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2021 DIGILAW 158 (JK)

Mohammad Shafi Mir v. Mohammad Sultan Mir

2021-04-07

JAVED IQBAL WANI

body2021
JUDGMENT : 1. In the instant petition, supervisory jurisdiction of this court invoked under Article 227 of the Constitution of India by the petitioners for quashment of order dated 31.12.2020 (for short impugned order) passed by the court of Munsiff, Sogam (hereinafter referred to as trial court), whereby an application for amendment of the plaint filed by the plaintiff respondent herein before the trial court has been allowed. 2. The petition is filed on the premise that the petitioners and respondent herein being related as brothers inherited the estate of father after his death as his legal heirs qua their respective shares which had accrued to them after the father during his lifetime partitioned the said estate/property. The respondent herein is stated to have been putting up as Khana Damad of one Ghulam Ahmad Mir son of Abdul Aziz Mir, having married his Khana Nisheen daughter Roshni Begum. 3. It is being stated that a time-barred suit came to be filed by the respondent herein for declaration, partition and permanent injunction before the trial court against the petitioners herein seeking therein a preliminary decree for partition, declaration and injunction. It is being stated that an exparte interim order came to be passed by the trial court on 24.7.2019 restraining the non-applicants petitioners herein from changing the nature of the suit property or creating any third party interest. It is being stated that upon entering appearance before the trial court, the petitioners herein filed written statement as also objections in opposition to the suit and application for interim relief. It is being further stated that an application came to be filed by the plaintiff respondent herein under Order 6 Rule 17, Civil Procedure Code, seeking amendment of the plaint and the court below is stated to have allowed the said application permitting the plaintiff respondent herein to amend the suit pursuant to the impugned order. 4. The impugned order is challenged inter alia on the grounds that the same is illegal and bad in law inasmuch as it has been passed without application of judicial mind to the facts and circumstances of the case. The trial court is stated to have unfairly sided with the plaintiff respondent herein by allowing amendment of his plaint. 4. The impugned order is challenged inter alia on the grounds that the same is illegal and bad in law inasmuch as it has been passed without application of judicial mind to the facts and circumstances of the case. The trial court is stated to have unfairly sided with the plaintiff respondent herein by allowing amendment of his plaint. The amendment sought by the plaintiff respondent herein and allowed by the trial court is stated to be the result of an afterthought in that the plaintiff respondent herein had no impediment to include the portion of the property sought to be included in the suit by way of amendment. The amendment sought and granted by the trial court is stated to be neither in the interest of law nor justice, but aimed to prevent the petitioners herein from constructing a residential house on the land in question. The amendment granted is stated to have changed the whole nature of the litigation initiated by the plaintiff respondent herein against the petitioners and a new cause of action is stated to have been introduced which is not permissible under law. The amendment is stated to have caused serious injustice to the petitioners herein as the amendment sought was neither necessary nor warranted. 5. Heard learned counsel for the petitioner and considered the matter. 6. Before adverting to the controversy involved in the petition, it would be appropriate and advantageous to refer to the nature, scope and object of Order 6 Rule 17 of CPC which provides that courts may at any stage of the proceedings allow either party to alter or amend his plaint in such manner and on such terms as may be just and that such amendment should be necessary for the purpose of determining the real question in controversy between the parties. The provisions for the amendment of the pleadings have been held by the courts to be intended to promote the ends of justice and not for defeating them. 7. It is on the touchstone of the aforesaid scheme provided under CPC, the impugned order may be analyzed. 8. The provisions for the amendment of the pleadings have been held by the courts to be intended to promote the ends of justice and not for defeating them. 7. It is on the touchstone of the aforesaid scheme provided under CPC, the impugned order may be analyzed. 8. Perusal of the record and the impugned order would reveal that the trial court has been alive to the provisions of Order 6 Rule 17 CPC inasmuch as various judgments of the Apex Court referred to therein, and that the trial court keeping in mind the said provision of law and principles and propositions laid down by the Apex Court, has exercised its discretion qua the application of the plaintiff respondent herein who is stated to have specifically pleaded in the application that due to inadvertence and illiteracy as also lack of knowledge, at the time of institution of the suit omitted to incorporate land measuring 1 kanal and 7 ½ marlas covered under survey No. 3041 in the plaint as being one of the properties liable for partition. 9. Further perusal of record and the impugned order reveals that the trial court has also noticed that even though the defendants petitioners herein claim the said land to be their own land recorded in the revenue records, yet same has been obtained by them in exchange of ancestral land covered under survey 1498 belonging to the father of the parties. 10. Seemingly the trial court has also been alive to the position of law that in case the amendment is not allowed and plaintiff is not permitted to incorporate the property in question in the suit for partition, the plaintiff may have to institute another suit for the purpose which in the process would result in multiplicity of litigation. 11. A conjoint reading and perusal of the pleadings, record as also the impugned order would ex facie suggest that the trial court has not determined or adjudicated upon the rights or controversy between the parties qua the land allowed to be incorporated in the suit by way of amendment. The defendants petitioners herein are well within their rights to set up any/all defence(s) against the claim lodged by the plaintiff respondent herein in the suit qua the property allowed to be incorporated by way of amendment in terms of the impugned order. 12. The defendants petitioners herein are well within their rights to set up any/all defence(s) against the claim lodged by the plaintiff respondent herein in the suit qua the property allowed to be incorporated by way of amendment in terms of the impugned order. 12. Now as to whether exercise of supervisory jurisdiction in the instant case is warranted or not, it would be in the fitness of things to refer to the law laid down by the Apex Court in this regard. The Apex Court in case titled as Shalini Shayam Shetty & anr Vs. Rajendra Shankar Pati, reported in 2010 (8) SCC 3291 has laid down: “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. 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. 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. 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. (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 in case titled as Radhey Shyam and anr. Vs. Chhabi Nath and ors, reported in 2015 (5) SCC 423 , following has been provided 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." 13. Contrary view in Surya Dev Rai is overruled." 13. Having regard to the aforesaid analysis and the position of law as observed and discussed in the preceding paras, the exercise of supervisory jurisdiction qua the impugned order is not warranted in the facts and circumstances of the case. As such resultantly the petition fails and is accordingly dismissed. 14. It is made clear that nothing hereinabove shall be construed to be expression of any opinion on the merits of the case.