Jammu & Kashmir High Court - Srinagar Bench

Irshad Ahmad Kuchay vs Mst. Zarina on 12 April, 2021

 S. No. 102
 After Notice

                     HIGH COURT OF JAMMU AND KASHMIR
                               AT SRINAGAR.
                                  *******
                             CM (M) No. 72/2021
                              CM No. 2144/2021
Irshad Ahmad Kuchay
                                                               ...Petitioner(s)
                 Through:     Mr. Nazim Khan, Advocate
                                          Vs
Mst. Zarina
                                                               ...Respondent(s)
                 Through:
CORAM:
                 Hon'ble Mr. Justice Javed Iqbal Wani, Judge
                                          ORDER

Supervisory jurisdiction of this Court is being invoked by the petitioner herein under Article 227 of the Constitution while throwing challenge to an order dated 30-03-2021 (for short impugned order) passed by the Court of 2nd Additional Munsiff, Srinagar (for short the trial court) in a suit for declaration, partition and possession filed by the plaintiff/respondent herein against the defendant/petitioner herein, in respect of a chunk of land falling under Survey No. 131 in Mouza Eidgah opposite Aali Masjid, Srinagar.

The impugned order is stated to have been passed by the trial court upon an application filed by the plaintiff/respondent herein for table amendment seeking incorporation of Khasra No. 132 in the suit besides Khasra No. 131 for the reason that the said Khasra No. 132 could not be incorporated in the suit at the time of its institution due to a typographical error.

It is being stated that the trial court without affording a chance of hearing to the defendant/petitioner herein allowed the application, permitting the plaintiff/respondent herein to incorporate Khasra No. 132 in the suit, besides allowing the incorporation of the said Khasra number to be read wherever the property is shown to be comprising of Khasra No. 131 only.

The impugned order is being challenged inter-alia amongst others on the grounds that the same has been passed in ex-parte in a pending matter without giving the defendant/petitioner herein a fair chance of hearing so much so the application seeking amendment had been mala fide changing the cause of action. The impugned order is also urge to have been passed in abuse of process of law and in breach of principles of natural justice besides complaining the same to be perverse.

Heard learned counsel for the petitioner and perused the record. Indisputedly suit for declaration, partition and possession has been filed by the respondent herein against the petitioner and in the application for interim relief accompanied with the suit, the trial court has passed an interim order dated 26-03-2021 directing the parties to maintain status-quo with respect to the suit property which property in the suit is claimed to be a property left behind by the father of the petitioner and respondent.

Perusal of the record reveals that during the pendency of the suit and passing of the aforesaid interim order on 26-03-2021, an application has been filed by the plaintiff/respondent herein for table amendment in the suit for incorporating Khasra No. 132 in addition to Khasra No. 131 having been omitted to mention by the counsel for the plaintiff. Both the Khasra No's in the application are stated to be covering the suit property. The omission to mention the Khasra No. 132 in the suit is stated to be neither intentional nor deliberate but due to inadvertence (typographical error).

Perusal of the record reveals that the trial court seemingly has allowed the application admittedly without issuing any notice or inviting any objections thereto from the defendant/petitioner herein purportedly owing to the reason that the other side is yet to be served.

The order impugned though not being the detailed one yet reflects and reveals that the trial court had been oblivious to the fact that the defendant/respondent herein would have a chance to respond to the main controversy relating to the suit property covered under both Khasra Nos viz. 131 and 132. None of the rights of the parties have been adjudicated upon or determined by the trial court relating to the suit property while passing the impugned order. The defendant/petitioner herein would be free and well within his rights to resist and controvert the claims having ben made by the plaintiff/respondent herein qua the suit property be it covered under Khasra Nos 131 and 132. Thus, it cannot by any sense of imagination said to caused any injustice much less a grave one or prejudice to the rights and interests of the defendant/petitioner.

The ambit and scope of Supervisory jurisdiction under Article 227 of the Constitution has been dealt with by the Apex Court in case titled Shalini Shayam Shetty & Anr. Vs. Rajendra Shankar Pati, reported in 2010 (8) SCC 3291 wherein paragraph 49 following has been noticed: -

"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.

(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.

(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 Radhey Shyam and Anr. Vs. Chhabi Nath and Ors, reported in

2015 (5) SCC 423, where in at paragraph 29, it has been provided as under, 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."

Keeping in mind the legal position as laid down by the Apex Court in Judgments supra inasmuch as having regard to the controversy raised in the instant petition, it can safely be concluded that the exercise of Supervisory jurisdiction under Article 227 of the Constitution is not warranted in the facts and circumstances of the case.

The petition thus fails and is accordingly dismissed along with all connected applications.

(Javed Iqbal Wani) Judge Srinagar.

12.04.2021 "Sakeena"