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2020 DIGILAW 614 (JK)

Ghulam Mohd. v. Manzoor Ahmed

2020-11-21

JAVED IQBAL WANI

body2020
Judgment Javed Iqbal Wani, J.—In the instant petition Supervisory jurisdiction of this court is invoked by the petitioner for quashment of order dated 10.03.2016 (hereinafter for short the impugned order) passed by the learned 2nd Additional District and Sessions Judge, Jammu, (hereinafter for short the Trial court), in file No. 75/ Suit titled as “Manzoor Ahmad and Ors. Vs. Ghulam Ahmad and Ors”. 2. In terms of impugned order the right to file written statement of the defendant petitioner herein is closed by the Trial court after the Trial court notices that the defendant has failed to deposit costs imposed upon him for setting aside ex-parte proceedings initiated vide order dated 20.01.2016. 3. The perusal of record of the Trial court reveals following facts being relevant herein for adjudication of the instant petition: - 3(a) A suit for Specific Performance of an agreement to sell dated 08.10.1999 qua the land measuring 02 Kanals covered under Khasra No. 2309 situated at village Kot Jammu, is filed by the plaintiffs respondents herein against the defendant. 3(b) The defendant is summoned after the aforesaid suit is entertained by the Trial court on 10.01.2015 and case is posted for 11.02.2015 on which date plaintiffs appear however, defendant did not appear and case is posted for 11.03.2015. 3(c) On 11.03.2015 counsel for plaintiffs appear and defendant petitioner herein appears in person and prays for copy of the plaint having been furnished to him in open court requiring him to file written statement on next date i.e. 17.04.2015, on which date no proceedings in the suit are conducted on account of suspension of work by the lawyers and the case is posted for 13.05.2015. 3(d) On 13.05.2015 plaintiffs appear, however, defendant remains absent and case is posted for 11.06.2015. 3(e) On 11.06.2015 plaintiffs appear and defendant remains absent. Ex-parte proceedings are initiated against the defendant and plaintiffs are directed to lead evidence in ex-parte and case is posted for 06.08.2015. 3(f) On 06.08.2015 plaintiffs appear, however, defendant did not appear and case is posted for 09.09.2015 on which date counsel for the plaintiffs appear and defendant appears in person and seeks time to file an application for setting aside ex-parte proceedings and the case is posted for 05.10.2015. 3(g) On 05.10.2015 plaintiffs appear along with their counsel so also appears defendant along with his counsel. 3(g) On 05.10.2015 plaintiffs appear along with their counsel so also appears defendant along with his counsel. Counsel for plaintiffs seeks time to file objections to the application filed by the defendant for setting aside ex-parte proceedings. Case is posted for 14.11.2015. 3(h) On 14.11.2015 counsel for plaintiffs appear and defendant as well appears. Counsel for plaintiffs seek further time to file objections to the application. Case is posted for 09.12.2015, on which date plaintiffs and their counsel remains absent while as defendant appears along with his counsel and case is posted for filing of objections of the plaintiffs to the application of the defendant and case is posted on 01.01.2016. 3(i) On 01.01.2016 counsel for the parties appear and objections are filed by the plaintiffs to the application of the defendant and application is posted for arguments on 20.01.2016. 3(j) On 20.01.2016 after hearing the counsel for the parties, ex-parte proceedings imitated against the defendant are set aside subject to the payment of costs of Rs. 700/=. Further the defendant is directed to file written statement on or before the next date i.e 13.02.2016. 3(k) On 13.02.2016 none appears for the parties and the case is adjourned for 10.03.2016 on account of non-availability of Presiding officer. 3(l) On 13.03.2016 the impugned order supra is passed by the Trial court. 4. The petitioner being aggrieved of order dated 13.03.2016 supra assails the same inter-alia amongst others on the following grounds which are briefly extracted and referred here under: - (i) That the petitioner had engaged services of one advocate namely Arun Gandotra for contesting his case who, however, did not held himself responsible and did not contest the same diligently so much so that an amount of Rs. 6,000/- was paid by the petitioner to the counsel upon being informed by his counsel that Rs. 6,000/= costs have been imposed and that despite requesting the counsel to file written statement, neither the costs are deposited by the counsel nor written statement filed, resulting into passing of the impugned order. (ii) That the petitioner is an illiterate person and had reposed trust in the counsel engaged by him before the Trial court who did not bother for the welfare of the client and defrauded the petitioner. (ii) That the petitioner is an illiterate person and had reposed trust in the counsel engaged by him before the Trial court who did not bother for the welfare of the client and defrauded the petitioner. (iii) That the petitioner is an innocent litigant and cannot be punished for negligence of his advocate in the light of Apex court judgment passed in case titled as “Rafeeq and Ors. Vs. Munshi Lal and Anr”. (iv) That the impugned order is highly prejudicial in the interest of the justice, equity and fair play and that the petitioner is put to disadvantage because of the negligence of his counsel. (v) That the impinged order has caused failure of justice and that the trial court committed an illegality while passing the impugned order. 5. Heard, considered and perused the record of the Trial Court. 6. The counsel for petitioner while making her submissions reiterated the contentions raised and grounds urged in the petition, whereas counsel for the respondents controverted and refuted the contentions raised and grounds urged by counsel for the petitioner. 7. Before proceeding to deal with the instant petition, it would be appropriate to refer to the ambit and scope of Supervisory jurisdiction of this court as has been dealt with by the Apex court in following decisions viz case titled as Shalini Shayam Shetty & anr Vs. Rajendra Shankar Pati, reported in 2010 (8) SCC 3291 where, in paragraph 49 following has been noticed: - “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. (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. (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. (i) High Court’s power of superintendence under Article 227 cannot be curtailed by any statute. In other words the jurisdiction has to be very sparingly exercised. (i) High Court’s power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court’s power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court’s jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo moto. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (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 High Court. (n) 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 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. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality”. And case titled as Radhey Shyam and anr. Vs. Chhabi Nath and ors, reported in 2015 (5) SCC 423 , where in paragraph 29, it has been provided as under, while considering the view taken by the Apex Court in case titled as Surya Dev Rai vs. Ram Chander Rai and ors, reported in 2003 (6) SCC 675 : - “Accordingly, we answer the question referred as follows: (i) Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution; (ii) Jurisdiction under Article 227 is distinct from jurisdiction from jurisdiction under Article 226. Contrary view in Surya Dev Rai is overruled.” 8. What transpires from the perusal of the aforesaid judgements of the Apex court, it is well settled that the orders of the civil courts are not amenable to writ jurisdiction under Article 226, but could be interfered with under Article 227 of the Constitutions in the event the case falls within the parameters laid down in the judgements supra where under it is provided that the power of superintendence/ Supervisory jurisdiction is to be exercised sparingly only in appropriate cases for the purposes of keeping the Subordinate courts and Tribunals within the bounds of their authorities. The power, however, is provided not to be available for correcting mere errors of law and fact. 9. The power, however, is provided not to be available for correcting mere errors of law and fact. 9. As is noticed from above the right to file written statement of the defendant petitioner herein has been closed by the Trial court in terms of impugned order in the peculiar facts and circumstances of the case thus, before proceeding further in the matter it would be appropriate to refer to Order VIII Rule 1 of the Code of Civil Procedure being relevant and germane to the controversy which is extracted and reproduced here under : - Written Statement.- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he hall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. 10. It would be significant to mention here that the aforesaid provision came to be amended w.e.f. 13.12.2018 by the Act of 2018 where under the time limit of 90 days in the proviso came to be substituted by 120 days with a rider that upon expiry of said period of 120 days, the defendant shall forfeit the right to file the written statement and that the court shall not allow the written statement to be taken on record. The aforesaid amendment of 2018 is not attracted to the case of the petitioner, in that, the same is prospective in nature and the time limit for filing written statement in the case of the petitioner would be therefore, what is provided in the un-amended supra proviso of the Order VIII CPC. 11. The aforesaid amendment of 2018 is not attracted to the case of the petitioner, in that, the same is prospective in nature and the time limit for filing written statement in the case of the petitioner would be therefore, what is provided in the un-amended supra proviso of the Order VIII CPC. 11. As would appear from perusal of record of proceedings of the Trial court noticed and reflected herein above in the preceding paras summons came to be issued by the Trial court to the defendant on 10.01.2015 and that the defendant did appear on 11.03.2015 in response to the summon supra, as such the time to file written statement would start running from the date of service of summons upon the defendant and the defendant was required to file written statement within 30 days from such date or else under proviso appended to Order VIII Rule 1 within 90 days from the date of the service of summons. 12. Further perusal of the record reveals that defendant indisputably has failed to file the written statement within the stipulated period of time prescribed under Order VIII Rule 1 or proviso appended thereto even if, it is assumed that the summons were served upon him on 11.03.2015 when he appeared before the Trial court notwithstanding the permission granted to the defendant to file the same in terms of order dated 20.01.2016 i.e. when his ex-parte proceedings were set aside by the Trial court. Since the defendant failed to file the written statement within the period prescribed under Order VIII CPC, the closure of right to file the same in terms of impugned order by the Trial court becomes irrelevant and insignificant. 13. Looking to the controversy involved in the petition from the angle of principles and propositions laid down by the Apex court in the judgments supra it becomes manifest that exercise of Supervisory jurisdiction by this court is not warranted in the instant case. 14. The impugned order in view of preceding analysis, as it is, does not therefore, call for any interference and resultantly the petition in hand fails and is, accordingly, dismissed. 15. Dismissed along with connected IA(s).