The Single Bench of the Delhi High Court in the case of Ghulam Sarwar vs Smt. Nilofar Khan & Ors. consisting of Justice C. Hari Shankar observed that the High Court is required, at all times, to respect the exercise of discretionary powers by the district judiciary and not to act in a manner as could convey an impression that the court is playing the role of headmaster.
Facts
This petition under Article 227 challenged the order passed by the learned Additional District Judge regarding a suit seeking a decree of permanent and mandatory injunction in favour of the respondents and against the petitioner and other defendants in the suit, restraining the petitioner and other defendants from interfering with the access, by the respondents, to the suit property, creating third party interest in respect of the suit property or from restraining access, by the respondent, to the rooftop of the suit property. The suit was accompanied by an application under O39 Rules 1 and 2 CPC, seeking an ad interim injunction in favour of the respondents and against the petitioner, restraining the petitioner from illegally and forcefully fixing iron grills on the passage to the rooftop and for a direction to the petitioner to remove the said grills and permit access, by the respondents, to the rooftop of the suit property, which was disposed.
Procedural History
It was held that while no interim direction restraining the petitioner and other defendants from parting possession with the suit property or any portion thereof could be granted, the respondents did have a right to access the terrace for the aforesaid limited purposes. Aggrieved, the respondent appealed to the learned ADJ who held that the learned SCJ ought to have kept in mind the fact that the parties were locked in acrimonious litigation and directed the petitioner to hand over one set of the keys so that the respondents would have independent access to the terrace at all reasonable times during the pendency of the suit. Hence, this petition.
Observations of the Court
The Bench noted that the impugned order is purely discretionary in nature which cannot be said in any manner to suffer from perversity and is completely immune from challenge under Article 227.
It was also noted that if the High Court were to start interfering with such orders under Article 227, it is bound to shake the confidence of the district judiciary and seriously hamper the exercise of the discretionary power.
It further noted that the High Court is required, at all times, to respect the exercise of discretionary powers by the district judiciary and not to act in a manner as could convey an impression that the court is playing the role of headmaster.
Judgment
The Bench concluded that the order passed by the learned ADJ was well reasoned and the respondents, while availing of the facility that the learned ADJ grants them, shall not abuse the same. If the respondents defaulted, it shall be open to the petitioner to seek modification of the aforesaid direction by moving an appropriate application before the learned ADJ for that purpose.
Case: Ghulam Sarwar vs Smt. Nilofar Khan & Ors.
Citation: CM(M) 783/2022 & CM APPL. 34638/2022, CM APPL. 34639/2022, CM APPL. 34640/2022
Bench: Justice C. Hari Shankar
Decided on: 5th August 2022
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