Jammu & Kashmir High Court
Tej Swaroop Abrol vs Vishwa Nath Kundal on 28 January, 2014
Author: Tashi Rabstan
Bench: Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.
OWP No. 1366/2011
CMA No.1889/2011
Date of order: 28.01.2014
Tej Swaroop Abrol Vs Vishwa Nath Kundal
Coram:
Hon'ble Mr. Justice Tashi Rabstan, Judge.
Appearing counsel:
For the petitioner(s) :Mr. Anil Sethi, Advocate
For the respondent(s) :Mr. Vipan Gandotra, Advocate
Whether approved for reporting: Yes.
1. Petitioner, Tej Swaroop Abrol, has filed this petition under Article 104 of the Constitution of State of Jammu and Kashmir, seeking quashment of interim order dated 18.02.2010 passed by the Sub Judge (C.J.M.), Jammu (hereinafter referred to as "Trial Court"), whereby Trial Court, while allowing application filed by respondent herein, under Section 12(4) of the J&K Houses & Shops Rent Control Act, directed petitioner to clear the arrears of rent immediately and the matter was directed to be listed on 15th March, 2010. Feeling aggrieved, petitioner has come up with present petition.
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2. The facts in short are that petitioner herein is tenant of respondent with respect to a Shop situated at Janipur, Jammu, which he took on rent in the month of June, 2007. As per the averments made in the writ petition, the agreed monthly rent was Rs.4400/-. When petitioner failed to pay the rent regularly, respondent-landlord filed an application before Trial Court in the month of April 2009, seeking a direction to petitioner-tenant to clear the arrears of rent and also to pay the rent regularly. Meanwhile, petitioner-tenant also filed an application before the Trial Court under Section 27 of the Houses and Shops Rent Control Act, 1966, seeking a direction to respondent-landlord to make repairs in the rented premises. Before the Trial Court could decide the application to clear the arrears of rent, the petitioner-tenant in order to counter the claim of respondent-landlord also filed an application, seeking fixation of 'fair rent' in the month of August 2009. The petitioner-tenant claimed before the trial court that as per his estimation the approximate 'fair rent' of the rented out premises was Rs.1500/- per month. He, accordingly, prayed before the trial court to fix the 'fair rent' in respect of the rented out premises. The trial court pending disposal of the application for fixation of 'fair rent' as also the application seeking repairs of the rented out premises, vide interim order dated 18.02.2010 directed the petitioner-tenant 3 to clear the arrears of rent immediately and directed for listing of the case on 15.03.2010. The petitioner-tenant was also directed to file estimate of the repairs duly prepared by the Assistant Engineer of PWD with certificate of necessity. It is this order which is the bone of contention in the present petition filed under Section 104 of the Constitution of Jammu & Kashmir.
3. It is contended that the order, impugned herein, has been passed by the trial court without jurisdiction and without applying application of mind because the trial court without deciding the main issue as regards fixation of 'fair rent, directed the petitioner-tenant to clear the arrears of rent, which amounts to deciding the main matter. Therefore, as per the averments made in the petition, the trial court while directing the petitioner-tenant to clear the arrears of rent has deviated from the main issue.
4. It is worthwhile to mention here that before filing the present petition, petitioner-tenant also filed a Civil Revision before this Court, bearing No.21/2010 seeking revision of the order, impugned herein. This Court vide order dated 09.09.2011 while dismissing the Civil Revision, being not maintainable, held that in view of amendment to Section 115 of the Code of Civil Procedure, revision against the order made in a suit or other proceedings is not maintainable; the same is 4 maintainable only, in case the order if passed would end the suit or other proceedings. Since the same was not the position, therefore, the revision was held to be not maintainable. However, it was provided that dismissal order would not stand in the way of petitioner in working out his remedy. Thus, it is how the present petition has been filed by the petitioner.
5. Now, before deciding the controversy raised in the present petition, the question for consideration would be whether the present petition filed under Article 104 of the Constitution of State of Jammu & Kashmir would be maintainable? The answer is negated for the following reasons.
6. Precisely, the case of the petitioner is that impugned order has been passed in hot haste, without application of mind and without taking into consideration the grounds taken by the petitioner-defendant No.1 in the application. Petitioner has not questioned the competence-jurisdiction of the trial Court. Petitioner has also not averred in the writ petition that trial Court or appellate Court have passed the order without or in excess of jurisdiction.
7. The maintainability of the petition is put under cloud by its very own averments on the ground that Civil Procedure Code has undergone a sea change with the amendment of 5 2009. The amendment has restricted the powers of the revisional Court. Virtually, petition is in the nature of revision petition and if such a practice is adopted and allowed that will render the aim and object of the amendment infructuous and meaningless. The fact of this Court having vast powers under Article 226 and 227 is undisputed, but care has to be taken when the same is warranted to be exercised, because the powers under such Articles has to be utilized very cautiously, carefully, sparingly and in rarest of the rare cases.
8. The Apex Court in case titled Shalini Shyam Shetty v. Rajendra Shankar Patil reported as 2010 AIR SCW 6387 has observed that there is tendency in High Courts to entertain petition under Article 227 of the Constitution against the orders against which revision is barred in terms of amended Act of CPC. It is apt to reproduce Paragraphs 80, 81 and 82 of the judgment supra herein:-
"80. We may also observe that in some High Courts there is tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev (supra) and in view of the recent amendment to Section 115 of the Civil Procedure Code by Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 of CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding High Court's power of superintendence. It is too well known 6 to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.
81. As a result of frequent interference by Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice.
82. This Court hopes and trusts that in exercising its power either under Article 226 or 227, Hon'ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest Courts of justice within their jurisdiction will adhere to them strictly."
9. The Apex Court in a case titled Kokkanda B. Poondacha & others v. K. D. Ganapathi & another reported as AIR SCW 2011, 1737, held that invoking of writ or supervisory jurisdiction against interlocutory orders is permissible only when subordinate Court has acted without or in excess of jurisdiction not otherwise.
10. This Court also in case titled Abdul Rehman Dar and others v. Showkat Ali Bhat and others reported in 2011 (IV) JKJ 334 (HC) while following the aforesaid judgments of the Apex Court has laid down the same principle.
11. 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 litigation and 7 in breach of the purpose, aim and object of the legislation which was made basis for amendment of the CPC.
12. Apex Court in case Shalini Shyam Shetty (supra) also held that if the litigating parties are private and not State functionaries, the writ is not maintainable and a distinction has been made with respect to the powers of High Court under Article 226 and 227. It is apt to reproduce paragraph No. 62:-
"62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.
(c) 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.
(d) 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 (supra) and the principles in Waryam Singh 8 (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), 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'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the 4Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo moto.
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(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, 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. The power of interference under this Article 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 High Court.
(n) 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 of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality."
13. It is not the case of the petitioner that trial Court has acted without or in excess of jurisdiction or that the order of trial court suffers from any perversity and has resulted in serious miscarriage of justice. The instant case, therefore, does not fall within the parameters laid down by Apex Court for 10 entertaining petition under Article 227 of the Constitution of India which is corresponding to Section 104 of the Constitution of Jammu and Kashmir.
14. The petition is held to be not maintainable. Accordingly, the same is dismissed along with connected CMA, if any.
(Tashi Rabstan) Judge Jammu 28.01.2014.
'Madan'PS This judgment is announced by me today in terms of Rule 138(3) of the J&K High Court Rules, 1999.
( Bansi Lal Bhat ) Judge Jammu 28/01/2014