Judgment 1. Petitioners, through instant writ petition under Article 227 of the Constitution of India read with Section 104 of J&K Constitution, seek writ of certiorari quashing/declaring orders dated 14th July 2014 and 29th June 2015, passed by learned Sub Judge, Budgam (for short “Trial Court”), in case titled Mohammad Yousuf Shah and another versus Akber Ganie and others, as illegal, bad, erroneous, against law and justice. They further seek writ of mandamus, directing/commanding Trial Court/Sub Judge, Budgam, to dispose of the matter after hearing final arguments in the matter in consonance with the directions passed by Principal District Judge, Budgam, vide judgment dated 24th July 2006. 2. Petitioners’ case is that they had filed civil suit for grant of a decree of permanent injunction/prohibitory injunction against respondents (defendants below), which was pending disposal before Trial Court. The suit, as contended, by petitioners, was actually filed before learned Munsiff, Chadoora, by petitioners, Learned Munsiff, vide judgment dated 14th June 2006, dismissed the suit under Order 7 Rule 11 CPC, which was put to challenge. Learned Principal District Judge Budgam, vide judgment dated 14th July 2006 set-aside the said” judgment and in view of complaint of by petitioners, the case-file was sent to files of Trial Court instead of Munsiff, Chadoora. Parties appeared before Trial Court and led evidence and that the case was listed for arguments, but amazingly Trial Court vide order dated 14th July 2014, erroneously returned the plaint to petitioner for its presentation before learned Munsiff Chadoora under Order 7 Rule 10-A CPC. Petitioners aver that they even filed review petition along with application for condonation of delay, but Trial Court vide order dated 29th June 2015 dismissed the same. Aggrieved thereof, petition on hand. 3. Respondents 1 to 5, in their reply, state writ petition is liable to be dismissed as petitioners have approached this Court as if they have filed appeal against the order of Trial Court and that order under challenge has been passed on the desire of counsel for plaintiffs/petitioners, when he made submission to Trial Court to send case-file to learned Munsiff, Chadoora, while invoking powers under Order 7 Rule 10-A CPC. The writ petition is stated to hit by latches. 4. I have heard learned counsel for parties at length. I have gone through, the pleadings and given my thoughtful consideration to the matter. 5. The writ petition is stated to hit by latches. 4. I have heard learned counsel for parties at length. I have gone through, the pleadings and given my thoughtful consideration to the matter. 5. Before deciding the controversy emanating from present petition, the question that arises for consideration is whether present petition filed under Section 104 of the Constitution of State of Jammu and Kashmir is maintainable. The fact that the High Courts have powers under Articles 226 and 227 of the Constitution of India, is undisputed, but care is to be taken when the same is warranted to be exercised because powers under such Articles have to be utilized very cautiously, carefully, sparingly and in rarest of rare cases. There should not be tendency in High Courts to entertain petitions under Article 226, or for that matter under Section 104 of Constitution of State of Jammu & Kashmir, against the orders, against which revision is barred in terms of amended Act of CPC. The Supreme Court in this regard in Shalini Shyam Shetty v. Rajendra Shankar Patil (2010 AIR SCW 6387) has held that frequent interference by High Courts either under Article 226 or 227 of the Constitution in pending civil and at times criminal cases impedes disposal of cases by the civil and criminal courts and thus causing serious problem in the administration of justice. 6. The Apex Court in Shalini Shyam Shetty’s case (supra) 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. 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 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.” 7. This Court also in case titled Abdul Rehman Dar and others v. Showkat Ali Bhat and others reported in 2011 (IV) JKJ 334 (HC) and in case titled Kuldip Singh and others v. Krishna Devi and others passed by the Hon’ble Division Bench of this Court in LPAOW No. 30/2013 dated 16.04.2013, while following the aforesaid judgments of the Apex Court, has laid down the same principle that if a party, which loses the case before Trial Court or before 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 CPC. 8. In Shalini Shyam Shetty case (supra), 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 in Waryam Singh v. Amar Nath, AIR 1954 SC 215 , where the Court, while relying upon a Special Bench judgment delivered by Harries, CJ., in Dalmia Jain Airway Ltd. V. Sukumar Mukherjee, AIR 1951 Cal. The Supreme Court in this case has started with the Constitutional Bench’s judgment in Waryam Singh v. Amar Nath, AIR 1954 SC 215 , where the Court, while relying upon a Special Bench judgment delivered by Harries, CJ., 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 Subordinate Courts within bounds of their authority and not for correcting mere errors. The Supreme Court also referred to another Constitution Bench judgment in State of Gujarat v. Vakhat Singh Ji Vajesingh Ji Vaggekam ( AIR 1968 SC 1481 ) in which it was opined that 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. 9. Before proceeding further to determine the controversy raised in this petition, it would be appropriate to refer 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 parimateria to Section 227 of the Constitution of India. 10. In Surya Dev Rai v. Ram Chander Rai and others Hon’ble Supreme Court, after discussing ambit of powers vested in the High Court under Article 227 of the Constitution, laid down following propositions:— “(1) Amendment by Act No.46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.” 11. However, the Hon’ble 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 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 writ jurisdiction under Article 226 of the Constitution and that jurisdiction under Article 227 of the Constitution is distinct from 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. 12. 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 subordinate courts as a matter of routine. This power cannot be taken as a 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 asserted by petitioners in the case in hand. 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. 13. 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. 14. 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. 14. 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 extra ordinary power of superintendence and are, therefore, required to be exercised in the rarest of rare cases. 15. Viewed from the settled position of law, the case in hand does not fall in any of 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. 16. Impugned order dated 14th July 2014 herein, on its glimpse, reveals that Trial Court has passed it in presence of both parties and their counsel. It is petitioners’ counsel who agreed to presentation of the suit before learned Munsiff, Chadoora. Thus, writ petition in hand is a measured effort of petitioners to unnecessarily protract the proceedings. The order impugned has not been passed in absence of parties. The order has been passed with consent and agreement of plaintiffs’/petitioners’ counsel. That being the position, impugned orders passed by the learned Trial Court call no interference. 17. For all what has been said herein above, writ petition In hand fails and is, accordingly, dismissed. Interim direction, if any, shall stand vacated. 18. Registry to send copy of this order to both courts, viz. learned Sub Judge, Budgam, and learned Munsiff, Chadoora.