Jammu & Kashmir High Court
Mohammad Yaseen Shru vs Hakim Khalid Ahmad And Anr. on 14 August, 1995
Equivalent citations: AIR1997J&K32, AIR 1997 JAMMU AND KASHMIR 32
ORDER A.M. Mir, J.
1. This is a revision petition filed in terras of Section 115, Code of Civil Procedure. Besides this, power of this Court has been invoked under Section 104 of Jammu and Kashmir Constitution. Under bath these provisions of law, the orders passed by the District Judge, Baramulla on 22-9-1993 and 27-4-1995 have been called in question. The order passed on 22-9-1993 directed the petitioner to pay the subsidy amount to the contesting respondents subject to his furnishing an undertaking. This order seems to have not been complied with as a result of that, order dated 27-4-1995 came to be passed on a contempt petition.
2. I have heard learned counsel for the parties at length. Both the orders are admittedly passed in terms of Rules 2 and 2-A of Order 39. Order XLIII, Rule 1 (r) makes both these orders appealable. The appeal against these orders lies to the High Court itself. Section 115 of Civil Procedure Code, cannot be applied to orders wherefrom appeals lie to the High Court. Therefore, revision in terms of this provision of law is not maintainable.
3. So far as Section 104 is concerned, the same reads mutatis mutandis to Article 227 of the Federal Constitution. Application of Article 227 by authoritative judgments of the Apex Court, has been confined to superintendence and control of the High Court. The same is not supposed to saddle the High Court with powers of appeal. This principle was brought home in Sheikh Mohd. Ummer Sahib v. Cadalashker Hashim, reported in AIR 1970 SC 61. Again in Mohd. Younis v. Mohd. Mustaqeem, reported in AIR 1984 SC 38, the Supreme Court laid down, that An. 227 relates to supervisory jurisdiction of the High Court only. This provision could not enable the High Court to correct errors of law which could have been found in the impugned order. The same view was taken in AIR 1972 SC 1598. It was in that case held that the object of Article 227 was to see that subordinate courts act within the bounds of their authority and do not transgress the same bounds. However, the errors in law committed by the subordinate courts could not be corrected by exercise of power under Article 227.
4. In this case the petitioner as already observed had a statutory remedy of filing appeal against the orders available. He omitted to avail of that relief. The question in this case arises as to whether or not provisions of Section 104 of the Constitution could be taken resort to. A single Bench of this Court while deciding this question arising out of New India Insurance Company v. Motor Accident Claims Tribunal, reported in AIR 1993 J&K 22, held that where a statutory remedy was available and the party did not avail of that statutory remedy, the High Court would not be justified in invoking powers.under Section 104 of the State Constitution. I follow the line of action adopted by this Court in New India Insurance case (supra).
5. I hold that Section 104 of the State Constitution, in the case cannot apply on the following grounds :--
(i) Section 104 of Jammu and Kashmir Constitution, relates to supervisory control of the Courts and its parameters are defined, it has only to see that the Court acts under its authority. The jurisdiction under this provision of law cannot be used as a substitute for appellate or revisional forum. Section 104 cannot be a substitute of appeal or a revision. While dealing with this point, I find it necessary to refer to the argument of the learned counsel for petitioner that the subsidy amount involved, amounted to Rs. 1,58,283. According to him, this amount far exceeded the pecuniary jurisdiction of the Court and in that view of the matter, the Court had acted beyond its authority. This argument tempted me to go through the suit file. The suit is for a permanent injunction restraining the respondent-defendant from making payment of subsidy amount direct to the respondent-plaintiff and not througn the State Financial Corporation (defendant No. 2). It is not a money suit of any definite valuation nor has any amount been quantified in the plaint. Therefore, at this stage this argument does not find favour with me and while passing the impugned order, the trial Court does not seem to have acted beyond the authority of law.
(ii) Where an efficacious statutory remedy is provided by the statute, Section 104 of the State Constitution will not apply, regardless of the fact as to whether or not that remedy was availed of. A provision of appeal is made against the orders impugned. Therefore, Section 104 cannot be attracted.
6. On the analogy laid down above, the petition in terms of both the provisions of law is dismissed. Interim direction issued on 2-5- 1995 is vacated and the record is directed to be returned for disposal of the case/matter under law.