Jammu & Kashmir High Court
S. Harpal Singh Dhaliwal vs Shiromani Gurdwara Prabhandak ... on 12 February, 2024
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Sr. No.174
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CM(M) No. 23/2024
CM No. 521/2024
Caveat No. 134/2024.
S. Harpal Singh Dhaliwal, age 57 years ....Petitioner(s)
S/o S. Gurdyal Singh Dhaliwal
R/o Village Lopom, Tehsil Moga District Faridkot, Punjab
presently permanently residing at 8, Bluebonnet Dr. Brampton,
Ontario, Canada, at present resident of Gurudwara Hargobind
Sar, Near G.T. Karnal Road, Nangli Poona, North West Delhi.
President/Trustee Guru Nanak Mission Trust, H.O at
Baghapurana, Tehsil Moga, Punjab.
Through :- Mr. J.P. Gandhi, Advocate.
V/s
Shiromani Gurdwara Prabhandak Committee Sri
Amritisar through its Power of Attorney Holder
S. Simarjit Singh,
S/o S. Sulakhan Singh
R/o House No. 342,
Ward No. 9, K.R. School Wali Gali,
New Azad Nagar, Ferozpur, Punjab.
Through :- Mrs. Meenakshi Slathia Kaur, Advocate for caveator.
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
JUDGMENT/ORDER
12.02.2024
(Oral)
Caveat No. 134/2024
Caveat stands discharged.
CM(M) No. 23/2024 & CM No. 521/2024
1. The instant petition filed under Article 227 of the
Constitution of India was heard in part on 09.02.2024
and was directed to be listed today for continuation of the
2
OWP No. 376/2019
arguments of the learned counsel for the
caveator/respondent.
2. Heard the arguments of the learned counsel for the
caveator/respondent.
3. A supervisory jurisdiction of this Court enshrined under
Article 227 of the Constitution of India has been invoked
by the petitioner herein for quashment of order dated
29.01.2024 passed by the Court of Principal District
Judge, Jammu in appeal titled as "Shiromani
Gurudwara Prabhandak Committee Sri Amritsar vs.
Harpal Singh Dhaliwal".
4. The facts emerging from the record would reveal that the
petitioner herein filed a suit before the court of Principal
District Judge, Jammu whereupon the same came to be
assigned for adjudication to the Court of 2nd Civil
Subordinate Judge (Spl. Passenger Tax Magistrate),
Jammu along with an application for interim relief for
declaration and permanent prohibitory injunction against
the defendants including the respondent herein seeking
therein the following reliefs:
(a) Suit for declaration, declaring the Lease Deed
executed on 13.07.2021 by the defendants No. 1 to
5 in favour of the defendants No. 6 to 7 pertaining to
the land falling under khewat no. 4, khata no. 27
and khasra no. 105 min measuring 6 kanal 1 marla
situated at Narwal Pain, tehsil Jammu South,
District Jammu which is also registered by the Sub
Registrar, Jammu South 2nd on 19th of July, 2021 as
null and void ab initio, inoperative, illegal and not
binding on the rights of the plaintiff;
(b) Permanent prohibitory injunction restraining the
defendants from making any sort of interference,
dispossessing the plaintiff, raising any sort of
construction, changing the nature of the land falling
under khewat no. 4, khata no. 27 and khasra no. 105
min measuring 6 kanal 1 marla situated at Narwal
Pain, Tehsil Jammu South, District Jammu and also
over the construction raised on some portion of the
total land measuring 6 kanal 1 marla situated at
Narwal Pain, Tehsil Jammu South, District Jammu.
5. The trial court after entertaining the suit (supra) and
considering the application for interim relief passed an
ex parte interim order on 03.01.2024 dispensing with the
issuance of prior notice envisaged under Order 39 Rule 3
of the Code of Civil Procedure directing the parties to
maintain status quo qua the suit land till next date of
hearing while directing the plaintiff/petitioner herein to
comply with the requirement of Order 39 Rule 3 of the
Code of Civil Procedure.
6. In response to the summons issued by the trial court in
the suit (supra), the defendants appeared before the trial
court on 25.01.2024 through their counsel and sought
time to file response to the suit and simultaneously on
the very same date, the defendants filed an application
under Order 7 Rule 11 of the Code of Civil Procedure
seeking rejection of the plaint to which the counsel for the
plaintiff/petitioner sought time to file objections and
consequently, the trial court fixed the matter for further
consideration on 08.02.2024.
7. On 27.01.2024, the Shiromani Gurudwara Prabhandak
Committee Sri Amritsar being the respondent herein filed
an appeal against the order dated 03.01.2024 passed by
the trial court along with an application for interim relief.
8. The appellate court entertained the appeal and passed
the order dated 29.01.2024 in the application for interim
relief accompanying the said appeal which is impugned in
the present petition whereby the appellate court while
summoning the record of the suit from the trial court
stayed the operation of the interim order dated
03.01.2024 passed by the trial court.
9. The petitioner herein has challenged the impugned order
dated 29.01.2024 passed by the appellate court in the
instant petition.
Heard learned counsel for the parties and perused the
record.
10. Perusal of the record reveals that though in the suit
Secretary, Dharam Prachar Committee, Shriomani
Gurudwara Prabandhak Committee Shri Amritsar Sahib
is impleaded as a party-defendant No. 6 and S. Simarjit
Singh S/o S. Sulakhan Singh is in his independent
capacity impleaded as defendant No. 7 in the suit, the
appeal (supra) before the appellate court came to be filed
by Shriomani Gurudwara Prabandhak Committee
through the above named defendant No. 7 in the suit as
its attorney knowing the fact that the said S. Simarjit
Singh have had appeared before the trial court along with
Secretary, Dharam Prachar Committee, Shriomani
Gurudwara Prabandhak Committee Sri Amritsar Sahib
being defendant No. 6 in the suit on 25.01.2024 through
their counsel who filed power of attorney and sought time
to file written statement to the suit and simultaneously
filed an application under Order 7 Rule 11 of the Code of
Civil Procedure for rejection of the plaint wherein the
counsel for the plaintiff/petitioner herein sought time to
file objections and the trial court consequently posted the
case for further proceedings on 08.02.2024.
11. Perusal of the record of the appellate court would reveal
that the same came to be filed by the
appellant/respondent herein on 27.01.2024 and a bare
perusal of the memo of appeal reveals that the fact of
appearance before the trial court on 25.01.2024
inasmuch as the filing of application under Order 7 Rule
11 of the Code of Civil Procedure has been concealed and
the impugned order obtained as such.
12. It is not in dispute that the order of the trial court dated
03.01.2024 challenged in the appeal (supra) came to be
passed as an interim injunction by the trial court
directing the parties to maintain status quo qua the suit
land till next date of hearing providing an opportunity to
the defendants to file written statement to the suit as well
as objections to the application for interim relief, in
response to which the defendants indisputably though
sought time to file the same, yet filed an application
under Order 7 Rule 11 of the Code of Civil Procedure for
rejection of plaint on the next date of hearing i.e., on the
date fixed in the matter on 25.01.2024.
13. As to whether an appeal could have been preferred
against such an exparte interim order being subject to
objections, the law is no more res integra and stands
settled by the Apex Court in case titled as
"A. Venkatasubbiah Naidu Vs. Chellappan and ors"
reported in AIR 2000 SC 3032 wherein at para 19
following has been observed and held:
19. It is the acknowledged position of law that no
party can be forced to suffer for the inaction of the
Court or its omissions to act according to the
procedure established by law. Under the normal
circumstances the aggrieved party can prefer an
appeal only against an order passed under Rules 1, 2,
2A, 4 or 10 of Order 39 of the Code in terms of Order
43, Rule 1 of the Code. He cannot approach the
appellate or revisional Court during the pendency of
the application for grant or vacation of temporary
injunction. In such circumstances the party who does
not get justice due to the inaction of the Court in
following the mandate of law must have a remedy. So
we are of the view that in a case where the mandate of
Order 39, Rule 3-A of the Code is flouted, the
aggrieved party, shall be entitled to the right of appeal
notwithstanding the pendency of the application for
grant or vacation of a temporary injunction, against
the order remaining in force. In such appeal, if
preferred, the appellate Court shall be obliged to
entertain the appeal and further to take note of the
omission of the subordinate Court in complying with
the provisions of Rule 3-A. In appropriate cases the
appellate Court, apart from granting or vacating or
modifying the order of such injunction, may suggest
suitable action against the erring judicial officer,
including recommendation to take steps for making
adverse entry in his ACRs. Failure to decide the
application or vacate the ex parte temporary
injunction shall, for the purposes of the appeal, be
deemed to be the final order passed on the application
for temporary injunction, on the date of expiry of
thirty days mentioned in the Rule."
14. Keeping in mind the aforesaid position of law and
reverting back to the case in hand, a closer and deeper
examination of the memo of appeal would suggest and
reveal that the appellant/respondent herein did not file
the appeal on the ground of breach of Order 39 Rule 3-A
of the Code of Civil Procedure or else on the ground of
inaction of the trial court to dispose of the interim
application or least application under Order 7 Rule 11 of
the Code of Civil Procedure but as noticed in the
preceding paras and risking repetition, the defendants did
appear and sought time to file written statement as well
as objections to the application while simultaneously
maintaining an application under Order 7 Rule 11 of the
Code of Civil Procedure before the trial court and without
making a whisper about the said fact in the memo of
appeal though having been cleverly filed for and on behalf
of Shriomani Gurudwara Prabandhak Committee Sri
Amritsar by the same counsel who had appeared for the
defendants in the suit before the trial court and filed the
appeal before the appellate court and obtained ex parte
interim order impugned herein.
15. Having regard to the aforesaid facts and circumstances
inasmuch as the position of law laid down by the Apex
Court in the case (supra), the exercise of inherent power
of this Court is warranted in the light of the judgment of
the Apex Court titled as "Shalini Shyam Shetty and
another Vs. Rajendra Shankar Patil" reported in (2010)
8 SCC 329 wherein the Apex Court held as under:
(a).............................................................................................
(b).............................................................................................
(c)..............................................................................................
(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)..............................................................................................
(i)...............................................................................................
(j)...............................................................................................
(k)..............................................................................................
(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)..............................................................................................
(o)............................................................................................"
16. Viewed thus, what has been observed, considered and
analyzed hereinabove, this petition is allowed while
setting aside the appellate court order dated 29.01.2024
and the matter is remanded back to the trial court of 2nd
Civil Subordinate Judge (Spl. Passenger Tax Magistrate),
Jammu with the direction to proceed in the matter in
accordance with law. The appeal preferred by the
respondent herein before the appellate court in view of
the above shall be deemed to have been dismissed. The
appellate court shall forthwith remit the record of the
case to the court of 2nd Civil Subordinate Judge (Spl.
Passenger Tax Magistrate), Jammu back whereupon the
trial court shall proceed as directed above.
17. Parties shall appear before the trial court on 20.02.2024.
18. Disposed of accordingly along with connected
application(s).
19. The original record of the file shall be returned back after
proper receipt.
(JAVED IQBAL WANI)
JUDGE
JAMMU
12.02.2024
Naresh/Secy.
Whether order is speaking : Yes/No
Whether order is reportable : Yes/No
