Mehraj-Ud-Din Wani vs Jk State Coop. Bank Ltd on 14 May, 2018

[Cites 40, Cited by 0]

Jammu & Kashmir High Court - Srinagar Bench

Mehraj-Ud-Din Wani vs Jk State Coop. Bank Ltd on 14 May, 2018

Bench: M. K. Hanjura

      HIGH COURT OF JAMMU AND KASHMIR
                 AT SRINAGAR

OWP No. 464/2012
                                                       Date of Order: 14th May, 2018
                                Mehraj-ud-din Wani
                                        Vs.
                              JK State Coop. Bank Ltd.
Coram:
           Hon'ble Mr Justice M. K. Hanjura, Judge
Appearance:

For petitioner(s): Mr G.A. Lone, Advocate.
For respondent(s): Mr. B.A Dar. Sr. AAG

Mr. Moomin Khan, Advocate.

i/    Whether to be reported in               Yes/No
      Press/Media?
ii/   Whether to be reported in               Yes/No
      Digest/Journal?

1. By the medium of this petition, filed under Section 104 of the Jammu and Kashmir State Constitution, the petitioner has sought the indulgence of this Court in setting aside the judgement dated 31.03.2012, passed by the learned Addl. District Judge, Srinagar, dismissing the appeal Nos. 15 & 16 of 2012 and the order dated 17.11.2011, passed by the Court of the learned First Addl. Munsiff, Srinagar, in case titled Zahoor Ahmad and Another v. Mehra-ud-Din and the order dated 29.11.2011, passed by the Court of the learned First Subordinate Civil Judge, Srinagar in case titled Mehraj-ud-Din v. Zahoor Ahmad and Others.

2. The facts culled out from the petition of the petitioner are that the petitioner is in possession of entire first and 2nd floors and a room, along with an open space measuring 2ft x 9.6ft in area located in the building situated at Amira OWP No. 464/2012 Page 1 of 22 Kadal, Lal Chowk, Srinagar. The parcels of the aforesaid building is in possession of the petitioner for more than 27 years.

3. It is further stated by the petitioner that the plaintiffs/respondent Nos. 3 & 4 filed a suit for permanent injunction in the Court of the learned Principal District Judge, Srinagar, to desist him from interfering with the shop on the front side of the same building in the ground floor having the carpet area of 839 sqft, which shop was claimed to have been obtained by them on lease from J&K Central Bank Ltd. Srinagar. The said suit came to be transferred by the Court of the learned Principal District Judge, Srinagar, to the Court of learned First Additional Munsiff, Srinagar, who passed an order of interim injunction in the suit against the petitioner. The plaintiffs/respondent Nos. 3 & 4 herein, on the basis of that injunction order, started interference into the room, the bathroom and the latrine block and in the open space which has been in the possession of the petitioner for more than two decades. The petitioner filed an application for vacation of the interim order passed in the suit in ex-parte on 07.06.2011 but the trial Court refused to vacate the same. The plaintiffs/respondent Nos. 3 & 4 herein have taken advantage of the order passed by the trial Court and demolished the wall, which separated the shop claimed to have been obtained on lease by them and the room which was in possession of the petitioner in the ground floor. Thus, the room was illegally annexed with the shop. The plaintiffs / respondents, it is further stated, also opened two doors of their shop towards the open space with a view to prefer a claim of user over the open space.

4. It is further stated that the petitioner filed two appeals against the order of the learned Addl. Munsiff, Srinagar and Sub Judge, Munsiff Magistrate, Srinagar, in the appellate Court. However, the appellate Court surpassed his jurisdiction while dismissing the appeals filed by the petitioner by holding that user of the plaintiffs/respondent Nos. 3 & 4 over the open space cannot be excluded.

OWP No. 464/2012 Page 2 of 22

5. In the objections, the plaintiffs/respondent Nos. 3 & 4 have resisted and controverted the petition of the petitioner on the grounds, inter alia, that the petitioner is a Rank Trespasser and has illegally occupied some rooms/space in the 1st and 2nd floor of the suit building. That being so, a trespasser cannot, in law, have a right to file a suit or writ against a true owner or any one claiming for and on his behalf. The petitioner is laying claim to have occupation of some space in the 1st and 2nd floor on the strength of some Deed of Declaration purported to have been executed in his favour by some President, State Central Labour Union, in the year 1986, which Deed is just a scratch of paper having no legal sanctity attached to it for multiple legal reasons including the one as to whether the President, State Central Labour Union was having any competence and power to draw the said document in any capacity, when he was not the owner of the building. Secondly, what is the locus of the petitioner in holding the said premises as no rent and/or occupation charges are being paid by him to any person including the owners, i.e., the respondent Nos. 1 & 2. Nothing is discernible to that effect from the pleadings contained in the writ petition. In pursuance of the Lease Deed executed by the respondent Nos.1 & 2 as the landlords/owners of the demised premises, in favour of the answering respondents, duly registered by the Court of law, they are the lessees of the space, which includes the shop measuring 830 sqft. It is also submitted that the demised premises/shop measuring 830 Sqft. continued to have been in lawful occupation of the lessees/tenants constituting the firm M/s Diamond Motors Service, for more than seven decades, who used to pay rentals towards the respondent Nos.1 & 2 in acknowledgement of the lawful possession over the premises. Therefore, it can safely be said that the petitioner is a rank trespasser having no legal right or otherwise to hold the premises in the 1 st & 2nd floor of the building. The petitioner in fact has taken undue advantage of being in print media and has thereby exploited his position to the hilt and has tried to lay claim on the space in the ground floor of the building on the backside of the shop OWP No. 464/2012 Page 3 of 22 which is in the exclusive and absolute possession of the answering respondents and/or predecessors in interest, i.e. tenants, since long. In fact, the space in the ground floor, i.e. shop and the open space, behind it is exclusively occupied by the answering respondents as its lawful tenants, recognized by the respondent Nos.1 & 2, on which space the petitioner has tried to lay his claim and has thereby tried to forcibly and illegally occupy the same, constraining the respondents to approach the Court of Law and file a suit against him. The Revenue excerpts referred to also do not clothe the petitioner with any right to lay claim on a property which does not belong to him in any manner. The deed or declaration does not in any manner vest him with any right and the same has been simply reiterated in the revenue excepts by way of a simple note which implies that the deed of declaration has been simply reflected in the note in the revenue excepts.

6. It is further submitted in the objection that the petitioner had filed an application for vacation of ex-parte injunction order dated 07.06.2011, which was dismissed vide order dated 17.11.2011. The petitioner had also filed two appeal bearing Nos. 15 & 16 of 2012 before the Court of the learned Additional District Judge, Srinagar, against the orders of the Court below, who after applying his mind to the facts and circumstances of the case, came to the conclusion that the appeals are without any merit and, accordingly, dismissed the same by order dated 31.03.2012.

7. It is further submitted that the Courts below after taking into consideration the Deed of Declaration, revenue excerpts and the other available material came to the irresistible conclusion that the petitioner has no case muchless a prima facie one. The documents, referred to by the petitioner, have absolutely no footing and all the documents referred to are bereft of any legal sanctity. The petitioner cannot expect the Court to lean in his favour, when he himself has no locus standi to call in question the status of answering respondents qua the OWP No. 464/2012 Page 4 of 22 premises legally held by them. The trespasser in law is not allowed to file a case against the true owner and/or any persons claiming for and on his behalf. In the end it has been pleaded that the petition of the petitioner is not maintainable and is liable to be dismissed.

8. In their objections, the respondent Nos. 1 & 2 have contended that the petition of the petitioner is liable to be dismissed on the ground that the whole building in question is the property of J&K State Cooperative Bank and he is a trespasser. The petitioner is a so called journalist and has occupied the premises/part of the building illegally during the period when there was law and order problem in the State of J&K, particularly in the Kashmir valley.

09. Heard and considered.

10. Without adverting to the contentious issues and controversy emanating from the case set up by the parties and given the submissions and counter- submissions made by the learned counsel for the parties, it is imperative to have a discourse qua maintainability of the petition on hand preferred by the petitioners under and in terms of Section 104 of the Constitution of Jammu and Kashmir State, which is pari materia to Article 227 of the Constitution of India. Section 104 of the J&K Constitution envisages:

"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 foregoing 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 courts.

(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:

OWP No. 464/2012 Page 5 of 22

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."

12. Article 227 of the Constitution of India provides:

"227. Power of superintendence over all Courts by the High Court:

(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction (2) Without prejudice to the generality of the foregoing provisions, 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; and

c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts (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 clause ( 2 ) or clause ( 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 (4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces"

12. Article 227 of the Constitution confers on every High Court the power of the superintendence over all the courts and the tribunals throughout the territories in relation to which it exercises jurisdiction excepting any court or tribunal constituted by or under any law relating to the armed forces. Without prejudice to the generality of such power, the High Court has been conferred with certain specific powers by the sub-Articles (2) and (3) of the Article 227. It is well-settled that the power of the superintendence, so conferred on the High Court, is administrative as well as the judicial and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The paramount consideration behind vesting such wide power of the superintendence in the High Court is paving the path of justice and removing any obstacles OWP No. 464/2012 Page 6 of 22 therein. The power under Article 227 is wider than the one conferred on the High Court by Article 226 of the Constitution of the India, in the sense that the power of the superintendence is not subject to those technicalities of the procedure or the traditional fetters which are to be found in certiorari jurisdiction. Else the parameters invoking the exercise of power are almost similar.

13. The history of supervisory jurisdiction exercised by the High Court, and how the jurisdiction has culminated into its present shape under Article 227 of the Constitution, was traced in Waryam Singh & Anr. v. Amarnath & Anr. AIR 1954 SC 215. The jurisdiction can be traced back to Section 15 of the High Courts Act, 1861, which gave a power of the judicial superintendence to the High Court, apart from and independently of the provisions of the other laws conferring the revisional jurisdiction on the High Court. Section 107 of the Government of India Act, 1915, and then Section 224 of the Government of India Act, 1935, were similarly worded and reproduced the predecessor provision. However, sub-section (2) was added in Section 224, which confined the jurisdiction of the High Court to such judgments of the inferior courts which were not otherwise subject to appeal or revision. That restriction has not been carried forward in Article 227 of the Constitution. In that sense Article 227 of the Constitution has width and vigour unprecedented.

14. The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram and Ors. Vs. Smt. Radhikabai and Anr., (1986) Supp. SCC 401. The proceedings under the Article 226 are in exercise of the original jurisdiction of the High Court while the proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of the Section 107 of the Government of India Act, 1915, excepting that the power of the superintendence has been extended by this Article to the tribunals as well. Though the power is akin to that of an ordinary court of the appeal, yet the power under Article 227 is OWP No. 464/2012 Page 7 of 22 intended to be used sparingly and only in appropriate and rarest cases for the purpose of keeping the subordinate courts and the tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in the cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction, which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction, though available, is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction. Same is true as to present case inasmuch as the present case does not fall under the umbrella of the rarest cases.

15. In order to safeguard against a mere appellate or revisional jurisdiction, being exercised in the garb of exercise of supervisory jurisdiction under the Article 227 of the Constitution, the courts have devised self-imposed rules of discipline on their power. Supervisory jurisdiction may be refused to be exercised when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved. The High Court may have regard to the legislative policy formulated on the experience and expressed by the enactments where the Legislature in exercise of its wisdom has deliberately chosen certain orders and proceedings to be kept away from the exercise of the appellate and the revisional jurisdiction in the hope of accelerating the conclusion of the proceedings and avoiding the delay and procrastination, which is occasioned by subjecting every order at every stage of proceedings to the judicial review by way of the appeal or the revision. So long as an error is capable of being corrected by a superior court in exercise of the appellate or the revisional jurisdiction, though available to be exercised only at the conclusion of the proceedings, it would be sound exercise of the discretion on the part of the High Court to refuse to exercise the power of the superintendence under Article 227 of the Constitution of the India during the pendency of the proceedings.

OWP No. 464/2012 Page 8 of 22

16. In Chandrasekhar Singh & Ors. Vs. Siva Ram Singh & Ors., (1979) 3 SCC 118, the scope of jurisdiction under Article 227 of the Constitution came up for consideration of the Supreme Court in the context of Sections 435 and 439 of the Criminal Procedure Code which prohibits a second revision to the High Court against decision in first revision rendered by the Sessions Judge. On a review of earlier decisions, the three-Judges' Bench summed up the position of law as under:

"(i) that the powers conferred on the High Court under Article 227 of the Constitution cannot, in any way, be curtailed by the provisions of the Code of Criminal procedure;

(ii) the scope of interference by the High Court under Article 227 is restricted. The power of superintendence conferred by Article 227 is to be exercised sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors;

(iii) that the power of judicial interference under Article 227 of the Constitution is not greater than the power under Article 226 of the Constitution;

(iv) that the power of superintendence under Article 227 of the Constitution cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory power as the Court of Appeal; the High Court cannot, in exercise of its jurisdiction under Article 227, convert itself into a Court of Appeal."

17. Later, a two-judge Bench of the Supreme Court in Baby Vs. Travancore Devaswom Board & Ors., (1998) 8 SCC 310, clarified that in spite of the revisional jurisdiction, being not available to the High Court, it still had the powers under Article 227 of the Constitution of India to quash the orders passed by the Tribunals if the findings of fact had been arrived at by non-consideration of the relevant and material documents, the consideration of which could have led to an opposite conclusion. This power of the High Court under the Constitution of India is always in addition to the revisional jurisdiction conferred on it.

18. The Constitution Bench in L. Chandra Kumar Vs. Union of India & others, (1997) 3 SCC 261, dealt with the nature of power of judicial review conferred by Article 226 of the Constitution and the power of superintendence OWP No. 464/2012 Page 9 of 22 conferred by Article 227. It was held that the jurisdiction conferred on the Supreme Court under Article 32 of the Constitution and on the High Courts under Articles 226 and 227 of the Constitution is a part of the basic structure of the Constitution, forming its integral and essential feature, which cannot be tampered with muchless taken away even by constitutional amendment, not to speak of a parliamentary legislation.

19. It is interesting to recall the two landmark decisions delivered by the High Courts and adorning the judicial archives. In Balkrishna Hari Phansalkar v. Emperor, AIR 1933 Bombay 1, the question arose before a Special Bench:

whether the power of superintendence conferred on the High Court by Section 107 of Government of India Act 1915 can be controlled by the Governor-

General exercising his power to legislate. The occasion arose because of the resistance offered by the State Government to the High Court exercising its power of superintendence over the Courts of Magistrates established under Emergency Powers Ordinance, 1932. Chief Justice Beaumont held that even if power of revision is taken away, the power of superintendence over the courts constituted by the ordinance was still available. The Governor-General cannot control the powers conferred on the High Court by an Act of the Imperial Parliament. However, speaking of the care and caution to be observed while exercising the power of superintendence though possessed by the High Court, the learned Chief Justice held that the power of superintendence is not the same thing as the hearing of an appeal. An illegal conviction may be set aside under power of superintendence but - "we must exercise our discretion on judicial grounds, and only interfere if considerations of justice require us to do so."

20. In Manmatha Nath Biswas v. Emperor, (1932-33) 37 C.W.N. 201, a conviction based on no legal reason and unsustainable in law came up for the scrutiny of the High Court under the power of superintendence in spite of right of appeal having been allowed to lapse. Speaking of the nature of power of superintendence, the Division Bench, speaking through Chief Justice Rankin, OWP No. 464/2012 Page 10 of 22 held that the power of superintendence vesting in the High Court under Section 107 of the Government of India Act, 1915, is not a limitless power available to be exercised for removing hardship of particular decisions. The power of superintendence is a power of known and a well-recognised character and should be exercised on those judicial principles which give it its character. The mere misconception on a point of law or a wrong decision on the facts or a failure to mention by the Courts in its judgment every element of the offence, would not allow the order of the Magistrate being interfered with in exercise of the power of superintendence but the High Court can and should see that no man is convicted without a legal reason. A defect of jurisdiction or fraud on the part of the prosecutor or error on the "face of the proceedings" as understood in Indian practice, provides a ground for the exercise of the power of superintendence. The line between the two classes of cases must be, however, kept clear and straight. In general words, the High Court's power of superintendence is a power to keep subordinate Courts within the bounds of their authority, to see that they do what their duty requires and that they do it in a legal manner.

21. Language of the Sections 96 and 100 of the Code deal with the appeals. An appeal is essentially continuation of the original proceedings and the provisions applied at the time of institution of the suit are to be operative even in respect of the appeals. That is because there is a vested right in the litigant to avail the remedy of an appeal. As was observed in K. Eapen Chako v. The Provident Investment Company (P) Ltd. (AIR 1976 SC 2610), only in the cases, where vested rights are involved, a legislation has to be interpreted to mean as one affecting such right to be prospectively operative. The right of appeal is only by the statute. It is necessary part of the procedure in an action, but "the right of entering a superior court and invoking its aid and interposition to redress the error of the courts below. It seems to this paramount right, part of the progress of the inferior tribunal." (Per Westbury See: AG vs. SILLEM 33 J. Ex 209). The appeal, strictly so called, is one in which the question is, whether the order of the OWP No. 464/2012 Page 11 of 22 Court from which the appeal is brought was right on the materials which that Court had before it (Per Lord Devuil Ponnamal vs. Arumogam 1905 AC 390). The right of appeal, where it exists, as a matter of substance and not of procedure (Colonial Sugar Refining Company vs. Irtin 1905 AC 368).

22. Right of the appeal is statutory. Right of the appeal inherits in no one. When conferred by the statute, it becomes a vested right. In this regard there is the essential distinction between the right of appeal and the right of suit. Where there is the inherent right in every person to file a suit and for its maintainability it requires no authority of the law, the appeal requires so. As was observed in The State of Kerala v. K.M. Charia Abdulla and Co. AIR 1965 SC 1585, the distinction between right of appeal and revision is based on differences implicit in the two expressions. An appeal is continuation of the proceedings; in effect the entire proceedings are before the appellate authority and it has power to review the evidence subject to statutory limitations prescribed. But in the case of revision, whatever powers the revisional authority may or may not have, it has no power to review the evidence, unless the statute expressly confers on it that power. It was noted by the four-Judges Bench of the Supreme Court in Hari Shankar and others v. Rao Girdhari Lal Chowdhury AIR 1963 SC 698, that the distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of re-hearing on law as well as fact, unless the statute conferring the right of appeal limits the re-hearing in some way, as has been done in second appeals arising under the Code. The power of hearing revision is generally given to a superior Court so that it may satisfy itself that a particular case has been decided according to law.

23. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of the legislative intent. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the OWP No. 464/2012 Page 12 of 22 intention of the Legislature enacting it. [See: Institute of Chartered Accountants of India v. M/s Price Waterhouse and another AIR 1998 SC 74]. The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of the words or which results in rejection of the words as meaningless has to be avoided. As observed in Crawford v. Spooner (1846 (6) Moore PC 1), Courts, cannot aid the Legislatures' defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. [See: The State of Gujarat and others v. Dilipbhai Nathjibhai Patel and another, JT 1998 (2) SC 253]. It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. [See: Stock v. Frank Jones (Tiptan) Ltd. (1978 1 All ER 948 (HL)]. Rules of interpretation do not permit the Courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. The Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. [Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans (1910) AC 445 (HL)], quoted in Jamma Masjid, Mercara v. Kodimaniandra Deviah and others AIR 1962 SC 847.

24. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed not as theorems of Euclid". Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". (See Lenigh Valley Coal Co. v. Yensavage 218 FR 547). The view was reiterated in Union of India and others v. Filip Tiago De Gama of Vedem Vasco De Gama AIR 1990 SC 981.

25. In Dr. R. Venkatchalam and Ors. etc. v. Dy. Transport Commissioner and Ors. etc. (AIR 1977 SC 842), it was observed that the Courts must avoid the danger of a priori determination of the meaning of a provision based on their OWP No. 464/2012 Page 13 of 22 own pre-conceived notions of the ideological structure or the scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp the legislative function under the disguise of interpretation. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of the process of the law, it is for the legislature to amend, modify or repeal it, if deemed necessary. [See: Commissioner of Sales Tax, M.P. v. Popular Trading Company, Ujjain, 2000 (5) SCC 515]. The legislative casus omissus cannot be supplied by judicial interpretative process.

26. Two principles of construction one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results, which could not have been intended by the Legislature. "An intention to produce an unreasonable result", said Danackwerts, L.J. in Artemiou v. Procopiou (1966 1 QB 878), "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. (Per Lord Reid in Luke v. IRC (1966 AC 557) where at p. 577 he also observed: "this is not a new problem, though our standard of drafting is such that it rarely emerges". It is then true that, "when the words of a law extend not to an inconvenience rarely OWP No. 464/2012 Page 14 of 22 happening, but do to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accidunt." "But," on the other hand, "it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom" (See: Fenton v. Hampton 11 Moore, P.C. 345).

27. A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bis existit proetereunt legislatores, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - Casus omissus et oblivioni datus dispositioni communis juris relinquitur; "a casus omissus," observed Buller, J. in Jones v. Smart (1 T.R. 52), "can in no case be supplied by a court of law, for that would be to make laws."

28. The golden rule for construing wills, statutes, and, in fact, all written instruments has been thus stated: "The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further" (See: Grey v. Pearson 6 H.L. Cas. 61). The latter part of this "golden rule" must, however, be applied with much caution. "if," remarked Jervis, C.J., "the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we OWP No. 464/2012 Page 15 of 22 see, an absurdity or manifest injustice from an adherence to their literal meaning" (See: Abley v. Dale 11, C.B. 378).

29. It would be necessary to take note of a maxim "Ad ea quae frequentius accidunt jura adaptantur" (The laws are adapted to those cases which more frequently occur). Laws ought to be, and usually are, framed with a view to such cases as are of frequent rather than such as are of rare or accidental occurrence; or, in the language of the civil law, jus constitui oportet in his quoe ut plurimum accidunt, non quoe ex inopinato; for, neque leges neque senatusconsulta ita scribi possunt ut omnes casus qui quandoque inciderint comprehendantur, sed sufficit ea quoe plerumque accident contineri; laws cannot be so worded as to include every case which may arise, but it is sufficient if they apply to those things which most frequently happen. All legislation proceeds upon the principle of providing for the ordinary course of things, and to this principle frequent reference is to be found, in the reports, in answer to arguments, often speciously advanced, that the words of an Act cannot have a particular meaning, because in a certain contingency that meaning might work a result of which nobody would approve. In Miller v. Salomons (7 Exch. 475) it was argued that the Parliament could not have intended that a Jew, before sitting in the House of Commons, must use the words "on the true faith of a Christian," prescribed in the oath of abjuration of 6 Geo. 3, c.53, because any person, refusing to take the same oath when tendered by two justices, would, under the 1 Geo. 1, st.2, c.13, be deemed to be a popish recusant, and would be liable to penalties as such; and to enforce these provisions against a Jew, it was said, would be the merest tyranny. But Baron Parke thus replied to this argument: -"If in the vast majority of possible cases in all of ordinary occurrence the law is in no degree inconsistent or unreasonable construed according to its plain words, it seems to me to be an untenable proposition, and unsupported by authority, to say that the construction may be varied in every case, because there is one possible but highly improbably one in which the law would operate with great severity, and OWP No. 464/2012 Page 16 of 22 against our own notions of justice. The utmost that can be reasonably contended is, that it should be varied in that particular case, so as to obviate that injustice no further."

30. Appeal is the right of entering a superior Court and invoking its aid and interposition to redress the error of the court below. (per Westbury C., A.G. v. Sillem, 10 HLC 704 = 33 LJ ex.209). "Appeal", is defined in the Oxford Dictionary, Volume I, page 398, as the transference of a case from an inferior to a higher Court or tribunal in the hope of reversing or modifying the decision of the former. In the Law Dictionary by Sweet, the term "appeal" is defined as a proceeding taken to rectify an erroneous decision of a Court by submitting the question to a higher Court or the Court of appeal, and it is added that the term, therefore, includes, in addition to the proceedings specifically so called, the cases stated for the opinion of the Queen's Bench Division and the Court of Crown Cases reserved, and proceedings in error. In the Law Dictionary by Bouvier an appeal is defined as the removal of a case from a Court of inferior to one of superior jurisdiction for the purpose of obtaining a review and re-trial, and it is explained that in its technical sense it differs from a writ of error in this, that it subjects both the law and the facts to a review and retrial, while the latter is a Common Law process which involves matter of law only for re- examination. It is added, however, that the term "appeal" is used in a comprehensive sense so as to include both what is described technically as an appeal and also the common law writ of error. As Mr. Justice Subramania Ayyar observes in Chappan v. Moidin, 22 Mad 68 at p.80 the two things, which are required to constitute appellate jurisdiction, are the existence of the relation of superior and inferior Court and the power, on the part of the former, to review decisions of the latter.

31. In Section 2 of the Code of Civil Procedure, the expressions 'decree' and 'order' have been defined in its clauses (2) and (14) respectively. It is to be noted that it matters little that the judgment is styled as an "order". If, in fact, it OWP No. 464/2012 Page 17 of 22 fulfils the conditions of the definition under Section 2 of the CPC, it is a decree and becomes appealable. The orders that are not appealable are, generally speaking, those which are processual, i.e. interlocutory or incidental orders, regulating proceedings but not deciding any of the matters of the controversy in the suit. Order XLIII of CPC deals with the "appeals from orders". These appeals lie under Section 104 of the Code. The said Section deals with the appeals from the orders and specifies the orders, from which the appeals can lie. Sub-section (2) of Section 104 says that no appeal shall lie from any order passed in an appeal under the said Section. Section 104 and Order XLIII Rule 1 of the Code contain a full list of the appealable orders. An order, which amounts to a decree within Section 2(2) of the Code, does not fall within Section 104 and the only applicable section is Section 96. Clauses (a) to (f) of Section 104 were omitted by the Act II of 2002. Section 105 of the Code relates to the other orders. It, inter alia, relates to any order, i.e. so appealable as well as non- appealable orders. It is in the nature of a prohibition stipulating that save as otherwise expressly provided, no appeal shall lie from any order made by a Court in exercise of original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. Sub-section (2) deals with the case of remand. This section, in fact, contemplates two things i.e. (1) regular appeal from decree; and (2) the provision relating to grant of objection relating to interim order. Order XLIII Rule 1 of the Code is an integral part of Section 104. Section 96 envisions appeals from original decree. An appeal, under Section 96 of the Code, shall lie from every decree passed by any Court exercising the original jurisdiction to the Court authorised to hear the appeals from the decisions of such Court. An appeal may lie from an original decree passed ex parte. Section 100 of the Code envisages the second appeal. An appeal, under the said Section, shall lie to the High Court from every decree passed in an appeal by any Court subordinate to OWP No. 464/2012 Page 18 of 22 the High Court. The petitioner, in the present case, has preferred the petition under Section 104 of the Constitution of J&K, against the judgement dated 31.03.2012 passed by the learned Additional District Judge, Srinagar, dismissing the Appeals bearing Nos.15 & 16 of 2012 and the order dated 17.11.2011, passed by the learned First Additional Munsiff, Srinagar, and order dated 29.11.2011 passed by the learned First Subordinate, Civil Judge, Srinagar. The scope of Article 227 of the Constitution of India, which is pari materia to Section 104 of the Constitution of J&K, has been explained in several decisions including Ouseph Mathai v. M. Abdul Khadir (2002) 1 SCC 319, Sameer Suresh Gupta v. Rahul Kumar Agarwal (2013) 9 SCC 374, Shalini Shyam Shetty's case (supra), and Shankar Patil's case (supra). It has been observed that in some High Courts there is a tendency of entertaining petitions under Article 227, by terming them as writ petitions. This is sought to be justified in view of the amendment to Section 115 of the CPC as it is urged that as a result of the amendment, the scope of Section 115 of CPC has been curtailed. It has been cautioned that even if the scope of Section 115 CPC has been curtailed that has not resulted in expanding the High Court's power of superintendence. As a result of the frequent interference by the High Court under Article 227 with the 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. The Supreme Court in Hameed Kunju v. Nazim (2017) 8 SCC 611, has held that the High Court not only erred in entertaining the petition under Article 227 but also erred in exercising its supervisory jurisdiction by interfering with the orders impugned therein. The Supreme Court also held that the High Court should have dismissed the petition in limine on the ground that since all the four orders impugned in the petition were amenable to their challenge before the appellate authority, the petition was not the proper remedy and the High Court should have declined to entertain the petition under Article 227 on the ground of availability of an alternative remedy of appeal and OWP No. 464/2012 Page 19 of 22 therefore, there was no reason muchless justifiable one for the High Court to have entertained the writ under Article 227. While entertaining the petition under Article 227, the Supreme Court went on to say that the High Court failed to see that the High Court curtailed the judicial powers of the trial court and that the High Court had no jurisdiction to issue directions to the trial court to pass a particular order by either allowing the application or rejecting it. Having stated so, the judicial pronouncements as to the object and the scope of the power of the High Courts under Article 227 of the Constitution of India (Section 104 of the State Constitution) would leave little scope to interfere with the orders of the subordinate courts as a matter of routine in the present case. The power cannot be taken as a right of another appeal to the aggrieved party. Nor this power can be invoked to point out an error of law or fact in the order or judgement/ decision of subordinate court as has been asserted by the petitioners in the case in hand. Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or the tribunal purports to have passed the order or to correct the error of law in the decision. Interference under Article 227 can be suo motu, but cannot be resorted to merely because the High Court takes a different view on the merits. (Vide: Sadhana Lodh v. National Insurance Co. Ltd (2003) 3 SCC 524; Shaikh Mohammed v. K.H.Karimsab, AIR 1970 SC 61; Maruti Lala Raut v. Dashrath Babu Wathare AIR 1974 SC 2051; India Pipe Fitting Co. v. Fakhruddin AIR 1978 SC 45; Ganpat v. Sashikant, AIR 1978 SC 955. It has been held by the Supreme Court in Mohd. Younus v. Mohd. Mustaqim AIR 1984 SC 38, that the High Court should not exercise its jurisdiction under Article 227 if an alternative remedy is available.

32. Article 227 can be invoked by the High Court suo motu as a custodian of justice. An improper and a frequent exercise of this power will be OWP No. 464/2012 Page 20 of 22 counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle. 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 in the larger public interest whereas Article 226 is meant for protection of individual grievances. Therefore, "the power under Article 227 may be unfettered but", as held by the Supreme Court in Shalini Shyam Shetty's case (supra), "its exercise is subject to high degree of judicial discipline." The object of the superintendence under Article 227, both administrative and judicial, is to maintain the efficiency, smooth and orderly functioning of the entire machinery of the justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of the 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. The Supreme Court in Kokkanda B. Poondacha's case (supra), after recapitulating what has been observed in Shalini Shyam Shetty's case qua Article 227, held that the "learned Single Judge of the High Court totally ignored the principles and parameters laid down" by the Supreme Court "for exercise of power under Articles 226 and 227 of the Constitution qua an interlocutory order passed by the Subordinate Court and set aside the order of the trial Court without assigning any tangible reason." Jurisdiction under Article 227 must be sparingly exercised and may be exercised to correct the errors of the jurisdiction and the like, but not to upset the findings of the fact, which falls in the domain of an appellate court only. Same is true about the present case. The petition on hand is, from the above discussion, an appeal under the attire of petition under Section 104 of the Constitution of the Jammu and Kashmir. My above views are fortified by the fiats rendered in Nibaran v. Mahendra AIR 1963 SC 1895; D.N.Banerjee v. Mukherjee AIR OWP No. 464/2012 Page 21 of 22 1953; SC 58; Nizzar Rawther v. Varghese Mathew AIR 1992 Ker 312; and Khimji Vidhu v. Premier High School AIR 2000 SC 3495.

33. What is deducible from the above loquacious discourse is that the instant petition does not call for any interference. The powers, vested in this Court under Section 104 of the Constitution of J&K, are neither substitution to the revisional nor appellate power, inasmuch as the orders impugned are neither perverse nor have occasioned serious miscarriage of justice. Any interference by this Court, at this stage, would only spin out the trial inordinately. Even otherwise, the impugned orders do not warrant interference by exercise of extraordinary or supervisory jurisdiction of this Court, for neither the decision making process of the courts below suffers from any bias nor do the impugned orders cause any miscarriage of justice or otherwise suffer from any error of law.

34. Viewed in the background of what has been said and done above, the writ petition is floccinaucinihilipilification, as a corollary to which, the writ petition is dismissed. Interim direction, if any, shall stand vacated.

35. Copy of this order be sent down.

( M.K. Hanjura ) Judge SRINAGAR 14.05.2018 Showkat OWP No. 464/2012 Page 22 of 22

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Jammu & Kashmir High Court - Srinagar Bench