Jammu & Kashmir High Court

Pawan Kumar vs Kamal Krishan Kesar And Others on 6 July, 2021

                                                                       Serial No. 203




              HIGH COURT OF JAMMU AND KASHMIR
                         AT JAMMU

                                                          OW104 No. 47/2012
                                                             IA No. 50/2012
                                                           CM No. 6877/2019

Pawan Kumar                                                        ...Petitioner(s)


                     Through:- Mr. Anil Khajuria, Advocate.

                          v/s

Kamal Krishan Kesar and others                                ...Respondent(s)

                     Through:- Mr. Abhishek Wazir, Advocate.



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

                                      ORDER

1. Supervisory jurisdiction of this Court is being invoked by the

petitioner for quashment of order dated 24.11.2012 (for brevity „impugned

order‟) passed by the Munsiff, Kathua (for short „trial court‟).

2. It is being stated in the petition that a civil suit for injunction came to

be filed by the contesting respondent No.1 herein against the petitioner

herein and proforma respondents herein in respect of land measuring 5

Marlas covered under Survey No. 187 situated at Tarf Manjli, Kathua.

3. It is being further stated in the petition that after striking issues, the

plaintiff-respondent No. 1 herein led evidence in support of his case and

upon completion of the same, the petitioner- defendant had to lead evidence

and before leading said evidence, the defendant-petitioner herein, filed an

application before the Trial Court for placing on record three documents

namely, sale deed dated 11.01.1999, report/ order of the Additional Deputy

Commissioner, Kathua dated 01.06.2003 and a certified copy of challan

having originated from a complaint filed by the petitioner herein, against the

respondents herein.

4. It is being stated that the application (supra) filed by the petitioner

herein, before the Trial Court came to be partly allowed in terms of

impugned order while taking on record the certified copy of the challan

alone.

5. The grievance projected in the instant petition by the petitioner is that

the Trial Court allowed the production of certified copy of challan only on

the concession/ consent extended by the counsel for the plaintiff/respondent

No.1 herein and did not consider the necessity and relevance of the other

documents in question qua the subject matter of suit.

6. Heard counsel for the parties and perused the record.

7. According to the learned counsel for the petitioner, the Trial Court

while passing the impugned order committed an error and did not consider

the case in its true and correct perceptive.

8. Per contra, learned counsel for the respondent No. 1, controverted

and resisted the contentions raised by the learned counsel for the petitioner

and according to the learned counsel for the respondent, the

petitioner/defendant before the Trial Court in the application in fact wanted

to place on record only the certified copy of the challan alone and the said

application was never accompanied with certified copies of either sale deed

dated 11.01.1999 or else report/ order of the Additional Deputy

Commissioner dated 01.06.2003.

9. A bare perusal of the application filed by the petitioner-defendant

before the Trial Court manifestly admits of the position pointed by the

learned counsel for the respondent. The prayer made in the application

which is extracted and reproduced here under reads:-

It is, therefore, very humbly prayed that the applicant may kindly be allowed to file certified copy of challan at this stage and he shall furnish the other documents as and when same are to be issued."

10. Order 13 Rule 1 CPC relating to production, impounding and return

of documents specifically provides that the parties or their pleader shall

produce on or before the settlement of issues, all the documentary evidence

in original where the copies thereof have been filed along with the plaint or

written statement.

11. Indisputably, the documents sought to be placed on record by the

defendant-petitioner herein, had not been placed on record in original with

the written statement though a reference thereof had been made of them yet

the fact remains that the defendant-petitioner herein, even did not annexed

the documents in original except the certified copy of challan while filing

the application seeking permission to file the copies of the documents. In

view of the aforesaid position, there was no reason and occasion for the Trial

Court to entertain or allow the application in regard to the documents other

than the certified copy of the challan. Furthermore, nothing has been either

mentioned in the petition or referred to therein, that the defendant-petitioner

herein has obtained the certified copies of the other two documents and else

subsequently thereof sought permission from the Trial Court for placing on

record the same after passing of the impugned order.

12. As to whether the supervisory jurisdiction of this Court is warranted

in the facts and circumstances of the case, a reference to the following

judgment of the Apex Court passed in case titled as Shalini Shayam Shetty

& anr Vs. Rajendra Shankar Pali, reported in 2010 (8) SCC 3291 would

be relevant and germane herein, wherein following has been laid down:-

"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".

13. And in case titled as Radhey Shyam and anr. Vs. Chhabi Nath and

ors, reported in 2015 (5) SCC 423, following has been provided 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."

14. Keeping in view the aforesaid legal position and what has been

noticed, observed and analysed herein above, exercises of supervisory

jurisdiction is not warranted in the facts and circumstances of the case, as

such, resultantly, the petition fails and is accordingly, dismissed.