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2017 DIGILAW 147 (JK)

J&K Bank Ltd. v. Ravinder Singh

2017-03-20

TASHI RABSTAN

body2017
JUDGMENT : TASHI RABSTAN, J. 1. Despite substituted service upon respondent No. 1 in a national newspaper, viz. "Times of India" in its issue dated 08.09.2016 and local newspaper "Daily Excelsior" in its issue dated 06.09.2016, he has not come present. Accordingly, he is set ex parte. Petitioner-bank through the medium of instant petition under Section 104 of J & K Constitution, seeks quashment of order dated 11.04.2009 passed by the learned Additional District Judge, Jammu, in a suit titled Sudershan Johar & Anr. v. S. Amarjeet Singh & Ors., whereby issue No. 9 has been treated as preliminary issue. 2. The facts-in-brief as emerged from the records are that a suit for declaration has been filed by Sudershan Johar & Anr., which is pending consideration before learned Additional District judge, Jammu. By order dated 24.12.2004, issues were framed and issues 1 to 4 were treated as legal in nature. Parties were directed to address the argument on said issues. In terms of order dated 24.09.2005, issues 1 to 4 were treated as mixed questions of law and facts and the said issues were to be decided after taking evidence along with other issues and parties were asked to file List of witnesses within fifteen days. Respondent No. 1 and other plaintiffs were directed to lead evidence at first stage. 3. Plaintiff is said to have moved an application on 06.08.2007 (Annexure-C) under Order XIV of the Code of Civil Procedure, for treating Issue No. 9, framed on 24.12.2004, as Preliminary Issue. Objections thereto were filed. However, in view of the statement made by learned counsel for the plaintiffs, said application was dismissed as withdrawn vide order dated 08.03.2008. 4. Respondent No. 1 along with plaintiff No. 1, during pendency of the suit, are contended to have filed another application for preponement of the date fixed in the suit. Thereafter, again an application was filed praying same relief to treat Issue No. 9 framed by the learned trial Court on 24.12.2004 as Preliminary Issue, to which petitioner bank filed its objections. Learned trial Court while disposing said application vide order dated 11.04.2009 treated Issue No. 9 as preliminary issue and directed the parties to address their arguments on the said issue. 5. Learned trial Court while disposing said application vide order dated 11.04.2009 treated Issue No. 9 as preliminary issue and directed the parties to address their arguments on the said issue. 5. The precise stand taken by the petitioner is that issues were framed by the learned trial Court on 24.04.2004 and only issues 1 to 4 were treated as preliminary issues and even respondent No. 1 and plaintiff No. 1 did not raise any contention for treating any other issue as a preliminary issue. According to petitioner while the case was proceeding smoothly towards its logical end, plaintiffs filed an application for treating issue No. 9 as preliminary issue and the said application was withdrawn by them on 08.03.2008. But they did not stop there; they again came up with same story by moving an application seeking same relief that they had earlier not pressed for. Learned trial Court, as is averred by petitioner, while passing order impugned, totally overlooked the settled preposition of law and even failed to return a finding as to how issue No. 9 framed in the suit, was treated as preliminary issue. Therefore, successive application filed on the same grounds was not maintainable as law in this regard is well settled, as is maintained by petitioner in petition on hand. 6. Heard learned counsel for the parties and perused the record. 7. The instant matter relates to deciding of a particular issue in light of procedure under Code of Civil Procedure. Thus, it is appropriate to refer provisions of Order XIV Rule 2(2), CPC, which envisages: "(2) where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any party thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to:- (a) the jurisdiction of the Court, or (b) a bar to the suit, created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue." 8. Issue No. 9 that was framed by the trial Court in terms of order dated 24.12.2004 reads thus:- "Whether judgment and decree dated 06.05.1974 was enforceable in the eyes of law." 9. Whether the Trial Court can decide the issue or issues, which are mixed question of facts and law, treating them as preliminary issues. Answer thereto is always "No". In the present case as many as ten issues have been framed, which are: "1. Whether the suit of plaintiff is within time? OPP. 2. Whether the suit is hit by order 2 Rule 2 of CPC? OPD 3. Whether the suit is hit by Section 42 of the Specific Relief Act if so what is its effect? OPD 4. Whether the suit has been filed by competent person? OPP 5. Whether the perpetual lease deed dated 20.11.1981 executed in favour of defendant No. 3 is null and void? OPP 6. Whether the value of the suit for the purposes of Court fee and jurisdiction has been properly fixed? OPP 7. Whether there was any family partition between S. Inderjeet Singh and husband of plaintiff No. 1? OPP 8. In case issue No. 17 is proved in affirmative, whether the said partition was ever acted upon? OPP 9. Whether judgment and decree dated 06.05.1974 was enforceable in the eye of law? OPP 10. Whether the plaintiff ever remained in possession of suit land prior to execution of lease deed dated 20.11.1981 in favour of defendant No. 3? OPP" 10. The subject matter of the case in hand is issue No. 9. It is "whether judgment and decree dated 6th May 1974 was enforceable in the eye of law". On 24th December 2004, issues were framed by Trial Court and only issues 1 to 4 treated as Preliminary Issues. Though thereafter plaintiff/respondent No. 1 made a bid for treating issue No. 9 as preliminary issue, but later on he withdrew that application. But, again, he turnaround, and came up with same plea of treating issue No. 9 as preliminary issue. Such practice should have been deprecated and not appreciated by Trial Court inasmuch as the parties are entangled in litigation for almost three decades. Procedures and laws are only meant for substantive justice and not for putting parties in endless litigation without any result. Such practice should have been deprecated and not appreciated by Trial Court inasmuch as the parties are entangled in litigation for almost three decades. Procedures and laws are only meant for substantive justice and not for putting parties in endless litigation without any result. The ultimate aim, purpose and objective of procedures and laws, is to provide and render justice to the party or parties in time. It would have been, in the present case, appropriate for the Trial Court to decide preliminary issues viz. issues 1 to 4. However, Trial Court has, in terms of impugned order, done contrary. Not only that, the impugned order has sit over order dated 24th December 2004 inasmuch as impugned order has, in effect, set aside order dated 24th December 2004, whereby only issues 1 to 4 have been treated and directed to be as Preliminary Issues. 11. In addition to above discussion, 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 pari materia to Article 227 of the Constitution of India. This Court under Section 104 of the Constitution of Jammu and Kashmir, has ample jurisdiction to entertain a petition if the Trial Court is not acting within its bounds of jurisdiction and against mandate of law. The Trial Court order, allowing application by treating issue No. 9 as issue of law, is against the mandate of provisions of Order XIV Rule 2(2). 12. Article 227 of the Constitution of India vests jurisdiction in the High Court for administrative control and superintendence over the Courts and Tribunals subordinate to it. The power under Section 104 of the Constitution of State, can be exercised by High Court suo moto as custodian of justice, as such, interference by the High Court is to keep the subordinate Courts within the bounds of its jurisdiction. As has been held by the Supreme Court in Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil (2010) 8 SCC 329 , and Radhey Shyam & Anr. v. Chhabi Nath & Ors. ( AIR 2015 SC 3269 ) that High Court is well within its competence and power to pass any order so as to keep subordinate courts within the bounds of their jurisdiction. v. Rajendra Shankar Patil (2010) 8 SCC 329 , and Radhey Shyam & Anr. v. Chhabi Nath & Ors. ( AIR 2015 SC 3269 ) that High Court is well within its competence and power to pass any order so as to keep subordinate courts within the bounds of their jurisdiction. In the present case, learned trial court has totally failed to appreciate the facts that issue No. 9 neither relate to jurisdiction of the Court nor in any manner pertain to express bar in the suit and in fact, is a mixed fixed question of fact and law. 13. The Supreme Court has considered the scope for issuance of a writs and has held in Thirumala Tirpuati Devasthanams & Anr. v. Thallappaka Ananthacharyulu & Ors., (2003) 8 SCC 134 , that the Supreme Court and the High Courts have power to issue writs. It is further held that a writ is normally issued when the inferior court or tribunal proceeds to act without or in excess of jurisdiction, in contravention of the rules of natural justice and in contravention of fundamental rights. It is also held that a writ of prohibition must be issued only in the rarest of rare cases and judicial discipline of the highest order has to be exercised while issuing such writs. It is specifically observed that writ jurisdiction is original jurisdiction distinct from appellate jurisdiction. 14. The Supreme Court in the case of Radhey Shyam case (supra) examined the scope and distinction between Articles 226 and 227 of the Constitution of India and has held that all the courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227 of the Constitution of India. It is specifically held that judicial orders of civil courts are not amenable to writ jurisdiction under Article 226 of the Constitution of India, and challenge to such judicial orders would lie by way of revision or under Article 227 of the Constitution, but not by way of a writ under Articles 226 or 32 of the Constitution of India. While answering the reference in the aforesaid judgment, the Hon'ble Supreme Court has held as under: "27. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. While answering the reference in the aforesaid judgment, the Hon'ble Supreme Court has held as under: "27. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226. 28. We may also deal with the submission made on behalf of the respondent that the view in Surya Dev Rai stands approved by larger Benches in Shail, Mahendra Saree Emporium and Salem Advocate Bar Assn and on that ground correctness of the said view cannot be gone into by this Bench. In Shail, though reference has been made to Surya Dev Rai, the same is only for the purpose of scope of power under Article 227 as is clear from para 3 of the said judgment. There is no discussion on the issue of maintainability of a petition under Article 226. In Mahendra Saree Emporium, reference to Surya Dev Rai is made in para 9 of the judgment only for the proposition that no subordinate legislation can whittle down the jurisdiction conferred by the Constitution. Similarly, in Salem Bar Assn. in para 40, reference to Surya Dev Rai is for the same purpose. We are, thus, unable to accept the submission of learned counsel for the respondent. 29. Accordingly, we answer the question referred as follows: 29.1 Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution. 29.2 Jurisdiction under Article 227 is distinct from jurisdiction from jurisdiction under Article 226.29.3 Contrary view in Surya Dev Rai is overruled." 15. The Supreme Court in Jogendrasinhji Vijaysinghji v. State of Gujarat & Ors., (2015) 9 SCC 1 , has summarized principles on maintainability of Letters Patent Appeals under Letters Patent of the High Court, against the order passed by learned Single Judges. While considering various issues elaborately, the Supreme Court has held that the orders passed by the civil court are only to be scrutinised by the High Court in exercise of jurisdiction under Article 227 of the Constitution, which is different from Article 226 of the Constitution. While considering various issues elaborately, the Supreme Court has held that the orders passed by the civil court are only to be scrutinised by the High Court in exercise of jurisdiction under Article 227 of the Constitution, which is different from Article 226 of the Constitution. In the aforesaid judgment, the view taken by the High Court in the case of Radhey Shyam (supra) is approved by the Hon'ble Supreme Court. The Supreme Court held: "18. The aforesaid authoritative pronouncement makes it clear as day that an order passed by a civil court can only be assailed under Article 227 of the Constitution of India and the parameters of challenge have been clearly laid down by this Court in series of decisions which have been referred to by a three-Judge Bench in Radhey Shyam (supra), which is a binding precedent. Needless to emphasise that once it is exclusively assailable under Article 227 of the Constitution of India, no intra-court appeal is maintainable." 16. The Supreme Court in Jogendrasinhji Vijaysinghji case (supra) concluded and held that the order passed by the civil court is only amenable to be scrutinized by the High Court in exercise of jurisdiction under Article 227 of the Constitution of India. Thus the Supreme Court in Radhey Shyam (supra) Jogendrasinhji Vijaysinghji (supra) has held, in clear terms, that the orders passed by subordinate courts are subject to challenge only in a proceeding under Article 227 of the Constitution of India and no challenge to such judicial orders could lie by way of a writ petition under Articles 226 and 32 of the Constitution of India. 17. For all what has been discussed above, this petition is allowed and order dated 11.04.2009, passed by learned Additional District Judge, Jammu, in a suit titled Sudershan Johar & Anr. v. S. Amarjeet Singh & Ors., is set aside. Trial court is directed to proceed in the matter on the basis of order dated 24.12.2004, whereby the issues were framed and dispose of the suit expeditiously. Registry to send down copy of this order.