Research › Search › Judgment

J&K High Court · body

2020 DIGILAW 500 (JK)

Mohammad Ishaq v. Union of India

2020-09-23

SANJAY DHAR

body2020
JUDGMENT (ORAL) CM No.3724/2020 Instant application seeking extension of time for annexing/depositing the requisite court fee with the writ petition, in view of the grounds urged therein, is allowed. The petitioners shall deposit the requisite court fee with the Registry of this Court within a period of one week from the date of announcement of lifting of lockdown on account of COVID-19 by the Government. CM is disposed of. CM(M) No.84/2020 CM No.3725/2020 Petitioners have filed the instant petition under Article 226 and 227 of the Constitution of India challenging the order dated 28.08.2020, passed by learned Principal District Judge, Kargil, in the appeal titled Mohammad Baqir & others Vs. Habibullah & others, wherein order dated 27.08.2020, passed by learned Munsiff, Sankoo, has been assailed. 2) Briefly stated, the facts of the case are that respondents No.9 to 13 before this Court had filed a suit before the Court of Munsiff, Sankoo, against some of the petitioners herein, in which it was alleged that the defendants are dumping material and digging proprietary land of the plaintiffs with an intention to lay pipelines on the source of water existing on the land belonging to the plaintiffs. A permanent injunction in this regard against the defendants was sought. 3) It appears that an application for grant of interim injunction under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure was also filed along with the suit wherein, vide order dated 09.06.2020, the learned trial court had directed the parties to maintain status quo on spot. The learned trial court after considering the pleadings and hearing the parties, passed a detailed order dated 27.08.2020 thereby vacating the order of status quo dated 09.06.2020 and dismissing the application of the plaintiffs under Order 39 Rules 1 & 2 read with Section 151 of CPC. 4) It seems, the aforesaid order of trial court was challenged by the plaintiffs by way of an appeal before the Court of learned Principal District Judge, Kargil. The said appeal came up for hearing before the learned Appellate Court on 28.08.2020, when the following order came to be passed in exparte: “…After taking a cumulative note of the grounds urged in the appeal and other material placed on record, I am of the view that there are reasons for admitting the appeal to hearing, thus, the appeal is admitted. Issue notice to other side and meanwhile the operation of the order dated 27.08.2020 passed by the ld. Munsiff Sankoo shall stand stayed till filing of objections and the status quo order dated 9.6.2020 on spot shall remain in force till next date of hearing. Put upon for further proceedings on 7.9.2020.” 5) It is the aforesaid order of the learned Appellate Court which is under challenge before this Court by way of instant petition. 6) At the very outset learned counsel for the petitioners was asked to satisfy this Court as regards the maintainability of the petition keeping in view the fact that by virtue of the impugned order, the learned District Judge had only issued a notice to the respondents in the appeal and directed that till next date of hearing, order of status quo shall remain in force, meaning thereby that the respondents in the appeal were given an opportunity to put forward their case and contest the appeal. 7) As regards the maintainability of the petition, learned counsel for the petitioners has vehemently argued that the instant case involves the question pertaining to supply of drinking water to a village which is inhabited by more than five hundred souls and a number of animals, therefore, this Court, being a Constitutional Court, must safeguard the interests of the petitioners and other inhabitants of the village. 8) Learned counsel for the petitioner has further argued that the order passed by the trial court, which has been impugned before the Appellate Court, is well reasoned and is based on sound principles of law. The same, according to him, should not have been interfered with by the learned Appellate Court. In support of his contentions, the learned counsel has relied on the judgments reported in 2018(I) S.L.J 354 (HC), 2019 (1) S.L.J 51(HC) and 2019 (1) S.L.J 395(HC). 9) I have heard learned counsel for the petitioners on the question of maintainability of the petition and perused the record of the case. 10) Article 227 of the Constitution, which the learned counsel for the petitioners, has repeatedly referred to and relied upon, vests the High Courts with the power of superintendence over the subordinate courts and Tribunals within their respective jurisdictions. 10) Article 227 of the Constitution, which the learned counsel for the petitioners, has repeatedly referred to and relied upon, vests the High Courts with the power of superintendence over the subordinate courts and Tribunals within their respective jurisdictions. The extent and scope of jurisdiction vested in the High Court under Article 227 of the Constitution was considered by the Supreme Court in the case of Radhey Shyam & anr. v. Chhabi Nath & Ors, (2009) 5 SCC 616 . The Court, while doing so, held that the said Article vests the High Courts with a power of superintendence which is to be exercised very sparingly to keep tribunals and courts within bounds of their authority. It was further held that under Article 227, orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage has been occasioned and that such power is not to be exercised to correct a mistake of fact and of law. 11) The scope of jurisdiction of High Court Article 227 of the Constitution came up for consideration before the Supreme Court also in the case of Mohd. Yunus v. Mohd. Mustaqim and others, (1983) 4 SCC 566 . The Court held that the High Court’s jurisdiction under Article 227 is not attracted when alternative remedies are available. 12) In A. Venkatasubbiah Naidu v. S. Chellappan and others, (2000) 7 SCC 695 , the Supreme Court, while considering the maintainability of a petition under Article 227 of the Constitution of India against an order under Order 39 Rule 1 of CPC, recognized the principle that a party should be asked to seek other available remedies before invoking constitutional remedy. Paras 21 and 22 of the judgment are relevant to the context and the same are reproduced as under: 21. It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1,2,2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1,2,2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party who does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39 Rule 3A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate court in complying with the provisions of Rule 3A. In appropriate cases the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex-parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule. 22. Now what remains is the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies. Though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned single judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High Court had chosen to entertain the revision petition. Learned single judge need not have entertained the revision petition at all and the party affected by the interim ex parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High Court had chosen to entertain the revision petition. 13) Recently in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and others v. Tuticorin Educational Society and others, (2019) 9 SCC 538 , the Supreme Court, while drawing a distinction between the cases where remedy is available under the provisions of Code of Civil Procedure and the cases where remedy is available under special enactments, held that in the cases where remedy is available under the provisions of Civil Procedure Code and other proceedings before the Civil Court, there is a near total bar to the maintainability of a petition under Article 227 of the Constitution. Paras 11 to 13 of the judgment are relevant to the context and the same are reproduced as under: “11. Secondly, the High Court ought to have seen that when a remedy of appeal under section 104 (1)(i) read with Order XLIII, Rule 1 (r) of the Code of Civil Procedure, 1908, was directly available, the respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. In A. Venkatasubbiah Naidu Vs. S. Chellappan., this Court held that “though no hurdle can be put against the exercise of the Constitutional powers of the High Court, it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies before he resorts to a Constitutional remedy”. 12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before Civil Courts in terms of the provisions of Code of Civil procedure and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. 12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before Civil Courts in terms of the provisions of Code of Civil procedure and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which the respondents 1 and 2 invoked the jurisdiction of the High court. This is why, a 3 member Bench of this court, while overruling the decision in Surya Dev Rai vs. Ram Chander Rai, pointed out in Radhey Shyam Vs. Chhabi Nath that “orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts. 13. Therefore wherever the proceedings are under the code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.” 14) From the aforesaid discussion of law on the subject, it is clear that the existence of an alternative remedy, particularly by way of civil proceedings, creates a bar to the maintainability of a petition under Article 227 of the Constitution of India. 15) Adverting to the facts of the present case, it is to be seen that vide the impugned order passed by learned District Judge, Kargil, a notice has been issued to the respondents before the Appellate Court, to place before the said Court their side of the case and till next date, which incidentally was only ten days away from the date when the appeal was taken up for hearing, status quo was directed to be maintained. It seems that the petitioners herein without appearing before the learned Appellate Court and without placing their contentions before the said Court, have rushed to this Court by way of the instant petition under Article 227 of the Constitution. It was open to the petitioners to approach the Appellate Court and place before it their side of the case and get the order of status quo vacated. It is not a case where the Appellate Court has finally decided either the miscellaneous appeal of the appellants or the interim application accompanying the said appeal but it is a case where Appellate Court has invited objections from the respondents in the appeal and has merely ordered maintenance of status quo till such time. If the High Court keeps on interfering with the orders of trial courts at the drop of hat and even orders directing issuance of notice in statutory appeals are interfered with, it will be difficult for the trial and appellate courts to function. 16) In the aforesaid backdrop, it can safely be stated that the petitioners herein despite having the remedy of approaching the Appellate Court and contesting the appeal as well the applications accompanying the said appeal before the Appellate Court and getting the order of status quo vacated, have approached this Court without exhausting the said remedy. The remedy available to the petitioners is by way of civil proceedings and without exhausting the said remedy, the instant petition under Article 227 of the Constitution of India cannot be resorted to. The remedy available to the petitioners is by way of civil proceedings and without exhausting the said remedy, the instant petition under Article 227 of the Constitution of India cannot be resorted to. The judgments referred and relied upon by learned counsel for petitioners are of no help to the case of the petitioners so far as it relates to the maintainability of the instant petition, inasmuch as the ratio laid down in these judgments governs the principles of grant or refusal of interim injunction 17) For the foregoing reasons and without going into the merits of the case, this petition is held to be not maintainable. The same is, accordingly, dismissed along with the connected CM(s). However, the respondents before the Appellate Court, who are petitioners before this Court, are at liberty to approach the learned Appellate Court by laying a motion before it and place all the contentions that have been raised in the instant petition. Having regard to the contention of the learned counsel for petitioners that the matter involves issue with regard to supply of drinking water to the inhabitants of a village, the learned Appellate Court shall, after considering the contentions of the parties, decide the question of vacation or otherwise of the status quo order at the earliest, preferably within a period of fifteen days from the date respondents in the appeal appear before the learned Appellate Court. 18) Copy of this order be sent to the Court of learned Principal District Judge, Kargil, through fax or any other available mode, for information and compliance.