Jammu & Kashmir High Court - Srinagar Bench
Mohammad Yousuf Allie vs High Court Of J&K Th. Registrar ... on 8 November, 2021
1
Serial No. 1
After Notice list
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
(Through virtual mode)
WP(C) No. 1221/2021
CM No. 4136/2021
CM No. 4137/2021
CM No. 6149/2021
Mohammad Yousuf Allie
..... Petitioner(s)
Through: -
M/S M. C. Dhingra and M. K. Pandita, Advocates
V/s
High Court of J&K th. Registrar General
..... Respondent(s)
Through: -
Mr. M. I. Qadri, Sr. Advocate with Mr. Naveed Gul, Advocate
Mr. B. A. Dar, Sr. AAG
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
Hon'ble Mr Justice Vinod Chatterji Koul, Judge
(ORDER)
08.11.2021
Per Magrey, J (Oral)
CM No. 6149/2021
The applicant-petitioner is seeking amendment to
challenge the Government order bearing No. 4410-JK(LD) of
2021 dated 10.09.2021, in terms whereof the services of the
petitioner as Civil Judge (Jr. Division)/Munsiff has been
terminated, by adding paragraphs 27, 28, 29 and 30 in paras of
the writ petition, grounds H, I, J, K, L, M, N and O in the
grounds of writ petition and the relief clause by adding Clause
C, D, E and F on the facts and grounds detailed out in the
application as under:-
That the applicant-petitioner on pro-longed suspension
had approached this Court by filing WP(C) No. 1221/2021,
challenging the suspension made in terms of order No. 482
dated 30.09.2008 on the grounds detailed out in the writ petition
and while seeking quashment of the suspension order, had
prayed for a direction to re-instate him in service by giving all
consequential benefits and during the pendency of the writ
petition, the petitioner's services were terminated in terms of
Government order No. 482 of 30.09.2008, which on noticing
was decided to be challenged on the available legal grounds by
seeking amendment in the writ petition, which amendment is
sought and is legally permissible on the ground that the order of
termination is passed without conducting any enquiry, as
provided by Article 311 of the Constitution of India. Besides,
the impugned termination order being illegal and arbitrary, is
violative of Article 14 and 16 of the Constitution of India and of
the principles of natural justice. It is further submitted that the
order impugned, which the applicant-petitioner intends to
challenge in the amended writ petition is in violation of the
Judgment passed by the Division Bench of this Court on
16.04.2016 in LPA Nos. 110/2008 and 104/2008. It is further
submitted that the order impugned is in violation of law laid
down by the Hon'ble Supreme Court in case reported in 1997
(&) SCC 505.
Learned counsel appearing for the petitioner while
making reference to the pleas taken in the application and the
grounds in support, has referred to and relied upon the Judgment
reported as 2002 (1) SCC 329 (1). Sub-para f and g of paragraph
No. 7 being relevant are taken note of:-
f. seeks an adjudication on the basis of materials
already on record there should be no impediment for the
authorities/courts functioning even under the Act to permit
such conversion or alteration and consider the claims made
under the altered provision of law. As a matter of fact
subsequent developments and altered circumstances were held
to be relevant in adjudging the nature and character of the
claim made, at all stages of the proceedings.
g. The High Court, in our view, erred in refusing to allow the
application for modification of the claim made under Section
14(1) (e) into one under Section 14-D, for being considered on
its merits. The order dated 19.1.2000 in CM No. 5154 of 1999
is set aside and the appeal filed against the same is allowed
and application of the appellant for modification of the claim
is allowed.
Learned counsel has further placed reliance on the
Judgment reported as 2002 (2) SCC 256. Paragraph 11 being
relevant are taken note of:-
" 11. The ordinary rule of civil law is that the rights of
the parties stand crystallised on the date of the institution of
the suit and, therefore, the decree in a suit should accord
with the rights of the parties as they stood at the
commencement of the lis. However, the Court has power to
take note of subsequent events and mould the relief
accordingly subject to the following conditions, being
satisfied (i) that the relief, as claimed originally has, by
reason of subsequent events, become inappropriate or
cannot be granted; (ii) that taking note of such subsequent
event or changed circumstances would shorten litigation
and enable complete justice being done to the parties; and
(iii) that such subsequent event is brought to the notice of
the court promptly is not taken by surprise. In Pasupuleti
Venkateswarlu v. Motor & General Traders, this Court held
that a fact arising after the lis, coming of the notice of the
Court having a fundamental impact on the right to relief or
the manner of moulding it and brought diligently to the
notice of the court cannot be blinked at. The Court may in
such cases bend the rules of procedure if no specific
provision of law or rule of fair play is violated for it would
promote or just circumstances. The Court speaking through
Krishna Iyer, J. Affirmed the proposition that the Court can,
so long as the litigation pends, take note of updated facts to
promote substantial justice. However, the Court cautioned:
(i) the event should be one as would stultify or render inept
the decretal remedy, (ii)| rules of procedure may be bent if
no specific provision or fair play is violated and there is no
other special circumstance repelling resort to that course in
law or justice, (iii) such cognizance of subsequent events
and developments should be cautious, and (iv) the rules of
fairness to both sides should be scrupulously obeyed."
Learned counsel has further placed reliance on the
Judgment reported as 2007 (5) SCC 660, wherein the principle
laid down in the Judgment supra has been reiterated.
On notice respondent No. 1, has filed objections and
has opposed grant of permission to the applicant-petitioner for
seeking amendment by submitting that the applicant-petitioner
has sought re-instatement of his services in the present writ
petition and by way of amendment is questioning the order of
suspension/termination of his services, which are altogether
different claims, beyond the scope of Order VI Rule 17 of the
CPC and the relief prayed in the application seeking permission
to amend the writ petition is not permissible to be allowed as the
relief prayed in the present writ petition and the proposed
amendment is passed on two separate/independent cause of
actions, therefore, the present application is misconceived,
misdirected, deserves to be rejected.
It is further stated in the objections that the order of
termination which is sought to be challenged in the amended
writ petition is issued by the UT Government of J&K and not by
the State of J&K, which is not arrayed as party in the present
writ petition, which application, as stated, can be filed in terms
of Order 1 Rule 10 and is to be judged on different grounds,
therefore, on this ground also the pleas are untenable and
misleading, deserves the application to be rejected.
Heard learned counsel for the parties, perused the
records and considered the matter.
Mr. M. I. Qadri, learned senior counsel appearing for
respondent No. 1, has referred to the objections filed in
opposition to the relief prayed and in addition submits that the
subject of the writ petition is altogether different than the one
having reference to the termination of the service of the
petitioner and in terms of application of law, the amendment is
not permissible to be granted. Learned senior counsel while
reiterating the further grounds of objections for strengthening
the claim for rejecting the application has made reference to the
Judgments of Hon'ble Apex Court and this Court. The reference
made by Mr. M. I. Qadri, learned senior counsel upon Judgment
reported as 1984(4) SgLJ 17 titled Asad Shah Vs. Ahmad Wani
and Ors., is a decision rendered by this Court in Civil Revision
No. 81/1981, declaring that the amendment in suit for injunction
cannot be allowed to the extent of claiming relief of decree of
injunction on the ground of having been dispossessed from the
suit property. The court has further held that the amendment is
not bonafide, therefore, not allowed.
Admittedly, the facts of the case, reference of which
made by Mr. M. I. Qadri, learned senior counsel are totally
different and not similar to the one the Court is dealing with.
One more difficulty is that the Judgment is delivered by the
Single Bench of this Court, when as a matter of fact the matter is
decided by the Division Bench of this Court.
Coming to another Judgment referred to and relied
upon by Mr. M. I. Qadri, learned senior counsel reported as
1980(2) SCC 329, the matter pertains to compromise decree in a
partition suit, conferring right of pre-emption on all parties to
the suit. The party claiming right of pre-emption after one year
of the delivery of the possession, claims amendment in appeal,
when the suit is already decreed and the Apex Court held that
the amendment granted to the appellant by the High Court
amounted to induction of a new claim for performance of an
agreement of sale is not permissible. This Judgment is also
delivered on the set of different facts not similar to the one, the
Court is dealing with. The other Judgments of this Court
reported as AIR 1978 J&K 35 and AIR 1967 SC 96 are
distinguishable as being entirely on different set of facts,
therefore, distinguishable in its application.
Admittedly, the applicant-petitioner while in service
has been placed under suspension, which suspension is the
subject matter of the pending writ petition and on termination of
the services, the applicant is seeking permission to amend the
writ petition to challenge the order of termination, which the
petitioner has every right to challenge, either by filing fresh writ
petition or by amendment to the present writ petition on the
available grounds. The applicant-petitioner has chosen the line
of seeking amendment in the writ petition by challenging the
order of termination on the additional grounds and the pleadings
made as basis and for the challenge and supplied in the
application.
The opposition made by the non-applicant-respondent
No. 1, is by no stretch of imagination tenable under law as the
Court has to ensure substantial justice in the matter, which can
only be done by permitting the applicant-petitioner to amend the
writ petition and add/incorporate the paras and the grounds
along with the relief clause as sought in the application.
Needless to mention that application of the Judgment of
the Hon'ble Apex Court or of any other Court has reference to
facts of the case and can by no stretch of imagination applied in
random.
We are of the considered view that the facts of these
Judgments are not similar to the facts of the present case. The
present case is very simple, as the petitioner while working as
Civil Judge (Jr. Division)/Munsiff, had challenged his suspension
on the ground of being pro-longed and sought reinstatement on the
application of the Judgment of the Division Bench of this Court,
but while the writ petition remained pending for decision, the
applicant-petitioner suffered with the order of termination,
therefore, decided to challenge the said order by exhausting the
remedy, seeking amendment in the pending writ petition without
filing fresh writ petition. The applicant-petitioner has raised all the
pleas in support of the contentions and urged the grounds, which
the applicant-petitioner thought are available to him under law to
challenge the termination order.
We feel that the application has merit and deserves to be
allowed by permitting the applicant-petitioner to amend the
pending writ petition, by adding/incorporating the paras, grounds,
and the relief clause with additional direction that the applicant-
petitioner has sought impleadment of State of Jammu and Kashmir
Government as party respondent, as the order is issued by the
Government of UT instead of State of Jammu and Kashmir.
Learned counsel appearing for the applicant-petitioner
when asked submits that inadvertently the applicant has mentioned
the State of Jammu and Kashmir instead of UT of Jammu and
Kashmir.
Since the order of termination is admittedly issued by the
UT of Government of J&K though on the recommendation of the
High Court, it shall be necessary to allow the oral prayer made by
learned counsel appearing for the applicant, allowing UT of J&K
as party respondent instead of State of J&K, with further direction
that the Registry shall allow the applicant to file the amended
memo of array of parties, showing UT of J&K as party respondent
No. 2, instead of State of J&K. Ordered, accordingly.
We are conscious of the fact that the none of the rights of
the non-applicants-respondents are violated or the action taken
being impermissible but while allowing the application, we are
advancing the cause of justice, therefore, in that background and in
order to do complete justice, we are inclined to allow the
application.
In view of above, this application is allowed and the
applicant is permitted to add/incorporate the paragraphs, grounds
and relief clause as sought in the application for challenging the
impugned termination order, to the existing pending writ petition
by amendment.
CM disposed of.
Amended petition is taken on board.
Heard. Admit.
Notice, waived by Mr. M. I. Qadri, learned senior counsel
on behalf of respondent No. 1, and Mr. B. A. Dar, learned Sr.
AAG, for respondent No. 2. They shall file counter affidavit within
four weeks.
List amended petition on 27.12.2021.
(Vinod Chatterji Koul) (Ali Mohammad Magrey)
Judge Judge
SRINAGAR
08.11.2021
"Mohammad Yasin Dar"
MOHAMMAD YASIN DAR
2021.11.12 12:17
I attest to the accuracy and
integrity of this document
