Jammu & Kashmir High Court - Srinagar Bench
Wali Mohd Kirmani vs Wali Mohd Shafi And Anr on 15 May, 2018
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Case no.:
OWP no.808/2017 Date of order: 15.05.2018
MP no.01/2017
Wali Mohammad Kirmani v. Wali Mohammad Sofi & anr.
Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge
Appearing counsel:
For Petitioner: Mr. M. Moomin Khan, Advocate;
For Respondents: Mr. B. A. Zargar, Advocate, for no.1;
Mr. S. A. Vakil, Advocate, for no.2.
_____________________________________________________________________
i) Whether approved for reporting in law journal: YES
ii) Whether approved for reporting in press media: YES
1. Pursuant to order dated 01.02.2018, the records summoned have been placed alongside this petition.
2. Perused the record and considered the matter.
3. This petition calls in question order dated 23.04.2016 passed by the learned Principal District Judge, Baramulla, in the miscellaneous appeal titled Wali Mohammad Sofi & anr. v. Wali Mohammad Kirmani, which had been filed against order dated 07.05.2015 of the learned Sub-Judge Baramulla, whereby the learned Sub-Judge had rejected the prayer for issue of interim injunction in the suit filed by respondent no.1 herein against the defendant, i.e., the petitioner herein. The plaintiff no.2 in the suit, i.e., respondent no.2 herein, has been arraigned in the suit as such later at his instance. The matter appears to be simple, but the reasons and justifications supplied in the impugned order are founded on an order dated 29.09.2015 passed by the appellate court itself in an application filed on 08.09.2015 under Section 152 CPC for correction of the Owp 808/2017 1|Page compromise decree dated 03.08.1994 in an earlier suit in which the present petitioner was not a party, and the claim of the plaintiff no.2 that he holds part of a property of plaintiff no.1. In order to seek correction in the compromise decree dated 03.08.1994, 19 years after the decision in the earlier suit, there also appears to be an interpolation made in a court document, namely, the compromise deed, moreso when the original land owner-defendant in the earlier suit was no more in picture and had parted with the ownership and possession of the chunk of land long before, as well as at the back of the persons having acquired title and interest in the suit property. Since this petition has been filed invoking the supervisory jurisdiction of this Court, a narration of the whole range of facts becomes imperative.
4. Before giving such narration, I deem it necessary to deal with the objection of the learned counsels for the respondents regarding the maintainability of this petition. The learned counsels submitted that this petition is not maintainable and, in order to buttress their submission, they cited and relied upon the following judgments:
i) Shalini Shyam Shetty v Rajendra Shankar Patil, (2010) 8 SCC 329 (for the proposition that writ against private persons is not maintainable);
ii) Abdul Rehman Dar v. Showkat Ali Bhat, 2011 (4) JKJ 334 (for the proposition that if a party which loses the case before the trial court or before the appellate court is allowed to file writ petition and thereafter if such writ petitions are entertained without any check and balance that will amount to beating legislation and in breach of the purpose, aim and object of the legislation which was made basis for amendment of the CPC);
iii) Kuldip Singh v Krishna Devi, 2013 (2) JKJ 317 (for the proposition that writ petition is a remedy in public law which Owp 808/2017 2|Page can be filed by any person, but the main respondent should either be Government agency or a State or an instrumentality within the meaning of Article 12 of the Constitution of India);
iv) Mohd Yusuf Shah v Akbar Ganai, 2017 (3) JKJ 542 (for the proposition that High Court would be loath to exercise jurisdiction under Section 104 of the Constitution of Jammu and Kashmir unless it is demonstrated that the order impugned is perverse and has occasioned serious miscarriage of justice);
v) Dimpy Enterprises v. LIC of India, 2017 (3) JKJ 618 [for the proposition as in Abdul Rehman Dar v. Showkat Ali Bhat (supra)];
vi) Niyamat Ali Molla v. Sonargon Housing Co-operative Society, AIR 2008 SC 225 (holding that decree can be corrected by the Court under S. 151 as well as under S. 152);
vii) Kalasani Venkata laxmi v. Bommineni Aruna, AIR 2008 AP 107 (holding that fault due to mistake committed by office, it cannot be said that court had become functus officio to amend decree, and that, to meet ends of justice, court which passed said judgment can amend the decree); and
viii) Devi Roop v. Smt. Devku, AIR 2006 HP 114 (holding that powers under Ss. 152 and 153 CPC for correction of clerical mistake in judgment can be exercise at any time and that there is no limitation prescribed for exercising such powers).
5. This is not a writ petition under Article 226 of the Constitution of India either in its form or caption. In Shalini Shyam Shetty v Rajendra Shankar Patil (supra), cited and relied upon the learned counsel for the respondents, it has clearly been held that Article 227 petitions cannot be called writs. It has further been laid down therein that Article 227 is a part of the basic structure of the Constitution and that the High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to Owp 808/2017 3|Page it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. Since this is a petition under Section 104, invoking the power of superintendence of the Court, it cannot be said to be a writ petition. Therefore, the judgments cited at the Bar are not attracted in the case. As to the powers of the court to correct the clerical mistake in the decree at any time, without there being any limitation prescribed, no exception can be taken to such proposition of law on the point. However, there is something more discernable from the record which goes to the root of the matter, resulting in gross and manifest failure of justice. Apart from that, as would be referred to later in this judgment, the basic principles of natural justice have also been flouted. The judgments cited are, therefore, not attracted in the facts and circumstances of the case. The objection raised is overruled.
6. Now, I proceed to briefly narrate the background facts. One (Ghulam) Ahmad Chopan (the original land owner) was in possession of land measuring 6 Kanals and 14 Marlas comprised in Khasra nos.2619/1762 situated at Kanispora, Baramulla. On 21.07.1994 respondent no.2 herein filed a suit, titled Mohammad Akbar Moon v. Ahmad Chopan, for declaration and permanent injunction against said Ahmad Chopan, claiming oral gift of 2 Kanals of land out of the aforesaid land comprised in Khasra no.1762. The said suit was decreed within 13 days on 03.08.1994 pursuant to a compromise deed of even date, declaring the plaintiff therein, i.e., respondent no.2 herein, as owner in possession of 2 Kanals of land comprised in Khasra no.1762 situated at Kanispora, Baramulla. Subsequently, said Mohammad Akbar Moon constructed a house on the said land. It is apt to mention here that the said piece of land, measuring 2 Kanals comprised in Khasra no.1762, is Owp 808/2017 4|Page situated abreast the Jahama-Kanispora Link Road. Respondent no.2 is later said to have parted with the possession of the said land alongwith the residential house existing thereon by virtue of an agreement to sell dated 26.06.2012 in favour of respondent no.1 herein.
7. Out of the remaining 4 Kanals and 14 Marlas of land comprised in Khasra no.2619/1762, the original owner, (Ghulam) Ahmad Chopan, also sold 2 Kanals and 4 Marlas in favour of one Mst. Raja Begum who, in turn, sold it to the present petitioner's son. Out of the said land measuring 2 Kanals and 4 Marlas, the petitioner's son is stated to have developed a private pathway rising from the Jahama-Kanispora Link Road and running abreast the aforesaid 2 Kanals of land of respondent no.2 herein. With a view to further developing and widening his aforesaid private pathway, the petitioner's son is stated to have also purchased a 2½' wide strip of land from one Irfan Ahmad Sofi son of Abdul Qayoom Sofi resident of Azad Gunj, Baramulla. The said pathway is now stated to be of the dimension of 150' x 12½'.
8. It is averred that in the year 2013 the petitioner's son, with a view to securing his private property, started erecting a gate at the entry of the said private pathway. Respondent no.1 filed a suit for perpetual injunction against the petitioner herein on 16.08.2013 before Sub-Judge, Baramulla, that the defendant should not erect a gate in front of the suit land. Respondent no.1 in paragraphs 1 and 2 of his aforesaid suit averred as under:
"1. That one Gh. Ahmad Chopan of Kanispora was possessing the land consisting of 06 kanals 14 marlas under Survey no.2619/1762 situated at Kanispora Baramulla and this owner alienated 02 kanals alongwith a road consisting of 10 feet in width, 150 feet in length consisting of 05 marla from this survey Owp 808/2017 5|Page number and this alienee - Mohammad Akbar Moon was inducted in its possession along with the right of path of ingress and egress. This alienee - Mohammad Akbar Moon constructed his residential house on it and was using this path for egress and ingress without any hindrance and obstructions from any quarter.
2. That this alienee - Mohammad Akbar Moon by virtue of an Agreement to sell drawn on 26.06.2012 alienated (sold) this residential house alongwith land appurtenant to it and this path reserved for egress and ingress to the plaintiff. This path is herein after referred as suit land. The plaintiff who is inducted in its possession along with this suit land and the suit land was and is being used by the plaintiff. Though as a matter of fact in the revenue records, this entry of path has not still being (sic) entered in the revenue record but as a matter of fact the plaintiff is using the suit land for his egress and ingress purposes as he has no other alternative path for such egress and ingress."
9. Alongwith the aforesaid suit, the plaintiff-respondent no.1 herein, also filed an application seeking a temporary restraint against the defendant-petitioner from erecting the gate in front of the suit land.
10. On 22.10.2013, Mohammad Akbar Moon, respondent no.2 herein, filed an application for arraying him as party-plaintiff no.2 in the suit on the ground that he was temporarily putting up in the structure as a licensee. In paragraph 6 of that application, respondent no.2 stated as under:
"6. Whereas the applicant has alienated his residential house along with the compound with the suit land, which was vested in him by the organ (sic) owner Ama Chopan and same rights of ownership of enjoying of path stands transferred by the applicant to the present plaintiff by virtue of agreement to sell dated 26/06/2012. Photo state copy of that document has already been produced before this Hon'ble court by the plaintiff along with the original suit."
Owp 808/2017 6|Page The order dated 10.03.2014 recorded in the minutes maintained on the original file reads that Mohammad Akbar Moon son of Ghulam Qadir Moom has been arrayed as party plaintiff vide order dated 26 th of November 2013, though there is no such order passed by the trial court on the said date, or on any other date, on the application for impleadment. Be that as it may, the defendant in the suit, i.e., the petitioner herein filed his written statement in the suit on 16.12.2014.
11. The learned trial court, thereupon, after hearing the learned counsel for the parties and considering the matter, rejected the application for temporary injunction filed by the plaintiff-respondent no.1 by his order dated 07.05.2015.
12. Respondents 1 and 2 herein challenged the aforesaid order dated 07.05.2015 in appal filed before the learned Principal District Judge, Baramulla, on 08.05.2015, and the appellate court ordered issue of notice to the respondent therein, namely, the petitioner herein, who caused his appearance through Advocate in the appeal on 29.06.2015.
13. During the pendency of the aforesaid appeal, Mohammad Akbar Moon, respondent no.2 herein, who was the plaintiff in the earlier suit titled Mohammad Akbar Moon v. Ahmad Chopan, instituted on 21.07.1994 and decided/decreed on 03.08.1994 pursuant to compromise deed dated 03.08.1994, as well as and appellant no.2 in the aforesaid appeal, filed an application on 08.09.2015 before the Principal District Judge, Baramulla, under Section 152 CPC seeking correction in the decree, claiming that due to clerical omission and slip, the decree had not been prepared as per the composition deed between the parties in that suit, and prayed therein as under:
Owp 808/2017 7|Page "It is under these circumstances prayed that this application u/s 152 CPC is being filed for amendment and correction of decree sheet and the decree sheet now should include the path of 10 feet mentioned in the compromise substantiated by the statement of plaintiff be ordered to be passed. Attested copy of the compromise and the decree sheet along with affidavit are enclosed with."
14. The Principal District Judge, Baramulla, disposed of the above said application filed under Section 152 CPC by order dated 29.09.2015, without notice to the defendant in that suit or to the person presently claiming ownership of the strip of land and interlocked in litigation concerning thereto with the applicant, Mohammad Akbar Moon. The order so passed by the appellate court is quoted hereunder:
"This application is pending disposal before this court, where in as per compromise deed this court has passed the decree in File o.180, Date of institution 21.7.1994 and date of decision 3.8.1994, but have missed the important fact that the plaintiff will be entitled to use the path way for ingress and egress from the suit land to the extent of 10 feet in width falling under Survey No.1762 i.e. as per the compromise arrived at between the parties. This important aspect is missed in the decree, therefore a fresh necessary correction in the decree is made and the decree is to be drawn a fresh, wherein the compromise shall also form part of the decree i.e. to the extent of pathway mentioned in the compromise including the suit land consisting of 2 kanals.
Application is disposed of and be consigned to records after its due completion."
15. This Court called for the original record of the aforesaid earlier suit titled Mohammad Akber Moon v. Ahmad Chopan, instituted on 21.07.1994 and decided on 03.08.1994, as also the record of the application filed by Mohammad Akber Moon under Section 152 CPC on 08.09.2015. What is transpired from a perusal of the said record would be Owp 808/2017 8|Page referred to later in this judgment. At this stage it would suffice to say that a naked eye examination of the compromise deed suggests that there has been an interpolation made therein to insert the words ' ', i.e., 'with right of way 10'', at the end of the first sentence of its second paragraph on the margin.
16. After passing the aforesaid order dated 29.09.2015 in the application under Section 152 C PC, the Principal District Judge, Baramulla, decided the appeal filed by the respondents herein against the order dated 07.05.2015 of Sub-Judge, Baramulla, by the impugned order dated 23.04.2016. It is curious to note that the appellate court, while deciding the appeal, has not only referred to and relied on the aforesaid order dated 29.09.2015 passed by it in the application under Section 152 CPC which had been moved by respondent no.2 herein in the suit 19 years after it had been decreed, but has furnished its justifications and reasons as to its maintainability and permissibility in the impugned order. The relevant portion, i.e., the penultimate paragraph of the order is quoted hereunder:
"This court as an appellate court cannot lose its sight on certified copy of compromise and decree sheet entitled 'Mohmad Akbar Moon v/s Ahmad Chopan and anr' under file no.180 passed by the court on 21-7-94, where under in compromise the defendants of the suit Ahmad Chopan and others accepts and admits the ownership and possession of the appellant no.2 of the present appeal over the land measuring 2 Kanals under survey no.1762 min and path 10 feet in width i.e., subject matter of suit, and this court while drawing the decree sheet through the concerned clerk who committed the mistake in not writing the path 10 feet in width under the ownership and possession. As the mistake and error was clerical so the appellant no.2 got it corrected under section 152 of CPC which is free from the bounds of limitation, the effected can move at Owp 808/2017 9|Page any time, likewise the application was filed and same was granted on 29-9-2015."
It is important to observe here that the petitioner herein was not a party to the aforesaid suit of 1994. He was also not impleaded as a party in the application under section 152 CPC, nor was any notice issued to him therein. Since the Court of Principal District Judge, Baramulla, was seized of the appeal involving the very same stretch of land, which was sought to be incorporated in the decree dated 03.08.1994 in exercise of the powers under Section 152 CPC, the applicant-respondent no.2 was legally obliged to implead the petitioner herein as party in the application and/or to bring this vital fact to the notice of the court that this strip of land was the subject matter of dispute in the appeal pending before the Court. This has not been done; instead the applicant, who had also got himself impleaded as plaintiff no.2 in the suit and was appellant no.2 in the appeal pending before the learned Principal District Judge, has acted surreptitiously and obtained the order by playing deceit. And it is unfortunate on the part of the appellate court below that it has relied upon the said order while deciding the appeal. The above quoted order also strongly suggests that the Principal District Judge, while deciding the application under section 152 CPC, was conscious of the parallel proceedings pending before it in the shape of the appeal arising from a different suit concerning the very same subject matter, primarily, between different parties, yet he has not chosen to decide the application without notice to the person who was interested in, and succeeded to the property in question. This has resulted in gross and manifest failure of justice and the basic principles of natural justice have been grossly flouted. This is one aspect of the matter.
Owp 808/2017 10 | P a g e
17. Perusal of the record of the plaint in the suit titled Mohammad Akber Moon v. Ahmad Chopan, File no.180/Numbri, instituted on 21.07.1994 and decided on 03.08.1994, reveals that the plaintiff therein had not made mention of, or claimed any pathway. The suit only related to 2 Kanals of land comprised in Khasra no.1762 min. There is not even a whisper made in the plaint about any pathway, muchless the pathway in question. The extract of revenue record, viz. Khasra Girdawari, attached by the plaintiff, Mohammad Akber Moon, with the plaint to support his claim of ownership and possession of 2 Kanals of land also mentions only 2 Kanals of land comprised in Khasra no.1762/min; it does not mention, even faintly, anything about the pathway. The statements of the Advocate, the defendant - Ahmad Chopan, and one witness Ghulam Mohi-ud-Din, recorded in support of the composition deed simply say that contents of compromise deed are true and correct. None of them describes the property, or mentions the pathway. The first paragraph of the compromise deed dated 03.08.1994, signed and filed by the parties to the suit, also admits the suit of the plaintiff to the extent of 2 Kanals of land comprised in Khasra no.1762/min. The second paragraph constitutes the prayer clause. There appears to be a tampering having taken place therein, inasmuch as the words "mi haqi rasta 10'" seem to have been interpolated at the end of the first line of the second para of the compromise document on the margin which, though appear to be by the same hand, are distinct and different in the intensity of the darkness of the ink from rest of the contents of the deed as well as by reason of their misfit and misarrangement in the sentence between the words mentioning the extent of land '2 kanal', where the figure '2' is written in Kashmiri and the words 'do kanal' within brackets where the word 'two' is written in Urdu, Owp 808/2017 11 | P a g e which two terms otherwise ought to occur consecutively, for instance like '2 kanals (two kanals)'. It is on the basis of this entry viz. "mi haqi rasta 10'" which is doubtful and apparently having been made in the compromise decree after the suit had been decreed and the decree sheet had been drawn that the correction in the decree sheet dated 03.08.1994 had been sought and allowed in exercise of the inherent powers of the court under Section 152 CPC in September, 2015, almost 19 years of the passing of the decree and at the back of the person now claiming to be holding title to and interested in the strip of land in question. This is a very serious matter. But for these words, the appellate court below would not have the jurisdiction to correct the decree on the grounds envisaged by Section 152 CPC.
18. In light of the above, I think this is a fit case where this Court in exercise of its power of superintendence under Section 104 of the Constitution of Jammu and Kashmir should take notice of the matter suo sponte and suo motu for appropriate action. It may be mentioned here that in Shalini Shyam Shetty v Rajendra Shankar Patil (supra), the Supreme Court has laid down that power under Article 227 can be invoked by the High Court suo motu as a custodian of justice, and that the object of superintendence under this Article, 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, and that the power of interference 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.
Owp 808/2017 12 | P a g e
19. Since the impugned order dated 23.04.2016 is mostly founded on, and/or support therefor is derived by the appellate court from the order dated 29.09.2015 passed by it in the application under Section 152 CPC, moreso at the back of the petitioner herein who, according to his stand, had succeeded to the title thereto and, thus, the matter involved third party interest, it cannot be sustained in the eyes of law. It, therefore, is set aside.
20. As this Court is prima facie convinced that there appears to be an interpolation/insertion made in the composition deed dated 03.08.1994 to the extent indicated above, the truth of the matter needs to be delved into, therefore, taking a suo sponte and suo motu action in the matter concerning thereto, the Principal District Judge, Baramulla, is directed to file an FIR before the Police concerned in this regard for investigation. The Principal District Judge shall submit quarterly progress reports of the police investigation before the Registrar Judicial of the Court, who in turn shall place the same before this Court for perusal alongwith the index to be maintained as hereinafter provided.
21. In light of the above, coupled with the fact that application under section 152 CPC has been decided without notice to the successor in interest in the land in question, namely, the petitioner herein, the order passed by the learned District Judge, Baramulla, therein, which has resulted in gross failure of justice, is set aside. The said application shall be re-heard after notice to the persons interested in the property, and subject to the outcome of the Police investigation.
22. Insofar as this petition is concerned, it is disposed of alongwith the connected CMP. The appeal shall be re-heard by the learned Principal Owp 808/2017 13 | P a g e District Judge, Baramulla, subject to the outcome of the Police investigation.
23. The Registry shall maintain a separate Index, registering it as suo motu, and place a photocopy of this order on that file together with the photocopies of all the pages of the civil original suit no.180/Numbri titled Mohammad Akbar Moon v Ahmad Chopan, filed on 18.07.1994 and decided on 03.08.1994; photocopies of the application filed by Mohammad Akbar Moon under Section 152 CPC and the order dated 29.09.2015 passed therein by the Principal District Judge, Baramulla; as well as the photocopy of the order dated 23.04.2016 passed by the Principal District Judte, Baramulla, in miscellaneous appeal no.06 titled Wali Mohammad Sofi & anr. v Wali Mohammad Kirmani. Reports on the progress of investigation shall be placed on this file from time to time.
24. The Registry is directed to return the original records of the Court of Principal District Judge, Baramulla, against proper receipt. In this regard, the Registry may call the concerned staff members of that Court to receive the records in the Registry. Similarly, the record of the original suit, file no.25/Numbri of the Court of Sub-Judge, Baramulla, be also returned to that court in the same manner and against proper receipt.
25. The parties are directed to appear before the trial court on 28.05.2018.
(Ali Mohammad Magrey) Judge Srinagar, 15.05.2018 Syed Ayaz, Secretary Owp 808/2017 14 | P a g e