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[Cites 32, Cited by 0]

Jammu & Kashmir High Court

Sudershana Gupta And Ors vs Rajendra Shankar Patil on 6 June, 2013

Bench: Muzaffar Hussain Attar, Bansi Lal Bhat

       

  

  

 

 
 
 IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU             
LPAOW No. 52 of 2012   
 CMA No. 78 of 2012 
Sudershana Gupta and ors.       
 Petitioners
Girdhari Lal
 Respondents 
!Mr. P. N. Raina, Sr. Advocate  
 Mr. J. A. Hamal, Advocate
^Mr. V. R. Wazir, Sr. Advocate  
 Mr. Abhishek Wazir, Advocate 

Honble Mr. Justice Muzaffar Hussain Attar, Judge
Honble Mr. Justice Bansi Lal Bhat, Judge
Date: 06/06/2013 
: J U D G M E N T :

Muzaffar Hussain Attar

1. One Prabodh Chander Gupta instituted a civil original suit on 16.10.1999 in the court of Sub-Judge, Rajouri against the respondent-defendant, wherein he prayed for passing of decree for ejectment against respondent- defendant in respect of the suit shop. Prabodh Chander Gupta passed away during the trial of the suit on 24.01.2006. The appellants herein were brought on record as legal representatives of the deceased plaintiff- Prabodh Chander Gupta. The trial court vide its judgment dated 14.07.2011 decreed the suit in favour of the appellants-plaintiffs and against the respondent-defendant.

2. Respondent-defendant filed statutory appeal against the decree and judgment dated 14.07.2011 in the Court of Principal District Judge, Rajouri (for short Appeal Court). During the pendency of the appeal, the respondent-defendant filed an application before the appeal court wherein he prayed that he be permitted to lead additional evidence in accordance with the mandate contained in Order XLI Rule 27 of Code of Civil Procedure (CPC). The appeal court rejected the application of the respondent-defendant. The order of the appeal court was challenged before the writ court in writ petition bearing OWP No. 1691/2011. The respondent-defendant was permitted by the writ court to withdraw the writ petition. Moreover, the liberty was also given to the respondent-defendant to lay motion for seeking amendment of the written statement before the appeal court.

3. The application seeking amendment of the written statement was filed by the respondent-defendant before the appeal court. To the said application, plaintiffs-appellants herein, filed objections. The appeal court after hearing the parties and considering the matter, dismissed the application vide its order dated 01.05.2012. The respondent-defendant again challenged the order of the appeal court before the writ court by filing writ petition, which was registered as OWP No. 685/12. Learned Single Judge vide its judgement dated 06.06.2012 allowed the writ petition of the respondent- defendant. Learned Single Judge also allowed the application seeking amendment of the written statement. It is this order of the learned Single Judge which is called in question in this Letters Patent Appeal (LPA).

4. When this appeal came up for consideration before us, Mr. V. R. Wazir, learned Sr. Counsel appearing for the respondent-defendant raised preliminary objections about its maintainability. Learned counsel submitted that the petition, in which order of the appeal court dated 01.05.2012 was challenged, was filed by invoking the powers of the High Court under Section 104 of the Constitution of J&K. Learned counsel submitted that learned Single Judge exercised the supervisory powers conferred upon him by Section 104 of the Constitution of J&K and allowed the petition of respondent-defendant. Learned counsel submitted that in terms of Clause 12 of the Letters Patent, order passed by the learned Single Judge in exercise of its supervisory jurisdiction cannot be challenged by filing LPA. Learned counsel in support of his contention referred to and relied upon decision of the learned Single Judge passed in OWP No. 1214/2011 decided on 12.12.2011 in case titled Mustaq Ahmad Dar and anr. v. Nazir Ahmad Dhar reported in AIR 2012 Jammu and Kashmir 123. Learned counsel also referred to Division Bench judgement of this court in case titled The J&K Co-operative Bank v. Shams-ud-din Bacha reported in 1970 KLJ 323. Learned counsel also referred to case titled Gurushanth Pattedar, Appellant v. Mahaboob Shahi Kulburga Mills, Gulbarga and another, Respondents reported in AIR 2005 Karnataka 377; case titled Swapan Kumar Bandopadhyay and etc. v. Sail and ors., etc. reported in AIR 2006 Jharkhand 19; case titled Surya Dev Rai, Appellant v. Ram Chander Rai and ors. Respondents reported in AIR 2003 Supreme Court 3044 and case titled Shalini Shyam Shetty and anr. versus Rajendra Shankar Patil reported in (2010) 8 Supreme Court Cases 329 and submitted that in view of the law laid down in the aforementioned decisions, this LPA be declared to be not maintainable.

5. Mr. P. N. Raina, learned Sr. Advocate appearing for the appellants- plaintiffs in support of maintainability of LPA submitted that learned Single Judge has not mentioned in the impugned judgment that the decision is rendered in exercise of supervisory jurisdiction. Learned counsel submitted that Court has to consider the entire material placed on record of writ petition, to come to the conclusion as to whether learned Single Judge in exercise of his supervisory jurisdiction has passed the impugned judgment or has passed the same in exercise of its original jurisdiction. Learned counsel in support of his contention referred to decision of Honble Supreme Court in case titled Kanhaiyalal Agarwal and others v. Factory Manager, Gwalior Sugar Company Ltd. reported in (2001) 9 Supreme Court Cases 609. Learned counsel also referred to case titled Kokkanda B. Poondacha & ors. v. K. D. Ganapathi & Anr. reported in AIR 2011 Supreme Court 1353 and case titled Lokmat Newspapers Pvt. Ltd. versus Shankarprasad reported in (1999) 6 Supreme Court Cases 275. Learned counsel submitted that the court cannot shut the doors at the appellants- plaintiffs in the manner it is suggested by the learned counsel for the respondent-defendant.

6. The learned counsel for the parties made submissions on the merits of the case also.

7. Mr. Raina, learned Sr. Advocate in support of the LPA submitted that decree of the trial court is sought to be defeated by the respondent- defendant by adopting dilatory tactics. Learned counsel submitted that at Paragraph 10 of the written statement the respondent-defendant had taken the similar plea which now he wants to introduce by amending the written statement. Learned counsel submitted that the decree of the trial court has failed to yield any result at ground level in favour of the appellants- plaintiffs because of the conduct of the respondent-defendant. Learned counsel submitted that in the application filed by the respondent-defendant for amending his written statement, it was stated that the appellant, namely, Rahul Gupta has inherited a residential house and a shop in the ground floor of building House No. 237, Laxmi Nagar, Upper Sarwal, Near Transformer Sarwal, Jammu, on the demise of his father; it was also averred in the application seeking amendment of the written statement by the respondent-defendant that he be permitted to add paragraph 7-A in the written statement; it was further pleaded that appellant-plaintiff, Rahul Gupta has started running business of Hard Board, Sun Mica, Ply Wood etc. in the said shop at Sarwal, Jammu and the business of Max Mobiles, Accessories and general Order Suppliers is also being conducted under the name and style of Mahajan Sales Corporation. Learned counsel submitted that these pleas in essence have already been taken at paragraph 10 of the written statement by respondent-defendant, but has failed to prove the same before the trial court. Learned counsel submitted that respondents-defendant in the facts of this case cannot be permitted to amend the written statement. Learned counsel submitted that the contents of the application seeking amendment of the written statement have been controverted in unequivocal terms by the appellants-plaintiffs in the objections filed before the appeal court. Learned counsel submitted that wife of the appellant-plaintiff, Rahul Gupta is running the business under the name and style of Mahajan Sales Corporation who has got a room on rent and is conducting the business in the said rented room. Learned counsel submitted that other averments made in the application have been specifically denied. Learned counsel submitted that whatever is stated in the application filed before the appeal court was already known to the respondent-defendant but the respondent-defendant did not choose to seek amendment of the written statement during the trial of the case. Learned counsel submitted that learned Single Judge, in the facts and circumstances of this case, could not allow the writ petition which in essence has effect of nullifying the decree passed by the trial court on 14.07.2011 in a suit which was instituted on 16.10.1999. Learned counsel submitted that the judgment and order impugned in this appeal deserves to be set aside.

8. Mr. V. R. Wazir, learned Sr. Advocate appearing for the respondent- defendant submitted that in view of the averments made in the application seeking amendment of the written statement, the cause for filing the suit does not survive, inasmuch as, suit was instituted by the father of the appellant-plaintiff No.2, namely, Prabodh Chander Gupta, on the ground of necessity for accommodating Rahul Gupta in the suit shop, which necessity has ceased to exist after the death of Prabodh Chander as his shop has been inherited by appellant-plaintiff Rahul Gupta. Learned counsel further submitted that other businesses are being also conducted by the appellant-plaintiff, Rahul Gupta which facts were to be brought to the notice of the appeal court. Learned counsel submitted that in view of these developments, the foundation laid for institution of suit does not survive and it became necessary to seek amendment of the written statement. Learned counsel submitted that order of the learned Single Judge in the facts of this case would not require to be interfered with and prayed for dismissal of the appeal.

9. In order to appreciate the contention of the learned counsel for the parties, the relevant provisions of Constitution of India, Constitution of J&K, Clause 12 of Letters Patent and relevant paragraphs from some of the judgments cited at the Bar are taken note of:

Article 226 of the Constitution of India:
226. Power of High Courts to issue certain writs:
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without-
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated (4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause (2) of Article 32 Section 103 of the Constitution of J&K.
103. Power to issue certain writs.- The High Court shall have power to issue to any person or authority, including in appropriate cases any Government within the State, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and Certiorari, or any of them, for any purpose other than those mentioned in clause (2A) of article 32 of the Constitution of India.

Section 104 of the Constitution of J&K.

104. Superintendence and control of subordinate courts.-(l) 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; and

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such court.

(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.
Clause 12 of the Letters Patent:
"12. And we do further ordain that an appeal shall lie to the said High Court of Judicature from the judgment (not being a judgment passed in exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the powers of superintendence) of one Judge of the said High Court or one Judge of any Division Court and that not withstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, consistently with the provisions of the Civil Procedure Code, made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of the Judges of the said High Court or of such Division Court shall be to Us, our Heirs or Successors and be heard by Our Board of Judicial Advisers for report to Us."

Paragraphs 3, 6 and 9 of Mushtaq Ahmad Dhars case reported in 2012 Jammu and Kashmir 123:

3. Every case has its own facts and features so law has to be applied accordingly. It is no more res-integra that in the writ petition main respondent has to be either Government or instrumentalities of the State within the meaning of Article 12.

In the reported judgment distinction has been drawn between Article 226 and Article 227 of the Constitution of India and in the process it has been made clear that the writ petition can be maintained when private parties acting in collusion with State are respondents in the writ petition. It shall be relevant to quote para 64 of the judgment:

64. It is well settled that a writ petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform.
6. In the Shalini judgment the Honble Apex Court while distinguishing the petition under Article 226 and 227 has held as under:-
32. No writ petition can be moved under Article 227 of the Constitution nor can a writ be issued under Article 227 of the Constitution. Therefore, a petition filed under Article 227 of the Constitution cannot be called a writ petition. This is clearly the Constitutional position. No rule of any High Court can amend or alter this clear Constitutional scheme. In fact the Rules of Bombay High Court have not done that and proceedings under Articles 226 and 227 have been separately dealt with under the said Rules.
9. It is also made clear in the said Shalini judgment that jurisdiction of superintendence under Article 227 is for both administrative and judicial, therefore, powers conferred under Article 226 and 227 are separate and distinct and operate in different fields. Paragraphs 14, 53, 54, 59, 60, 61, 62, 67 and 68 of Shalini Shyam Shettys case reported in (2010) 8 Supreme Court Cases 329:
14. The facts of the case have been discussed in detail in order to show that in a pure dispute of landlord and tenant between private parties, a writ petition was entertained by the High Court. It did not pass any order on the writ petition, inter alia, on the ground that there are concurrent findings of fact. If the findings have not been concurrent, the High Court might have interfered. In any event High Court did not hold that a writ petition is not maintainable in a dispute between landlord and tenant in which both are private parties and the dispute is of civil nature.
53. The facts in Sohan Lal are that Jagan Nath, a refugee from Pakistan, filed a writ petition in the High Court of Punjab against Union of India and Sohan Lal alleging unauthorized eviction from his residence and praying for a direction for restoration of possession. The High Court directed Sohan Lal to restore possession to Jagan Nath. Challenging that order, Sohan Lal approached this Court. The Constitution Bench of this Court accepted the appeal and overturned the verdict of the High Court. In AIR paragraph 7, page 532 of the judgment, the unanimous Constitution Bench speaking though Imam, J, laid down a few salutary principles which are worth remembering and are set out:
7. The eviction of Jagan Nath was in contravention of the express provisions of Section 3 of the Public Premises (Eviction) Act. His eviction, therefore, was illegal.

He was entitled to be evicted in due course of law and a writ of mandamus could issue to or an order in the nature of mandamus could be made against the Union of India to restore possession of the property to Jagan Nath from which he had been evicted if the property was still in the possession of the Union of India. The property in dispute, however, is in possession of the appellant. There is no evidence and no finding of the High Court that the appellant was in collusion with the Union of India or that he had knowledge that the eviction of Jagan Nath was illegal. Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing, specified in the order, which appertains to his office and is in the nature of a public duty (Halsbury's Laws of England, Vol. 11, Lord Simonds Edition, p. 84). If it had been proved that the Union of India and the appellant had colluded, and the transaction between them was merely colourable, entered into with a view to deprive Jagan Nath of his rights, jurisdiction to issue a writ to or make an order in the nature of mandamus against the appellant might be said to exist in a Court. These principles laid down by the Constitution Bench in Sohan Lal have not been doubted so far.

54. Subsequently in some other cases question arose whether writ will lie against a private person. In Engineering Mazdoor Sabha v. Hind Cycles Ltd., it was held that an arbitrator appointed under Section 10A of Industrial Disputes Act is not a private arbitrator even though he cannot be equated with a tribunal to be amenable under Article 136 of the Constitution of India. The Court held that in discharging his duties as an arbitrator, the arbitrator is clothed with some trappings of a Court and a writ of certiorari would be maintainable against him. So even though an arbitrator, acting under Section 10A of the Industrial Disputes Act, is a private individual, he discharges public function. So the ratio in the Constitution Bench decision in Engineering Mazdoor Sabha is consistent with the decision in Sohan Lal.

59. It has repeatedly been held by this Court that a proceeding under Article 226 of the Constitution is not the appropriate forum for adjudication of property disputes or disputes relating to title. In Mohammed Hanif v. State of Assam a three Judge Bench of this Court, explaining the general principles governing writ jurisdiction under Article 226, held that this jurisdiction is extraordinary in nature and is not meant for declaring the private rights of the parties. [See SCC page 786 Para 5 of the report]. In coming to the aforesaid conclusion in Hanif, this Court referred to the Constitution Bench decision in T.C. Basappa vs. T. Nagappa.

60. Following the aforesaid principles in Hanif, this Court in Hindustan Steel Limited v. Kalyani Banerjee held that serious questions about title and possession of land cannot be dealt with by writ court. In formulating these principles in Kalyani Banerjee, this Court relied on the Constitution Bench decision in Sohan Lal [See SCC paragraph 16 page 282 of the report].

61. Again in State of Rajasthan vs. Bhawani Singh this Court held that a writ petition is not the appropriate forum to declare a person's title to property. [see SCC para 7, page 309 of the report].

62. Subsequently, again in Mohan Pandey v. Usha Rani Rajgaria, this Court held that a regular suit is the appropriate remedy for deciding property disputes between private persons and remedy under Article 226 is not available to decide such disputes unless there is violation of some statutory duty on the part of a statutory authority. [See para 6, page 63 of the report].

63. Following the aforesaid ratio in Mohan Pandey, this Court again in Prasanna Kumar Roy Karmakar v. State of W.B, held that in a dispute between the landlord and tenant, a tenant cannot be evicted from his possession by a writ court. Again in P.R. Murlidharan v. Swami Dharmananda Theertha Padar, this Court held that it would be an abuse of the process to approach a writ court in connection with dispute on questions of title for deciding which the civil court is the appropriate forum.

67. 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. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the 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.

68. For the reasons aforesaid, it is held that the High Court committed an error in entertaining the writ petition in a dispute between landlord and tenant and where the only respondent is a private landlord. The course adopted by the High Court cannot be approved. Of course, High Court's order of non- interference in view of concurrent findings of facts is unexceptionable. Consequently, the appeal is dismissed. However, there shall be no order as to costs.

Paragraph 10 of Swapan Kumar Bandopadhyays case reported in AIR 2006 Jharkhand 19:

10. The question: Whether a Letters Patent Appeal against an order passed under Article 226 and/or under Article 227 is maintainable or not and whether such right can be curtailed without any express provision under the statute, fell for consideration before the Supreme Court, from time to time.

In the case of "Umaji Keshao Mesh-ram v. Smt. Radhikabai", reported in AIR 1986 SC 1272: (1986) Supp SCC 401, the Supreme Court held, as follows (Paras 1 and 106 of AIR) ....no appeal under Clause 15 of the Letters Patent lies to the High Court against the order of a single Judge of the High Court exercising jurisdiction under Article 227 of the Constitution, no less and no more."

.....the reference to S. 107 of the Government of India Act, 1915 in Clause 15 of the Letters Patent must necessarily be read as a reference to Article 224 of the Constitution. So read an appeal under Clause 15 is clearly not maintainable against an order made in exercise of the powers under Article

227....... ...In our opinion, where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution and the party chooses to file his application under both these Articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal the Court ought to treat the application as being made under Article 226 and if in deciding the matter, in the final order the Court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letters Patent where the substantial part of the order sought to be appealed against is under Article

226......... In the case of Subhilabai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha. reported in (1993) Suppl (1) SCC 11: (AIR 1992 SC 185, para 4), the Supreme Court endorsing the aforesaid view, held as follows :

The Full Bench of the Bombay High Court wrongly understood the above Umaji Kesho Mesram case (AIR 1986 SC 1272). In Umaji case it was clearly held that where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution of India and the party chooses to file his application under both these articles, in fairness or justice to party and in order not to deprive him of valuable right of appeal the Court ought to treat the application as being made under Article 226 and if in deciding the matter, in the final order the Court gives ancillary directions which may pertain to Article 227, this ought not to be held to deprive a party of the right of appeal under Clause 15 of the Letter Patent where the substantial part of the order sought to be appealed against is under Article 226. Rule 18 of the Bombay High Court Appellate Side Rules read with Clause 15 of the Letters Patent provides for appeal to the Division Bench of the High Court from a judgment of the learned single Judge passed on a writ petition under Article 226 of the Constitution. In the present case the Division Bench was clearly wrong in holding that the appeal was not maintainable against the order of the learned single Judge. In these circumstances we set aside the impugned order of the Division Bench and direct that the Letters Patent Appeal filed against the judgment of the learned single Judge would now be heard and decided on merits. In view of the fact that it is an old matter we request the High Court to decide the Letters Patent Appeal within six months. It is further directed that till the final disposal of the Letters Patent Appeal the operation of the order of the single Judge shall remain stayed. The appeals are allowed in part with no order as to costs.
Similar was the view of the Supreme Court in the case of Ratnagiri District Central Cooperative Bank Ltd. v. Dinkar Kashinath Watve reported in (1993) Suppl (1) SCC 9, wherein the Court held as follows:
It is clear that so far as the present case was concerned the relief granted by the learned single Judge clearly indicate that he was exercising jurisdiction under Article 226 and not under Article 227 of the Constitution and in this view of the matter and in the light of what has been laid down by this Hon'ble Court in the judgment referred to above a Letters Patent Appeal under Clause 15 would be maintainable before the Division Bench of the High Court. The appeal is, therefore, allowed and the judgment passed by the learned Division Bench is set aside. The matter is sent back to the High Court and it is expected that the Division Bench will hear the appeal on merits and dispose it of in accordance with law expeditiously preferably within four months from today.
Paragraph 6 of Kanhaiyalal Agarwals case reported in (2001) 9 Supreme Court Cases 609:
6. So far as the law on the matter is concerned, as to whether an appeal would lie against an order made in writ petition before the High Court challenging an order of the labour court, this Court in its decision in Lokmat Newspapers (P) Ltd. v. Shankarprasad, stated that if a Single Judge exercises jurisdiction under Article 226, Letters Patent Appeal would be maintainable, but if the jurisdiction is exercised under Article 227 it will not be maintainable. But with an explanation that if the Single Judge of the High Court in considering the petition under Article 226 or Article

227 does not state under which provision he has decided the matter and where the facts justify filing of petition both under Article 226 and Article 227 and a petition so filed is dismissed by the Single Judge on merits, the matter may be considered in its proper perspective in an appeal. This Court held as aforesaid in view of the decisions of this in Umaji Keshao Meshram v. Radhikabai, Ratnagiri District Central Co- operative Bank Ltd. v. Dinkar Kashinath Watve and Sushilabai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha.

Paragraphs 8, 9 and 10 of Kokkanda B. Poondachas case reported in AIR 2011 Supreme Court 1353:

"8. We have considered the respective submissions. We shall first consider the question whether the High Court could interfere with the order of the trial Court without considering the question whether the said order was vitiated due to want of jurisdiction or the trial Court had exceeded its jurisdiction in deciding the application of the respondents and the order passed by it has resulted in failure of justice. In Surya Dev Rai's case (supra) (AIR 2003 SC 3044), the two Judge Bench, after detailed analysis of the various precedents on the scope of the High Court's powers under Articles 226 and 227 of the Constitution culled out nine propositions including the following:-
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction- by assuming jurisdiction where there exists none, or
(ii) in excess of its jurisdiction  by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby."

9. In Shalini Shyam Shetty v. Rajendra Shankar Patil (supra) (2010 AIR SCW 6387), the Court again examined the scope of the High Court's power under Article 227 of the Constitution and laid down the following proposition:

"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 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 its exercise is subject to high degree of judicial discipline. The object of superintendence under Article 227, 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 Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court."

10. The learned Single Judge of the High Court totally ignored the principles and parameters laid down by this 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.

Paragraphs 5, 6, 9, 15, 16, 34, 38, 38(5) and 38(9) of Surya Dev Rais case reported in AIR 2003 Supreme Court 3044:

5. As a preclude to search for answer to the question posed it becomes necessary to recollect and restate a few well-established principles relating to the Constitutional jurisdiction conferred on the High Court under Articles 226 and 227 of the Constitution in the backdrop of the amended Section 115 of the C.P.C.
Writ of Certiorari
6. According to Corpus Juris Secundum (Vol.14, page
121) certiorari is a writ issued from a superior court to an inferior court or tribunal commanding the latter to send up the record of a particular case.

9. The nature and scope of the writ of certiorari and when can it issue was beautifully set out in a concise passage, quoted hereafter, by Lord Chancellor Viscount Simon in Ryots of Garabandho and other villages v. Zamindar of Parlakimedi and Anr. AIR 1943 PC 164. "The ancient writ of certiorari in England is an original writ which may issue out of a superior Court requiring that the record of the proceedings in some cause or matter pending before an inferior Court should be transmitted into the superior Court to be there dealt with. The writ is so named because, in its original Latin form, it required that the King should "be certified" of the proceedings to be investigated, and the object is to secure by the exercise of the authority or a superior Court, that the jurisdiction of the inferior tribunal should be properly exercised. This writ does not issue to correct purely executive acts, but, on the other hand, its application is not narrowly limited to inferior "Courts" in the strictest sense. Broadly speaking, it may be said that if the act done by the inferior body is a judicial act, as distinguished from being a ministerial act, certiorari will lie. The remedy, in point of principle, is derived from the superintending authority which the Sovereign's Superior Courts, and in particular the Court of King's Bench, process and exercise over inferior jurisdictions. This principle has been transplanted to other parts of the King's dominions, and operates, within certain limits, in British India."

15. Any authority or body of persons constituted by law or having legal authority to adjudicate upon questions affecting the rights of a subject and enjoined with a duty to act judicially or quasi-judicially is amenable to the certiorari jurisdiction of the High Court. The proceedings of judicial courts subordinate to High Court can be subjected to certiorari.

16. While dealing with the question whether the orders and the proceedings of subordinate Court are amenable to certiorari writ jurisdiction of the High Court, we would be failing in our duty if we do not make a reference to a larger Bench and a Constitution Bench decisions of this Court and clear a confusion lest it should arise at some point of time. Naresh Shridhar Mirajkar & Ors. Vs. State of Maharashra and Anr. (1966) 3 SCR 744, is a nine-Judges Bench decision of this Court. A learned judge of Bombay High Court sitting on the Original Side passed an oral order restraining the Press from publishing certain court proceedings. This order was sought to be impugned by filing a writ petition under Article 226 of the Constitution before a Division Bench of the High Court which dismissed the writ petition on the ground that the impugned order was a judicial order of the High Court and hence not amenable to a writ under Article 226. The petitioner then moved this Court under Article 32 of the Constitution for enforcement of his fundamental rights under Article 19(1)(a) and (g) of the Constitution. During the course of majority judgment Chief Justice Gajendragadkar quoted the following passage from Halsbury Laws Of England (Vol.11 pages 129,

130) from the foot- note :

"(.in the case of judgments of inferior courts of civil jurisdiction) it has been suggested that certiorari might be granted to quash them for want of jurisdiction [Kemp v. Balne (1844), 1 Dow. & L. 885, at p.887], inasmuch as an error did not lie upon that ground. But there appears to be no reported case in which the judgment of an inferior Court of civil jurisdiction has been quashed on certiorari, either for want of jurisdiction or on any other ground".

His Lordship then said :

"The ultimate proposition is set out in terms:
"Certiorari does not lie to quash the judgments of inferior Courts of civil jurisdiction".* These observations would indicate that in England the judicial orders passed by civil Courts of plenary jurisdiction in or in relation to matters brought before them are not held to be amenable to the jurisdiction to issue writs of certiorari."

34. We are of the opinion that the curtailment of revisional jurisdiction of the High Court does not take away and could not have taken away - the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court nor the power of superintendence conferred on the High Court under Article 227 of the Constitution is taken away or whittled down. The power exists, untrammelled by the amendment in Section 115 of the CPC, and is available to be exercised subject to rules of self discipline and practice which are well settled.

38(5). Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.

38(9). In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.

10. The court of appeal is court of corrections. Because of human fallibilities and varying perceptions and understandings even in same set of factual and legal circumstances, mistakes are committed. Mistakes always require to be corrected and in judicial system, mistakes are corrected by court of appeal or by court exercising supervisory jurisdiction over subordinate Courts. The decisions and orders are also corrected by writ courts.

11. The Constitution of India and Constitution of J&K have conferred jurisdiction on the Constitutional courts to correct the mistakes committed by the inferior courts/tribunals/authorities. The orders/decisions, however, can be reviewed by the Constitutional Courts on well established principles and norms which have been evolved by the courts in pre and post Constitutional era. The High Court exercises original jurisdiction when it considers a matter and issues directions or passes orders in terms of Article 226 of the Constitution of India and Section 103 of the Constitution of J&K. The Honble Supreme Court has held in plethora of judgments that Constitutional power of review is the basic feature of the Constitution.

12. When the Constitutional Court exercises original writ jurisdiction then its judgment can be appealed against by the aggrieved party before the larger Bench in accordance with the provisions contained in Clause 12 of the Letters Patent and Rules of High Court. Letters Patent has created and provided a forum to the aggrieved party which forum is authorized to hear the appeals against the original orders of the learned Single Judge.

13. The forum of appeal and right to file an appeal cannot be denied to an aggrieved person in a casual manner. Right to file an appeal is one of the most valuable rights available to the aggrieved person. When the forum of appeal and right to file an appeal is available, then the orders/decisions passed by the court, against which an appeal can be filed, attains finality only when right of the appeal is exhausted. Right to file an appeal is of significant importance to an aggrieved person. The appeal power of constitutional court is of equal significance and importance to that of exercising of original writ jurisdiction. It has same constitutional value as that of exercising of original writ jurisdiction by the Constitutional Courts. In the Scheme of culmination of original proceedings, the power of reviewing and correcting the decision/order, shifts to the appeal court/forum.

14. In order to take a view that in a particular factual and legal background, the forum of appeal and/or right to file an appeal is not available to aggrieved party, there has to be complete and comprehensive study of law and well thought out discussion about the same.

15. High Court in terms of Article 226 of the Constitution of India is not only authorized to issue the writs, but is also authorized to pass orders and directions. Similarly in terms of Section 103 of the Constitution of J&K, High Court has power to issue writs, orders or directions including writs in the nature of Habeas Corpus, Mandamus, Prohibitions, quo warranto and certiorari. The writs which can be issued, mention whereof is made in Article 226 of the Constitution of India and Section 103 of the Constitution of J&K, are very ancient writs.

16. The writ of Certiorari from its origin is being issued to correct the decisions/orders of subordinate courts/tribunals/authorities. In a writ of Certiorari, inferior court is asked to deliver its record to the writ court, and writ court on well established legal principles and in appropriate cases quash or set aside the orders. With the passage of time and development in the Constitutional law, writ of Certiorari is also being issued to correct administrative decisions, which are culmination of the decision making process by Government and its authority.

17. Since the Writ of Certiorari is primarily issued to correct the decisions of inferior courts, the exercise of such constitutional power cannot be refused by holding that State or any public authority is not party in the writ petition. In a civil suit filed in the Subordinate court, normally the parties are private persons. The writ of certiorari is not being issued to the private persons, but is issued to correct the proceedings and decisions of the subordinate courts/inferior courts/tribunals. For maintaining a writ petition, where relief is sought for issuance of writ of certiorari, it is not always necessary that State and its authorities shall be party in the writ petition. State and its authorities have to be parties in a writ petition, where there action has been challenged and the prayer made for annulling the same by issuance of writ of Certiorari. Aforementioned view flows from the decisions of the Honble Supreme Court cited at the bar by the learned counsel for the parties and reference to some paragraphs is made in this judgment, more particularly to Surya Dev Rais case.

18. In a petition, where a prayer is made for issuance of writ of Certiorari, it is not necessary, in all circumstances, that one of the parties in the array of respondents shall be State and its authorities, to make the writ petition maintainable before the High Court. Such a view is contrary to the well established legal norms which relate to the issuance of writ of Certiorari.

19. In Shalini Sham Shettys case, the Honble Supreme Courts observations would show that writ of Mandamus cannot be issued against a private person (Paragraph 53 of judgment). At paragraph 54 of the same judgment, the Court referred to an earlier judgment wherein it was held that writ of Certiorari can be issued in respect of order of any arbitrator appointed under Section 10-A of Industrial Disputes Act. In Paragraph 59 to 68, reference is made to various judgments. In all those judgments rights of private persons were sought to be declared by filing writ petition.

20. In this case rights of private parties are not to be adjudicated upon. The order of civil court is under scanner. The writ of Certiorari can be issued in appropriate cases to correct the record of inferior court.

21. In Shams-ud-din Bachas case, the Division Bench of this Court has rightly held that LPA is not maintainable, as the petition was filed u/s 115 of CPC read with Section 104 of Constitution of J&K, invoking the supervisory jurisdiction of the Court.

22. The issue can be explained by citing illustration; A filed an application before the revenue authority for seeking correction of revenue record; his claim is that though he is in possession of land from Kharief 1971, but, B has been recorded in the revenue records as tenant of the land. This is dispute between the private parties. The application of A is rejected, he files an appeal. Appeal is also dismissed he files revision petition before Tribunal. His revision is also dismissed by the Tribunal. Section 104 of the Constitution of J&K provides that 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 Courts. Hierarchy of the courts is given in Section 13 of Civil Courts Act, Svt. 1977 (1920 A. D.). Section 3 of Code of Civil Procedure, Svt. 1977 provides for subordination of court. Tribunals are not covered by Section 13 of Civil Court Act and Section 3 of CPC. High Court is not exercising the superintendence and control over the Tribunals. A, in these circumstances, cannot invoke the jurisdiction of High court under Section 104 of the Constitution of J&K. If the argument is accepted that writ petition would not be maintainable when the dispute is between private parties, then A is rendered remediless. Such a situation cannot be countenanced in law. A can file writ petition and pray for issuance of writ of Certiorari and directions in terms of Article 226 of the Constitution of India and Section 103 of the Constitution of J&K. In such type of writs, it is not necessary that the tribunal should be impleaded as party. Tribunal only decides the case. It is, in these circumstances, A can file writ petition seeking issuance of writ of Certiorari quashing order of the tribunal. Going by the reasoning of Mushtaq Ahmad Dhars case reported in AIR 2012 Jammu and Kashmir 123 and Abdul Rehman Dars case reported in 2011 (4) JKJ 334 (HC), A would be left without any remedy. Article 227 of the Constitution which provides that High Court shall have superintendence over all the courts and tribunals, is not applicable to the State of J&K because it has been substituted by the Constitution (forty-second Amendment) Act, 1976 and Constitution (forty-forth Amendment) Act, 1978, which constitutional amendments have not been extended to the State of J&K.

23. For our above recorded reasons, the decisions rendered by the learned Single Judge(s) in OWP No. 1214/2011 in case titled Mushtaq Ahmad Dhar and anr. v. Nazir Ahmad Dhar reported in AIR 2012 Jammu and Kashmir 123 and in OWP No. 1364/2011 in case titled Abdul Rehman Dar and ors. v. Showkat Ali Bhat and ors. reported in 2011 (4) JKJ 334 (HC) is held to be not laying the correct law. The decisions are, accordingly, over ruled.

24. The question of considerable importance which now arises for our consideration is as to whether writ petition filed by respondent-defendant which has resulted in passing of the impugned judgment is:

i. filed under Article 226 of the Constitution of India read with Section 103 of the constitution of J&K; or ii. filed under Section 104 of the Constitution of J&K; or iii. filed under Section 103 and Section 104 of the Constitution of J&K.

25. In order to arrive at a lawful and just conclusion in this case, reference shall have to be made to the writ petition and the impugned judgment.

26. Writ petition, it appears, has been filed by the respondent-defendant in the month of May, 2012. Respondent-defendant has labeled the petition under Section 104 of the Constitution of J&K read with Article 227 of the Constitution of India. Respondent-defendant has not styled the petition as writ petition. This very fact makes it abundantly clear that respondent- defendant has been guided in filing the petition by decisions of the Court reported in AIR 2012 Jammu and Kashmir 123 and 2011 (4) JKJ 334 (HC). Since the learned Single Judge(s) in the judgment(s) have ruled that in the writ petition main respondent has to be either Government or instrumentalities of the State, respondent-defendant has accordingly labeled the petition to be one under Section 104 of Constitution of J&K, so as to ensure that he does not incur the risk of facing the dismissal of the writ petition without being considered by the court on its merits.

27. Respondent-defendant (writ petitioner) challenged the order of the appeal court in the writ petition on the grounds which are more or less, pleaded and projected for seeking issuance of writ of Certiorari. Respondent-writ petitioner, however, has used the phraseology in petition, in view of the mandate contained in Mushtaq Ahmad Dhars case reported in AIR 2012 Jammu and Kashmir 123 and Abdul Rehman Dars case reported in 2011 (4) JKJ 334 (HC). At paragraph 3(h) of the writ petition, though respondent- defendant has referred to the power of superintendence and control of the High Court over the subordinate courts, but has sought quashment of the finding/conclusion arrived at by appeal court in declining to amend the written statement. The cumulative effect of the pleadings of the writ petition does show that petition was filed both under Section 226 of the Constitution of India read with Section 103 of the Constitution of J&K as also under Section 104 of the Constitution of J&K. Learned Single Judge while considering and deciding the writ petition has not specifically stated in the impugned judgment that power is being exercised in terms of Section 104 of the Constitution of J&K. Learned Single Judge after setting aside the order of the trial court has provided that the respondent- defendant is at liberty to amend the written statement as proposed vide application dated 27.02.2012 and has been permitted to add paragraph 7-A to the written statement.

28. In view of the law laid down by the Honble Supreme Court in Surya Dev Rais case reported in AIR 2003 Supreme Court 3044, Umaji Keshao Meshrams case reported in AIR 1986 SC 1272 and Sushilabai Laxminarayan Mudliyars case reported in AIR 1992 SC 185, reference whereof is also made at paragraph 10 of Swapan Kumar Bandopadhyays case reported in AIR 2006 Jharkhand 19, no further authority is required to be cited for the proposition of law, that even if in a petition which can be said to be filed under Article 226 of the Constitution of India, in the final order Court gives ancillary directions which pertain to its power conferred on it under Article 227, it shall not be held to deprive the party to file an appeal under clause 15 of the Letters Patent, where the substantial part of the order sought to be appealed against is under Article 226 of the Constitution of India. The court in AIR 1992 SC 185 considered the import of rule 18 of Bombay High Court read with clause 15 of the Letters Patent.

29. In view of our above referred discussions, we hold that writ petition filed by the respondent-defendant has been filed both under Article 226 of the Constitution of India and Section 104 of the Constitution of J&K, notwithstanding this fact, the reference is only made in the title of the writ petition to Section 104 of the Constitution of J&K, which we have already clarified, has been done in view of the judgment of the learned Single Judge(s) in Mushtaq Ahmad Dhars case reported in 2012 Jammu and Kashmir 123 and Abdul Rehman Dars case reported in 2011 (4) JKJ 334 (HC), which writ petitions were decided on 12.12.2011 and 09.11.2011 (refer to Kanhaiyalal Agarwals case).

30. In view of our above stated discussion, we hold that this LPA is maintainable.

31. Procedural laws are enacted to advance cause of justice. Procedural laws cannot be permitted to assume the shape of phantom, who will devour the angel of justice. Procedural laws are made to ensure that justice is done fairly and objectively and the similar situations are dealt with similarly.

32. As already stated, suit was instituted by the predecessor-in-interest of the appellants-plaintiffs on 16.11.1999 and decree was passed on 14.07.2011. Appeal against the decree and judgment is pending before the appeal court. In the suit, predecessor-in-interest of the appellant had prayed for issuance of decree for ejectment in respect of shop which is under the tenancy of respondent-defendant and is situated at Main Market, Rajouri. The original plaintiff died during the trial of the suit on 24.01.2006. Respondent-defendant in his written statement at paragraph 10 had pleaded that son of the original plaintiff can start any business of his choice for which he is not at all in need of the suit shop exclusively. Paragraph 10 of the written statement is taken note of:

10. That in reply to para No. 10 of the plaint, it is submitted that son of plaintiff can start any business of his choice for which he is not at all in need of the suit shop exclusively.

The plaintiff and his son are owner in possession of a factory and several shops both in Jammu and Rajouri and the plaintiff and his brothers, known landlords of the area, have also undertaken a project of construction of around 60ty shops in civil line area Rajouri.

33. Before the appeal court the respondent-defendant filed an application 27.02.2011 praying therein that he be permitted to amend the written statement and add paragraph 7-A. Paragraph 7-A is taken note of:

7-A. That the plaintiff Rahul Gupta has now inherited a residential house and a shop in the ground floor of that building which is House No. 237, Laxmi nagar, Upper Sarwal, Near Transformer, Sarwal Jammu on the demise of his father being his only son and has started running a business of Hard Board, Sun Mica, Ply Wood etc. in the said shop at Sarwal Jammu. He has also rented a portion of the said house and is as such having additional income from that as well. Moreover the said plaintiff Rahul Gupta is also now running a business of Maxx Mobiles, Accessories and General Order Suppliers as super stockiest for Jammu and Kashmir under the name as Mahajan Sales Corporation and having its business concern located in 29 A/C, Gandhi Nagar, Jammu. Rahul Gupta has also obtained TIN as 01701122282 as well VAT invoice for the said business at Gandhi Nagar. Thus the said plaintiff has no reasonable need persisting for claiming the suit shop.
34. Plaintiff died on 24.01.2006. What is sought to be brought by way of adding paragraph 7-A in the written statement is that because of death of original plaintiff, the appellant-plaintiff No. 2 herein inherited a residential house and a shop in the ground floor of that building which is House No. 237 Laxmi Nagar, Upper Sarwal, Near Transformer, Sarwal Jammu being the only son of the original plaintiff. It is also pleaded in paragraph 7-A that the appellant plaintiff no. 2 has started running business of Hard Board, Sun Mica, Ply Wood etc and is running another business under the name and style of Mahajan Sales Corporation. Appellants-Plaintiffs have specifically denied the averments made in the application seeking amendment of the written statement and have also denied the claim about the business being run by appellant no. 2 under the name and style of Mahajan Sales Corporation. It is stated that same is run by the wife of appellant plaintiff no. 2 in a room taken on rent. The appellant plaintiff no. 2 in his objections filed in OWP No. 685/2012 has specifically stated that he is still jobless.
35. Immediately after the death of the original plaintiff, if in the wisdom of the respondent-defendant, appellant- plaintiff no. 2 had inherited the property of his deceased father, which included one shop also, he should have taken immediate steps for seeking permission to amend the written statement. Respondent-defendant allowed the trial to conclude without seeking amendment of the written statement. It is only after a period of five years that he filed an application before the appeal court for seeking amendment of the written statement. This very fact is sufficient to indicate that the application is not bonafide one, but only a consequence of well thought out design to protract the proceedings and enthuse further life in the respondents occupation of the suit shop. No reasonable person having clear bonafides can wait for five years for filing an application for seeking amendment of the written statement and, that to, in the appeal court. Though Court normally allows the amendments, but in a situation like this exercising of power in allowing amendment in the pleadings would literally result in subjecting the beneficiary of the decree to gross injustice. Respondent-defendant despite taking plea at paragraph 10 of his written statement has not succeeded to prove the same before the trial court. Nothing prevented the respondent-defendant in leading the evidence to show to the trial court that there was no legal necessity to appellant no. 2 in seeking eviction the respondent-defendant from the suit shop. Nothing further prevented him from proving that after the death of the original plaintiff the necessity to occupy the suit shop did not survive. The application, it is apparent from the facts of the case, has been filed with a view to frustrate the decree passed by the court of law. No case, even on merits, is made out, which would warrant for issuance of any direction by the writ court. The Honble Supreme Court in Surya Dev Rais case reported in AIR 2003 Supreme Court 3044 at paragraph 38 (3) and (4) has held that writ of Certiorari under Article 226 of the Constitution of India is issued for correcting gross error; is issued for correcting gross errors of jurisdiction and similarly the supervisory jurisdiction is exercised to keep the subordinate courts within the bound of their jurisdiction. The said sub paragraphs are taken note of:
38(3). Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
38(4). Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
36. Judging the case of the respondent-defendant on the touchstone of law laid by the Honble Supreme Court, he has miserably failed to make out case for issuance of orders in exercise of Constitutional jurisdiction by the writ court. In essence, it is appellantsplaintiffs who are made to suffer and have been put on a legal train which by exploiting the procedural laws has been hijacked by the respondent-defendant.
37. We for our above recorded discussion, dispose of the appeal along with all connected CMAs in the following manner:
a. the decisions of the learned Single Judge(s) in case OWP No. 1214 of 2011 decided on 12.12.2011 in case titled Mushtaq Ahmad Dhar and anr. v. Nazir Ahmad Dhar reported in AIR 2012 Jammu and Kashmir 123 and OWP No. 1364/2011 decided on 09.11.2011 in case titled Abdul Rehman Dar and ors. v. Showkat Ali Bhat and ors., reported in 2011 (4) JKJ 334 (HC) are over ruled;
b. the impugned judgment dated 06.06.2012 passed in writ petition OWP no. 685/12 is set aside; and c. writ petition OWP No. 685/12 along with all connected CMAs is dismissed. Appeal court shall make efforts to dispose of the appeal in accordance with law at the earliest. 
                                             (Bansi Lal Bhat)    (Muzaffar Hussain Attar)
                                        Judge              Judge
Jammu  
06.06.2013 
Paramjeet