. 21. On the basis of aforesaid reasoning and others contained in the impugned order dated 16.09.2016, learned Additional District Judge, Jammu, did not find favour with the arguments raised by the petitioner and dismissed the appeal accordingly. 22. After having gone through the orders carefully, one passed by learned Sub-Registrar (Munsiff), Jammu, and one passed by learned Additional District Judge, Jammu, I do not find any infirmity in the aforesaid orders, which are fully inconsonance with law, as such, cannot be challenged in exercise of writ jurisdiction under Section 104 of the Constitution of Jammu and Kashmir. That being the position, impugned order passed by the learned trial Court calls no interference. Accordingly, this petition fails and is dismissed as such along with connected MP, if any. Petition dismissed.