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2017 DIGILAW 257 (JK)

Joginder Singh v. Bachitar Singh

2017-05-23

DHIRAJ SINGH THAKUR

body2017
ORDER : Dhiraj Singh Thakur, J. 1. The present petition has been filed in the supervisory jurisdiction of this Court under Section 104 of the Constitution of Jammu and Kashmir against the order passed in appeal preferred by the petitioner before the learned Second Additional District Judge, Jammu. Briefly stated the material facts are as under: 2. A suit for permanent prohibitory injunction came to be preferred by the plaintiff-petitioner herein in regard to shop No. 4 situate at Nanak Nagar, Jammu with a view to restrain the defendants-respondents herein from interfering in the possession of the plaintiff, who claims to be a tenant in the said shop. The defendants-respondents herein, who were on caveat before the trial Court, in their response took a plea that the plaintiff, no doubt, earlier was a tenant in the shop in question, however, owning to the plaintiffs failure to discharge his rental obligation towards the defendants as also on account of his failure to clear his electricity bills with the Power Development Department had voluntarily handed over the possession of shop in question to defendant No. 1 about two months prior to the filing of the suit. 3. It was further stated that upon surrendering the possession, the defendant No. 1 had commenced necessary alterations/additions on shop in question by way of raising construction to covert the same into a garage and was also in the process of constructing pillars for which earth had suitably been dug and further that the roof of the shop too had been dismantled partially. 4. It was averred that since the defendant No. 1 had already regained the possession of the shop in question, therefore, the relief sought in the suit was untenable in law. 5. Faced with the situation where the plaintiff-petitioner herein claimed to be in possession and the defendants-respondents herein took a plea that the plaintiff had since surrendered the possession, pursuant to which the construction activity had been initiated by the defendant No. 1, the trial Court in addition to ordering maintenance of status quo, prohibited any alteration, modification or construction in regarded to the shop in question till further orders from the Court. 6. 6. It is not out of place to mention here that the trial Court was aware of the fact that the plaintiff was not seeking any mandatory injunction or status quo ante for restoration of his possession and, therefore, in those circumstances, thought it prudent to direct maintenance of status quo till further orders. 7. Not being satisfied with a simple order of status quo, the petitioner herein preferred an appeal before the learned Second Additional District Judge, Jammu, who placed reliance upon D. Albert v. Lalitha & Ors., AIR 1989 Mad 73 , which laid the proposition that while ordering status quo, the Court was bound to decide prima facie on the material available, whether the plaintiff was in possession or the defendants. 8. In the judgment (supra), it was held that leaving the matter in doubt and ambiguity would result in more dangerous consequences. In those circumstances, the appellate Court vide judgment and order dated 23-4-2013 remanded the matter to the trial Court for deciding the application for temporary injunction afresh. Till such time, in the peculiar facts and circumstances of the case, both the parties were directed to maintain status quo as regards possession, nature and complexion of the suit shop. The court below was directed to dispose of the application for temporary injunction expeditiously within a period of one month. It is against this judgment and order that the present petition has been preferred in the supervisory jurisdiction of this Court. 9. The main ground of challenge as urged by learned counsel for the petitioner was that the appellate court ought not to have remanded the matter but ought to have decided the same itself as to whether in the peculiar facts and circumstances of the case, it was necessary to issue a temporary injunction against the defendants where the defendants were interfering in the peaceful possession of the plaintiff instead of remanding the matter to the trial Court to decide the issue of interim injunction afresh. 10. Learned counsel for the petitioner placed reliance upon Indian Cable Company Limited v. Smt. Sumitra Chakraborty, AIR 1985 Cal. 10. Learned counsel for the petitioner placed reliance upon Indian Cable Company Limited v. Smt. Sumitra Chakraborty, AIR 1985 Cal. 248 to bring home the proposition that a mandatory injunction on interlocutory application could be granted although in rare and exception cases and further that in deserving cases, the Court should not hesitate to come in aid of a litigant and uphold the cause of justice by granting such a relief. 11. Per contra, learned counsel for the respondents questioned the maintainability of the petition by placing overwhelming reliance upon the judgment of the Apex Court in Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329 : 2010 AIR SCW 6387. 12. Heard learned counsel for the parties. 13. The scope and ambit of the powers exercisable by the High Courts in their supervisory jurisdiction under Article 227 of the Constitution of India, which is analogous to Section 104 of the Constitution of Jammu and Kashmir, is no longer res integra. 14. The Apex Court in Shalini Shyam Shetty's case placed reliance upon a Constitution Bench judgment of the Apex Court in Wary an Singh & Anr. v. Amarnath, ATR 1954 SC 215 and crystallized the parameters for such an exercise as under: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition, This 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, at 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 the 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. Nor can it, in exercise of this power, act as a Court of appeal over the orders of the 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 their 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 and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh, 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 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 has 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) The 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 L. Chandra Kumar v. Union of India, AIR 1997 SC 1125 and therefore abridgment by a constitutional amendment is also very doubtful. (i) The 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 L. Chandra Kumar v. Union of India, AIR 1997 SC 1125 and therefore abridgment 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 Courts. 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 the High Court. (n) This reserve and exceptional power of judicial intervention is not to be exceeded 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." 15. 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." 15. Testing the facts and circumstances of the present case on the touchstone of the parameters set out hereinabove, it will be seen that as against the order of interim injunction, which was sought by the plaintiff before the trial Court, the Court below issued only an order of status quo. In appeal, the appellate Court took a view, by placing reliance upon D. Albert v. Lalitha & Ors., AIR 1989 Mad. 73 that while ordering status quo, the issue of possession was also required to be determined inasmuch as without the same, an order of status quo would prove more dangerous than an erroneous decision granting an order of restraint. 16. It was, in those circumstances, that the matter was remanded to the trial Court to decide the issue of interim injunction again and till such time, ordered maintenance of status quo. Admittedly, the appellate Court, if it was remanding the matter could not have then issued an order of restraint instead of order of status quo, which would have rendered the order of remand totally inconsequential and would perhaps amount to pre-judging the issue even before the same was considered by the trial Court. In its wisdom, the appellate Court only ordered maintenance of status quo. 17. The exercise of jurisdiction by the appellate Court, in those circumstances, cannot be said to be a failure to exercise of jurisdiction nor can it be said to be an assumption of jurisdiction, which it did not have or much less can it be said that it had exercised a jurisdiction in a manner not permitted by law, resulting in failure of justice. 18. It needs to be highlighted that exercise of the discretionary powers under Article 227 of the Constitution of India even when are wide in its scope and ambit cannot be exercised only because there has been an error of law committed by the Courts below neither can such a power be exercised to alter the order in exercise of supervisory jurisdiction only because another view was possible. 19. 19. As held by the Apex Court in Jai Singh v. Municipal Corporation of Delhi & Anr., (2010) 9 SCC 385 : 2010 AIR SCW 5968, the powers under Article 227 of the Constitution of India cannot be exercised like "bull in a china shop", to correct all errors of judgment of a Court, or tribunal, acting within the limits of its jurisdiction. 20. According to the judgment (supra), the jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 21. What was held by the Apex Court in Jai Singh's case (supra) in paragraph 15 is reproduced as under: "15. We have anxiously considered the submissions of the learned counsel. Before we consider the factual and legal issues involved herein, we may notice certain well recognized principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this Article, has the jurisdiction to ensure that all subordinate Courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognized constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of judgment of a Court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice." 22. Reliance placed by learned counsel for the petitioner upon Indian Cable Company Limited v. Smt. Sumitra Chakraborty, AIR 1985 Cal. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice." 22. Reliance placed by learned counsel for the petitioner upon Indian Cable Company Limited v. Smt. Sumitra Chakraborty, AIR 1985 Cal. 248 , in my opinion, is totally inapt in the facts and circumstances of the present case. 23. Be that as it may, in the light of the aforementioned principles, I cannot persuade myself to accept the contention of learned counsel for the petitioner that this is a fit case in which the order impugned can be interfered with in the supervisory jurisdiction of this Court. The petition is found to be without any merit and is accordingly dismissed along with connected MP(s). Interim direction dated 3-3-13 shall stand vacated.