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2021 DIGILAW 328 (JK)

Bashimbar Dass v. Ganga Ram

2021-07-14

JAVED IQBAL WANI

body2021
JUDGMENT : 1. The petitioner invokes supervisory jurisdiction of this Court while seeking quashment of order dated 07.11.2015 (for brevity 'impugned order') passed by the court of City Judge, Jammu (for brevity 'trial court') in case titled as "Bishambar Dass vs. Ganga Ram". 2. A civil suit for permanent prohibitory injunction came to be instituted by the petitioner herein as plaintiff against the respondent herein, impleaded as a defendant, for restraining him from encroaching and raising any constructions on the Gair Mumkin Gali (Path) of the plaintiff measuring 7"X33" Sft. as also to restrain the defendant from interfering in the peaceful possession of the plaintiff thereof. 3. During the pendency of the aforesaid suit an application for amendment of the plaint came to be filed by the plaintiff/petitioner herein on 11.02.2015 seeking amendment in various paras of the plaint detailed out in the said application. The said application came to be dismissed by the trial court in terms of the impugned order. The order is being challenged inter alia on the grounds that the trial court misdirected the principles governing amendments. The amendments sought in essence are stated to have elucidated the suit without converting the injunction suit to any other suit. The respondent despite having been summoned and served did not choose to either appear or respond to the instant petition. 4. Heard learned counsel for the petitioner and perused the record. 5. Before adverting to the controversy involved in the petition it would be appropriate to refer to the ambit and scope of amendments of the pleadings as contained in Order 6 Rule 17 of the Civil Procedure Code which postulates that the Court may at any stage of the proceedings allow either party to alter or amend his proceedings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purposes of determining the real question in controversy between the parties. Law on the subject is no more res-integra that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings, yet it cannot be ignored that such amendment could be allowed, firstly when the suit is at its initial stage i.e., when the trial has not yet begun and secondly, when the proposed amendment sought in the plaint does not change the nature of the suit and thirdly, the application could not be said to have been filed by the party belatedly. 6. The perusal of the record tends to show that the amendment has been sought by the petitioner before the trial court after the parties adduced their respective evidence and after 17 years from the date of institution of the suit. The perusal of the application seeking amendment would reveal that the applicant/petitioner herein has not anywhere spelt out any reason as to why the amendment was being sought after 17 years of the institution of the suit, more so, when the amendment sought had been available with the plaintiff/petitioner herein at the time of institution of the suit or could have been sought at the earliest. No explanation worth the name has been offered in the application as to what prevented the plaintiff/petitioner herein to seek such an amendment in the suit at its infancy stage. An amendment in the pleadings is not available as a matter of right in all circumstances to a party. The amendment, indisputably, is being sought at the fag end of the trial of the case before the trial court, which in the facts and circumstances of the case could not, but said to be either bonafide or just necessary for the purposes of determining the real question in controversy between the parties. 7. 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 Shyam Shetty & Anr. Vs. Rajendra Shankar Patil, reported in 2010 (8) SCC 329 has laid down:- "62. The Apex Court in case titled as Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar Patil, reported in 2010 (8) SCC 329 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) xxxxxxx (b) xxxxxxx (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) xxxx (e) xxxx (f) xxxx (g) xxxx (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) xxxx (j) xxxx (k) xxxx (l) xxxx (m) xxxx (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. 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: (1) Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution; (2) Jurisdiction under Article 227 is distinct from jurisdiction from jurisdiction under Article 226. Contrary view in Surya Dev Rai is overruled." 8. Having regard to the aforesaid analysis and the position of law enunciated by the Apex Court in the judgments (Supra) the exercise of supervisory jurisdiction qua the impugned order is not warranted in the facts and circumstances of the case. Resultantly, the petition fails and is, accordingly, dismissed along with connected IA(s).