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2020 DIGILAW 329 (JK)

Satpal Alias Bittu v. Surinder Kumar

2020-07-21

VINOD CHATTERJI KOUL

body2020
JUDGMENT : 1. A civil suit titled Surinder Kumar v. Satpal and others has been filed by respond herein before the court of 2nd Additional Munsiff, Jammu (for brevity “Trial Court”). An ad interim injunction passed by Trial Court on an application, has been made absolute vide order dated 22nd September 2018 till final disposal of main suit. It is this order of which petitioners are aggrieved and implore setting aside thereof on the grounds raised in petition on hand. 2. Heard and considered. 3. Trial Court, as an interim measure passed threshold order of status quo when the suit was filed by respondent way back in the year 2013. Interim application as envisaged under the Code of Civil Procedure, is to be decided within fixed timeframe. However, bare perusal of order impugned unveils pendency of interim application for long five years. It is keeping into account this imperative facet of the matter that Trial Court vide impugned order dated 22nd September, 2018 disposed of the interim application and made absolute interim order of status quo, directing parties to maintain status quo on the spot. 4. According to petitioners, impugned order, in exercise of supervisory jurisdiction under Article 227 of the Constitution of India, needs to be set-aside as impugned order has been passed by Trial Court in sheer abuse of process of court and law. 5. It may not be out of place to mention here that judicial pronouncements concerning object and scope of power of the High Courts under Article 227 of the Constitution of India, which is in pari materia to Section 104 of the J&K State Constitution, leaves little scope to interfere with the orders of subordinate courts as a matter of routine. This power cannot be taken as right of another appeal to aggrieved party nor this power can be invoked to point out an error of law or fact in the order or decision of a subordinate court. This power cannot be used to make out that the decision of subordinate court could have been or must have been other than what it was. Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping subordinate courts within the bounds of their jurisdiction. This power cannot be used to make out that the decision of subordinate court could have been or must have been other than what it was. Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping subordinate courts within the bounds of their jurisdiction. When subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or 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. Be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the requirements that the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and that a grave injustice or gross failure of justice has occasioned thereby, are satisfied. 6. It is well-settled that power of superintendence, so conferred on the High Court, is administrative as well as judicial and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo moto. The paramount consideration behind vesting such wide power of superintendence in High Court is paving path of justice and removing any obstacles therein. Power under Article 227 is wider than the one conferred on the High Court by Article 226 of the Constitution of India, in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. Else parameters invoking exercise of power are almost similar. 7. The Supreme Court in Dr. R. Venkatchalam and Ors. etc. v. Dy. Transport Commissioner and Ors. etc. ( AIR 1977 SC 842 ), has said that the Courts must avoid the danger of a priori determination of the meaning of a provision based on their own pre-conceived notions of the ideological structure or the scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under disguise of interpretation. While interpreting a provision the Court only interprets law and cannot legislate it. They are not entitled to usurp legislative function under disguise of interpretation. While interpreting a provision the Court only interprets law and cannot legislate it. If a provision of law is misused and subjected to abuse of process of law, it is for legislature to amend, modify or repeal it, if deemed necessary. 8. Article 227 can be invoked by the High Court suo moto as a custodian of justice. An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle. This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in administration in larger public interest whereas Article 226 is meant for protection of individual grievances. 9. Hon’ble Supreme Court in Shalini Shyam Shetty v. Rajendra Shankar Patil (2010) 8 SCC 329 , has culled out following principles with regard to exercise of power under Article 227 of the Constitution of India:- (a)A petition, under Article 227 of the Constitution of India, 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 of the Constitution of India; (b)High Courts cannot, at the drop of a hat, 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 exercise of its power of superintendence under Article 227 of the Constitution of India. In the cases, where an alternative statutory mode of redressal has been provided, such alternative remedy would also operate as a restrain on the exercise of this power by the High Court. In the cases, where an alternative statutory mode of redressal has been provided, such alternative remedy would also operate as a restrain on the exercise of this power by the High Court. (c)While laying down the principle, on the basis of which power of superintendence, embodied, under Article 227 of the Constitution of India, is exercised by the High Court, a Constitution Bench of the Supreme Court has pointed out, in Waryam Singh v. Amarnath ( AIR 1954 SC 215 ), that a High Court, in exercise of its jurisdiction of superintendence, can interfere with an order only to keep the tribunals and courts subordinate to it “within the bounds of their authority”. This power of superintendence cannot be equated with appellate jurisdiction. (d) Merely, therefore, the fact that an order is incorrect, the High Court may not exercise its power of superintendence under Article 227 of the Constitution of India. However, the power of superintendence vested in a High Court, under Article 227 of the Constitution of India, can be invoked to remove a patent perversity in an order of the tribunal or court subordinate to the High Court or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (e)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 supervisory jurisdiction, under Article 227 of the Constitution of India, has to be very sparingly exercised. (f)The main object of Article 227 of the Constitution of India is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (g)The power of interference, under Article 227 of the Constitution of India, is to be kept to the minimum to ensure that the wheels of justice do 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. 10. 10. Therefore, “the power under Article 227 may be unfettered but”, as held by the Supreme Court in ShaliniShyam Shetty’s case (supra), “its exercise is subject to high degree of judicial discipline.” The object of superintendence under Article 227, both administrative and judicial, is to maintain the efficiency, smooth and orderly functioning of the entire machinery of the justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of the 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. The Supreme Court in Kokkanda B. Poondacha’s case (supra), after recapitulating what has been observed in ShaliniShyam Shetty’s case qua Article 227, held that “learned Single Judge of the High Court totally ignored the principles and parameters laid down” by the Supreme Court “for exercise of power under Articles 226 and 227 of the Constitution qua an interlocutory order passed by the Subordinate Court and set aside the order of the trial Court without assigning any tangible reason.” Jurisdiction under Article 227 must be sparingly exercised and may be exercised to correct the errors of the jurisdiction and the like, but not to upset the findings of the fact, which falls in the domain of an appellate court only. Same is true about the present case. The petition on hand is, from the above discussion, an appeal under the attire of petition under Section 104 of the Constitution of the Jammu and Kashmir. My above views are fortified by the fiats rendered in Nibaran v. Mahendra AIR 1963 SC 1895 ; D.N.Banerjee v. Mukherjee AIR 1953; SC 58; NizzarRawther v. Varghese Mathew AIR 1992 Ker 312 ; and Khimji Vidhu v. Premier High School AIR 2000 SC 3495 . 11.In Hameed Kunju v. Nazim (2017) 8 SCC 611 , the Hon’ble Supreme Court has held that the High Court not only erred in entertaining the petition under Article 227 but also erred in exercising its supervisory jurisdiction by interfering with the orders impugned therein. 11.In Hameed Kunju v. Nazim (2017) 8 SCC 611 , the Hon’ble Supreme Court has held that the High Court not only erred in entertaining the petition under Article 227 but also erred in exercising its supervisory jurisdiction by interfering with the orders impugned therein. The Supreme Court also held that the High Court should have dismissed the petition in limine on the ground that since all the four orders impugned in the petition were amenable to their challenge before the appellate authority, the petition was not the proper remedy and the High Court should have declined to entertain the petition under Article 227 on the ground of availability of an alternative remedy of appeal and therefore, there was no reason much less justifiable one for the High Court to have entertained the writ under Article 227. 12. It is apt to mention here that the power under Article 227 is broader than that conferred on the High Court by Article 226. For example, through its power to issue certiorari under Article 226, a High Court can annul the decision of a tribunal while under Article 227 it can do that and do something—it can issue further directions in the matter. But under Article 227, the High Court does not sit as a Court of appeal inasmuch as it is also not permissible to a High Court on a petition filed under Article 227 to review or reweigh the evidence upon which the inferior Court or tribunal purports to have passed the order or to correct errors of law in the decision. The power of superintendent conferred by Article 227 is supervisory and not appellate jurisdiction. 13. From the foregoing discussion and settled legal position, it is deducible that instant petition does not call for any interference. The powers, vested in this Court under Section 104 of the Constitution of J&K, are neither substitution to revisional nor appellate power, inasmuch as order impugned is neither perverse nor has occasioned serious miscarriage of justice. Any interference by this Court would only prolong the trial inordinately. Even otherwise, impugned order does not warrant interference by exercise of extraordinary or supervisory jurisdiction of this Court, in that neither the decision-making process of learned court below suffers from any bias nor do impugned order cause any miscarriage of justice or otherwise suffer from any error of law. 14. Even otherwise, impugned order does not warrant interference by exercise of extraordinary or supervisory jurisdiction of this Court, in that neither the decision-making process of learned court below suffers from any bias nor do impugned order cause any miscarriage of justice or otherwise suffer from any error of law. 14. In the background of preceding discourse, the petition on hand is devoid of any merit and as a corollary, the same is dismissed, with connected IAs. Interim direction, if any, shall stand vacated. Learned counsel for the petitioners shall appear before the trial court on 05.08.2020. 15. Copy of this order be sent down.