Mst. Mali And Others vs Shagufta Yasmeen
2022 Latest Caselaw 521 j&K/2

  IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR
                                                    Reserved On:27/04/2022

                                                 Pronounced On: 06/05/2022
                            OWP No. 1211/2015
                             IA No. 02/2016
                             IA No. 01/2016

Mst. Mali and others                            ....Petitioner/Appellant/(s)

Through: Mr. M. Ashraf, Advocate

                                   Vs.

Shagufta Yasmeen                                           ...Respondent(s)

Through: Mr. M.Y. Bhat, Sr. Advocate with
         Mr. Furqan Sofi, Advocate.
CORAM:
HON'BLE MR JUSTICE JAVED IQBAL WANI, JUDGE

                              JUDGMENT

The petitioners in the instant petition filed under Article 226 read with

Article 227 of the Constitution of India seek quashment of order dated

15.04.2013 and 07.05.2013 (for short impugned orders) passed by the Court

of Munsiff, Budgam, (hereinafter for short the Trial Court), and order dated

15.05.2015 passed by the court of District Judge, Budgam (hereinafter for

short the Appellate Court)

Petitioners' case: -

1. Petitioner No. 1 herein claims to be daughter of one Mohammad s/o

Karim Mutation number 2127 is claimed to have been attested in

favours of Mohammad including the petitioner No. 1 herein,

whereby land to the extent of 3 Kanals 01 Marla, under Khasra

number 888 situated at KarewaDamodar, Budgam, is stated to have

been attested. The said land is stated to have been intended to be

sold by the petitioner No. 1 herein in the year 2013 and while

seeking relevant revenue papers for the purpose the petitioner came

OWP No. 1211/2015 to know that the land has been shown to have gifted by her to one

Nazir Ahmad and Bashir Ahmad pursuant to an oral gift and a

mutation No. 4842 attested thereuponwhereafter the said land had

been gifted orally to one Endowment Finance Company.

2. A revision petition is stated to have been filed by the petitioner No.

1 herein before the Settlement Commissioner against the mutation

No.4842 and an order of status quo is stated to have been passed on

14.07.1993 while staying the said mutation by the Commissioner.

3. The aforesaidNazir Ahmad &Bashir Ahmad are stated to have sold

the said land to various persons in between and lastly stated to have

been acquired by the respondent herein pursuant to a decree passed

by the Court of Sub-Judge, Budgam. The respondent herein is stated

to have filed a suit against petitioners herein for permanent

injunction upon coming to know about the order of status quo

passed by the Settlement Commissioner before the Trial Court,

which Court is stated to have granted an interim restraint

orderagainst the petitioners herein in terms of order dated

15.04.2013.

4. The said order dated 15.04.2013 is stated to have been challenged by

the petitioners herein by way of an appeal before Principal District

Judge, Srinagar. A civil suit is also stated to have beenfiled by the

petitioner No. 1 herein challenging the oral gift, sale deeds as also

the decree passed in favour of the respondent herein, in respect of

the land in question.

5. The aforesaid appeal is stated to have been disposed of on

22.04.2013, directing the parties to appear before the Trial Court on

OWP No. 1211/2015 23.04.2013, while directing maintenance of status quo and treating

the appeal filed by the petitioner No. 1 herein as a written statement

to the suit.

6. The Trial Court is stated to have finally disposed of application for

interim relief in terms of impugned order dated 07.05.2013

confirming the initial interim order dated 15.04.2013. The Trial

Court is stated to have passed ananotherorder on 17.05.2013

directing theSHO concerned to implement the order passed in letter

and spirit whereupon the petitioner herein is states to have

beenevicted from the land in question besides effecting her arrest.

The said order is stated to have been challenged by the

petitionerbefore this Court in OWP No. 858/2013and the said

petition is stated to have been disposed of by this Court while

opining that the appeal is pending against the final order passed by

the Trial Court as petitioner herein had challenged final order dated

07.05.2013 passed by the Trial court in an appeal before District

Judge, Budgam, and as such directed the District Judge to decide

application for interim relief within two weeks in terms of order

dated 29.06.2013.

7. The Appellate Court is stated to have instead chosen to decide the

appeal itself and dismissed the same after a lapse of two years in

terms of impugned order dated 15.05.2015.

8. The impugned orders are being assailed inter alia on the grounds

that both the Courts below did not consider the material put forth on

record, and that, the Appellate Court did not appreciate the fact that

the Settlement Commissioner had granted an order of status quo

OWP No. 1211/2015 with respect to the suit property on 22.03.2013 passed prior to the

institution of the suit, the court below, as such, arecontended to have

committed illegality while exceeding jurisdiction. It is further

alleged that the Appellate Court as well as the Trial Court have

committed illegalityin not exercising powers within the parameters

of law, overlooking the fact that there had been an order of status

quo in operation dated 23.03.2012 passed by the Settlement

Commissioner.

Respondent's case

9. Per contra objections to the petition have been filed by the

respondent, wherein besides questioning the maintainability of the

petition, it is being contended that the respondent herein is the

rightful owner of the land in question having acquired ownership

pursuant to a valid decree of the Court dated 07.04.2007 and a

consequent mutation attested thereof being mutation No. 6574. The

petitioner no. 1 is stated to have surrendered her possession and

ownership in respect of the land in question in the year 1993 in

favour Nazir Ahmad Bhat and Bashir Ahmad Manhasand that the

petitioner No. 1 had never been thereafter in possession of the said

land, and that the petitioner even admitted the position of being out

of possession in a statement made on 16.11.2013 by her in a suit

filed before the Court of Sub-Judge, Budgam. It is being further

contended that the impugned orders have been passed validly and

lawfully by the Courts below and that no error whatsoever has been

committed by the said courts, as the entire material and factual

position has been looked into by the said courts.

OWP No. 1211/2015

10.The writ petition is stated to be involving complicated and disputed

questions of fact, as such, not maintainable.

Analysis

11.Before adverting to the issues involved in the petition, it would be

appropriate and adventurous to refer to the ambit and scope of

Articles 226 and 227 as laid down by the Apex Court in case titled

as"ShaliniShayam Shetty &anr Vs. Rajendra Shankar Pati"

reported in 2010 (8) SCC 3291, wherein following has 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 Court's underArticle227and 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.

OWP No. 1211/2015

(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laiddown by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Benchof 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 inthem.

(g) A part 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 bevery sparingly exercised.

(i) High Court's power of superintendence under Article 227cannot be curtailed by any statute. It has been declared a partof the basic structure of the Constitution by the Constitution Bench of this Court in the case of

OWP No. 1211/2015 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 one quitable principle. In an appropriate case, the power can be exercised suo moto.

(l) On a proper appreciation of the wide and unfettered power ofthe High Court under Article 227, it transpires that the mainobject of this Article is to keep strict administrative and judicialcontrol by the High Court on the administration of justice withinitsterritory.

(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 notbring 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 butshould be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226

OWP No. 1211/2015 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but itsexercise 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".

And in case titled as "Radhey Shayam 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) SCC675:

"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 over ruled."

12.Law is no more res-integra that temporary/interim injunctions

operate pendent-lite i.e., during the pendency of the suit, appeal or

other proceedings for a specific period. It does not conclude the

rights and liabilities of the parties finally. Interim injunction, which

is normally granted while deciding and disposing of main

application for interim relief operates till the disposal of the main

proceedings. The power to grant injunction is extraordinary in

nature and has to be exercised cautiously and with circumspection.

Grant of injunction is in the discretion of the Court in order to meet

the ends of justice. The grant of injunction is in nature equitable

relief and the court has undoubtedly power to impose such terms

and conditions as it thinks fit.

OWP No. 1211/2015 Before granting an injunction the court has to satisfy about the

following factors.

(a)Whether the plaintiff has prima facie case?

(b) Whether the plaintiff would suffered irreparably injury if his

prayer for temporary injunction as disallowed?

(c) Whether the balance of convenience is in favour of the

plaintiff. The above three factors are described as "Three

Pillars" on which foundation of every order of injunction rests. It

is also known as "Triple Test" for grant of interim injunction.

13.Further the Apex Court in case titled as "Colgate Palmolive (India)

Ltd. V. Hindustan Lever Ltd." reported in 1999 (7) SCC 1, has laid

down following principles of law in regard to temporary injunctions:

                        (i)        "Extent of damages being an adequate
                                   remedy;
                        (ii)       Protect the plaintiff's interest for violation
                                   of his rights though, however, having

regard to the injury that may be suffered by the defendants by reason therefore;

(iii) The court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the other's;

(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case--the relief being kept flexible;

(v) The issue is to be looked at from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties' case;

(vi) Balance of convenience of inconvenience ought to be considered as an important requirement even if there is a serious question of prima facie case in support of the grant;

OWP No. 1211/2015

(vii) Whether the grant or refusal of injunction will adversely affect the interest of the general public which can or cannot be compensate otherwise."

14.Keeping in mind the aforesaid legal position and reverting back to

the case in hand admittedly the petitioners herein have questioned

concurrent orders of the court below, whereunder the final interim

impugned order dated 07.05.2013 passed by the Trial Court has

been confirmed by the Appellate Court in terms of impugned order

dated 15.05.2015.

15.Indisputably the petitioner no. 1 herein has conceded to be out of

possession of the land in question. Fact also remains that the

petitioner has not in opposition to the claimlodged by the respondent

herein qua the ownership and possession of the land in question,

produced credible cogent material qua interim relief before the

courts below for dislodging the claim of the respondent herein. Both

the courts below while considering the claim of the petitioners

herein as against the claim of the respondent herein have not

overlooked the factum of strength of the case of the respondent

herein being stronger than that of the case of the petitioners herein.

Both the courts below have also seemingly noticed and considered

the matter on the touch stone of the principlesof"Three Pillars"

supra, inasmuch as the principles of law laid down by the Apex

Court in "Colgate Palmolive (India) Ltd. V. Hindustan Lever Ltd."

supra.

16.Further the case set up by the petitioners in the instant petition

cannot said to be potent enough against the respondent herein qua

OWP No. 1211/2015 the impugned orders, in view of law laid down by the Apex Court in

"Shalini Shayam Shetty" supra wherein risking repetition at

clause (c) & clause (h) following principles of law had been laid

down: -

(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 order 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.

(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.

17.Viewed, thus, what has been observed, considered and analyzed

hereinabove the petition entails dismissal, and is accordingly,

dismissed.

18.It is made clear that nothing hereinabove shall be construed to be

expression of any opinion about the merits of the case.

(JAVED IQBAL WANI) JUDGE SRINAGAR 06/05/2022 ARIF

Whether the order is speaking: Yes Whether the order is reportable: Yes

OWP No. 1211/2015