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2017 DIGILAW 662 (JK)

Kabir Ahmed v. Mohd. Rafiq

2017-08-17

DHIRAJ SINGH THAKUR

body2017
JUDGMENT : 1. This is a petition under Section 104 of the Constitution of Jammu and Kashmir, challenging the order dated 7.6.2017 passed by the learned Additional Special Mobile Magistrate, Thanamandi whereby the application of the defendants/petitioner to place on record additional documents has been rejected. 2. In the order impugned, it appears that the written statement was filed on 4th of September, 2012 by the defendants/petitioner herein. Issues were drafted on 25th of September, 2014 whereafter the parties led their evidence, which was finally closed on 28.2.2017 and the matter was posted for final arguments. 3. The petitioner appears to have filed the application for placing on record additional documents after a gap of nearly 29 months. From a perusal of the application filed by the petitioner in the court below, it appears that no reasons were given therein as to why the documents were not produced earlier before the court below in accordance with the provisions of Order XIII of the Code of Civil Procedure. The petitioner had also failed to reflect in the application that the documents were not in his possession or power, which could have otherwise justified or laid some basis for the delay in production of the documents, sought to be placed on record. It was in those circumstances that the court below proceeded to reject the application, holding that the petitioner had failed to carve out compelling reasons for producing the documents on record and had failed to show good cause for the same. 4. Heard learned counsel for the petitioner. 5. Indeed, the application filed by the petitioner in the court below does not reflect any reason for late production of the documents after approximately 29 months of the framing of the issues. In the absence of there being a specific plea that the documents were not available with the petitioner, it would be presumed that they were within the petitioner’s possession and power and ought to have been produced at the relevant time. 6. The scope of interference under Section 104 of the Constitution of Jammu and Kashmir analogous to Article 227 of the Constitution of India, is no longer res integra. 7. 6. The scope of interference under Section 104 of the Constitution of Jammu and Kashmir analogous to Article 227 of the Constitution of India, is no longer res integra. 7. In Shalini Shyam Shetty and anr v. Rajendra Shankar Patil, (2010)8 SCC 329 , the Apex Court upon a complete analysis of its various judgments, carved out the principles to be followed by the High Courts while exercising jurisdiction under Article 227 of the Constitution and in paragraph 62 of the judgment in the aforementioned case, observed 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. (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”. (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 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. 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 counterproductive and will divest this extraordinary power of its strength and vitality.” 8. Keeping in view the principles laid down by the Apex Court in the judgment (supra), the powers exerciseable under Article 227 (analogous to Section 104 of the Constitution of J&K), cannot be exercised by the High Courts as a court of appeal. 9. Having gone through the order impugned, I am of the view that there is no perversity in the same, which would warrant interference by this court. 10. For the reasons mentioned above, the petition is found to be without any merit and is accordingly dismissed along with connected MP.