Jammu & Kashmir High Court - Srinagar Bench
Shameema vs State Of Jammu And Kashmir & Ors on 6 April, 2023
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
OWP No. 2396/2018
Reserved On: 14th of March, 2023
Pronounced On: 6th of April, 2023
Shameema
... Petitioner(s)
Through: -
Mr Aqib Aijaz, Advocate.
V/s
State of Jammu and Kashmir & Ors.
... Respondent(s)
Through: -
Mr Sajjad Ashraf Mir, GA for R-1 to 5;
Mr Shahbaz Sikander Mir, Advocate for R-6; and Mr G. A. Lone, Advocate with Mr Mujeeb Andrabi, Advocate for R-7.
CORAM:
HON'BLE MR JUSTICE M. A. CHOWDHARY, JUDGE.
(JUDGMENT)
01. In this Petition, the Petitioner has sought the indulgence of this Court in recalling the final Order dated 11th of October, 2018 passed in OWP No. 1063/2017 filed by the Petitioner earlier in point of time, whereby the said Petition stands dismissed. Simultaneously, the Petitioner is also seeking a direction in the name of the Respondents thereby refraining them to give effect to the said final Order dated 11th of October, 2018 passed by the Court.
02. The case set up by the Petitioner is that the Respondent No.7, way back in the year 2014, applied for repairs/ renovations of his two storeyed house situated at Sonwar Bazar, behind Cantonment Shopping Complex which was approved by the Cantonment Board in December, 2014, with a rider that the repairs/ renovations shall be done without making any addition, alteration or any new construction on spot. It is stated that the Respondent No.7, instead of carrying out the said repairs of his Page 2 of 8 OWP No. 2396/2018 existing house, started constructing a five storeyed house, which constrained the Petitioner to approach the concerned authorities for initiation of appropriate proceedings against the Respondent No.7 as warranted under law and, in response thereto, the Cantonment Board is stated to have issued notice under Section 239 of the Cantonment Act, 2006 to the Respondent No.7. Despite the issuance of the aforesaid notice, it is contended that the Respondent No.7 continued with his illegal constructional activities on spot, compelling the Petitioner to file Writ Petition bearing OWP No. 1063/2017 before this Court. In the said Writ Petition, in terms of Order dated 26th of July, 2017, a direction for maintenance of status quo was passed. However, on 11th of October, 2018, the said Writ Petition came to be dismissed on merits in absence of the Counsel for the Petitioner. It is this Order dated 11th of October, 2018 that is sought to be recalled by the Petitioner through the medium of the instant Petition.
03. In their Objections, the Respondent Nos. 3 and 4/ Tourism Department have submitted that as per the available records, the Respondent No.7 has not applied to the Department for registration of any Hotel or Guest House and, as such, no cause of action has accrued to the Petitioner to file the Writ Petition as against the answering Respondents.
04. The Respondent No.7 has also filed his Objections in opposition to the Writ Petition, stating therein that the present Petition clearly amounts to abuse of the process of law inasmuch as the decision rendered by this Court on merits in the earlier Writ Petition filed by the Petitioner cannot be put to challenge through the medium of another Petition, as has been wrongly done by the Petitioner in the instant case. It is further stated that the earlier Petition filed by the Petitioner was dismissed on merits on 11th of October, 2018, when the Petitioner and her Counsel failed to appear before the Court on 10th of October, 2018 to pursue and argue the case and even the case was kept on board for hearing, but despite that the Petitioner or her Counsel did not turn up on that date too. It is pleaded that the absence of the Petitioner and her Counsel is not justified Page 3 of 8 OWP No. 2396/2018 despite having knowledge of the listing of the case and that the Court has rightly dismissed the Writ Petition after taking into consideration the material on record.
05. Mr Aqib Aijaz, the learned Counsel appearing for the Petitioner, submitted that the dismissal of the earlier Writ Petition filed by the Petitioner in absence of her Counsel has resulted in gross miscarriage of justice and that the Petitioner has been made to suffer the consequences of such an Order passed without her or her Counsel's knowledge. He has argued that Rule 138 of the High Court Rules provides that the cases shall be decided after hearing, which connotes hearing on both sides as hearing is sine qua non for pronouncement of Judgment. He further argued that since Writ Proceeding Rules or the High Court Rules are silent as to whether the dismissal for non-prosecution or on merits, provision of Code of Civil Procedure is to be resorted, to recall the Judgment in terms of Order 9 of Civil Procedure Code. He has relied upon the law laid down by the Apex Court in cases reported as: 1987 AIR 88; AIR 1977 SC 1348; 2019 (3) SCC 203; and AIR 1963 SC 1909 to buttress his point.
06. Mr G. A. Lone, the learned Counsel for the Respondent No.7, submitted that the present Petition is not maintainable in law as the Petitioner cannot be allowed to file another Writ Petition for challenging the Order of dismissal passed by the Court in the earlier Writ Petition filed by the Petitioner. It is further submitted that the Court, while passing the Order dated 11th of October, 2018, of which recall is sought by the Petitioner, has considered the material on record, including the Petition and the annexures appended therewith as also the Reply Affidavit filed by the Respondents and decided the Petition on merits, which cannot be challenged by filing another Writ Petition. Mr Lone argued that the Order passed earlier can be recalled to correct a grave mistake or injustice only and that the Petitioner has failed to make out any such case. The ground for recalling that the Petitioner's Counsel has not appeared in view of suspension of work by the Bar Association on a date previous to the date of the decision of the case is neither factually correct nor tenable. He has argued that there is express bar Page 4 of 8 OWP No. 2396/2018 provided under Section 141 of the Code of Civil Procedure for application of provisions of Code of Civil Procedure (CPC) to Article 226 Writ Petitions.
07. Heard learned Counsel for the parties, perused the pleadings on record and considered the matter.
08. The question that arises for consideration of this Court, in this Petition, is whether the Writ Petition seeking recall of Order of dismissal passed in the earlier Writ Petition is maintainable or not.
09. At the outset, it shall be advantageous to go through the operative paragraphs of the Order impugned passed by the Court in the earlier Writ Petition filed by the Petitioner, which read thus:
"05. The Petition of the petitioner raises disputed questions of the facts and has a civil flavour in it for which the husband of the petitioner knocked at the portals of the civil Court, where he filed a suit for declaration, partition, possession, permanent and mandatory injunction, as is brought to the fruition from the perusal of Annexure-R4 attached to the objections of the respondent No.7. The civil Court, after taking an overall view of the matter, dismissed the application of the husband of the petitioner seeking injunction against the respondent No.7. Since the husband of the petitioner is already pursuing a civil remedy before the civil Court regarding the same subject matter, there appears to be no reason for her to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu & Kashmir. It may be added here that the case of the petitioner is that the Badamibagh Cantonment Board accorded permission in favour of the respondent No.7 for repairs of the building that got damaged in the devastating floods that rocked the Valley of Kashmir in the month of September, 2014. Had the respondent No.7 done anything wrong, the Cantonment Board would have availed the remedy for undoing it and would not have acted as a mute spectator.
06. In view of the preceding analysis, there is no merit in the petition of the petitioner. It entails dismissal, as a corollary to which, the same is dismissed, along with all connected MP(s).
Interim directions, if any, in force as on date, shall stand vacated."
10. The matter on hand is required to be considered in view of the law laid down by the Apex Court, as cited by both the sides to canvass their contentions.
Page 5 of 8 OWP No. 2396/201811. The Hon'ble Apex Court, in a case titled 'Shivdeo Singh & Ors. v. State of Punjab & Ors.', reported as '1963 AIR (SC) 1909', in Paragraph No.8, has held as under:
"8. The other contention of Mr. Gopal Singh pertains to the second order of Khosla, J., which in effect, reviews his prior order. Learned counsel contends that Art. 226 of the Constitution does not confer any power on the High Court to review its own order and, therefore, the second order of Khosla, J., was without jurisdiction. It is sufficient to say that there is nothing in Art. 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Here the previous order of Khosla, J., affected the interests of persons who were not made parties to the proceeding before him. It was at their instance and for giving them a hearing that Khosla' J. entertained the second petition. In doing so, he merely did what the principles of natural justice required him to do. It is said that the respondents before us had no. right to apply for review because they were not parties to the previous proceedings. As we have already pointed out, it is precisely because they were not made parties to the previous proceedings, though their interests were sought to be affected by the decision of the High Court, that the second application was e entertained by Khosla, J."
12. In case titled 'Jaipur Mineral Development v. The Commissioner of Income Tax', reported as 'AIR 1977 SC 1348', at Paragraph No.5, the Supreme Court has observed as under:
"5. A party or its counsel may be prevented from appearing at the hearing of a reference for a variety of reasons. In case such a party shows, subsequent to the order made by the High Court, declining to answer the reference, that there was sufficient reason for its non-appearance, the High Court, in our opinion, has the inherent power to recall its earlier order and dispose of the reference on merits. We find it difficult to subscribe to the view that whatever might be the ground for non-appearance of a party, the High Court having once passed an order declining to answer the question referred to it because of the non-appearance of that party, is functus officio or helpless and cannot pass an order for disposing of the reference on merits. The High Court in suitable cases has, as already mentioned, inherent power to recall the order made in the absence of the party and to dispose of the reference on merits. There is nothing in any of the provisions of the Act which, either expressly or by necessary implication, stands in the way of the High Court from passing an order for disposal of the reference on merits. The courts have power, in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the court. To hold otherwise would result in quite a number of cases in gross miscarriage of justice. Suppose, for instance, a party proceeds towards the High Court to be present at the time the reference is to be taken up for hearing and on the way meets with an accident. Suppose, further, in Page 6 of 8 OWP No. 2396/2018 such an event the High Court passes an order declining to answer the question referred to it because of the absence of the person who meets with an accident. To hold that in such a case the High Court cannot recall the said order and pass an order for the disposal of the reference on merits, even though full facts are brought to the notice of the High Court, would result in obvious miscarriage of justice. It is to meet such situations that courts can exercise in appropriate cases inherent power. In exercising inherent power, the courts cannot, override the express provisions of law. Where however, as in the present case. there is no express or implied prohibition to recalling an earlier order made because of the absence of the party and to directing the disposal of the reference on merits, the courts, in our opinion, should not be loath to exercise such power provided the party concerned approaches the court with due diligence and shows sufficient cause for its non-appearance on the date of hearing."
13. In case titled 'Sarguja Transport Service v. State Transport Appellate Tribunal', reported as '1987 AIR 88', the Supreme Court has held as under:
"...
The provisions of the Code of Civil Procedure. 1908 (hereinafter referred to as 'the Code') are not in terms applicable to the writ proceedings although the procedure prescribed therein as far as it can be made applicable is followed by the High Court in disposing of the writ petitions. Rule 1 of Order XXIII of the Code provides for the withdrawal of a suit and the consequences of such withdrawal."
14. In case titled 'Municipal Corporation of Greater Mumbai & Anr. v. Pratibha Industries Ltd. & Ors.', reported as '2019 (3) SCC 203', at Paragraph No.11, it has been held by the Apex Court as under:
"11. Insofar as the High Courts' jurisdiction to recall its own order is concerned, High Courts are courts of record, set up under Article 215 of the Constitution of India. Article 215 of the Constitution of India reads as under:-
"Article 215. High Courts to be courts of record--
Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself." It is clear that these constitutional courts, being courts of record, the jurisdiction to recall their own orders is inherent by virtue of the fact that they are superior courts of record. This has been recognized in several of our judgments."
15. The afore-stated cases were cited by the learned Counsel for the Petitioner. In Shivdeo Singh's case (supra), the order had been recalled Page 7 of 8 OWP No. 2396/2018 in a subsequent Petition at the instance of a third party, not being party in the earlier Petition but affected by the order passed therein. In Jaipur Mineral Development's case (supra), the issue was recalling of an order not being on merits. In Sarguja Transport Service' case (supra), the issue was withdrawal of a Petition in terms of Rule 1 of Order XXIII of the Code of Civil Procedure (CPC), though provisions of the Code being not applicable to Writ proceedings. In Municipal Corporation' case (supra), the jurisdiction to recall was held as inherent in High Courts being Courts of record. The facts of all these cases are distinguishable to those involved in the present case, inasmuch as, in none of the aforesaid cases, it was held that order/ Judgment passed by the High Court in Writ proceedings, on merits, be recalled having been passed in absence of any party.
16. The learned Counsel for the Respondent No.7 has relied upon the laid down in case titled 'Puran Singh & Ors. v. State of Punjab & Ors.', reported as '(1996) 2 SCC 205'. The Apex Court, in Paragraph No.10, has held as under:
"10. On a plain reading, Section 141 of the Code provides that the procedure provided in the said Code in regard to suits shall be followed "as far as it can be made applicable, in all proceedings". In other words, it is open to make the procedure provided in the said Code in regard to suits applicable to any other proceeding in any court of civil jurisdiction. The explanation which was added is more or less in the nature of proviso, saying that the expression "proceedings" shall not include any proceeding under Article 226 of the Constitution. The necessary corollary thereof shall be that it shall be open to make applicable the procedure provided in the Code to any proceeding in any court of civil jurisdiction except to proceedings under Article 226 of the Constitution. Once the proceeding under Article 226 of the Constitution has been excluded from the expression "proceedings" occurring in Section 141 of the Code by the explanation, how on basis of Section 141 of the Code any procedure provided in the Code can be made applicable to a proceeding under Article 226 of the Constitution? In this background, how merely on basis of Writ Rule 32 the provisions of the Code shall be applicable to writ proceedings? Apart from that, Section 141 of the Code even in respect of other proceedings contemplates that the procedure provided in the Code in regard to suits shall be followed "as far as it can be made applicable". Rule 32 of Writ Rules does not specifically make provisions of Code applicable to petitions under Articles 226 and 227 of the Constitution. It simply says that in matters for which no provision has been made by those rules, the Page 8 of 8 OWP No. 2396/2018 provisions of the Code shall apply mutatis mutandis in so far as they are not inconsistent with those rules. In the case of Rokyayabi v. Ismail Khan, AIR 1984 Karnataka 234, in view of Rule 39 of the Writ Proceedings Rules as framed by the Karnataka High Court making the provisions of Code of Civil Procedure applicable to writ proceedings and writ appeals, it was held that the provisions of the Code were applicable to writ proceedings and writ appeals.
17. Since, the Petitioner has filed this Writ Petition in terms of Article 226 seeking recall of the Order passed in her absence, on merits, against the express bar envisaged in explanation to Section 141 of the Code of Civil Procedure that the provisions of the Code shall not be applicable to the Petitions under Article 226, the present Petition, in view of the provision having been interpreted by the Apex Court in Puran Singh's case (supra), is not maintainable.
18. Having regard to the above observations made and in view of the enunciations of law as discussed hereinabove, this Petition is found to be not maintainable. Therefore, the same is dismissed, along with the connected CMs. Interim direction(s), if any subsisting as on date, shall stand vacated.
(M. A. CHOWDHARY) JUDGE SRINAGAR April 6th, 2023 "TAHIR"
i. Whether the Judgment is speaking? Yes/ No.
ii. Whether the Judgment is reportable? Yes/ No.