Jammu & Kashmir High Court

Raj Kumar vs Bachan Lal And Others on 21 August, 2021

                                                                   Serial No. 26




       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU


                                                   OW104 No. 31/2014
                                                   IA No. 41/2014


Raj Kumar                                     ...Appellant(s)/Petitioner(s)

                      Through:- Mr. Jasmeet Singh Saini, Advocate

                           v/s

Bachan Lal and others                                      ...Respondent(s)

                      Through:- Mr. Suneel Malhotra, Advocate


Coram:       HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                     ORDER

1. The supervisory jurisdiction of this Court is being invoked by the

petitioner herein seeking setting aside of order dated 04.05.2013 passed by

the 2nd Additional Munsiff, Jammu (for brevity „trial court‟) and order dated

20.03.2014 passed by the court of 2nd Additional District Judge, Jammu, (for

brevity, „appellate court‟).

2. According to the petitioner herein a suit for declaration and

injunction came to be filed by him before the trial court calling in question

will dated 17.11.2011 executed by one late Milkhi Ram in favour of

respondent No. 1 in respect of a suit house. According to the petitioner said

Milkhi Ram had adopted him being his real uncle and had died issueless.

3. According to the petitioner the said Milkhi Ram and his wife had

adopted him from the childhood on 16.01.1989 in presence of relatives and

for the purpose of performing all religious ceremonies of adoption.

According to the petitioner upon his adoption by said Milkhi Ram and his

wife, the petitioner started living with them and even got married by the said

adopted parents.

4. According to the petitioner during the lifetime of the adopted

parents a house was also constructed being joint Hindu family on the

ancestral land of the Milkhi Ram covered under Survey No. 617, situated in

Village Garhi, Patwar Kote, Tehsil Jammu, wherein the petitioner and his

adopted parents used to reside. The said house has been stated to be

possessed by the petitioner.

5. According to the petitioner the adopted parents died and the

petitioner herein performed all religious rites and rituals upon their death as

a real son. Photographs of the ceremonies in this regard have been pressed

into service in the suit. According to the petitioner, respondent Nos. 1 and 2

being defendants before the trial court are residents of Village Samilpur,

Tehsil Jammu and that they got manipulated and forged the will in question

dated 17.11.2011 alleged to have been executed by the deceased Milkhi Ram

in favour of the respondent No. 1 in respect of the suit property and that on

the said will, the said deceased Milkhi Ram had allegedly put his thumb

impression instead of putting his signature as the said Milkhi Ram was an

educated person and a government employee working in MES Department.

6. According to the petitioner, said deceased Milkhi Ram never ever

during his lifetime disclosed to the petitioner about the execution of any

such will and that the said will surfaced upon his death and produced by

respondent No. 1 staking a claim for suit property.

7. The respondents herein in a response to the suit filed their written

statement before the trial court wherein they denied the adoption of

petitioner by deceased Milkhi Ram on one hand and on the other hand

claimed that the will executed by the deceased in favour of respondent No. 1

had been executed voluntarily without any fraud, force or undue influence

and that the petitioner had earlier filed suits and in the said suit reflected his

parentage different than that reflected in the instant suit and that the

petitioner was never ever adopted by Milkhi Ram.

8. The trial court while considering the application for interim relief

accompanied to the suit on the strength of the pleadings of the parties

dismissed the same vide order dated 04.05.2013 vacating the interim order

initially granted in favour of the plaintiff/petitioner on the premise that the

petitioner/plaintiff has failed to make a prima-facie case in his favour and

that the other principles governing and regulating the grants of interim relief

are not in favour of the petitioner/plaintiff.

9. Aggrieved of the order passed by the trial court dated 04.05.2013,

the petitioner herein filed an appeal before the appellate court calling in

question the said order inter-alia on the grounds that the trial court did not

consider the controversy in its right and proper perspective and that the trial

court on wrong premise decided the application for interim relief. It was

further urged in the grounds that the trial court passed the order against law

and facts and that the order is bad. The appellate court, however, upon

considering the matter dismissed the appeal in terms of impugned order

dated 20.03.2014.

10. Petitioner, thus, questions both the impugned orders in the instant

petition inter-alia on the grounds that the impugned orders have been passed

by the courts below against facts and law and that the courts below did not

consider the law of the wills and passed the impugned orders which on the

face of it are illegal and unjustified. It is also urged in the grounds that

having regard to the controversy between the parties, the courts below were

required to protect the suit property till the factual issues are tried and

adjudicated upon and that the possession of the petitioner/plaintiff was

required to be protected, in that, the petitioner/plaintiff was in possession of

the suit property. The impugned orders thus, are stated to have been passed

by the courts below without considering the legal and factual aspect of the

matter and without affording an opportunity to the plaintiff/petitioner to

prove the issues which had arisen and needed to be tried in a trial.

11. Heard learned counsel for the parties and perused the record.

12. Learned counsel for the petitioner while making his submission

reiterated the contentions raised and grounds urged in the petition and

prayed for setting aside of the impugned orders whereas per contra learned

counsel for the respondents controverted and resisted the petition of the

petitioner inter-alia on a preliminary objections that the petition is not

maintainable in the present form against concurrent orders by the courts

below.

13. Before adverting to the issues raised in the instant petition, it

would be desirable to refer to the ambit and scope of supervisory jurisdiction

of this court enshrined in Article 227 of the Constitution. The Apex Court in

Shalini Shayam Shetty & anr Vs. Rajendra Shanker Pati, reported in 2010

(8) SCC 3291 has laid down as follows :-

"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) xxxxx

(e) xxxxx

(f) xxxxx

(g) xxxxx

(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) xxxxx

(j) xxxxx

(k) xxxxx

(l) xxxxx

(m) xxxxx

(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".

14. Having regard to the aforesaid principles and propositions laid

down by the Apex Court, the validity of the impugned orders may be tested.

The petitioner indisputably questions the impugned orders of the courts

below whereunder in essence an interim relief has been declined to him. The

power to grant of interim relief is extra-ordinary in nature and it has to be

exercised cautiously and with circumspection. A party is not entitled to

interim relief as a matter of right or course. Interim relief to be granted is a

matter of discretion and that the said discretion has to be exercised upon the

plaintiff showing the principles governing and regulating the interim relief

tilting in his favour. A reference here to the judgment of the Apex Court

passed in Colgate Palmolive (India) Ltd. V. Hindustan Lever Ltd. reported

in 1999 7 SCC 1, would be relevant and germane herein wherein following

has been observed :-

"(i) extent of damages being an adequate remedy;

(ii) protect the plaintiff‟s interest for violation of his rights though, however, having regard to the injury that may be suffered by the defendants by reason therefor;

(iii) the court while dealing with the matter ought not to ignore the factum of strength of one party‟s case being stronger than the other‟s;

(iv) no fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case----the relief being kept flexible;

(v) the issue is to be looked at from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties‟ case;

(vi) balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;

(vii) whether the grant or refusal of injunction will adversely affect the interest of the general public which can or cannot be compensated otherwise."

15. As is manifest from above, a court while considering an

application for interim relief has to find out as to whether the plaintiff has

been able to make out a prima-facie case in his favour besides balance of

convenience as well and also to demonstrate that withholding of relief is

likely to cause an irreparable loss and injury to him.

16. The case set up by the petitioner admittedly before the trial court is

based on photographs of the occasion of the performance of religious

ceremonies/rituals upon the death of the deceased Milkhi Ram whereas on

the contrary the case set up by the defendants is based on a will deed though

being under challenge. Both the trial courts as well as the appellate court

have rightly opined that the plaintiff has not been able to carve out a prima-

face case in his favour moreso, in view of the fact noticed that the plaintiff