Baram Raj And Another vs Karmo Devi And Another
2021 Latest Caselaw 164 j&K

     HIGH COURT OF JAMMU AND KASHMIR
                               AT JAMMU


                                                        CR No. 14/2021
                                                       CM No. 1576/2021
Baram Raj and Another
                                                         ...Petitioner(s)
                                Through:
                         Mr. G. S. Thakur, Advocate.
                                     Vs
Karmo Devi and Another
                                                         ...Respondent(s)
                                Through:
                                 None.
CORAM:
           Hon'ble Mr. Justice Javed Iqbal Wani, Judge.
                                 ORDER

22/02/2021 .

1. In the instant petition, order dated 12.02.2021 (for short the

impugned order) passed in file No.1/Main Execution titled Karmo

and anr. Vs. Baram Raj and anr., by the court of Munsiff, Akhnoor,

(for short the court below) is called in question while invoking the

Supervisory Jurisdiction of this court under Article 227 of the

Constitution.

2. The facts giving rise to the institution of the case are that a

compromise decree is stated to have been passed in a Civil Suit

filed for permanent prohibitory injunction by the respondents

herein against the petitioner herein qua land measuring 01 kanal 10

marlas situated at village Bhalwal Brahmana covered under Khasra

No. 700 min alleging interference thereto by the petitioners herein

as also for raising illegal construction. Pursuant to a compromise

entered into between the petitioners and respondents herein before

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the Trial court, a compromise judgement and decree dated

15.07.2016 is stated to have been passed.

3. It is being stated that the respondents herein (plaintiffs before the

trial court) filed a miscellaneous application in the already filed

execution petition before the court below for removal of

obstruction of jad from the land in question covered under Khasra

No. 700 min on the premise that the court has already passed a

direction to the Tehsildar concerned for demarcation/execution

vide order dated 15.07.2017, as the Tehsildar concerned is stated to

have shown his inability in executing the decree, for the reason that

Khasra No. 700 min is not smooth for conducting the

execution/demarcation in view of obstruction of jad on the land

requiring the removal of the same first before

demarcation/execution. The court below upon entertaining the said

application is stated to have directed in terms of the order

impugned the Tehsildar Jourian, to get the jad, if any, existing over

the said land removed before effecting the demarcation/execution.

4. It is being urged that the court below passed the impugned order

against the law and the facts inasmuch as it failed to exercise the

jurisdiction rather exceeded its jurisdiction while passing the order

impugned.

5. It is being further urged that the order impugned runs contrary to

enabling provision of Order 21 Rule 32 of Civil Procedure Code

thereby the court below exercised jurisdiction not vested in it.

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6. Heard learned counsel for the petitioner.

7. The wharf and whoof of the controversy involved in the petition

revolves round the passing of order impugned dated 12.02.2021 by

the court below on a miscellaneous application filed during the

pendency of an execution application filed by the respondents

herein qua execution of a compromise decree having been passed

by the Trial court dated 15.07.2016 in a suit for permanent

prohibitory injunction filed by the respondents herein against the

petitioner herein qua land measuring 01 kanal 10 marlas covered

under Khasra No. 700 min. The court below in the said

miscellaneous application has directed the Tehsildar concerned to

remove the jad from the land in question as the same had been

reported to be an obstruction in carrying out demarcation/execution

of decree supra.

8. Perusal of the record reveals that the trial court had passed the

following judgement and decree dated 15.07.2016; -

ORDER This suit is therefore decreed in terms of compromise and Permanent Prohibitory Injunction is issued against the defendant by restraining them to interfere into the suit land comprising in Khasra no.700 & 700 min situated at Village Bhalwal Brahmana Tehsil, Akhnoor and the plaintiffs shall not interfere in the land of defendants comprising in Khasra no. 699 min situated at Village Bhalwal Brahmana Tehsil, Akhnoor. Office shall prepare a decree sheet accordingly. In view of the

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facts and circumstances of the case, no order is passed as to the costs. The suit of the plaintiff is disposed off accordingly. File shall be consigned to records after its due completion.

9. Perusal of the record further reveals that the impugned order came

to be passed by the court below upon taking into account the report

of the Tehsildar concerned inasmuch as after inviting objections

from the non-applicants/petitioners herein as also after hearing the

parties.

10. Perusal of the record in particular the judgment and decree dated

12.02.2021 supra as also miscellaneous application supra filed by

the respondents herein as also the objections filed thereto by the

petitioners herein do not suggest that the applicants/respondents

herein before the court below alleged any obstruction in the

process of demarcation/execution of decree by the non-

applicants/petitioners herein which position stands acknowledged

and conceded by the non-applicants/petitioners herein in their

objections filed before the executing court.

11. The court below in furtherance of execution of judgement/decree

supra while considering the miscellaneous application supra has

passed the order under challenge dated 12.02.2021 seemingly

keeping in mind the judgement and decree passed by the Trial

court as also the pleadings filed before it by the parties. The order

impugned prima-facie do not demonstrate failure of justice,

inasmuch as any illegality committed by the executing court. The

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order impugned further seems not to have caused any prejudice to

the petitioners herein or put them to any disadvantage as well,

which would warrant exercise of supervisory jurisdiction in the

matter.

12. The ambit and scope of supervisory jurisdiction under Article 227

of the Constitution has been dealt with by the Apex court in

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.

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(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.

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(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.

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(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."

13. In view of the aforesaid propositions of the Apex court in the

judgements supra inasmuch as the above facts and analysis made

thereof, the instant petition is grossly misconceived, and is

accordingly dismissed.

14. Dismissed along with connected CM(s).

Javed Iqbal Wani Judge JAMMU 22/02/2021 "Ishaq"

             i.    Whether the Order is speaking?             Yes.
             ii.   Whether the Order is reportable?           Yes/ No.