Jammu & Kashmir High Court - Srinagar Bench
Mst. Zaineb Begum vs Ram on 14 September, 2012
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR LPA No. 73 of 2007 Mst. Zaineb Begum Petitioners Abdul Aziz Mir and ors Respondents !Mr. B. A. Bashir, Advocate Ms. Asifa Bijli, Advocate ^Mr. G. A. Lone, Advocate Honble Mr. Justice M. M. Kumar, Chief Justice Honble Mr. Justice Hasnain Massodi, Judge Date:14/09/2012 : J U D G M E N T :
M. M. Kumar, CJ
1. For some people litigation is a passion and it is used as an engine of harassment to others. If one set of litigant has lost the litigation, the other group is kept ready for inflicting fresh dose of litigation knowing fully well the results. They tend to take chances and wait for the result that judicial administration might accept their point of view. The cycle of litigation might have ended in the higher courts unfavourably, yet a new beginning is made by initiating another judicial process. These are the basic features of the case in hand.
FACTS
2. There is one Mst. Zainab Begum. Respondent no.4- Mushtaq Ahmad Khan, is her son. As per the family settlement, she alienated one kanal of land in his favour. The same was mutated out of the joint property, which Mst. Zainab Begum-appellant was holding along with other co-sharers. Within a short period after alienation respondent no. 4 transferred the property in question. She was forced to file a suit claiming prior right of purchase against her son, respondent No. 4, alleging that one kanal piece of land alienated to him under family settlement by her has been clandestinely sold by him by executing a sale deed, dated 30.1.1991, in favour of one Ghulam Nabi Shah, respondent No. 5. In the civil suit she claimed right to prior purchase alleging that she was not informed about the sale.
3. During the pendency of the suit, Ghulam Nabi Shah, respondent No. 5, without caring about the pendency of the civil suit, further executed a sale deed, dated 20.7.1991, which was registered in favour of Ali Mohammad, Mst. Mehra and Ghulam Mohi-ud-din, respondent Nos. 6, 7 and 8. Accordingly, the property came to be mutated in their favour by the revenue authorities competent to do so.
4. Mst. Zainab Begum-appellant, on acquiring knowledge of the said clandestine sale, sought permission of the Civil Court to amend the suit enabling her to challenge the subsequent sale deed, dated 20.7.1991. She also apprehended that the respondents would execute another sale deed in respect of the property in question. Accordingly, she filed an application to restrain the respondents from alienating the suit property or to change its character. On 22.7.1993, the aforementioned application was allowed and the learned Civil Court had passed an order of status quo. The respondents preferred not to appear before the Trial Court, which resulted in ex parte proceedings against them. At one stage, an application for setting aside the ex parte proceedings was filed and granted by the Trial Court. The respondents again continued to abstain and the proceedings ex parte were continued.
JUDGMENT AND DECREE IN THE PRE-EMPTION SUIT
5. The suit was eventually decreed by a judgment and decree, dated 24.6.1997, holding that Mst. Zainab Begum-appellant had the first right to purchase the suit property i.e. land measuring 5440 Square feet and she is entitled to possession of the same. The Collector was directed to deliver her possession of the property in question. Out of the purchase amount, a sum of ?10,000/- had already been deposited and remaining sum of ? 40,000/- was to be deposited up to 25.7.1997, failing which the suit was deemed to be dismissed.
IMPUGNED JUDGMENT SETTING ASIDE JUDGMENT AND DECREE IN PRE-EMPTION SUIT:
6. Mst. Zainab Begum-appellant, then initiated the proceedings for execution of the judgment and decree, dated 24.6.1997. However, one Abdul Aziz Mir, respondent No. 1, filed a writ petition, namely, OWP No. 45 of 1998, under Article 226 of the Constitution with the prayer for quashing the judgment and decree, claiming that he has acquired right on the basis of an oral gift made by respondent nos. 6, 7 and 8 in his favour. He also argued that the judgment and decree was based on perverse and cryptic findings. The learned Single Judge set aside the judgment and decree dated 24.6.1997, by the impugned judgment, dated 19.2.2007. In this appeal the appellant has challenged the view of the learned Single Judge, who alleged to have arrogated to itself the powers of the Appellate Court. The learned Single Judge observed that the Civil Court had dealt with the matter in most cursory manner and proceeded to observe as under:-
Perusal of the judgment shows that the trial court has not at all gone through the pleas raised by the defendants in their written statement. Even issues have not been framed and the trial court has proceeded ex parte against the defendants relying only on the statements the respondent-3 and the witness produced by her. Defendants had raised certain important legal issues in the case which the trial court has not taken note of at all. It has come in the evidence that there was a shed raised and Bandsaw mill installed and business was being carried out under the name Kohinoor Shooks. It is in the evidence that J&K Bank had also given some loan for running the said business. Thus there was sufficient evidence to look into the issue as to whether the provisions of Right of Prior Purchase was applicable or not as commercial activity was being carried out on the premises. Since the court has passed the judgment and decree in favour of the respondent-3 without properly going through the issues raised by the defendants in the case, I find that perverse findings have been returned by the trial court which cannot stand.
In the facts and circumstances of the case, I allow this petition and set aside the judgment and decree passed by the trial court on 24.06.1997 in case titled Mst. Zainab Begum v. Mushtaq Ahmed & ors File No: 3 which is impugned in the present petition. Case is remanded to the trial court for fresh adjudication. Trial court shall array the present petitioner as party defendant in the said case and shall allow the present petitioner to file written statement. Even plaintiff shall be at liberty to amend the said suit if amendment is required in view of the changed facts and circumstances. Let the parties appear before the trial court on 01.03.2007. Record be sent to the trial court immediately. (Emphasis added) ARGUMENTS AGAINST THE VIEW OF THE WRIT COURT
7. Mr. B.A. Bashir with Ms. Asifa Bijli, learned senior counsel for the appellant, has vehemently argued that the powers under Article 227 of the Constitution cannot be exercised as a cloak of an appeal. In other words, the provisions of Article 226/227 could not be invoked to substitute appellate jurisdiction, which in regular course are available to the aggrieved party like respondent No. 1. In support of his submissions, learned counsel has placed reliance on the judgment of Honble the Supreme Court rendered in the case of State through Special Cell, New Delhi v. Navjot Sandhu alias Afshan Guru and others, (2003) 6 SCC 641. He has emphasised that the power under Article 227 is discretionary and extra-ordinary, which cannot be considered as substitute of appellate or revisional jurisdiction. For the aforesaid proposition, reliance has also been placed on another judgment of Honble the Supreme Court rendered in the case of Ouseph Mathai v. M. Abdul Khadir, (2002) 1 SCC
319. It has then been argued that the power under Article 227 has to be exercised sparingly and that too for correcting errors of jurisdiction and the like but not to upset pure findings of fact which fall in the domain of an appellate court only. Mr. Bashir has also placed reliance on the judgments of Honble the Supreme Court in the cases of Khimji Vidhu v. Premier High School, (1999) 9 SCC 264; S. Nagarajan v. District Collector, Salem and others, (1997) 2 SCC 571; and Government of Andhra Pradesh and others v. Mohd Nasrullah Khan, (2006) 2 SCC 373.
8. Mr. Bashir has then argued that the writ petitioner- respondent No. 1 has no locus standi on the basis of an oral gift because the principles of lis pendens, envisaged by Section 52 of the J&K Transfer of Property Act , 1920-AD [for brevity, the 1920 Act), would be attracted and would bind all the subsequent purchasers of the property if the transaction has taken place during the pendency of the civil suit. In support of his contention, he has placed reliance on a judgment of this Court rendered in the case of Sunder Lal Bhatia v. Charan Lal Bhatia and others, AIR 2010 J&K 16, and argued that vendees-respondent Nos. 6 to 8 could not have orally gifted the suit property in favour of the writ petitioner-respondent No. 1, as the transaction would be hit by the doctrine of lis pendens. Accordingly, the writ petitioner-respondent No. 1 could not claim any undisputed titled in respect of the suit property. Learned counsel has submitted that it is doubtful whether the writ petitioner-respondent No. 1 could have been permitted to become even a party to the suit had he moved an application under Order I Rule 10 of the Code of Civil Procedure, 1908, because such person cannot be regarded as necessary/proper party on account of the principle of lis pendens. In any case, Mr. Bashir submits that mutation on the basis of oral gift would not confer any title, which could be conferred only through recognised mode of transfer of the suit property by executing a sale deed as per the provisions of the 1882 Act. The aforesaid transaction is fraudulent, which is stated to have been entered on 5.8.1996.
9. Mr. Bashir has then submitted that the learned Additional District Judge had passed an order in July 1993, directing the parties to maintain status quo over the land in question, therefore, any act aimed at subverting the aforesaid order would be viewed as contempt of the Court and in any case cannot be acted upon. Further the mutation, dated 5.8.1997, on the basis of the oral gift entered in the revenue record, would not furnish any locus standi to the writ petitioner-respondent No. 1 to approach this Court under Article 226/227 of the Constitution.
10. It was then argued that the judgment and decree, dated 24.6.1997, could have been assailed by the writ petitioner-respondent No. 1, in appeal. It has also been argued that the Writ Court could not have gone into evidence to reverse the findings recorded by the Trial court in the judgment and decree, dated 24.6.1997. Learned counsel has maintained that there is a lot of difference between perfunctory findings and the findings based on some evidence. In other words, the sufficiency of evidence as against lack of evidence is no ground to set aside the findings once the evidence relied upon by the Trial Court is reliable and is admissible in the eyes of law.
ARGUMENTS SUPPORTING THE IMPUGNED JUDGMENT
11. Mr. G.A. Lone, learned counsel for the writ petitioner- respondent No. 1, has vehemently argued that there is adequate power given to the Writ Court by Article 226 and 227 of the Constitution to entertain a writ and set aside the proceedings of the Civil Court, including a judgment and decree passed by it. In support of his submissions, learned counsel has placed reliance on a judgment of Honble the Supreme court rendered in the case of Waryam Singh and another v. Amarnath and another, AIR 1954 SC 215, and argued that there is no jurisdictional error on the part of the Writ Court when it set aside the judgment and decree, dated 24.6.1997. He has also emphasised that High Court is not divested of the jurisdiction to interfere in matters which are in the nature of private disputes or civil disputes. In support of his submission, learned counsel has placed reliance on a judgment of Honble the Supreme Court in the case of Shalini Shyam Shetty and another v. Rajendra Shankar Patil, (2010) 8 SCC 329. He has further submitted that the right of prior purchase under the Right to Prior Purchase Act, 1993, would not be available to Mst. Zainab Begum- appellant because the documents on record would show that it was a commercial property with an industrial unit. Likewise, he submitted that the appellant could not succeed in her claim of partial pre-emption, as has been held by a 5-Judge Bench of the Privy Council in the case of Mohammad Wajid Ali Khan v. Puran Singh and others, AIR 1929 Privy Council 58. Mr. Lone has emphasised that the right of pre-emption is a very weak right and the appellant in her capacity as a plaintiff, was required to maintain it at all relevant stages.
CONSIDERATION OF THE RIVAL CONTENDTIONS
12. Having heard the rival contentions of the learned counsel for the parties and perusing the paper book with their able assistance, we are of the considered view that the following questions of law would arise for determination in the present appeal:-
(1) Whether the writ petitioner- respondent no.1 would be bound by the judgment and decree dated 24.06.1997 by operation and application of the principles of lis pendens?
(2) Whether in the facts and circumstances of this case the Writ Court was justified to exercise jurisdiction by entertaining the writ petition and setting aside the judgment and decree dated 24.06.1997?
RE: QUESTION NO. 1.
13. We have bestowed our thoughtful consideration on the whole issue and have pondered over the rival submissions made by learned counsel for the parties. It would first be necessary to read and analyse Section 52 of the 1920 Act and the same reads as under:-
52. Transfer of property pending suit relating thereto.-
During the pendency in any court having authority in the State of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.
Explanation: For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.
14. For application of Section 52 of the 1920 Act or for the application of principle of lis pendens, various requirements have to be fulfilled, which are discernible from Section 52 of the 1920 Act and the same are as follows:-
(a) A suit or a proceeding in which any right to immovable property is directly and specifically in question must be pending;
(b) The suit or proceeding shall not be a collusive one; and
(c) The property which is subject matter of dispute during the pendency of such a suit or proceeding cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the right of any other party thereto under any decree or order, which may be passed except under the authority of the Court?
15. The explanation makes it abundantly clear that pendency of a suit or proceeding must be deemed to have commenced from the date of presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction. Even if a suit is dismissed for non-prosecution or in default but thereafter it has been restored then for the purpose of lis pendens, the restoration is to relate back to the date of presentation of the plaint (See Ashutosh v. Ananta Ram, AIR 1919 Cal. 40). Accordingly, the principles of lis pendens would apply to any transfer or alienation or dealing with property in any manner whatsoever including gifts. Likewise, in the case where a plaint, which is insufficiently stamped, has been received by the Court and then time for making good deficiency of court fee is granted then the plaint is deemed to be presented when it was first received by the Court (See Shivashankarappa v. Shivappa, AIR 1943 Bom. 27).
16. The explanation further postulates that a suit or proceeding would continue until such time such a suit or proceeding has been disposed by a final decree or order. The matter does not conclude on the passing of final decree, which might be delivered by the trial Court where the suit has been filed or by the last Court of appeal but such a decree or order must culminate in complete satisfaction or discharge of such decree or order. The explanation deliberately employs the expression and between the two events, namely, one dealing with the disposal of a suit or proceeding by a final decree or order and it is thereafter that the word and has been used to be followed by the second event, namely, that such decree or order must be satisfied or discharged. It also provides that if such a decree or order could not be satisfied for reasons of expiration of period of limitation etc. then it is a different matter. It is, thus, evident from the explanation that it is not only the initial judgment and decree, a suit would envelop even final decree or order and, thereafter, the principles of lis pendens would continue to apply even to execution proceedings. In other words, prohibition of alienation and transfer or dealing with property constituting subject matter of suit by a party to the litigation would continue to apply till such time the decree or order are satisfied or discharged or otherwise become un-executable. The aforesaid interpretation is echoed in para 9 of the judgment of Honble the Supreme Court in the case of Ghantesher Ghosh v. Madan Mohan Ghosh, (1996) 11 SCC 446, which reads thus:-
9. Section 52 of the Transfer of Property Act is another illustration on the point dealing with the principle of lis pendens. The explanation to the said section indicates that the pendency of a suit would encompass the stage after the final decree till complete satisfaction and discharge of such decree or order. It is, therefore, obvious that legislature for different contingencies has though it fit to extend the scope and ambit of the terminology "suit" even for covering the execution proceedings in connection with decrees passed in suit such. ...
17. The net result is that mere pendency of a suit may not prevent one of the parties from dealing with the property constituting the subject matter of the suit but it only postulates a condition that alienation would in no manner affects the rights of other party under the decree which may be finally passed in the suit unless the property was alienated with permission of the Court. A similar view has been expressed by the Full Bench of Kerala High Court in the case of Lakshmanan v. Kamal, AIR 1959 Kerala 67. This Court too has taken a similar view in para 6 of the Division Bench judgment of this Court in the case of Sunder Lal Bhatia v. Charan Lal Bhatia 2010 (1) SLJ 419.
18. It is trite to observe that the principles of lis pendens have been codified and embodied in Section 52 of the 1920 Act, which are based on sound public policy. The principles of lis pendens restrain a party to the litigation from transferring or alienating or dealing with the property or a part thereof in any manner, which is subject matter of dispute, during the pendency of a suit so as to adversely affect the rights of the opposite party. It is equally well known that anybody dealing with such property in a pending suit is deemed to have notice and the pendency of a suit is considered to be a notice to all whether party to the suit or not. If any transaction has taken place during pendency of the suit then it would abide the final result of the judgment and decree, which may be passed by the Court. The basic principle incorporated by Section 52 of the 1920 Act is to give protection to the authority of the Court. The history of these principles has been traced by Honble the Supreme Court in the case of Jaya Ram Mudaliar v. Ayyaswami, (1972) 2 SCC 200, which is echoed in para 47 of the judgment. Their Lordships after citing commentary of celebrated authority Bennet On Lis Pendens have observed as under:
47. It is evident that the doctrine, as stated in Section 52, applies not merely to actual transfers of right which are subject-matter of litigation but to other dealings with it "by any party to the suit or proceeding, so as to affect the right of any other party thereto". Hence, it could be urged that where it is not a party to the litigation but an outside agency, such as the tax collecting authorities of the Government, which proceeds against the subject matter of litigation, without anything done by a litigating party, the resulting transaction will not be hit by Section 52. Again, where all the parties which could be affected by a pending litigation are themselves parties to a transfer or dealings with property in such a way that they cannot resile from or disown the transaction impugned before the Court dealing with the litigation, the Court may bind them to their own acts. All these are matters which the Court could have properly considered. The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward.
19. The aforesaid principles are the manifestation of equity, good conscience and justice. In the absence of principle of lis pendens, transfer and alienation during the pendency of a suit would become permissible, which would result into defeating rights of a claimant/plaintiff. Such a defeat of the rights of a claimant/plaintiff would cause failure of justice and principles of equity, good conscience or justice would be totally shelved. In support of the aforementioned view we draw support from the judgment of Honble the Supreme Court in the case of Rajendar Singh v. Santa Singh, AIR 1973 SC 2537. Placing reliance on the earlier judgment rendered in the case of Jaya Ram Mudaliar (supra), in para 15 it was observed as under:- 15. The doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject matter of litigation from the ambit of the court's power to decide a pending dispute or frustrate its decree. Alienees acquiring any immovable property during a litigation over it are held to be bound, by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it. The whole object of the doctrine of lis pendens is to subject parties to the litigation as well as others, who seek to acquire rights in immovable property, which are the subject matter of a litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated.
20. Another ancillary question which arises is whether the plea of bona fide purchaser in terms of Section 41 of the 1920 Act would be available to the transferee even if the sale deeds are hit by the doctrine of lis pendens. Section 41 of the 1920 Act carves out an exception to the general rule that a person cannot transfer a better title than he himself possess and that the benefit of plea of bona fide purchaser is not available to the transferee covered by the principles of lis pendens. It is in the nature of estoppel (illustration to Section 115 of Evidence Act, 1920).
The question concerning bona fide purchaser in terms of Section 41 of the 1920 Act came up for consideration before a Division Bench of Allahabad High Court in the case of Md. Shafiqullah Khan v. Md. Samiullah Khan, AIR 1929 Allahabad 943. In that case subsequent to the institution of suit against the mortgagers, the property which was subject matter of the suit was mortgaged. The mortgagee was not granted a decree for sale and his plea of estoppel based on Section 41 was rejected by the Division Bench. Speaking for the Court, Honble Mr. Justice Sulaiman rejected the plea of bona fide transaction and proceeded to observe as under:-
it is perfectly clear that when the Court is to record a finding whether a transfer takes place with the express or implied consent of the true owner it must take into account the fact that before the transfer the suit which is to establish the title of the principal owner against an ostensible owner was actually pending and the consent if it had existed before, had been definitely revoked. The institution of the suit is in itself a very strong and unmistakable proof of the fact that the consent did not subsist. I would not go so far as to say that a consent express or implied, once existing, can be revoked secretly without intimation to the parties who are acting upon that consent, but I have no doubt in my mind that the estoppel arising under S. 41 cannot be such as to override the imperative provisions of S. 52. Cases of an express consent given while a suit is pending or is intended to be filed may amount to an existing fraud which would alter the position of the parties completely. But in the absence of such fraud I do not see how S. 41 can over-ride S. 52. S. 41 is a general section dealing with estoppel in the circumstances mentioned therein. S. 52 is a special section which applies to transfers during the pendency of a suit. In the presence of a special provision of law applicable to pending suits, the general provisions of estoppel contained in S. 41 would not apply.
21. The view taken by the Division Bench of Allahabad High Court was followed and applied by the Division Bench of Nagpur High Court in the case of Gendmal Amolakchand Marwari v. Laxman Tanba Krushnapakshi, AIR 1945 Nagpur 86.
22. The aforesaid question also fell for consideration before a Single Bench of the High Court of Punjab and Haryana in the case of Kanshi Ram v. Kesho Ram Bahna, AIR 1961 Punjab 299. The learned Singh Judge while placing reliance on the judgments of Allahabad High Court and Nagpur High Court has held in para 8 as under:-
(8) The principle embodied in S. 41 is an exception to the general rule that a person cannot pass a better title in the property than he himself has. It has been found by the competent Courts that Sunder has no title to the suit property and Karti and Muni have been declared owners of it. Sunder, therefore, could not validly transfer his rights in the property to the appellants. This result could be avoided only under the equitable principle of estoppel in S. 41 of the Transfer of Property Act.
There is, however, authority for the proposition that the principle of estoppel must yield to the doctrine of lis pendens under which no title in property could be validly transferred during the pendency of litigation in respect of it. In Shafiq-Ullah Khan v. Sami-ullah Khan, ILR 52 All 139:
(AIR 1929 All 943) it was ruled by Sir Shah Muhamad Sulaiman and Pullan JJ., that the estoppel arising under S. 41 cannot be such as to override the imperative provisions of S. 52. In the words of Pullan J., section 41 and 52 are mutually exclusive. In the case of a transfer in the circumstances mentioned above, S. 41 does not arise. It was held that where the transfer was made during pendency of litigation, no question of estoppel under section 41 could arise. A similar view was enunciated in Gendmal v. Laxman, ILR 1944 Nag 852: (AIR 1945 Nag 86) by a Division Bench of the Nagpur High Court (Niyogi and Digby JJ.) It was ruled that an estoppel under S. 41 cannot override the imperative provisions of S. 52 of the Act.
23. The aforesaid view has also been followed and applied in the case of Balwinderjit Kaur v. Financial Commissioner, AIR 1987 Pb & Hry 189. It was held that a transferee of disputed property during pendency of a civil suit against the transferor for specific performance of agreement to sell, would be bound by the judgment and decree against the transferor. The plea that they were bona fide purchaser without notice would be of no consequence. It appears to us to be well settled that the principle of estoppel would not govern the doctrine of lis pendens. In other words the principle of estoppel must yield to the doctrine of lis pendens under which no title in property could be validly transferred during the pendency of the litigation. The aforesaid view has the support of Division Bench judgment of Allahabad High Court rendered in the case of Md. Shafiqullah Khan (supra) and another Division Bench judgment of Nagpur High Court in the case of Gendmal Amolakchand Marwari (supra). Moreover, the Division Bench of Allahabad has opined, with which we are in respectful agreement, that Section 41 of the 1920 Act is a general section dealing with estoppel in the circumstances mentioned therein whereas Section 52 is a special section, which governs transfers during the pendency of a suit. Accordingly, the general provision must give way to special provision of law applicable to pending suits and, thus, the general provision of estoppel embodied in Section 41 of the 1920 Act would not apply.
24. When the principle concerning lis pendens and that of bonafide purchase are applied to the facts of the present case, it is evident that the judgment and decree dated 24.06.1997 passed by the civil Court would be applicable to oral gift claimed to have been made to writ petitioner-
respondent no.1 by respondent nos. 6 to 8. Once the rights of the parties including right of any subsequent beneficiary of a transaction are to be governed by the judgment and decree of civil court dated 24.06.1997, then no obstruction could be placed by the subsequent transaction including oral gift. Accordingly, question No. (i) is answered by holding that the principles of lis pendens would apply in respect of transfers/alienation which have been effected after filing of the civil suit by the appellant- Mst Zainab Begum.
RE: QUESTION NO. 2.
25. The question then is whether in the facts and circumstances of the instant case the Writ Court was justified in exercising its jurisdiction to set aside the judgment and decree dated 24.06.1997 passed by the trial Court. In order to reach to any such conclusion in law, it would be necessary to examine the principles which govern the exercise of jurisdiction under Article 226/227 of the Constitution.
26. It is well settled that the supervisory jurisdiction by the High Court can be exercised to correct those orders which would occasion grave injustice to a party. In that regard reliance may be placed on the judgment of Honble the Supreme Court in Ranjeet Singh v. Ravi Prakash (2004) 3 SCC 682. Following are the pertinent observations made by their Lordships which read thus:-
Feeling aggrieved by the judgment of the Appellate Court, the respondent preferred a writ petition in the High Court of Judicature at Allahabad under Article 226 and alternatively under Article 227 of the Constitution. It was heard by a learned Single Judge of the High Court. The High Court has set aside the judgment of the Appellate Court and restored that of the Trial Court. A perusal of the judgment of the High Court shows that the High Court has clearly exceeded its jurisdiction in setting aside the judgment of the Appellate Court. Though not specifically stated, the phraseology employed by the High Court in its judgment, goes to show that the High Court has exercised its certiorari jurisdiction for correcting the judgment of the Appellate Court. In Surya Dev Rai Vs. Ram Chander Rai & Ors. [(2003) 6 SCC 675] this Court has ruled that to be amenable to correction in certiorari jurisdiction, the error committed by the Court or Authority on whose judgment the High Court was exercising jurisdiction, should be an error which is self-evident. An error which needs to be established by lengthy and complicated arguments or by indulging into a long- drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai (Supra) that the jurisdiction was not available to be exercised for indulging into re- appreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal. The High Court has itself recorded in its judgment that "considering the evidence on the record carefully"
it was inclined not to sustain the judgment of the Appellate Court. On its own showing, the High Court has acted like an Appellate Court which was not permissible for it to do under Article 226 or Article 227 of the Constitution. (Emphasis added)
27. Like wise, in other cases viz. Mahendra Saree Emporium v. G. V. Srinivasa Murthy, (2002) 5 SCC 416 and Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675, it has been repeatedly held that if an order of a Civil Court or the judgment and decree passed by any such Court occasions grave injustice then alone jurisdiction under Article 226/227 of the Constitution must be exercised. There are no strait jacket formulas or strict rules of universal application which may be exhaustively laid down. The power is there but it has to be exercised solely by the dictates of judicial conscience of the Judge. Therefore, it would depend on the facts and circumstances of each case where certiorari jurisdiction could be justifiably exercised.
28. There are two judgments of Honble the Supreme Court where it has been held that a judgment and decree of a Civil Court which has attained finality should not be set aside as a matter of routine. It has been observed that normally the High Courts would be wary of interfering with an order passed in exercise of a discretion conferred by law. In the case of Mercantile Industrial Development Co. (P) Ltd v. Wahid Chauhan, (2003) 10 SCC 282 it has been held that interference by the High Court against a decision of the lower court was not justified. In that case a suit was filed in the year 1983 for recovery of the premises in question. The suit was decreed in favour of the plaintiff in the year 1985 despite objections filed by the judgment debtor. During the execution proceedings the objection taken was that the judgment and decree passed on 07.09.1985 was a nullity and in that regard a specific issue was framed. After about a period of ten years an application was filed by the judgment debtor with a plea that the decree was a nullity and non- executable and it must be tried as a preliminary issue. The Small Cause Court rejected the application and the order was affirmed by the Appellate Bench of the Small Cause Court. However, the High Court in a writ petition filed by the judgment debtor-respondent reversed the decision and directed that the issue be tried as a preliminary issue. On appeal to Honble the Supreme Court, their Lordships set aside the view taken by the High Court. The relevant observations figure in paragraph nos. 3 and 4 of that judgment, which reads thus:-
We find that the order of the High Court is not correct. First of all, it appears to us that the exercise of moving this application for treating Issue 2 as a preliminary issue is clearly mala fide and has been done so with a view to prolong the litigation. This application was filed after ten years of the issues being framed. The only desire can be to somehow or the other prolong the dispute. Furthermore, with two courts having rejected the prayer for framing the preliminary issue the High Court was not correctly advised to exercise its writ jurisdiction and set aside the said orders. There was no error of jurisdiction exercised by the courts below and in any event the issue in question cannot be decided without recording evidence. It was not a pure issue of law which may have been regarded as a preliminary issue.
4. We, accordingly, allow this appeal, set aside the judgment of the High Court and direct the executing court to proceed to hear the case expeditiously and dispose of the same within three months from today. The appellant will be entitled to costs. The cost is quantified at Rs.10,000/- to be borne by the respondent.
(Emphasis added)
29. A perusal of the aforesaid paragraphs would show that if the proceedings had been initiated with mala fide intention to prolong the litigation then it would not be advisable for the High Court to exercise writ jurisdiction under Article 226/227 of the Constitution. It has also been held that ordinarily when two courts have rejected the prayer made by the judgment debtor to treat an issue as a preliminary issue then the High Court was not correctly advised to set aside that order particularly when there was no error of jurisdiction exercised by the Courts below. Another principle indicated in the judgment is that if an issue cannot be decided without recording evidence then no such direction could be issued particularly when it was not a pure question of law.
30. In the case of State of A.P v. P.V. Hanumantha Rao, (2003) 10 SCC 121 two questions arose before Honble the Supreme Court. The first question was with regard to the scope of the jurisdiction of the High Court under Article 226 of the Constitution in a petition against the judgment of a Special Court and the second question was whether on the basis of the documents on record the High Court was justified in holding that the occupant of the land cannot be termed land grabbers under the provisions of the relevant statute or it would involve re- appreciation of evidence to reach a conclusion different than the one recorded by the Special Court. Answering both the aforesaid issues, their Lordships of the Supreme Court observed as under:-
30. True it is that remedy of the writ petition available in the High Court is not against the decision of the subordinate courts, tribunal or authority but it is against the decision-making process. In the decision-making process, if the court, tribunal or authority decision the case, has ignored vital evidence and thereby arrived at erroneous conclusion or has misconstrued the provisions of the relevant Act or misunderstood the scope of its jurisdiction, the constitutional power of the High Court under Articles 226 and 227 can be invoked to set right such errors and prevent gross injustice to the party complaining.
31. In the case of Surya Dev while examining the nature and ambit of power of the High Court to issue writs under Article 226 and 227 of the Constitution, the above-stated legal position has been recognized by observing thus: (SCC p.696, para 39) 39. Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules.At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the judge.
32. This Court has recognized the right of the High Court to interfere with orders of subordinate courts and tribunals where (1) there is an error manifest and apparent on the face of the proceedings such as when it is based on clear misreading or utter disregard of the provisions of law, and (2) a grave injustice or gross failure of justice has occasioned thereby.
33. No doubt, it was held that neither in exercise of the power of writ under Article 226 nor n supervisory jurisdiction under Article 227, the High Court will convert itself into a court of appeal and indulge in re-
appreciation or evaluation of evidence. The power of the High Court in writ jurisdiction to interfere where important evidence has been overlooked and the legal provisions involved are misinterpreted or misapplied has been recognized even in the case of Sawarn Singh1 on which strong reliance was placed on behalf of the State. The relevant observations are: (SCC p. 872, para 13) 13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. (Emphasis added)
31. In yet another case titled as Syndicate Bank v. New Look Rubbers (P) Limited and others, (2008) 5 SCC 274 Honble the Supreme Court held that once the issue has been decided by the Civil Court in various litigations which have attained finality and the decree has been executed then the High Court would not be competent to set aside such a judgment and decree in exercise of power under Article 226/227 of the Constitution. In that case, the Syndicate Bank has succeeded in securing a judgment and decree against the borrower and no appeal was filed against the aforesaid decree as is the situation prevailing in the case in hand. An application for execution of the decree was filed. During the pendency of the execution of the decree the judgment debtor filed a civil suit for injunction seeking an order prohibiting the execution of the decree rendered in the suit filed by the Bank, alleging that the judgement and decree was a nullity. After contest by the Syndicate Bank the suit was dismissed. Again no appeal was preferred and the judgment and decree attained finality. The judgment debtor again filed a pauper petition in the civil court claiming damages from the Syndicate Bank. The suit was dismissed for non-prosecution and the application for its restoration was also dismissed. Accordingly the proceedings attained finality. During the pendency of the execution proceedings the mortgaged property of the judgment debtor was sold in auction by the executing Court and the sale proceeds in the auction were deposited in the Court which were later on released to the Bank. The sale was also confirmed and the possession of the property was handed over to the auction-purchaser. Eventually, the execution application was dismissed. The order dismissing the execution application was challenged by the judgment debtor with the allegation that the execution proceedings ought to have been stayed during the pendency of the proceedings under Section 18-FH of the Industries (Development and Regulation) Act, 1951 and Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985. The judgment debtor also filed a writ petition under Article 226 of the Constitution in the Kerala High Court impleading the Government of Kerala, Kerala Financial Corporation, Syndicate Bank and the auction- purchaser as party respondents with various allegations that the unit of the judgment debtor had been rendered sick on account of the arbitrary actions of the Syndicate Bank and Kerala Financial Corporation. It was also asserted that the proceedings in the original suit resulting in passing of the judgment and decree were without jurisdiction and, therefore, null and void and consequently the decree too was not enforceable. The civil revision and the writ petition were heard together and both were allowed by the High Court. Accordingly, the High Court issued directions which virtually resulted into restoration of the auctioned property to the judgment debtor. It was in the aforesaid background, that their Lordships of the Honble Supreme Court set aside the judgment of the High Court which in turn has interfered with the judgment and decree of the civil Court. In paragraph nos. 9 and 10 the following relevant observations have been made which are set out below:-
9. We are of the opinion that the High Court has clearly overstepped its jurisdiction. The facts of the case show that the appellant had filed civil suit OS No. 732 of 1987 against the respondent for recovery of the sums advanced as loan plus interest. This suit was decreed on 9.4.1990 with the positive findings that there was no harsh or arbitrary behaviour in the proceedings against the respondent.
Admittedly, no appeal was filed against the judgment dated 9.4.1990 and it attained finality. The appellant Bank thereafter filed EP no. 819 of 1991 for the realisation of the decretal amount on which the respondent filed OS no.
1340 of 1993 praying that the appellant Bank be injucted from executing the decree in OS no.
732 of 1997. This suit too was dismissed on 1.3.1996. Another Pauper Petition No. 19 of 1997 was filed by the respondent claiming damages from the Bank and this too was dismissed. Admittedly all these maters have attained finality.
10. Two sets of objections in execution petitions, EAs Nos. 847 and 1197 of 1997 had been filed with regard to the applicability of Section 22(1) of SICA and Section 18-FH of the Regulation Act and in the meanwhile, the property mortgaged was sold in execution of the decree. The aforesaid objection petitions were dismissed on 21.7.1998. It is against the order in EA No 1197 of 1997 that the present revision was filed. We are therefore of the opinion that in the light of the issues decided by the civil court in the various litigations which were allowed to become final and as the decree had already been executed inasmuch that the mortgaged property has been sold, the directions issued by the High Court are clearly not warranted. We are also of the opinion that there can be no objection to the revival of the respondents unit but that is a matter between the respondent and Kerala Financial Corporation or other governmental agencies and cannot in any manner affect the legal rights that have accrued to the appellant as a consequence of a series of orders/judgments.
We accordingly allow this appeal, set aside the order of the High Court insofar as the decision in the civil revision is concerned, but with the rider that should the Government or its agencies choose to provide any succour to the respondent they would be at liberty to do so, but without in any manner affecting the rights or interest of the appellant Bank. There will be no order as to costs. ((Emphasis added)
32. Mr. Lone has placed reliance on a judgment of the Supreme Court rendered in the case of Waryam Singh (supra). This judgment in fact runs counter to the submissions of the learned counsel. Their Lordships laid great emphasis on the principle that the supervisory powers under Article 226 of the Constitution should be used sparingly and only in cases where on account of non-exercise of jurisdiction grave injustice is likely to occur. The aforesaid principles have been applied and followed in the cases of Babhutmal Raichand Oswal v. Laxmibai P. Tarta (1975) 1 SCC 858, India Pipe Fitting Co. v. Fakruddin M.A, (1977) 4 SCC 587 and Sukhbir Narain v. Dy. Director,1987 supp. SCC 74. All the judgments have been considered by Honble the Supreme Court in the case of Renu Drego v. Lal Chand Soni and ors, (1998) 3 SCC 341. The following observations made in para nos. 4 and 5 are directly relevant to the facts of the present case which reads thus:-
4. According to us, the high Court has traversed far beyond the limit of its supervisory jurisdiction under Article 227 of the Constitution when the learned Single Judge reversed the Decree of eviction which was based on findings of facts arrived at by the fact-
finding authority upon the evidence on record. it would have been well for the High court to remind itself that it was not exercising certiorari jurisdiction under Article 226 of the Constitution but a supervisory jurisdiction under Article 227 which obliges the High Court to confine to the scrutiny of records and proceedings of the lower tribunal. By relying on fresh materials which were not before the tribunal, the High Court should not have disturbed findings of facts in exercise of such supervisory jurisdiction. It is now well nigh settled that power under Article 227 is one of judicial superintendence which cannot be used to upset conclusions of facts, however erroneous those may be, unless such conclusions are so perverse or so unreasonable that no court could ever have reached them. Way back in 1954, a Constitution Bench of this Court, in Waryam Singh Vs. Amarnath has pointed out that the power of superintendence conferred by Article 227 should be exercised "most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors."
(emphasis supplied)
5. The said decision was made in an appeal which considered an order passed by a Rent control court. Quoting the aforesaid dictum a three-Judge Bench of this Court has in Babhutmal Raichand Oswal v. Laxmibai R. Tarta observed thus (AIR Headnote):
" The power of superintendence of High Court under Article 227 being extraordinary is to be exercised most sparingly and only in appropriate cases. The power, as in the case of certiorari jurisdiction, cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot, in guise of exercising its jurisdiction under Art. 227, convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts. The High Court cannot, while exercising jurisdiction under Art. 227, interfere with findings of fact recorded by the subordinate court or tribunal. It's function is limited to seeing that the subordinate court or tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and appreciating it."
The aforesaid position has been reiterated by the Court on subsequent occasions also (vide M/s. India Pipe Fitting Co. vs. Fakruddin M.A. Baker, Sukhbir Narain vs. Deputy director of Consolidation.
33. An examination of the aforesaid judgment would show that a number of principles have been laid down by Honble the Supreme Court which can be lucidly summed up as under:-
a) The certiorari jurisdiction of a Writ Court extends to decision making process and not to be exercised against the decision of subordinate Courts simplicitor.
b) The Writ Court cannot exercise certiorari jurisdiction by reaching a conclusion different than the one reached by the trial Court or the appellate Court on re-appreciating evidence merely because another view is possible. It cannot assume the jurisdiction of an appellate Court. Therefore, findings of facts recorded by the Courts/Tribunal should not ordinarily be upset.
c) A patent error can be corrected by exercise of certiorari jurisdiction. However, such an error does not need to be surfaced by a long drawn process of reasoning. In other words the error should be manifest and apparent on the face of the proceedings like when it is based on clear misreading or in utter disregard of the provisions of law.
d) If there is no error of jurisdiction ordinarily the Writ Court would refrain from upsetting any such order passed by the Tribunal/Courts.
e) If the Writ Court finds that the writ petition has been filed with an ulterior motive or malafide intention then it would refuse to exercise its certiorari jurisdiction.
34. When the facts of the present case are examined in the light of the principles laid down in the aforesaid judgments, no doubt is left that the learned Single Judge has committed error in law by setting aside the judgment and decree which has attained finality. The appellant is entitled to exercise the right of prior purchase under Sections 18, 19 and 20 read with Section 15 because the property involved is urban immoveable property and the right has been recognised by Section 15 in respect of the co-sharer of such property. The judgement and decree dated 24.06.1997 records the finding that the appellant is a co-sharer and she was not given any notice by her son, who has sold the property to respondent no. 5 during the pendency of the suit. It is appropriate to mention that civil suit no. 3 of 1991 was filed on 01.07.1991/12.07.1991 and respondent no. 5 who is the vendee from respondent no 4 had purchased the property in pursuance of a registered sale deed dated 20.07.1991. He sold the property in dispute further to respondent nos. 6, 7 and 8 who were party to the proceedings before the trial Court. However, respondent no. 6, 7 and 8 claim to have gifted the property by oral gift to respondent no. 1 who filed OWP no. 45 of 1998 relatable to the instant appeal. By applying the principle of lis pendens it has already been held while answering question no. 1 that respondent no. 1 is bound by the judgment and decree on account of the principle of lis pendens incorporated by S. 52 read with S. 41of the 1920 Act. In any case, once a judgment and decree has attained finality, which is based on findings of fact recorded after appreciating the evidence then it would not be proper for Writ Court to set aside such a judgment and decree either by re- appreciating the evidence and reversing the findings or on the basis of any other excuse as already noticed in the preceding para. It is further well settled as rightly submitted by Mr. Bashir that in exercise of jurisdiction the Writ Court cannot substitute its own findings by re- appreciating evidence which are different then the one recorded by the trial court. This is not the scope of certiorari jurisdiction because if that is permitted then in all cases, where findings of fact have been recorded, it would be open to re-appreciation of evidence like an appellate court. Such a course would be wholly impermissible. In that regard Mr. Bashir has rightly placed reliance on the judgment of the Supreme Court in the cases of Ouseph Mathai (supra), Khimji Vidhu (supra), S. Nagarajan (supra) and Mohd Nasrullah Khan (supra).
35. Moreover, the writ petitioner respondent no. 1 if at all felt aggrieved by the judgment and decree dated 25.06.1997 and the execution proceedings initiated on that basis, he could have filed an appeal after obtaining leave to appeal as has been held in the case of Uday Chand v. Subodh Gopal AIR 1971 SC 374. A 3-Judge bench of Honble the Supreme Court has opined that a person who is not a party to the suit may prefer an appeal with the leave of the appellate court and such leave should be granted if he would be prejudicially affected by the judgment. Examine from any angle the judgment and decree dated 24.06.1997 and the execution proceedings could not have been set aside by the Writ Court in exercise of jurisdiction either under Article 226 or under Article 227 of the Constitution. Accordingly, the second question is also answered against the writ petitioner respondent no.1 and in favour of the appellant.
36. As a sequel to the above discussion the appeal is allowed, the judgment and order passed by the learned Single Judge is set aside. The judgment and the decree dated 24.06.1997 is restored along with the execution proceedings. The appellant is entitled to the costs which shall be paid by respondent no.1. We quantify the same at ? 20,000/-. The cost be deposited by way of Account Payee Cheque drawn in favour of the appellant within a period of two months from today.
(Hasnain Massodi) (M.M. Kumar)
Judge Chief Justice
Srinagar
14.09.2012
Anil Raina, Secy