Jammu & Kashmir High Court - Srinagar Bench
Mushtaq Ahmad Dhar & Anr vs Showkat Ali Bhat & Ors. Dated 09.11.2 on 12 December, 2011
IN THE HIGH COURT OF JAMMU & KASHMIR AT SRINAGAR OWP No. 1214 of 2011 CMP No. 1933 of 2011 Mushtaq Ahmad Dhar & anr Petitioners Nazir Ahmad Dhar Respondents !Mr. A. Haqani, Advocate ^Mr. M. A. Rathore, Advocate Honble Mr. Justice Mohammad Yaqoob Mir, Judge Date: 12/12/2011 :J U D G M E N T:
Justice with convenient speed has to be a cherished principle of justice delivery system. Inordinate delay operates harshly so as to create an impression that even if justice is done but appear not to have been done because it neutralizes the impact. Litigants normally expect quick mode of delivery of justice, same is in-keeping with the aforesaid principle but when litigants themselves enormously contribute to the delay, it cannot lie in their mouth to say that the justice is delayed. Courts of law are bound to deliver justice in conformity with the law, if the litigant by over reacting or showing over smartness contributes to the delay, such position cannot be attributed to the justice delivery system. System is in place but it is for the parties to adhere to the system and to be vigilant at every stage of the proceedings. If a litigant, because of his own shortfalls, applies the breaks in the smooth progress of the trial, it is for him to correct himself, otherwise delay is at his own peril.
Learned counsel for the respondent objected the maintainability of the writ petition by stating that no writ can lie against a private person. It is only when main respondent is the Government, Government agency or State or instrumentalities of the State within the meaning of Article 12, the remedy of writ petition is available. The dispute relates to property which is purely a dispute inter se the parties. In support of this submission relied on the judgment rendered by the Co-ordinate Bench of this Court in OWP No.1364/2011 captioned Abdul Rehman Dar & ors Vs. Showkat Ali Bhat & ors. dated 09.11.2011, wherein while relying on the judgment of the Apex Court rendered in Civil Appeal captioned Shalini Shyam Shetty Vs. Rajendra Shankar Patil (2010 AIR SCW 6387)(hereinafter referred to as Shalini judgment), Court has concluded as under:-
Neither petitioners allege of the courts below to have acted without or in excess of jurisdiction, nor State is made the party, therefore, the writ petition cannot stand the test laid down by the apex court in the judgment reproduced hereinbefore. Accordingly the writ petition fails and is dismissed as such along with all CMPs. Every case has its own facts and features so law has to be applied accordingly. It is no more res integra that in the writ petition main respondent has to be either Government or instrumentalities of the State within the meaning of Article 12. In the reported judgment distinction has been drawn between Article 226 and Article 227 of the Constitution of India and in the process it has been made clear that the writ petition can be maintained when private parties acting in collusion with State are respondents in the writ petition. It shall be relevant to quote para 64 of the judgment:
64.It is well settled that a writ petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform. Admittedly in the instant petition private individual is a party which apparently is not acting in collusion with the State so normally writ petition cannot be maintained.
Again question arise as to whether petition as filed by the petitioners can be termed to be a writ petition or a petition seeking indulgence of the Court in exercise of the supervisory powers under Article 104 State Constitution which is more or less paramateria with Article 227 of the Constitution of India. The answer has to be that the instant petition is simply a petition under Section 104 of the State Constitution. Section 104 reads as under:-
104. Superintendence and control of subordinate courts.
(1) The High Court shall have superintendence and control over all courts for the time being subject to its appellate or Revisional jurisdiction and all such courts shall be subordinate to the High Court.
(2)Without prejudice to the generality of the forgoing provision, the High Court may
(a) call for returns from such courts,
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts;
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such court.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practicing therein.
Provided that any rules made, forms prescribed or tables settled under sub-section (2) or sub-section (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
In the Shalini judgment the Honble Apex Court while distinguishing the petition under Article 226 and 227 has held as under:-
32. No writ petition can be moved under Article 227 of the Constitution nor can a writ be issued under Article 227 of the Constitution. Therefore, a petition filed under Article 227 of the Constitution cannot be called a writ petition. This is clearly the Constitutional position. No rule of any High Court can amend or alter this clear Constitutional scheme. In fact the Rules of Bombay High Court have not done that and proceedings under Articles 226 and 227 have been separately dealt with under the said Rules. So now it is clear that when the powers are invoked under Section 104 of the State Constitution which is para-materia with Article 227 of the Constitution of India, it has to be straight way answered that the petition, though styled as writ petition, in effect is a petition seeking exercise of superintendence power.
In the Shalini judgment it has been held that supervisory jurisdiction under Article 227 is meant to keep the Courts and the Tribunals within the limit of their authority, same power is not exercisable for setting aside or reversing the finding of an inferior Court or Tribunal except in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the Court or Tribunal may have come to. Furthermore, in the said judgment it has been made clear that the power of superintendence is not to be exercised unless there has been (a) unwarranted assumption of jurisdiction, not vested in Court or Tribunal, or (b)gross abuse of jurisdiction, or (c) an unjustifiable refusal to exercise jurisdiction vested in Courts or Tribunals. It has been further made clear that where there is flagrant abuse of elementary principles of justice or a manifest error of law patent on the face of the record or an outrageous miscarriage of justice, power of superintendence can be exercised but exercise of such power cannot be claimed as a matter of right by a party.
It is also made clear in the said Shalini judgment that jurisdiction of superintendence under Article 227 is for both administrative and judicial, therefore, powers conferred under Article 226 and 227 are separate and distinct and operate in different fields. It shall also be apt to quote paras 79, 80 and 81 of the Shalini judgment:
79. We should like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown, that a private individual is acting in collusion with a statutory authority.
80. We may also observe that in some High Courts there is tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev (AIR 2003 SC 3044; 2003 AIR SCW 3872) (supra) and in view of the recent amendment to Section 115 of the Civil Procedure Code by Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 of CPC has been curtailed. In our view, even if the scope of Section 115, CPC is curtailed that has not resulted in expanding High Courts power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.
81.As a result of frequent interference by Honble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. While keeping in mind the law as has been laid down by the Honble Apex Court and while following and applying the same to the facts and position of the instant case, an inescapable conclusion shall be that the instant petition cannot be termed to be a writ petition but a petition under Section 104 of the State Constitution, therefore, requirement of main respondent being State or instrumentalities of the State within the meaning of Article 12 looses significance.
In the judgment rendered by the Co-ordinate Bench referred above, the orders passed by learned Sub Judge and learned Additional District Judge, Anantnag were sought to be reversed, in terms whereof ex-parte order passed in the application for ad-interim relief was up-held by the Appellate Court i.e. Additional District Judge, Anantnag, so in the said case invocation of power of superintendence was impermissible because in the said petition the point for consideration was not that the Courts had acted without or in excess of jurisdiction. In the case in hand position is altogether different. The grievance as projected in the petition is that in case position vis-`-vis pleadings and the documents placed on record is not made clear, trial of the suit will be prejudiced and the resultant effect will be protraction in proceedings and the miscarriage of justice.
The second grievance projected is that in the amended plaint there were unauthorized insertions. Furthermore, there were allegations about fraudulent position of the withdrawal application and the trial court had ordered enquiry regarding the same pursuant to its order dated 10.11.2006. The progress in the said enquiry proceedings has not been carried forward which have the bearing on the results of the case.
One more grievance was that an application was filed by the petitioners on 5.5.2009 to the effect that in the amended plaint dated 18.4.2009 unauthorized incorporated pleadings shall be struck out, which has not been decided where as on the other hand respondent has been asked to lead the evidence.
When such glaring defects appearing in the proceedings and when such glaring situations are not taken care of by the Court, party has no option but to invoke the supervisory power of the High Court as available under Section 104 of the State Constitution. It has to be made clear that exercise of such power is permissible only in rarest cases. The Court has to be very loath in invoking such powers so that trial of the case in any manner may not get hampered. It is in the same backdrop supervisory powers as are available to be exercised under Section 115 of the Code of Civil Procedure have been curtailed by substituting the proviso. The object is simply to see that the trial of the suit or other proceedings may not get protracted and to see that the trial of the suit concludes within reasonable time. Keeping that position in view, any party cannot be given chance to dilute the position of that amendment in Section 115 of the Code of Civil Procedure by entertaining a petition under Section 104 of the State Constitution i.e. to exercise the power of superintendence and in case exercise of such power has an effect of diluting the position of the proviso to Section 115 CPC, same cannot be permitted as the same will go against the legislative intent but it is only in rarest cases where the Court has to exercise the power of superintendence under Section 104 of the State Constitution where it appears that such intervention will help in keeping the Court within its bounds and to see that miscarriage of justice is avoided and to ensure that the Court works within its limits to avoid flagrant abuse of the elementary principles of justice. Fair play has an object of ensuring smooth trial in a suit or other proceedings so that the conclusion of the trial or the proceedings is effectively result oriented.
In the afore-stated position, the interference by invoking the power of superintendence under Section 104 of the State Constitution has become unavoidable. Same position will be made more clear herein below.
Having overall view of the entire proceedings so far conducted in the suit as is pending before the trial court right from the year 1997, the only deducible conclusion is that the trial of the case has been made to limp, resultantly lingering process continues. In the aforesaid backdrop it has become imperative to precisely notice the background of the case:
I) Respondent(hereinafter referred to as plaintiff) is pitted against the petitioner No.1 and his wife(hereinafter referred as defendants), who is none else but the brother of the plaintiff, has filed the suit for declaration and injunction by presentation of the plaint on 17.6.1997, which has been transferred to the Court of 4th Additional District Judge, Srinagar for disposal under law. During continuance of proceedings the plaintiff sought amendment of the plaint, same was allowed vide order dated 7.7.2003. In view of that development issues afresh were framed on 6.9.2003. Amendment granted was challenged unsuccessfully by medium of Civil Revision No.81/2003 by the defendants.
II) Again during the continuance of the proceedings one more application for amendment of the plaint has been filed by the plaintiff, same has been allowed vide order dated 3.6.2005.
III) An application came to be filed by the defendants seeking striking out the pleadings contained in the amended plaint as have been incorporated by the plaintiff in abuse of process of the court fraudulently and dishonestly. Copy of the amended plaint was furnished to the counsel for the defendants who was permitted to inspect the file of the Court who on such inspection found that the respondent(plaintiff) had introduced certain material averments unauthorizedly when same were not permitted while allowing the amendment. Additionally, insertions had been made in different paras. Same was alleged to have been done by the plaintiff with the fraudulent designs to keep defendants unaware about the same. The plaintiff has denied to have made any insertions but has admitted that corrections were made in the amended plaint by the him (plaintiff).
IV) Then plaintiff had made an application praying for withdrawal of the corrections. Learned Additional District Judge (trial court) while noticing all the circumstances with the object of avoiding protraction in the proceedings, in the order dated 10.11.2006 has opined that the insertions made by the plaintiff in deviation to the permission cannot be considered, therefore, are struck out. The plaintiff has been directed to file the amended plaint in consonance with the order dated 7.7.2003 and 18.11.2006. Then the trial court in the same order has recorded as under:
Now the moot question for serious consideration of this court is as to when and how the plaintiff made the insertions in the amended plaint without permission of the court. This needs an enquiry as nobody can be allowed to bypass the directions/orders of this court to curb the fraudulent and unscrupulous behavior of the person/persons involved in such type of practice, before proceeding further in the matter, plaintiff is directed to explain as to when and how he made the insertions in the amended plaint dated 12.7.2003. Same shall be separated from the main file and shall be put up on 18.11.2004(Note: it shall be 1811.2006) along with the copy of this order for further proceedings. V) In terms of the said order enquiry was ordered and the plaintiff was directed to explain as to when and how he made the insertions in the amended plaint. VI) Application seems to have been filed by the defendants for striking out unauthorized pleadings made by the plaintiff in the amended plaint of the year 2007. Same has been disposed of vide order dated 22.3.2008. In the said order noticing all the features, again learned Additional District Judge (trial court) has directed the plaintiff to submit the amended plaint in the light of observations made in the said order. This order has been challenged by the defendants by medium of Civil Revision No.69/2008 which has been dismissed on 01.12.2008 with the direction to the trial court to ensure speedy disposal of the case.
VII) In the interim order recorded by the trial court on 22.4.2008 plaintiff is shown to have filed an application for review of order dated 23.3.2008 which has not been disposed of. VIII) On 2.1.2009 the trial court (Additional District Judge), Srinagar has directed the plaintiff to file explanation regarding placing on record application by virtue of which he wanted to withdraw the earlier application seeking withdrawal of alterations and insertions made in the amended plaint and at the same time defendants were directed to file fresh written statement to the amended plaint.
IX) On 03.01.2009 the trial court has recorded that the counsel for the defendants submitted that the plaintiff has not filed the amended written plaint in pursuance to court order dated 22.3.2008, so he could not file the amended written statement. In response thereto, plaintiff had made a submission that his review application dated 26.4.2008 may be disposed of first. It was also noticed that the objections have been filed to the review application, same had been posted for arguments. It has also been noticed that the Honble Acting Chief Justice on administrative side had directed taking of the matter on priority basis but plaintiff had submitted that he is going abroad to London and will not be available till 5th of February, 2009, accordingly case was posted for 06.02.2009. X) On 18.4.2009 plaintiff is shown to have filed the amended plaint. On the same date defendants counsel has referred to application seeking appropriate action under law against the plaintiff. Then what happened is that on the basis of amended pleadings fresh issues have been framed on 22.7.2009.
XI) On 31.10.2009 counsel for the defendants had invited the attention of the trial court towards the order dated 10.11.2006 vis-`-vis enquiry about the insertions made in the amended plaint. The Court on the same date directed the office to separate the inserted amended plaint dated 12.7.2003 from the suit and also directed the Robkar to be prepared and to issue summon to the plaintiff to explain as to how and when he made such insertions in the amended plaint. Robkar was directed to be posted for 07.11.2009.
Then again vis-`-vis enquiry for withdrawal of earlier application, it was mentioned that no enquiry has been initiated, Robkar was directed to be prepared in terms of the letter received from Registrar Judicial, High Court of J&K and the plaintiff be asked to explain his conduct. At the same time trial of the case has been allowed to continue and it is the plaintiff who has been leading the evidence.
The grievance of the defendants as on date is that the plaintiff has created a mess and unless such mess is clarified, trial of the suit will get prejudiced. Concern of the petitioners is that the position may be made clear as to which documents are genuine on the record, which plaint is the final plaint on the record and side by side the enquiry, reference of which is made hereinabove, is not being carried forward which has to result in causing much injustice.
The relief No.1 in the instant petition pertains to the direction so as to direct the trial court to expedite the conducting of aforesaid enquiries and to pass appropriate orders. While dealing with this prayer, it is discernible from the records that there has been no progress in the enquiry as ordered in the year 2006 vis-`-vis insertions made in the amended plaint and the enquiry regarding placing on record the withdrawal application i.e. the enquiry required in terms of letter No.74/ADJ dated 16.12.2008 received from Registrar Judicial, High Court of J&K vis-`-vis application for withdrawal of earlier application. In this regard trial court is required to ensure that requisite enquiries are conducted and brought to logical conclusion with appropriate orders. Relief No.2 pertains to the decision on the application filed on 05.05.2009 by the defendants where-under it has been prayed that the pleadings contained on the amended plaint dated 18.04.2009 to the extent of having been incorporated unauthorizedly shall be struck out. This application is required to be decided at an earliest because decision on such application will pave way for the smooth trial of the suit. In nutshell by precisely noticing the features of this lis, the object is to see that all impediments are removed in a legal manner so that trial of the suit can progress in right direction with promptitude, hence the following directions:
(i) Trial court is directed to ensure, at first instance, disposal of the application dated 05.05.2009 filed by the defendants seeking striking out unauthorized part of the pleadings incorporated in the amended plaint filed on 18.4.2009 and side by side to decide the application dated 26.4.2008 filed by the plaintiff seeking review of the order dated 22.3.2008, thereafter shall make the position of the pleadings clear to the parties so that trial of the suit is not prejudiced.
(ii) Trial court shall also ensure that the enquiries as ordered to be conducted as referred to hereinabove, shall side by side be progressively advanced and concluded with reasonable dispatch.
After strict compliance to the direction No.(i) trial of the suit shall be advanced and disposed of with convenient speed. While doing so, direction No.(ii) as above shall side by side be complied with and matter finalized with appropriate orders. The procedural wrangles coupled with the filing of applications by either parties, then filing of the revision petitions as permissible under law, has been circumstantial, therefore, delay was inevitable.
While parting it is to be observed that when a petition is filed under Section 104 of the State Constitution which is more or less para-materia with Article 227 of the Constitution of India, is not to be registered as a writ petition, instead has to be registered as a petition under Section 104 of the State Constitution. In this behalf Registry to take necessary steps.
Copy of the judgment along with trial court record be sent to the trial court (Additional District Judge, Srinagar), where the parties shall appear on 19.12.2011. (Mohammad Yaqoob Mir) Judge Srinagar 12.12.2011 Mohammad Altaf