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2019 DIGILAW 502 (JK)

Charan Singh v. Falail Singh

2019-12-04

DHIRAJ SINGH THAKUR

body2019
Order 1. This is a petition filed under Article 227 of the Constitution of India challenging the order dated 26.05.2018 passed by the learned Munsiff, Tral whereby the Court below has closed the evidence of the petitioner. 2. It is stated that the petitioner is the plaintiff before the trial Court and had already submitted evidence by way of affidavits of witnesses, namely, Abdul Azia, Ghulam Hassan and Ghulam Nabi who had only to be cross examined. It was urged that by virtue of order dated 23.04.2018, the right of the petitioner to lead evidence was closed. Thereafter an application was filed on 26.05.2018 to allow the petitioner to produce the witnesses for cross examination which has been rejected. Hence the present petition. 3. It is stated that the Court below failed to appreciate the hardship that was likely to be caused to the plaintiff in case the evidence filed by way of affidavits was not read in evidence which was otherwise material and necessary for the just disposal of the case. It is stated that the petitioner belongs to a remote village of Tral where the situation is tense and it was on account of frequent strikes, law and order problems which are otherwise beyond the control of the petitioner that prevented the petitioner to produce the witnesses before the Court for cross examination. 4. In response, the defendants-respondents had taken a stand that the suit for declaration and permanent injunction was filed by the petitioner earlier in 2011 which was permitted to be withdrawn in 2012 with permission to file a fresh suit regarding the same property. It is stated that in the fresh suit filed, issues were framed on 01.09.2015 and the petitioner was asked to lead evidence and that no evidence was led by the petitioner. It is further stated that on 18.04.2017, the Court below gave last and final opportunity to the plaintiff to produce the witnesses and thereafter on 03.05.2017 the statement of six witnesses on behalf of the plaintiff were submitted. It is further stated that on 09.05.2017 no witnesses were produced by the plaintiff and thereafter on 18.05.2017 the plaintiff was cross examined as his own witness in addition to cross examination of two more witnesses and that further on 18.05.2017 no witnesses were produced till 26.05.2018 for almost one year. It is further stated that on 09.05.2017 no witnesses were produced by the plaintiff and thereafter on 18.05.2017 the plaintiff was cross examined as his own witness in addition to cross examination of two more witnesses and that further on 18.05.2017 no witnesses were produced till 26.05.2018 for almost one year. It is urged that the plaintiff-petitioner herein was unnecessarily dragging on the litigation and had involved the respondents in a litigation which was false and frivolous litigation. 5. On a perusal of the order impugned, it transpires that the evidence by way of affidavits in regard to six witnesses were submitted on behalf of the plaintiff-petitioner herein on 09.05.2017, no witnesses were produced by the petitioner for cross examination. An opportunity was granted subject to costs of Rs.3,000/- . Thereafter on 18.05.2017, plaintiff was cross examined as his own witness in addition to some more witnesses. However the Court below has highlighted the fact that since 18.05.2017, no witnesses had at all been produced for cross examination despite opportunities granted. The Court below also appears to have considered the plea of the petitioner regarding law and order and disturbed conditions in the area and held that while no proceedings could take place on 16.03.2017, 30.05.2017, 10.08.2017 and 21.10.2017 due to hartals, however, on rest of the dates viz. 09.05.2017, 30.06.2017, 18.07.2017, 16.09.2017, 23.11.2017, 27.01.2017 and finally on 23.04.2017 also no witnesses were produced. In that view of the matter, the court below proceeded to close the evidence of the plaintiff. 6. From the order impugned, it is, thus, clear that the plaintiff cannot be said to be diligent in pursuing his own case and had failed to produce the witnesses for cross examination despite repeated opportunities in that regard. 7. The general excuse that law and order conditions did not permit the petitioner to produce the witnesses for cross examination, has also been dealt with and the contention rejected by the Court below. In fact, the respondents-defendants in their reply have taken a stand that the plaintiff and defendants No. 2 to 5 are all residents of Kavil Shikargrah Tehsil Tral District Pulwama which is only 03 km away from Court premises while the defendant No. 1 is residing in Srinagar and yet was attending the court regularly. In fact, the respondents-defendants in their reply have taken a stand that the plaintiff and defendants No. 2 to 5 are all residents of Kavil Shikargrah Tehsil Tral District Pulwama which is only 03 km away from Court premises while the defendant No. 1 is residing in Srinagar and yet was attending the court regularly. The assertion that it was because of the law and order situation that the petitioner could not bring the witnesses for cross examination is, therefore, not supported by the material on record especially the view taken by the Court that the court did function on the dates when the cases were fixed for hearing. 8. The scope and ambit of the powers exerciseable 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. 9. The Apex Court in Shalini Shyam Shetty’s case placed reliance upon a Constitution Bench judgment of the Apex Court in Waryam Singh & anr vs. Amarnath & anr, AIR 1954 SC 215 and crystallized the parameters for such an exercise as under: (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) ........ (j) ........ (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) ........ (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.” 10. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.” 10. 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. 11. As held by the Apex court in Jai Singh and ors vs. Municipal Corporation of Delhi and anr, (2010) 9 SCC 385 , 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. 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. 12. 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. 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.” 13. On a bare perusal of the material on record, it is thus clear that the action of the court below in closing the right of the plaintiff-petitioner to lead evidence cannot be said to be perverse or without any material basis. 14. 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 much less can it be said that it had exercised a jurisdiction in a manner not permitted by law, resulting in failure of justice. 15. For the reasons mentioned above, the petition is found to be without any merit and is, accordingly, dismissed along with connected CM(s).