Jammu & Kashmir High Court - Srinagar Bench
Shahid Ahmad Lone & Ors vs Sonaullah Shah on 27 September, 2021
Serial No. 40
Supplementary-1 List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM(M) No.139/2021
CM No.6285/2021
Dated: 27th of September, 2021.
Shahid Ahmad Lone & Ors.
... Petitioner(s)
Through: -
Mr T. A. Lone, Advocate.
V/s
Sonaullah Shah.
... Respondent(s)
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
(JUDGMENT)
Oral;
01. By medium of this Petition, filed under Article 227 of the
Constitution of India, the Petitioners/ Defendants in the Suit have assailed the
validity of Order dated 26th of August, 2021 passed by the Court of learned
Munsiff, Kupwara in the Suit filed by the Plaintiff/ Respondent herein titled
'Sonaullah Shah v. Shahid Ahmad Lone & Ors.', in terms whereof the learned
trial Court has temporarily restrained the Petitioners/ Defendants from causing
any sort of interference with regard to the possession and construction of
residential house over the suit property measuring 01 Kanal and 10 Marlas
covered under Survey No. 2024 situate at Awoora.
CM(M) No. 139/2021; CM No. 6285/2021
02. Learned Counsel for the Petitioners/ Defendants submitted that
the impugned Order passed by the learned Court below is without jurisdiction
in view of the fact that the Suit property is situated in village Awoora, which
village falls under the jurisdiction of the Court of learned Sub-Judge,
Trehgam. It is further submitted that by passing the impugned Order, which
is interim in nature, the learned trial Court has virtually granted the whole
relief in favour of the Plaintiff/ Respondent that was prayed in the main Suit.
03. Heard the learned Counsel for the Petitioners/ Defendants,
perused the pleadings on record and considered the matter.
04. At the very outset, what requires to be stated herein this case is
that the High Courts, under Article 227 of the Constitution, have little scope
to interfere with the orders of the subordinate Courts as a matter of routine.
This power cannot be taken as right of another appeal to the aggrieved party
nor can this power be invoked to point out an error of law or fact in the order
or decision of a subordinate Court. It, also, cannot be used to make out that
the decision of the subordinate Court could have been or must have been other
than what it actually was. The High Court, in exercise of its power under
Article 227 of the Constitution, ordinarily shows indulgence in the Orders
passed by the Tribunals or Courts subordinate to it only to keep such Tribunals
or Courts within the bounds of their authority, the object being to ensure that
law is followed by such Tribunals and Courts in exercising jurisdiction which
CM(M) No. 139/2021; CM No. 6285/2021
is vested in them. That apart, the High Court can interfere in exercise of its
power of superintendence when there has been a patent perversity in the orders
of the 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. The judgment of law cited by the learned Counsel for the
Plaintiff/ Appellant, having been passed in a case involving different set of
facts and circumstances, is distinguishable, as such, not applicable to the case
in hand.
05. The Hon'ble Supreme Court, while dealing with the issue of the
scope of the High Court in exercising jurisdiction under Article 227 of the
Constitution, in a landmark judgment rendered in case titled 'Shalini Shyam
Shetty v. Rajendra Shankar Patil' reported as '2010 (8) SCC 329', has
formulated the following principles:
"(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
CM(M) No. 139/2021; CM No. 6285/2021
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 motu.
(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.
CM(M) No. 139/2021; CM No. 6285/2021
(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."
On an appreciation of the aforesaid principles laid down by the
Apex Court of the country with regard to exercise of jurisdiction by the High
Court under Article 227 of the Constitution of India, what can be seen is that
the present case does not fall in any of the aforesaid principles evolved by the
Supreme Court. The Order impugned passed by the learned trial Court has not
resulted in any gross and manifest failure of justice nor has there been any
illegality or perversity committed by the Court below while passing the
impugned Order. Besides, the Order passed by the learned trial Court is only
interim in nature and subject to Objections from the other side, therefore, in
such circumstances, the Petitioners/ Defendants, instead of filing the present
Petition before this Court under Article 227 of the Constitution, ought to have
filed an application before the learned trial Court seeking vacation/
modification/ alteration of the Order impugned.
CM(M) No. 139/2021; CM No. 6285/2021
06. Apart from the above perspective, the law is that under the guise
of exercising jurisdiction under Article 227 of the Constitution of India, the
High Court cannot convert itself into a Court of appeal. It is equally well-
settled that the supervisory jurisdiction extends to keeping the Tribunals and
subordinate Courts within the bounds of their authority. Reliance, in this
respect, can be placed on a catena of Judgments of the Apex Court, including
the ones in Satyanarayan Laxminarayan Hedge & Ors. v. Milikarjun
Bhavanappa Tirumale (AIR 1960 SC 137); Bathutmal Raichand Oswal v.
Laxmibai R. Tarta & Anr. (AIR 1975 SC 1297); M/S India Pipe Fitting Co. v.
Farduddin M. A. Baker & Anr. (AIR 1978 SC 45); Ganpat Ladha v. Sashikant
Vishnu Shinde (AIR 1978 SC 955); Mrs Labhkuwar Bhagwani Shaha & Ors.
v. Janardhan Mahadeo Kalan & Anr. (AIR 1983 SC 535); Chandavarkar Sita
Ratna Rao v. Ashalata S. Guram (AIR 1987 SC 117); Venkatlal G. Pittie &
Anr. V. Bright Bros (Pvt.) Ltd. (AIR 1987 SC 1939); State of Maharashtra v.
Milind & Ors. (AIR 2001 SC 393); State through Special Cell, New Delhi v.
Navjot Sandhu Alias Afshan Guru & Ors. (2003 6 SCC 641); Ranjeet Singh
v. Ravi Prakash (2004 3 SCC 682); Shamshad Ahmad & Ors. v. Tilak Raj
Bajaj (Deceased) through Lrs & Ors. (2008 AIR SCW 6201); and Celina
Coelho Pereira (Ms.) & Ors. v. Ulhas Mahabaleshwar Kholkar & Ors. (AIR
2010 SC 603).
07. For the foregoing reasons, I find no merit in this Petition which
is, accordingly, dismissed in limini, along with the connected CM. This Order,
CM(M) No. 139/2021; CM No. 6285/2021
however, shall not preclude the Petitioners/ Defendants in filing an
appropriate motion for seeking vacation/ modification/ alteration of the Order
dated 26th of August, 2021 passed by the learned trial Court on the available
grounds. It is also made clear that nothing said in this Order hereinabove shall
be construed as an expression of opinion with regard to the merits of the case
and that the same shall be gone into and considered by the learned trial Court.
(Ali Mohammad Magrey)
Judge
SRINAGAR
September 27th, 2021
"TAHIR"
i. Whether the Judgment is reportable? Yes/ No.
ii. Whether the Judgment is speaking? Yes/ No.
TAHIR MANZOOR BHAT
2021.09.28 13:06
I attest to the accuracy and
integrity of this document
