Jammu & Kashmir High Court - Srinagar Bench
Mohammad Farooq And Anr vs Habla Bano (Deceased) Through Legal ... on 7 March, 2023
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 03.03.2023
Pronounced on: 07.03.2023
CM(M) 316/2022 CM(7647/2022)
Caveat 2265/2022
MOHAMMAD FAROOQ AND ANR ...Petitioner(s)
Through: Mr. R. A. Jan, Sr. Adv. with
Mr. Aswad Attar, Adv.
Vs
HABLA BANO (DECEASED) THROUGH LEGAL REPRESENTATIVE AND ...Respondent(s)
ORS
Through: Mr. M. A. Qayoom, Adv.
CORAM:
HON'BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGMENT
1. Instant petition has been filed under Article 227 of the Constitution of India, impugning the Order of the Court of Second Additional District Judge (hereinafter referred to as "Trial Court") dated 07.11.2022 whereby the recalling of the order dated 30.09.2020 passed on an application moved by Defendant-Contesting Respondents, in a Suit for Specific Performance of Contract, has been granted behind the back of the Petitioners thereby restraining the National Insurance Company, an alien to the Suit from discharging contractual obligation undertaken in Contract of Insurance entered in between the Petitioners and the National Insurance Company, insuring against the peril of fire, all that Immoveable Property owned by the Petitioners popularly known as "Hotel Pamposh". Petitioners are seeking setting aside of the order of the Trial Court dated 07.11.2022 and order dated 30.09.2020 being void ab- initio and non-est in law and further are seeking directions upon the National Insurance Company to release and disburse claims payable to CM(M) 316/2022 the Petitioners on account of loss caused to the Hotel Property due to fire.
BRIEF FACTS OF THE CASE
2. It is stated that three consolidated Suits for Specific Performance of Contract for sale of all the immovable property popularly known and hereinafter shall be referred to as Hotel Pamposh, instituted in the year 1986 by the Defendant Contesting Respondents, Miss Nusrat Jan, Mumtaza Bano, Mst. Saleema Bano and Mst. Neelofar Jan, on the basis of three counterfoils of cheques, allegedly issued by erstwhile owners, the proforma respondentgs herein, to the predecessor-in-interest of the contesting respondents. The Suits before the Trial Court are at the stage of the final arguments. The Hotel Pamposh with land underneath and appurtenant thereto measuring about 14 Kanals was originally owned by the Petitioner No. 02 and the Proforma Respondents 2 & 3. As per the registered Instrument of Sale executed on 23.12.1985, 2/3 rd share in Hotel Pamposh and the land underneath and appurtenant thereto measuring 14 Kanals, was transferred absolutely in favour of the Petitioner No. 01 by the Proforma Respondents 2 & 3. In the year 1986, the afore-mentioned Suits for Specific Performance of Contract for Sale were instituted and were listed on 08.01.1986 for consideration. On consideration of the matter, the Court was pleased to pass an order of Status Quo.
It is further stated that due to unprecedented turmoil and turbulence the entire Hotel Property, was for security reasons, taken over by the Armed Forces and remained in their use, possession and occupation from the year 1991 till 2003.
2
CM(M) 316/2022 Petitioners filed a writ petition before this Court seeking enforcement of right to usage/occupation charges being payable in law to the Petitioners on account of use and occupation of Hotel Property by the Security Forces. An Application registered as I.A. No. 407 of 1997 was moved by the Contesting Respondents and other plaintiffs seeking impleadment in the case and succeeded in getting a direction from the Writ Court for maintenance of Status Quo with respect to payment of rents accrued due and payable to the Petitioners on account of usage charges being the owners of the Hotel Property.
Being aggrieved by the order of the Writ Court dated 18.09.1997 directing maintenance of status quo with respect to payments of rentals, Letters Patent Appeal registered as LPA No. 314/1997 was preferred by the Petitioners and other partners in Hotel Business. The Division Bench of this Court, on consideration of the matter, was pleased to pass an order operation whereof reads as under:-
"Therefore, we allow this appeal, set aside the impugned order to the extent it prevents any authority/body/agency from paying the rents to the Appellants. The Appellants would be entitled to receive rents for use and occupation from the respondents 1 to 6, subject to ultimate decision of the case by civil court.
It is further stated that in exercise of the powers, as by law vested as owners of the Hotel Property, the Petitioners got the property insured under policy No. 42100111810000080 on an payment of premium of Rs.
1.45 Lacs the Hotel Property with all paraphernalia against all risks covered under the policy of insurance. Unfortunately, in the year 2018 all that Hotel Property comprising Hotel Pamposh was gutted in fire incident and having been insured with the National Insurance Company, a claim was preferred with the said Insurance Company for replenishing the loss 3 CM(M) 316/2022 suffered due to fire incident, the peril insured against, destroying substantially the Hotel Property and paraphernalia.
It is further stated that the Suit instituted by the Contesting Respondents due to continuous absence was vide order dated 25.11.2019 dismissed by the Trial Court in default of prosecution. An application registered as I.A. No. 2 of 2019 was, thereafter, filed by the Contesting Respondents on 06.12.2019 seeking restoration of the Civil Suit to its original number and the same was restored by the Trial Court vide its order dated 30.09.2020. Thereafter, another application styled under Section 94 and 151 Code of Civil Procedure was filed by the contesting respondents on 20.09.2020 seeking therein following relief:
"In the premises, it is, therefore,, prayed that this application may be allowed and the Insurance Company, may be directed to retain the insurance amount assessed for the loss caused to the suit property with itself till final disposal of the suit, or in the alternative the defendants be directed to maintain status quo with respect to the said amount and not to claim or receive the insurance amount assessed for the loss caused to the suit property from the insurance company in any manner till final disposal of the suit.
Thereafter, the Trial Court vide order dated 30.09.2020 allowed the aforementioned application of respondents without any notice to the petitioners. The order is taken note of as under:-
" As the Suit has been restored to its original number today itself, the application is also taken on record. Perusal of record reveals there was already an order with respect to an application seeking ad-interim relief and an order maintaining status quo position was passed on 08.01.1986. Coupled with the facts mentioned in the application in hand, the interim order/direction dated 08.01.1986 is also directed to be revived and shall remain in continuance during the pendency of the suit. It is further ordered that the status quo order shall also cover the relief sought in the application dated 29.09.2020. The application in hand is accordingly disposed of and shall form part of the main suit.4
CM(M) 316/2022 It is further averred in the writ petition that the petitioners, thereafter, filed an application on 04.06.2022 before the 2nd Additional District Judge, Srinagar, for recalling of the order dated 30.09.2020. The arguments in the application seeking recalling of the order dated 30.09.2020 were finally heard and the same was rejected vide impugned order dated 17.11.2022 holding the application without substance and merit.
3. Petitioners herein have challenged the impugned orders dated 07.11.2022 and 30.09.2020 primarily on the ground that the principles of natural justice as well as the mandate of procedural laws have not been followed by the Trial Court. It is stated that while passing the impugned order dated 30.09.2020, no notice was served upon the petitioners which is manifestly prejudicial and detrimental to the constitutionally guaranteed ownership rights of the Petitioners. It is also stated that the order dated 7.11.2020 is non-est in law, as the Trial Court, as a matter of fact, apparent on the face of record, has failed to appreciate that the order dated 30.09.2020 has been passed without complying the required principles of natural justice; that the Division Bench in its order dated 01.10.1997 has stated that till such time the contesting respondents succeed in the Suit, they have no title to the property and that the petitioners, being owners in possession, are vested with ownership rights which includes right to receive all the benefits accruing from the Property embracing within its fold the claim on account of Insurance payable by the Insurance Company in discharge of contractual obligation undertaken under the Contract of Insurance, therefore, the order impugned has manifestly been passed in contumacious disregard of the order of the Division Bench dated 5 CM(M) 316/2022 01.10.1997; that the contract of insurance entered into between the Petitioners and the National Insurance Company vide Insurance Policy No. 42100111810000080 was effective from 29.04.2018 to midnight 28.04.2019., as such, the impugned orders are void ab-initio and non-est in law.
4. Respondents have filed their reply and have out rightly stated that the Trial Court in terms of the order dated 07.11.2022 has clearly and categorically stated that as soon as interim injunction/status quo order is passed, the effected party has two remedies available; (1) he can either get the exparte injunction order discharged or varied or set aside under Order 39; and, (2) if unsuccessful file an appeal against the order as such the petitioners had an appropriate remedy available against the order dated 07.11.2022. Moreover, it is a settled position of law that in view of the remedy of an appeal u/s 104(1) read with Order 43 Rule 1(r) of the Code of Civil Procedure, there is a complete bar to the filing of the petition under Article 227 of the Constitution of India. It is only when no alternate remedy under any Special Enactment and/or Statutory Rule is provided under law that a petition under Article 227 of the Constitution of India may be maintained before this Court.
5. It is further stated that petitioners, if aggrieved, had to challenge the order by way of an appeal but they did not do so. Instead after about a period of two years, they filed an application for recalling of the order dated 04.06.2022. It is also stated that petitioners had either to file an appeal/application under Order 39 Rule 4 or else a Review Petition in the manner provided by Order 47 Rule 1 CPC and not an application for recalling of the order dated 30.09.2020 and that too after a period of two 6 CM(M) 316/2022 years. As such the Trial Court has rightly dismissed the application of the petitioners for recalling of the order dated 3.9.2020.
6. It is further stated that the sole aim of the petitioners is to delay the matter which is ripe for hearing. It is further stated that the evidence in the Civil Suits has already been led by the parties and only arguments are to be heard and the petitioners, by filing the instant petition, have virtually stopped the Trial Court to hear final arguments in the case and pronounce its judgment. It is stated by the respondents that the application for restoration of the suit was however filed by the answering respondents on 06.12.2019 in which notice was issued to the petitioners for filing their objections. Since they did not choose to file any objections to the application seeking restoration of the suit and otherwise also, the application being within time, was allowed by the Trial Court. It is further submitted that application u/s 94/151 CPC was filed by the respondents on 29.09.2020 and since in terms of order dated 30.09.2020 passed in the application seeking restoration of the suit, the suit was restored to its original number therefore the interim order dated 08.01.1986 also got revived. Respondents before the restoration of the suit had filed another application on 29.09.2020 before the Trial Court and had sought direction to the insurance company to retain the insurance amount assessed for the loss caused to the suit property with itself till final disposal of the suit. The said application was allowed on 30.09.2020 by observing that since the application for restoration of the suit has been allowed and interim order passed therein has to continue during the pendency of the suit, therefore, the status quo order passed in the suit shall also cover the relief sought in the application dated 7 CM(M) 316/2022 29.09.2020. The petitioners did not file any appeal or else an application for modification/variation of the order dated 30.09.2020 before the Trial Court and it was only after a period of about two years that they filed an application on 04.06.2020 for recalling of the order dated 30.09.2020, which application was not legally maintainable.
7. It is further stated that the order dated 01.10.1997 is not applicable to the case because the said order has been passed by the Division Bench in an appeal which was preferred against an interim order dated 18.09.1997 passed by the Writ Court directing that till the application filed by four persons for arraying them as party to the writ petition is decided, status quo in respect of payment of rent, be maintained. However, while disposing of the appeal, the Division Bench made it clear that the granting of injunction with respect to payment of rent would not be in the interests of justice,, particularly when the appellants are in possession. The Division Bench also made it clear that the civil courts dealing with the dispute would not be influenced by the observations made in the order and the cases with respect to the property would be decided strictly in accordance with the law and evidence before it.
8. It is further stated that the writ court in terms of judgment dated 10.09.2007 dismissed the writ petition as a result of which the order dated 01.10.1997 passed in LPA No. 134/1997 also lost its validity.
9. Heard learned counsel for the parties and perused the record.
10. Mr. R. A. Jan, learned senior counsel appearing for the petitioners, submits that the only grievance of the petitioners is that the Trial Court did not appreciate the fact that the order dated 30.09.2020 was passed without affording any opportunity of being heard to the petitioners. No 8 CM(M) 316/2022 notice as required was served upon the petitioners and the party likely to be affected in the matter was not heard. It is also submitted that the Trial Court failed to appreciate that the order dated 30.09.2020 was passed without complying with the principles of natural justice as well as the mandate of procedural law; in regard to the fundamental legal principles circumscribing power, authority and jurisdiction of the Trial Court in the matter of granting interim injunctions, in a Suit for Specific Performance of Contract for Sale, the Order of the Trial Court dated 30.09.2020 restraining the Insurance Company from discharging its contractual obligations undertaken under the Contract of Insurance, suffers from the vice of having been passed in violation of fundamental legal principles regulating and governing jurisdiction/power and authority of the court below. Learned counsel further submitted that the Division Bench in its order dated 01.10.1997 had specifically stated that the till such the contesting respondents succeed in the Suit, they have no title to the property and the petitioners are entitled to receive rents for the usage of the property. To support his contentions, learned senior counsel appearing for the petitioners has relied upon the judgment passed by the Hon'ble Supreme Court in case titled State of Punjab v. Davinder Pal Singh Bhullar, (2011) 14 Supreme Court Cases 770 where in Para 46 of the judgment, it has been held as under:-
46. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 CrPC would not operate. In such an eventuality, the judgment is manifestly contrary to 9 CM(M) 316/2022 the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault.
11. Mr. M. A. Qayoom, learned counsel appearing for the respondents submits that the petitioners herein had an alternate remedy for filing an appeal against the order dated 07.11.2022 and it is a settled proposition of law that there is a complete bar to the filing of a petition under Article 227 of the Constitution of India available to the aggrieved in view of remedy of law under Section 104(1) read with Order 43 Rule 1 (r) of the Code of Civil Procedure. He further submits that in the impugned order dated 07.11.2022 the Trial Court clearly and categorically has stated that as soon as interim injunction/status quo is passed the affected party has two remedies available (1) he can either get the exparte injunction order discharged or varied or set aside under Order 39; and, (2) if unsuccessful file an appeal against the order.
12. In Sadhana Lodh Vs. National Insurance -MANU/SC/0080/2003 the Hon'ble Supreme Court made the following observations:
"5. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Article 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution.
6. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a 10 CM(M) 316/2022 petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision.
13. In a decision rendered in case titled Shalini Sham Shetti and Anr. vs. Rajendra Shankar Patil, MANU/SC/0508/2010, Hon'ble Supreme Court in para 62 has held as under:
"62. High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court......
The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh AIR 1954 SC 215 and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this court.......
According to the ratio in Waryam Singh followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, within the bounds of their authority'..........."
14. In terms of order dated 01.10.1997, the Division Bench of this Court had specifically mentioned that appellants would be entitled to receive rents for usage and occupation from respondent Nos. 1 to 16 subject to ultimate decision of the case by the Civil Court. It was also made clear that civil court dealing with the dispute would not be influenced by the observations made by this Court and case with respect to the property would be decided strictly in accordance with law available before them.
15. Petitioners herein have chosen to file an application seeking recalling which has been considered after hearing arguments of both the parties and rejected by the Trial Court; Evidence in all the civil suits have 11 CM(M) 316/2022 already been led by the parties. Counsel for the parties have also stated that the suits are at its final stage and the trial court has only to hear the final arguments. It is stated by Mr. M. A. Qayoom, learned counsel appearing for the respondents, that the cases are listed for final adjudication on 04.04.2023 before the trial Court.
16. Be that as it may, since the suits are pending for the last more than three decades and the interim orders are subject to the final decision taken by the trial court, the evidence has been led and the suits are ripe for hearing, therefore, without expressing any opinion, with respect to the merits of the instant petition, it is disposed of with the direction to the 2nd Additional District Judge, Srinagar, to hear the suits for final arguments on day to day basis commencing 04.04.2023 (date already fixed by the trial court), and complete the arguments within four weeks from the date of passing of this judgment. The trial court shall not grant any further adjournments to either of the parties unless the same is sought under peculiar circumstances.
17. Disposed of.
(MOKSHA KHAJURIA KAZMI) JUDGE SRINAGAR 07.03.2023 AAMIR Whether the judgment is speaking Yes/No Whether the judgment is reportable Yes/No 12