Jammu & Kashmir High Court - Srinagar Bench
Haji Ama Bhat vs Rajendra Shankar on 31 August, 2012
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
OWP No.1026 of 2012
CMP No.1689 of 2012
Haji Ama Bhat
Petitioners
Khaliq Ahmad & others
Respondents
!Mr. Altaf Haqani, Advocate
^None, Advocate
Honble Mr. Justice Mohammad Yaqoob Mir, Judge
Date:31/08/2012
: J U D G M E N T :
1. Application for grant of injunction filed by the petitioner (plaintiff) before the trial court (Sub Judge, Shopian) has been disposed of vide order dated 28.10.2010 where-under parties have been directed to maintain status quo with regard to their possession over the suit land. Civil Miscellaneous Appeal preferred before the Court of District Judge, Shopian, against the said order has been dismissed vide order dated 16.5.2012.
2. Petitioner would have invoked the revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure but same remedy is not now available as in terms of the amended Section 115 CPC because it is only against the orders, which are final or the orders which if would have been in favour of the aggrieved party would result in termination of the suit proceedings, the revision petition can be entertained. It is in the same background petitioner has filed the instant writ petition.
3. It is settled that curtailment of the power exercisable under Section 115 CPC, in view of its amendment, does not take away power of the High Court in invoking its supervisory or writ jurisdiction but for invoking such power, the aggrieved party has to carve out an exceptional case so as to show that the authorities have not acted within their limits or that invoking of such power is necessary so as to undo the injustice, otherwise to invoke or exercise such power shall negate the very purpose of the amendment in Section 115 CPC.
4. Now the question is as to whether petitioner has been able to project a case in the aforesaid background so as to persuade the Court to invoke the supervisory jurisdiction under Section 104 of the State Constitution read with Article 227 of the Constitution of India or to invoke writ jurisdiction under Section 103 of the State Constitution read with Article 226 of the Constitution of India.
5. Respondent No.1 is the son whereas respondents No.2 to 5 are grandsons of the petitioner. It is the said son and grandsons who, according to the petitioner, started interference with the land measuring kanals 6 kanals 9 marlas covered by Survey No.67-min situated at village D.K. Pora Shopian constraining the petitioner to file suit for prohibitory injunction so as to restrain the respondents from causing any interference. Alongside suit, an application for grant of temporary injunction has been filed which has been disposed of by the trial court directing the parties to maintain status quo. The trial court has recorded that the revenue records reveals that the petitioner has partitioned his estate amongst his sons and daughters based on which mutation has been attested and it shall be difficult to say anything about the quantum of land in possession of petitioner, his sons and grandsons. Claim of the petitioner that he is in physical possession of land measuring 6 kanals 9 marlas under survey No.67-min needs to be adjudicated upon after evidence is led by the parties. It is also recorded that since parties to the suit are in possession of land by virtue of some oral arrangement made by the petitioner, therefore, it is appropriate to direct the parties to maintain status quo with regard to their possession over the suit land.
6. Learned appellate court in its order dated 16.5.2012, after noticing the factual matrix of the case, has concluded that the discretion exercised by the trial court appears to be reasonably practical in the circumstances of the case. The petitioner has not been able to satisfy that he is in exclusive possession of the suit land, the petitioner had also suppressed the material facts. After relying on the ratio of the judgment rendered by the Honble Apex Court in Wander Ltd. V. Antox India (P) Ltd. 1990 Supp SCC 727, has concluded that the discretion exercised by the trial court cannot be found fault with, so dismissed the appeal.
7. The arrangement directing maintenance of status quo vis-a-vis suit property in terms of order of the trial court, up-held by the appellant court, has to remain in force until conclusion of the trial of the suit. Order of status quo, a harmless order, permitting the parties to hold their possession as they possess, cannot be termed to be an order which is to operate harshly against the petitioner. Such like orders which are not in derogation of any statute nor in violation of any statutory duty on the part of statutory authority are not open to be interfered with by invoking powers under Section 104 of the State Constitution read with Article 227 of the Constitution of India.
8. The interference by invoking powers under Article 226 of 227 has to be exceptional otherwise progress of the suit will get hampered. In the judgment captioned Shalini Shyam Shetty & anr Vs. Rajendra Shankar Patil, (2010) 8 SCC 329, the Honble Apex Court has formulated the principles governing jurisdiction of High Courts under Article 227 of the Indian Constitution. Para 49 of the judgment is relevant to be quoted:
49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Courts jurisdiction under Article 227 of the Constitution of India 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 the 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, at 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 the 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 their 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 and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh, 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 powers 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.
(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) The High Courts 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 L. Chandra Kumar v. Union of India 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 Courts power under Article 227.
At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Courts 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 moto.
(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 objection 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 the 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 where as Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered by 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 counterproductive and will divest this extraordinarily power of its strength and vitality.
9. While viewing the case of the petitioner on the touchstone of the principles as enunciated, no case is made out so as to persuade the Court to exercise powers under Article 226 or 227 of the Indian Constitution.
10. The order providing for maintaining status quo vis-a-vis suit property as ordered by the trial court and up-held by the appellate court is not to result in causing any gross and manifest failure of justice. The trial court as well as appellate court have not in any manner passed the orders beyond their jurisdiction. Both trial court as well as appellate court have functioned within their permissible limits, therefore, exercise of power under Article 226 of 227 which correspond to Section 103 and 104 of the State Constitution respectively is not required to be exercised. Petition is not fit to be entertained being not maintainable, as such, dismissed along with connected CMP.
11. Copy of the order be send to the appellate court as well as trial court for information.
(Mohammad Yaqoob Mir) Judge Srinagar 31.08.2012 Mohammad Altaf