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2020 DIGILAW 295 (JK)

Onkar Singh Wazir v. Vijay Kumar Gupta

2020-07-07

SINDHU SHARMA

body2020
JUDGMENT : Caveat No. 1063/2020 With the appearance of Mr. G. S. Thakur, learned counsel for respondent No. 1, who is on caveat, Caveat stands discharged. CR No. 21/2020 & CM No. 889/2020 1. Petitioner has invoked writ jurisdiction of this Court under Article 227 of Constitution of India for setting aside order dated 31.01.2020 passed by the Court of learned Munsiff, Katra in File No. Civil Misc/3/2020 in suit titled Bal Krishan Sharma Vs. Vijay Kumar Gupta & anr. 2. The facts as narrated in this petition are that a suit was filed by plaintiff/respondent No. 2, seeking declaration that Gift Deed dated 18.12.2001 executed by Wazir Mansa Ram S/o Sh. Beli Ram R/o Nitco Lane, Talab Tillo, Jammu in favour of Vijay Kumar Gupta S/o Sh. Balaki Ram with respect to land measuring 03 Kanals 04 Marlas falling under Khasra No. 51-min situated at Kun Drorian, Katra registered with Registrar, Udhampur on 31.01.2001 as null & void qua the rights of the plaintiff/respondent No. 2 to hold and possess the land and further suit for permanent prohibitory injunction restraining the defendants from claiming any right on the basis of alleged Gift Deed. 3. During the pendency of the proceedings, the trial Court set defendant No. 2 ex-parte vide order dated 21.12.2019 which reads as under :- “Plaintiff Bal Krishan present. Advocate Pawan Khajuria present on behalf of plaintiff, Defendants not present. Counsel for defendant no. 1 advocate G. S. Thakur present. Nemo for defendant no. 2 Onkar Singh. From last nine(9) hearings defendant no. 2 has not caused his appearance. Neither counsel for defendant no. 2 is present. As such defendant no. 2 is set in ex-parte. Two witnesses patwari concerned Imtiaz Ahmed and Record Keeper concerned Chander Dev present. Their statements recorded. Same made part of the record. Put up on 04-01-2020 and Office to issue summons to official witness.” 4. An application was filed on 17.01.2020 by the petitioner seeking permission to set aside the ex-parte proceedings initiated against him and the same was dismissed vide order dated 31.01.2020 holding as under:- “……..The learned counsel for defendant number 2 has failed to bring into the notice of the court that what irreparable loss will be caused to defendant no. 2 when the plaintiff is claiming no relief against applicant/defendant no. 2 and defendant no. 2 when the plaintiff is claiming no relief against applicant/defendant no. 2 and defendant no. 2 by way of his written statement has admitted the claim of plaintiff…….. ……….Therefore, keeping in view the facts and circumstances of the case and in particular the fact that the application filed by defendant no. 2 for setting aside ex-parte proceedings does not disclose any good cause for non-appearance of defendant or his counsel, the application is as such dismissed and after due compilation be made part of the main record. However, as is clear from the judgments on which learned counsel for defendant no. 2 has place reliance, the defendant no. 2 has every right to participate in the proceedings. As such matter is posted for final arguments to be advanced by counsel for plaintiff, defendant no. 1 and defendant no. 2 respectively. File to come up for final arguments on 04-02-2020…...” 5. The petitioner thus seeks setting aside of the order dated 31.01.2020 on the grounds that the impugned order is unjust erroneous, illegal and has resulted in manifest injustice. Since the application for setting aside the same was filed promptly, therefore, the same should have been allowed, but the trial Court has dismissed his application. 6. Mr. G. S. Thakur, learned counsel for respondent No. 1 submitted that petitioner is in collusion with plaintiff/respondent No. 2 who has already admitted the claim of the plaintiff and has not sought any relief against him, therefore, the said application was filed only to delay the proceeding, when the suit was to be heard finally. It is also submitted that as there is no jurisdictional error in the impugned order and the same is also not perverse, therefore, the petitioner cannot invoke the supervisory jurisdiction of this Court under Article-227 of the Constitution of India. 7. It is settled law that jurisdiction under Article-227 of the Constitution of India, can be exercised on behalf of either party, aggrieved of the order of the trial Court provided that the same is without jurisdiction or where the Court has assumed jurisdiction whether none exists or has acted in excess of its jurisdiction in flagrant disregard of law or use of procedure resulting the grave injustice. 8. In Shalini Shyam Shetty & ors. Vs. Rajendra Shankar Patil, 2010 (8) SCC 329 , the Hon’ble Apex Court has held as under:- 62. 8. In Shalini Shyam Shetty & ors. Vs. Rajendra Shankar Patil, 2010 (8) SCC 329 , the Hon’ble Apex Court has held as under:- 62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The 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, on 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 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 its 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 (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh (supra), 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. (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 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. (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. 9. The Apex Court has further held that :- “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. 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 Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.” 10. The petitioner has not questioned the jurisdiction of the Court and the parties have not stated that the trial Court has failed to exercise the jurisdiction vested in it or exceeded its jurisdiction. The competence of the Court is also not in question as the Court has not acted either without jurisdiction or in excess of its jurisdiction. The petitioner has not questioned the jurisdiction of the Court and the parties have not stated that the trial Court has failed to exercise the jurisdiction vested in it or exceeded its jurisdiction. The competence of the Court is also not in question as the Court has not acted either without jurisdiction or in excess of its jurisdiction. The exercise of the powers under Article 227 has to be exercised sparingly, and interfere with the trial Court order is only to keep the Tribunals and Courts subordinate to it within its bounds to ensure law is followed and interference should be only if there has been a patent perversity or manifest failure of justice or principles of natural justice. 11. In view of the settled position of law, the power under Article-227 of the Constitution of India vested in this Court is to be exercised most sparingly in appropriate cases and is not to be used to correct error or otherwise. Since the trial Court has neither acted in excess of its jurisdiction nor exercised jurisdiction which is not vested in it nor does the order suffers from any bias or error of law which has resulted in miscarriage of justice, while considering the application of the petitioner for setting aside the order has rightly dismissed the application of the petitioner. 12. In view of the aforesaid discussion, there is no merit in this petition, which is, accordingly, dismissed alongwith connected CM.