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2020 DIGILAW 130 (JK)

Kuldeep Kour v. Vice Chairman, Jda, Jammu

2020-03-02

TASHI RABSTAN

body2020
JUDGMENT 1. Petitioner through the medium of this petition under Article 227 of the Constitution of India has invoked the writ jurisdiction of this Court for quashing order dated 31.08.2019 passed by learned 2 nd Additional District Judge, Jammu in Appeal titled Smt. Kuldeep Kour v. Vice Chairman, Jammu Development Authority, Jammu (hereinafter for short as 'impugned order') dismissing the Civil Miscellaneous Appeal against the order dated 29.04.2019 passed by the 1 st Civil Subordinate Judge (Sp. Municipal Mobile Magistrate), Jammu in suit titled Smt. Kuldeep Kour v. Vice Chairman, Jammu Development Authority, Jammu by virtue of which order of status quo dated 05.03.2019 granted by the trial Court has been vacated on the grounds taken in the memo of petition. 2. As per averments made in the petition, it appears that the petitioner had filed a Civil Suit for permanent prohibitory injunction along with stay application before the learned District Judge, Jammu who transferred the same to the court of Municipal Magistrate, Jammu. The said Magistrate has passed an order of status quo on 08.04.2013, but, the same was vacated on the technical grounds that the petitioner had not served the required notice under Section 48 of the J&K Development Act. Accordingly, the suit of the petitioner was dismissed and after the dismissal of the suit, the petitioner served legal notice dated 01.05.2018 under section 48 of the J&K Development Act, but, without any fruitful results, rather the JDA- respondent No.1 came to spot on 25.02.2019 along with staff to evict the petitioner from the land in question and also to raise the construction. 3. Being aggrieved, the petitioner filed fresh suit restraining the JDA- respondent from causing any interference or making any encroachment, without adopting due course of law in the suit land. The petitioner also filed application for grant of temporary injunction and for grant of status quo order to preserve the subject matter of the suit till its final disposal. The trial court directed the parties to the suit to maintain status quo by an order dated 05.03.2019. The JDA also filed objections and after the hearing the parties, the trial Court vacated the order of status quo vide order dated 29.04.2019. Learned counsel for the petitioner argued in the main appeal also before the appellate Court and prayed that till the disposal of the main appeal status quo be maintained. The JDA also filed objections and after the hearing the parties, the trial Court vacated the order of status quo vide order dated 29.04.2019. Learned counsel for the petitioner argued in the main appeal also before the appellate Court and prayed that till the disposal of the main appeal status quo be maintained. It is contended by the learned counsel for the petitioner that the appellate court failed to address on the important question of law and facts and without legal justification dismissed the appeal by holding that the petitioner has failed to advance any legal right over the land in question. 4. Respondents have caused their appearance through Mr. Sachin Dogra, Advocate, who contested the petition in absence of objections. 5. Heard learned counsel for the parties and perused the record. 6. Learned counsel for the petitioner has assailed the impugned order on the ground that the same is illegal, having been passed in violation of the principles governing the field. It is contended that order impugned passed by the appellate court is palpably perverse and wrong and the order impugned has been passed without application of mind and has ignored the fact of possession based on the report of Naib Tehsildar and Patwari concerned. It is argued on behalf of the petitioner that it is trite that at the time of disposal of application for grant of temporary injunction, the Court is only required to look in the existence of prima-facie case and not prima-facie title over the suit land. The Court is not required to discuss the merits of the case in such application which will amount to disposal of the main case. It is also contended that the object and purpose of law in granting temporary injunction or directing the parties to maintain status quo is to preserve the subject matter of suit by getting wasted or changed on spot, till the Court decides the contentious issues of law and fact raised by the parties, otherwise the parties will break their heads during the pendency of the suit or take forceful possession of the suit land from its rival leaving the trial Court as mute spectator and, thus, hurting the confidence of common man in the majesty of law. 7. 7. On the other hand, learned counsel for respondents while arguing submitted that learned trial Court has rightly passed the order impugned because the documents/annexures relied upon by the petitioner pertaining to the possession over the suit land have been reported rake and fabricated by the Nazool Department. It is further contended that there is no jurisdictional error in the impugned Order nor is it perverse as the same was based on the material available before the appellate Court. Learned counsel further submitted that no case for invoking the supervisory jurisdiction of this Court under Section 227 of the Constitution of India has been disclosed in the petition nor it is made out. Learned counsel also submitted that mere dissatisfaction of a party with a decision or order of a Court or Tribunal is no ground for invoking supervisory jurisdiction of the High Court. Learned counsel further submitted that supervisory jurisdiction of the High Court cannot be invoked for setting aside an order passed by the trial Court or appellate Court and can be exercised only in a case where larger public interest is involved. He relied upon a judgment Shalini Shyam Shetty v. Rainder Shankar Patil, (2010) 8 SCC 329 . 8. To rebut the submissions of learned counsel for respondents, it has been contended by learned counsel for the petitioner that even in a petition under Section 227 of the Constitution of India , this Court has the power to set aside an illegal order of a lower Court by issuance of a writ of Certiorari. He further submitted that this Court has superintendence and control over all the Courts for the time being subjected to its Appellate or Revisional jurisdiction and all such Courts shall be subordinate to this Court. It has the jurisdiction to call for the return from such Courts the prescribed forms and rules regulating practice and proceedings of such Courts. The power of superintendence is not confined to administrative superintendence only, but, such power includes the power of judicial review also. This High Court under Section 227 of the Constitution of India has to ensure that the lower Courts subordinate to this Court have done what they are required to do. The power of superintendence is not confined to administrative superintendence only, but, such power includes the power of judicial review also. This High Court under Section 227 of the Constitution of India has to ensure that the lower Courts subordinate to this Court have done what they are required to do. This Court can interfere with subordinate Courts in cases of erroneous assumptions or acting beyond its jurisdiction, refusal to exercise jurisdiction, commission of error of law apparent on record where its conclusions are perverse based on no evidence. Thus, the learned counsel for the petitioner contended that this Court can interfere by exercising the powers under Section 227 of the Constitution of India. 9. Ongoing through the record and the pleadings raised by the parties before the learned trial Court, it is specific stand of the petitioner that her husband Darshan Singh was in possession of land measuring 26 Kanals 11 Marlas and he also applied for regularization of the possession under Roshni Act and after his demise the petitioner has stepped in his shoes and she, thus, banking her claim upon the land in question on the basis of documents, i.e., report of Patwari, Naib Tehsildar Nazool, to establish her possession over the suit land. However, such claim of the petitioner has been negated by respondents on the ground that the said documents have been proved to be fake and fabricated on the basis of the report of the Nazool Department furnished in this context and it has been specifically mentioned in the correspondence by the Nazool Department that Darshan Singh never applied for regularization of the land and it was Raman Kumar and Vinod Kumar, who had applied for regularization of the land in their possession. So, on the basis of these documents, possession of the petitioner is not proved rather it was a case of suppression of material facts, which is a sine qua non for declining relief of temporary injunction. So, on the basis of these documents, possession of the petitioner is not proved rather it was a case of suppression of material facts, which is a sine qua non for declining relief of temporary injunction. The plea of the learned counsel for the petitioner that since the suit property is to be preserved and protected till the right of the petitioner is not established during trial by leading evidence and fact of annexures/documents being fake and fabricated can also be proved by evidence during trial, the learned trial court has wrongly dismissed the application of the petitioner under Order 39 Rule 1 CPC which is to be answered on the touchstone of pleadings and material. Undoubtedly, the purpose and object of the provisions under Order 39 Rule 1 CPC is to preserve the subject matter of the suit, so, the parties, claiming their rights over the subject matter, have an opportunity to substantiate their respective stand and the party at the end of the trial found entitled to the relief, is in a position to reap the fruits of litigation. In case the suit property is allowed to be wasted, damaged or alienated, the trial itself becomes infructuous and purposeless. The sine qua non for invoking Order 39 Rules 1 and 2 CPC is that a legally enforceable right must flow from the pleadings in favour of the party, which is apprehended by the purposed action of other-side and protection of the same right is necessary till the same is established or proved during trial, but, looking at the case at hand, can the petitioner be presumed to be possessed with legally enforceable right qua the subject matter of the suit. This Court has no hesitation to say that the petitioner has no such right available and also the contention of the petitioner that the petitioner is only concerned with the protection of possession qua the suit property i.e. land measuring 21 kanals and 15 marls comprising Khasra no.6 min situated in Halqa Rakh Bandhu, Tehsil Bahu, which is contrary to the pleadings raised by the petitioner as the pleadings have the flavour of claiming title with possession. 10. 10. Precisely, the case of the petitioner is that impugned order has been passed in hot haste; without application of mind and while passing order impugned, the appellate Court has failed to appreciate the relevant circumstances as well as legal provisions, which are applicable to a situation. 11. Now, before deciding the controversy raised in the present petition, the question for consideration would be whether the present petition filed under Section 227 of the Constitution of India would be maintainable? The answer is negated for the following reasons. 12. Petitioner has not questioned the competence-jurisdiction of the trial Court. Petitioner has also not averred in the petition that trial Court or Appellate Court has passed the order without or in excess of jurisdiction. 13. The maintainability of the petition is put under cloud by its very own averments on the ground that Civil Procedure Code has undergone a sea change with the Amendment of 2009. The amendment has restricted the powers of the revisional Court. Virtually, petition is in the nature of revision petition and if such a practice is adopted and allowed that will render the aim and object of the amendment infructuous and meaningless. The fact of having vast powers with this Court under Articles 226 and 227 is undisputed, but care has to be taken when the same is warranted to be exercised, because the powers under such Articles have to be utilized very cautiously, carefully, sparingly and in rarest of the rare cases. 14. The Apex Court in case titled Shalini Shyam Shetty v. Rajendra Shankar Patil reported as 2010 AIR SCW 6387 has observed that there is tendency in High Courts to entertain petitions under Article 227 of the Constitution against the orders against which revision is barred in terms of amended Act of CPC. It is apt to reproduce paragraph Nos. 80, 81 and 82 of the judgment supra herein:- '80. We may also observe that in some High Courts there is tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev (supra) and in view of the recent amendment to Section 115 of the Civil Procedure Code by Civil Procedure Code (Amendment) Act, 1999. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev (supra) and in view of the recent amendment to Section 115 of the Civil Procedure Code by Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 of CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding High Courts power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law. 81. As a result of frequent interference by Honble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. 82. This Court hopes and trusts that in exercising its power either under Article 226 or 227, Honble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest Courts of justice within their jurisdiction will adhere to them strictly.' 15. The Apex Court in another case titled Kokkanda B. Poondacha & others v. K. D. Ganapathi & another reported as AIR SCW 2011, 1737 , has also held that invoking of writ or supervisory jurisdiction against interlocutory orders is permissible only when subordinate Court has acted without or in excess of jurisdiction and not otherwise. 16. This Court also in case titled Abdul Rehman Dar and others v. Showkat Ali Bhat and others reported in 2011 (IV) JKJ 334 (HC) and in case titled Kuldip Singh and others v. Krishna Devi and others passed by the Honble Division Bench of this Court in LPAOW No. 30/2013 dated 16.04.2013, while following the aforesaid judgments of the Apex Court, has laid down the same principle. 17. However, the Supreme Court in Radhey Shyam and another v. Chhabi Nath and others (2015 AIR SW 1849) , has taken a different view from one that was taken in Surya Dev Rai v. Ram Chander Rai and others concerning jurisdiction of the High Courts under Article 226 of the Constitution of India , against the judicial order of Civil Court. The Supreme Court, while deciding the question referred to in Radhey Shyams case (supra), held that judicial orders of Civil Courts are not amenable to the writ jurisdiction under Article 226 of the Constitution and that jurisdiction under Article 227 of the Constitution is distinct from the jurisdiction under Article 226 of the Constitution of India. The contrary view taken in Surya Devs 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 Rais case, has not been changed. 18. If a party which loses the case before the trial Court or before the Appellate Court is allowed to file any petition and thereafter if such petition is entertained without any check and balance that will amount to beating litigation and in breach of the purpose, aim and object of the legislation which was made basis for amendment of the CPC. 19. Judicial pronouncements as to the object and scope of the 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 the subordinate courts as a matter of routine. This power cannot be taken as 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 judgement/decision of Subordinate Court as has been sought by the petitioner in this case. 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. 20. High Courts in exercise of its power under Article 227 of the Constitution should interfere with the trial Court orders only to keep the 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 which is vested in them and not declining to exercise the jurisdiction which is vested in them. Apart from the above, 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 have been flouted. It is settled law that the jurisdiction under Article 227 could not be exercised 'as the cloak of an appeal in disguise'. 21. In this backdrop, it is not the case of the petitioner that Appellate Court has acted without or in excess of jurisdiction, therefore, the petition cannot stand the test laid down by the Apex Court in the judgments reproduced hereinbefore. Even otherwise, the interference by exercise of extra ordinary or supervisory jurisdiction of the Court, for, neither the decision making process of the Court below suffers from any bias nor does the order cause any miscarriage of justice or otherwise suffers from any error of law. 22. After having gone through the orders carefully, passed by the Courts below, I do not find any infirmity in the said orders, which are fully inconsonance with law, as such, cannot be challenged in exercise of writ jurisdiction under Section 227 of the Constitution of India. That being the position, impugned order passed by the learned appellate Court calls no interference. Accordingly, this petition fails and is dismissed as such along with connected CM, if any. I pronounce this judgment today in terms of Rule 138(3) of the Jammu and Kashmir High Court Rules, 1999.