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2018 DIGILAW 942 (JK)

Ghulam Ahmad Magray v. State of J&K

2018-11-30

SANJEEV KUMAR

body2018
JUDGMENT : Sanjeev Kumar, J. Instant petition has been preferred by petitioner under Section 104 of the Constitution of Jammu and Kashmir read with Article 227 of the Constitution of India, seeking quashment of judgment dated 3rd November 2018, passed by learned Judge Small Cases (Sub Juge), Srinagar (for brevity "Trial Court") in a civil suit bearing File no.32 titled Mst Posha v. State of J&K and others. 2. Petitioner's case is that he has filed a suit against respondent no.6 and other co-sharers for partition of ancestral property along with prayer for injunction to restrain official respondents from granting sanction for installation of power connection and water pipes through the yard of petitioner. Learned City Munsif, Srinagar, is said to have passed status quo order on 26th June 2016, which is in operation. It is contended that notwithstanding pendency of aforesaid suit and order of status quo, respondent no.6 filed another suit before learned Trial Court against official respondents to the exclusion of present petitioner and succeeded in earning a consent decree while in collusion with official respondents. In terms of judgment dated 3rd November 2018, impugned herein, official respondents are said to have been directed to provide power and water connection to respondent no.6. 3. I have heard learned counsel for petitioner and considered the matter. 4. Learned counsel for petitioner has argued that respondent no.6 has earned impugned judgment by exercise of fraud on court while suppressing pendency of earlier suit concerning same subject matter and order of status quo granted by learned City Munsiff, Srinagar. Impugned judgment, according to learned counsel, is without jurisdiction in view of provisions of Water Management and Resources Act of 2010 inasmuch as learned Trial Court has fell in an error of law to pass a decree without taking statutory requirement into consideration regardless of admission of official respondents adopted in passing the judgment. Learned counsel for petitioner has vehemently stated that impugned judgment is not on compromise but admission under Order XII of the Code of Civil Procedure and therefore, learned Trial Court was required to examine validity and tenor of contents of oral and written statement adopted as admission for drawing impugned decree. Learned counsel for petitioner has vehemently stated that impugned judgment is not on compromise but admission under Order XII of the Code of Civil Procedure and therefore, learned Trial Court was required to examine validity and tenor of contents of oral and written statement adopted as admission for drawing impugned decree. He has also contended that impugned judgment has resulted in a severe miscarriage of justice and that petitioner has no remedy available except moving instant writ petition before this Court, seeking setting aside of impugned judgment and decree. 5. It appears that plaintiff has filed a civil suit for partition, possession and injunction (Annexure A with writ petition), in which respondent no.6 has been arrayed as party defendant no.2. An order dated 26th October 2016 (Annexure B with petition) has been passed by learned City Munsiff, directing maintaining of status quo with respect to suit property and not to create any third-party interest. Written statement (Annexure C with petition) appears to have been filed by defendants 4&5 in opposition to suit of present petitioner. 6. On 23rd October 2017, a civil suit titled Mst Posha v. State of J&K and others (Annexure D with petition) had been filed by respondent no.6 herein, seeking grant of declaration and injunction. The said suit has been decreed by learned Trial Court by impugned judgment dated 3rd November 2018. The said judgment has been passed on consensus of learned counsel for parties, with a direction to defendants therein to provide water and electricity connection to plaintiff. 7. Before adverting to case in hand, it would be apt to notice the position of law qua exercise of supervisory jurisdiction vested in this Court under the umbrella of Section 104 of the Constitution of Jammu and Kashmir, which is pari materia to Article 227 of the Constitution of India. The fact that the High Courts have powers under Articles 226 and 227 of the Constitution of India, is undisputed, but care, as cautioned by the Supreme Court, is to be taken when the same is warranted to be exercised because powers under such Articles have to be utilized vigilantly, carefully, sparingly and in rarest of rare cases. The fact that the High Courts have powers under Articles 226 and 227 of the Constitution of India, is undisputed, but care, as cautioned by the Supreme Court, is to be taken when the same is warranted to be exercised because powers under such Articles have to be utilized vigilantly, carefully, sparingly and in rarest of rare cases. The Supreme Court in Surya Dev Rai v. Ram Chander Rai and others, (2003) 6 SCC 675 , after discussing ambit of powers vested in the High Court under Article 227 of the Constitution, has laid down certain propositions, including that 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. The Supreme Court cautioned that be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law. The Supreme Court has also laid down that care, caution and circumspection need to be exercised and 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. However, the Hon'ble Supreme Court in Radhey Shyam and another v. Chhabi Nath and others, (2015) AIRSCW 1849, has taken a different view from one that was taken in Surya Dev Rai's case (supra) concerning jurisdiction of the High Courts under Article 226 and 227 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. 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. 8. 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 petitioner 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. The 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. 9. It is now settled that ordinarily an application under Article 227 of the Constitution of India would not be maintainable where an appeal lies. An appeal may lie from the decree under Section 96 of the Code. When an appeal could be filed, ordinarily, an application under Article 227 of the Constitution of India would not be entertained. [Vide: Ajay Bansal v. Anup Mehta & ors, (2007) 2 SCC 275 . 10. In the present case, petitioner could and can very well fall back upon the remedy as available under Section 96 of the Code of Civil Procedure. It provides that an appeal shall lie from every decree passed by any court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. Right of appeal is not restricted to parties to suit only. If a person is adversely affected by a judgment, to which he is not a party, he can be allowed to appeal against such judgment. Right of appeal is not restricted to parties to suit only. If a person is adversely affected by a judgment, to which he is not a party, he can be allowed to appeal against such judgment. Reference in this regard is made to Nazir Ahmad Dar v. Mst Naza & ors, (2010) 1 SriLJ 177 2010 2 JKJ HC 80:. It has been held in the said case that Section 96, CPC, does not refer to or enumerate the person or persons, who can file an appeal and that it is no more res integra that the right to file appeal is not restricted to parties to suit/action or to the legal representatives of the parties. A person, who is aggrieved by a judgment, sought to be appealed against, may be allowed to appeal against the judgment if he is adversely affected by the judgment. Such person has to persuade and convince the Court while seeking permission to file the appeal that the judgment in question prejudicially affects his interests. That apart, may be, petitioner can explore the remedy of filing independent suit seeking to declare the decree impugned as null and void, if it is his case that impugned decree has been obtained by respondent by fraud and misrepresentation. The Code of Civil Procedures provides enough of remedies and recourse, and supervisory jurisdiction of this Court is surely not available to petitioner. 11. In the backdrop of aforesaid discussion, the instant petition is devoid of any merit and the same is accordingly dismissed. However, petitioner, given the preceding discourse, is at liberty to avail appropriate remedy as available under law.