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2023 DIGILAW 534 (JK)

Habibullah Dar v. Bashir Ahmad Dar

2023-09-20

JAVED IQBAL WANI

body2023
ORDER : Heard counsel for the parties. 1. The instant case has a chequered history as the instant petition is third round of litigation between the parties before this Court. 2. Facts reveal that the petitioner and respondent herein entered into a compromise in a civil suit filed by the respondent herein against the petitioner herein wherein the plaintiff respondent herein had sought a decree for perpetual/mandatory injunction against the defendant petitioner herein for restraining defendant petitioner herein from constructing his residential house adjacent to the residential house of plaintiff respondent herein and laying tin roof thereon towards the residential house/property of the plaintiff respondent herein. The parties in terms of the compromise agreed that the defendant petitioner herein would raise a concrete wall between his residential house/property and the house of the plaintiff respondent herein, so that no damage is caused to the property of the plaintiff respondent herein on account of the snow that may likely fall from the tin roof of the house of the defendant petitioner herein into the property of the plaintiff respondent herein. It also came to be provided in the compromise that for construction of such a concrete wall, the plaintiff respondent herein would provide 1 ½ feet proprietary land to the defendant petitioner herein which the defendant petitioner herein had to complete the construction of wall before the month of November 2009. It also came to be provided in the compromise that the defendant petitioner herein would also install snow stoppers on his tin roof in order to prevent the snow from falling towards the property of the plaintiff respondent herein. The compromise further provided that in case either of the parties do not adhere to the compromise, the defaulting party shall pay to the opposite party an amount of Rs. 30,000/-. Based on the aforesaid compromise entered into and executed on 29.06.2009 the trial Court being the Court of Munsiff Tangmarg passed compromise judgement and decree on 29.06.2009. 3. The compromise further provided that in case either of the parties do not adhere to the compromise, the defaulting party shall pay to the opposite party an amount of Rs. 30,000/-. Based on the aforesaid compromise entered into and executed on 29.06.2009 the trial Court being the Court of Munsiff Tangmarg passed compromise judgement and decree on 29.06.2009. 3. The plaintiff respondent herein on account of failure of the defendant petitioner herein to adhere to the terms of compromise decree filed an execution petition before the trial Court for execution of the compromise decree on 22.01.2019, whereas after entering appearance the judgement debtor petitioner herein filed his response thereto alleging that plaintiff respondent therein did not provide the requisite land for raising construction of the wall by him though denied by the plaintiff respondent herein thus, necessitating the trial Court to direct the Tehsildar Tangmarg to go on spot and effect a demarcation on spot in pursuance of the compromise decree vide order dated 02.08.2011 which report came to be furnished by the Tehsildar on 28.08.2011 providing therein that the plaintiff respondent herein has left land of 2 ft in accordance with compromise decree on which the defendant petitioner herein has constructed fencing of stones upto the height of 2 ft, providing further therein the report that the judgement debtor petitioner herein has not taken other proper management of the snow fall from the roof of the residential house towards the house of plaintiff respondent herein. The said report came to be taken on record by the executing Court on 24.08.2011 in presence of the parties whereafter record reveals that the defendant petitioner herein either did not appear before the executing Court or else changed his counsel appearing for him. 4. Perusal of the record would reveal that the defendant petitioner herein preferred a petition being OWP No 1209/2011 before this Court against order dated 24.08.2011 passed by the executing Court whereunder the aforesaid report of the Tehsildar was taken on record and the defendant petitioner herein came to be directed to implement the judgement as otherwise he will be sent to the prison. The said petition came to be disposed of by this Court on 01.08.2013 whereby the trial Court came to be directed to ensure that for execution of the judgement and decree the mode and method prescribed under Order 21 CPC is adhered to which may include sending of the judgement debtor petitioner herein to prison after adhering to the measures prescribed. 5. Perusal of the record of the proceedings of the executing Court would reveal that the defendant petitioner herein on 25.11.2013 made a statement before the executing Court that he would implement the judgement and sought time in this regard which came to be granted by the executing Court and the case came to be fixed for further hearing on 28.11.2013 on which date again the defendant petitioner herein sought weeks’ time to implement the judgement and decree under execution. On 03.12.2013 the order of executing Court was reiterated. On 30.12.2013 the defendant petitioner herein informed the executing Court about the passing of an order by this Court which, however, came to be produced by him on 20.01.2014. 6. Perusal of the record reveals that the defendant petitioner herein had preferred yet, another petition before this Court being OWP no. 1924/2013 calling in question the orders passed by the executing Court dated 25.11.2013 in terms whereof the defendant petitioner herein had sought time before the executing Court for implementing the judgement and decree and the executing Court had granted time to the defendant judgement debtor petitioner herein for implementing the same while providing that in the event the defendant petitioner herein fail to implement the judgement and decree proceedings under Order 21 for attachment and auction of his property would be undertaken. The said petition filed by the defendant petitioner herein as well came to be disposed of on 26.02.2014 by this Court directing the executing Court to proceed in the matter having regard to the terms of the compromise and proceed for execution under Order 21 CPC. 7. The said petition filed by the defendant petitioner herein as well came to be disposed of on 26.02.2014 by this Court directing the executing Court to proceed in the matter having regard to the terms of the compromise and proceed for execution under Order 21 CPC. 7. Perusal of the record would reveal that after passing of the aforesaid order by this Court on 26.02.2014 the defendant petitioner herein on most of the dates of hearings before the executing Court remained absent till 08.11.2014 on which date while appearing before the executing Court the defendant petitioner herein made a statement at bar that he will not violate the terms of the compromise decree on spot, however, thereafter the defendant petitioner herein again remained absent on most of the hearings and instead filed objections to an application filed for implementation of the judgement and decree by the decree holder respondent herein and thereafter again remained absent before the executing Court. 8. Perusal of the record of the proceedings would further reveal that on 25.09.2017 the executing Court appointed one Sajad Ahmad Khanday Advocate, as Commissioner for spot inspection of the subject matter in furtherance of execution of the judgement and decree which Commissioner also submitted a report on 12.12.2017 whereafter the defendant petitioner herein again choose to remain absent requiring securing of his presence through issuance of a warrant by the executing Court in terms of order dated 23.03.2018. 9. Record of the proceedings would reveal that event after passing of the order dated 23.03.2018, the defendant petitioner herein did not appear on four subsequent hearings however, on 29.11.2018 appeared along with his counsel and sought time to advance arguments and even sought an adjournment thereafter on two subsequent dates of hearings. 10. Perusal of the record would also reveal that thereafter no effective proceedings came to be conducted in the execution petition by the executing Court on account of outbreak of COVID-19 Pandemic and consequent lockdown. 11. 10. Perusal of the record would also reveal that thereafter no effective proceedings came to be conducted in the execution petition by the executing Court on account of outbreak of COVID-19 Pandemic and consequent lockdown. 11. Record reveals that on 06.10.2021 executing Court continued with the conduct of proceedings in the execution petition and on account of absence of the defendant petitioner herein directed issuance of a notice to the defendant petitioner herein on 06.10.2021, in response to which the defendant petitioner herein appeared on 09.10.2021 and sought time to engage a counsel which counsel entered his appearance before the executing Court on 23.10.2021, however, the defendant petitioner herein thereafter again chose to remain absent resulting into securing of his presence by issuance of warrants by the executing Court in terms of order dated 09.02.2022, in response to which the defendant petitioner herein appeared on next date before the executing Court and sought time to argue the matter as on that date another lawyer had appeared on behalf of the defendant petitioner herein. 12. Record of the proceedings would reveal that on 23.06.2022 the parties along with their counsel appeared before the executing Court and it came to be noticed by the executing Court that the defendant petitioner herein, instead of constructing a concrete wall, in fact, has installed rusty tin sheets and has thus, not implemented compromise decree, as such, the executing Court taking cognizance of the age of the defendant petitioner herein being an old aged granted one weeks time for complying with the judgement and decree and in the event of failure it provided that he will be sent to civil prison. 13. 13. The order dated 23.06.2022 is impugned in the instant petition which admittedly has been filed on 25.07.2022, however, perusal of the record of the executing Court would reveal that on 30.06.2022 the defendant petitioner herein had appeared before the executing Court and sought one month’s time for constructing the concrete wall in terms of compromise decree which one month’s time consequently came to be granted by executing Court providing again therein that in the event of non compliance of the judgement, the defendant petitioner herein will be sent to the prison and the next date came to be fixed as 30.07.2022 by the executing Court on which date the counsel for the defendant petitioner herein had produced a copy of the petition filed before this Court along with an order passed by this Court. 14. The petitioner herein has preferred the instant petition invoking Supervisory Jurisdiction of this Court against the order dated 23.06.2022 in the instant petition fundamentally on the premise that the executing Court did not follow the procedure prescribed for execution of the decree. 15. Even though the power of superintendence envisaged under Article 227 is general in nature yet its ambit and scope has been defined by the Apex Court in a series of judgements including the one titled as Shalini Shyam Shetty and another v. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 , laying down the following principles on the exercise of High Court’s jurisdiction under Article 227 of the Constitution. (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. (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 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. 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.” 16. Keeping in mind the aforesaid principles of law and reverting back to the case in hand, perusal of the record tends to show that the petitioner herein being the judgement debtor before the executing Court has chosen to suppress and conceal the material facts in the instant petition qua the matter, in that, as has been noticed in the preceding paras, the petitioner in the first instance chose to question the order dated 24.08.2011 passed in the execution proceedings in OWP No 1209/2011 whereunder the petitioner came to be directed to implement the judgement and decree and in the event of his failure he would be sent to prison which petition came to be disposed of on 01.08.2023. This fundamental material fact has been suppressed and concealed by the petitioner in the instant petition. Not only this the petitioner has even concealed an important and vital material fact before this Court in the instant petition while throwing challenge to order dated 23.06.2022 impugned in the instant petition qua passing of the subsequent order by the executing Court on 30.06.2022 on which date the petitioner herein had in explicit terms made a statement before the executing Court at bar that one month’s time be given to him for raising construction of concrete wall under and in terms of compromise decree. Not a murmur about the passing of the said order has been made in the instant petition by the petitioner though the petitioner has filed the instant petition on 25.07.222 much after the date passing of the said order dated 30.06.222. The said deliberate and intentional concealment of aforesaid facts before this Court in the instant petition while invoking Supervisory Jurisdiction of this court ex-facie would disentitle the petitioner to an indulgence of this Court in exercise of Supervisory Jurisdiction. However, even otherwise also going by the grounds of challenge urged in the petition against the impugned order, it is manifest that the executing Court has not committed any illegality or irregularity in passing the same. However, even otherwise also going by the grounds of challenge urged in the petition against the impugned order, it is manifest that the executing Court has not committed any illegality or irregularity in passing the same. The executing Court seemingly has not been oblivious to the entire case pending before it including the nature and character of a decree sought to be executed. 17. Viewed thus, what has been observed, considered and analyzed hereinabove, the exercise of Supervisory Jurisdiction in the matter is declined. Resultantly the petition fails and accordingly is dismissed.