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2021 DIGILAW 316 (JK)

Mohan Singh v. Darshana Kumari

2021-07-07

JAVED IQBAL WANI

body2021
ORDER : 1. Supervisory jurisdiction of this court is being invoked by the petitioner seeking quashment of order dated 27.05.2020 (for short ‘the impugned order’) passed by the court of Sub Judge Jammu (for short ‘the trial court’). 2. Facts giving rise to the filing of the instant petition are that a suit for declaration and injunction came to be filed by the respondent herein against the petitioners in respect of immovable property/land covered under Khasra Nos.610 min (10 kanals) and 605 min (18 kanals 6 marlas) situated at village Pargwal Akhnoor, District Jammu. Alongside the main suit, in the application for interim relief, the trial court initially passed an order of status quo. During the pendency of the suit and operation of the interim order, two applications came to be filed by the plaintiff/respondent herein under Section 151 CPC, one for allowing him to reap/harvest the wheat crop sown on the land in question and the other for releasing of the said harvested wheat crop purported to have seized/confiscated by Police Post Pargwal. In both the applications, the trial court issued notice to the non-applicants on 11.05.2020 and fixed both applications for further proceedings on 14.05.2020. 3. On 14.05.2020, in the first application the counsel for non applicant entered appearance and sought time for filing objections and which came to be granted by the trial court. The said application came to be fixed for further proceedings on 20.05.2020. In the second application on 14.05.2020, counsel for the non applicant as well appeared and sought time for filing objections which had been filed in between while fixing the next date in the case on 20.05.2020. In the first application, no further proceedings after 14.05.2020 have been undertaken by the trial court whereas in the second application, further proceedings had been deferred on two dates i.e. 23.05.2020 and 26.05.2020 fixing the next date in the said application on 27.05.2020. 4. On 27.05.2020, both the applications have been considered and decided by the trial court by the impugned common order while allowing the same primarily on the premise that the non applicants have filed reply to both the applications jointly through Advocate J P Gandhi. 5. Heard learned counsel for the parties and perused the record of the trial court. 6. On 27.05.2020, both the applications have been considered and decided by the trial court by the impugned common order while allowing the same primarily on the premise that the non applicants have filed reply to both the applications jointly through Advocate J P Gandhi. 5. Heard learned counsel for the parties and perused the record of the trial court. 6. A bare perusal of the record tends to show that no further proceedings had been undertaken by the trial court in the first application after 14.05.2020 and that no objections whatsoever have been filed by the non applicants in opposition to the said application whereas record further tends to show that the non applicants have filed objections only to the second application alone. The trial court prima facie seemingly has proceeded on wrong premise while recording that objections stand filed in both the applications and proceeded to pass the impugned order while disposing of both the applications. 7. The contention of the learned counsel for the petitioner that the trial court erred while passing the impugned order disposing of the first application without there being objections of the non-applicant and consequently condemned the petitioner unheard violating basic fundamental principles of natural justice seemingly has substance. 8. 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. (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. (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. (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 motu. (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. (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." 9. Keeping in mind the aforesaid legal position enunciated by the Apex court in the judgments supra and having regard to the nature of the controversy involved in the petition noticed, considered and analysed hereinabove, the impugned order insofar it disposed of application for allowing the plaintiff/applicant to reap/harvest the wheat crop claimed to have been sown by the applicant on the land in question does not sustain and is accordingly set-aside with the direction to the trial court to revisit and reconsider the said application afresh after affording an opportunity of being heard to the non-applicant/petitioner herein. 10. Parties to appear before the trial court on 16.07.2021. 11. Disposed of along with all connected applications. 12. Registry to send back the record of the trial court.