Mohamad Rafiq Kathwari vs Meeral Kathwari And Others
2021 Latest Caselaw 644 j&K/2

            HIGH COURT OF JAMMU AND KASHMIR
                      AT SRINAGAR
                            ...
                             CM no.3976/2021
                           CM(M) no.99/2021
                              CM no.3977/2021
                             Caveat no.426/2021

                                                  Date of Order: 24.06.2021

Mohamad Rafiq Kathwari
                                                          ....... Petitioner(s)
                                Through: Mr Zubair Ahmad, Advocate


                                  Versus
Meeral Kathwari and others
                                                       .........Respondent(s)
                                Through: None


CORAM:
    HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

                         JUDGMENT (ORAL)

CM no.3976/2021

1. Application, given averments made therein, is allowed and affixing of

Court fee is dispensed with till the Court reopens in physical mode/

hearing. CM disposed of.

CM(M) no.99/2021 & CM no.3977/2021

2. Exercise of supervisory powers under Article 227 of the Constitution

of India is sought for in this writ petition, aiming at quashing Orders

dated 22nd March 2021 and 6th April 2021, passed by City Munsiff,

Srinagar, (for brevity "Trial Court") on the grounds tailored therein.

3. Heard and considered.

4. Learned counsel for petitioner has stated that Trial Court has proceeded

beyond its jurisdiction and passed impugned order which has

CM(M) no.99/2021 CM no.3977/2021; 3976/2021

occasioned gross failure of justice inasmuch as Section 151 CPC cannot

be invoked to seek police aid for protection of alleged possession

dispute in suit and Trial Court did not record any valid reason for

granting police aid as there is no evidence on record that respondent

no.1 is absolute owner of whole property. According to him order

impugned is based on clear ignorance of settled legal position and grave

injustice has been done as in pursuance of order impugned police is

unnecessarily harassing petitioner. It is contended that Trial Court in a

casual manner on mere asking has directed implementation of order of

interim injunction passed in the year 2016 without inviting objections

from other-side. He also states that respondent no.1 till date has not

filed any application under Order 39 Rule 2(a) CPC for disobedience

of the Order of injunction, as such, order granting police aid is patently

illegal.

5. In terms of impugned order dated 22nd March 2021, when an application

under Section 151 CPC was moved by respondent no.1, the Trial Court

disposed of the same with a direction to SHO P/S Ram Munshi Bagh to

implement interim order dated 2nd March 2016 in letter and spirit on

spot. By another impugned order dated 6th April 2021, certain

clarifications have been made by the Trial Court qua impugned order

dated 22nd March 2021.

6. Perusal of file reveals that a civil suit for declaration and permanent

injunction has been filed by respondent no.1. In terms of order dated

15th February 2016 defendants there had been directed to restrain from

causing any sort of interference in the suit property. In terms of order

CM(M) no.99/2021 CM no.3977/2021; 3976/2021

dated 17th February 2016, the Trial Court directed concerned police to

implement order dated 15th February 2016.

7. According to petitioners, impugned orders, in exercise of supervisory

jurisdiction under Article 227 of the Constitution of India, need to be

set-aside as impugned order have been passed by Trial Court in sheer

abuse of process of court and law.

8. It may not be out of place to mention here that judicial pronouncements

concerning object and scope of power of the High Courts under Article

227 of the Constitution of India, leaves little scope to interfere with the

orders of subordinate courts as a matter of routine. This power cannot

be taken as right of another appeal to aggrieved party nor this power

can be invoked to point out an error of law or fact in the order or

decision of a subordinate court. This power cannot be used to make out

that the decision of subordinate court could have been or must have

been other than what it was. Supervisory jurisdiction under Article 227

of the Constitution is exercised for keeping subordinate courts within

the bounds of their jurisdiction. When subordinate Court has assumed

a jurisdiction which it does not have or has failed to exercise a

jurisdiction which it does have or jurisdiction though available is being

exercised by the Court in a manner not permitted by law and failure of

justice or grave injustice has occasioned thereby, the High Court may

step in to exercise its supervisory jurisdiction. Be it a writ of certiorari

or exercise of supervisory jurisdiction, none is available to correct mere

errors of fact or of law unless the requirements that the error is manifest

and apparent on the face of the proceedings such as when it is based on

CM(M) no.99/2021 CM no.3977/2021; 3976/2021

clear ignorance or utter disregard of the provisions of law, and that a

grave injustice or gross failure of justice has occasioned thereby, are

satisfied.

9. It is well-settled that power of superintendence, so conferred on the

High Court, is administrative as well as judicial and is capable of being

invoked at the instance of any person aggrieved or may even be

exercised suo motu. The paramount consideration behind vesting such

wide power of superintendence in High Court is paving path of justice

and removing any obstacles therein. Power under Article 227 is wider

than the one conferred on the High Court by Article 226 of the

Constitution of India, in the sense that the power of superintendence is

not subject to those technicalities of procedure or traditional fetters

which are to be found in certiorari jurisdiction. Else parameters

invoking exercise of power are almost similar.

10. The power under Article 227 is one of judicial superintendence that

cannot be used to upset conclusions of facts, howsoever erroneous those

may be, unless such conclusions are so perverse or so unreasonable that

no court could ever have reached them. Way back in 1954, a

Constitution Bench of the Supreme Court, in Waryam Singh v.

Amarnath, AIR 1954 SC 215, has pointed out that the power of

superintendence conferred by Article 227 should be exercised "most

sparingly and only in appropriate cases in order to keep the subordinate

courts within the bounds of their authority and not for correcting mere

errors. The Supreme Court in Dr. R. Venkatchalam and others etc. v.

Dy. Transport Commissioner and others etc., AIR 1977 SC 842, has

CM(M) no.99/2021 CM no.3977/2021; 3976/2021

said that the Courts must avoid the danger of a priori determination of

the meaning of a provision based on their own pre-conceived notions

of the ideological structure or the scheme into which the provision to

be interpreted is somewhat fitted. They are not entitled to usurp

legislative function under disguise of interpretation. While interpreting

a provision the Court only interprets law and cannot legislate it. If a

provision of law is misused and subjected to abuse of process of law, it

is for legislature to amend, modify or repeal it, if deemed necessary.

11. Article 227 can be invoked by the High Court suo motu as a custodian

of justice. An improper and a frequent exercise of this power will be

counterproductive and will divest this extraordinary power of its

strength and vitality. The power is discretionary and has to be exercised

very sparingly on equitable principle. 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 administration in larger public interest whereas Article

226 is meant for protection of individual grievances. Therefore, "the

power under Article 227 may be unfettered but", as held by the Supreme

Court in the case of Shalini Shyam Shetty v. Rajendra Shankar Patil,

(2010) 8 SCC 329, "its exercise is subject to high degree of judicial

discipline." The object of superintendence under Article 227, both

administrative and judicial, is to maintain the efficiency, smooth and

orderly functioning of the entire machinery of the justice in such a way

as it does not bring it into any disrepute. The power of interference

under Article 227 is to be kept to the minimum to ensure that the wheel

CM(M) no.99/2021 CM no.3977/2021; 3976/2021

of the 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 the High Court.

The Supreme Court in Managing Director (MIG) Hindustan

Aeronautics Ltd. Balanagar Hydrabad and another v. Ajit Prasad

Tarway Manager (Purchase & Store) Hindustan Aeronautics Ltd.

Balanagar Hydrabad, AIR 1973 SC 76; and Kokkanda B. Poondacha

& Ors. v. K. D. Ganapathi & another, AIR 2011 SC 1353, after

recapitulating what has been observed in Shalini Shyam Shetty's case

(supra) qua Article 227, held that "learned Single Judge of the High

Court totally ignored the principles and parameters laid down" by the

Supreme Court "for exercise of power under Articles 226 and 227 of

the Constitution qua an interlocutory order passed by the Subordinate

Court and set aside the order of the trial Court without assigning any

tangible reason." Jurisdiction under Article 227 must be sparingly

exercised and may be exercised to correct the errors of the jurisdiction

and the like, but not to upset the findings of the fact, which falls in the

domain of an appellate court only. Same is true about the present case.

The Trial Court orders, on the face of it, do not call for any interference

by this Court in exercise of powers under Article 227 of the

Constitution of India. My above views are fortified by the fiats

rendered in Nibaran v. Mahendra AIR 1963 SC 1895; D.N.Banerjee

v. Mukherjee AIR 1953; SC 58; Nizzar Rawther v. Varghese Mathew

AIR 1992 Ker 312; and Khimji Vidhu v. Premier High School AIR

2000 SC 3495.

CM(M) no.99/2021 CM no.3977/2021; 3976/2021

12. It is apt to mention here that the power under Article 227 is broader

than that conferred on the High Court by Article 226. For example,

through its power to issue certiorari under Article 226, a High Court

can annul the decision of a tribunal while under Article 227 it can do

that and do something--it can issue further directions in the matter. But

under Article 227, the High Court does not sit as a Court of appeal

inasmuch as it is also not permissible to a High Court on a petition filed

under Article 227 to review or reweigh the evidence upon which the

inferior Court or tribunal purports to have passed the order or to correct

errors of law in the decision. The power of superintendent conferred by

Article 227 is supervisory and not appellate jurisdiction.

13. As per settled proposition of law laid down by the Supreme Court in

The Managing Director (MIG) Hindustan Aeronautics Ltd.

Balanagar, Hyderabad (supra) Mohd. Yunus (supra) and Kokkanda

B. Poondacha (supra) that if any order is passed by subordinate court

under its vested discretionary jurisdiction, then the same could not be

interfered with by the High Court either under revisional jurisdiction

under Section 115 of CPC or under supervisory jurisdiction vested

under Article 227 of the Constitution of India. If an order is amenable

to challenge before appellate authority, writ petition is not proper

remedy without first filing appeal and getting the same decided by the

appellate court on its merit in accordance with law. In other words, the

High Court should decline to entertain a writ petition under Article 227

on the ground of an alternative remedy of appeal. While saying this, the

Supreme Court in Hameed Kunju v. Nazim (2017) 8 SCC 611, has held

CM(M) no.99/2021 CM no.3977/2021; 3976/2021

that there was no reason muchless justifiable one for the High Court to

have entertain writ petition under Article 227 against the order passed

by Trial Court.

14. From the foregoing discussion and settled legal position, it is deducible

that instant petition does not call for any interference. The powers,

vested in this Court under Article 227 of the Constitution of India, are

neither substitution to revisional nor appellate power, inasmuch as

order impugned is neither perverse nor has occasioned serious

miscarriage of justice. Any interference by this Court would only

prolong the trial inordinately. Even otherwise, impugned order does not

warrant interference by exercise of extraordinary or supervisory

jurisdiction of this Court, in that neither the decision-making process

of learned court below suffers from any bias nor do impugned order

cause any miscarriage of justice or otherwise suffer from any error of

law.

15. In the background of preceding discourse, the petition on hand is devoid

of any merit and as a corollary, the same is dismissed, with connected

IA(s). Interim direction, if any, shall stand vacated. Needless to say that

it is expected of the Trial Court to expediate disposal of the application

seeking ad interim injunction.

16. Copy of this order be sent down.

(Vinod Chatterji Koul) Judge Srinagar 24.06.2021 Ajaz Ahmad, PS Whether approved for reporting? Yes/No