Jammu & Kashmir High Court - Srinagar Bench
Rehmata Begum & Ors vs Mohammad Ayoub Ahangar & Ors on 4 July, 2023
Author: Wasim Sadiq Nargal
Bench: Wasim Sadiq Nargal
Serial No. 8
Supplementary Causelist-1
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM(M) No. 140/2023
CM No. 3845/2023
Rehmata Begum & Ors.
..... Petitioner(s)
Through: Mr. Syed Masood Ahmad, Advocate.
V/s
Mohammad Ayoub Ahangar & Ors.
.....Respondent(s)
Through:
CORAM:
HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE.
ORDER
04.07.2023
1) The petitioners through the medium of the instant petition filed under Article 227 of the Constitution has challenged the validity of order dated 19th October 2022 passed by the learned Principal District Judge, Anantnag in an application seeking condonation of delay titled as Mst. Rehmata Begum vs Mohammad Ayoub Ahanger & Ors, on the ground that the Appellate Court has without weighing the merits of the main case, decided the application for condonation of delay and the appellate court has also lost sight of the fact, that the delay as a general rule should be condoned and denial thereof is a mere exception because allowing of condonation of delay application only allows the court to decide the case on its merits rather than technicalities which is otherwise the endeavour of the court of law. The learned counsel appearing on behalf of the petitioners further submits that court itself is having the complete dominion over the file and the counsel cannot any way keep on board a file in respect of which order of abatement has been pronounced. The learned counsel appearing on behalf of the petitioners further submits that the trial courts have passed order without giving an opportunity of being heard to the petitioners, as such the order is prejudicial and has caused miscarriage of justice as such is liable to be set aside.
2) Heard the learned counsel for the petitioners at length and perused the record.
3) From the perusal of the record and order passed by the learned Appellate Court which is impugned in the present petition, it is apparently clear that the Appellant/petitioner herein had filed an application for condonation of delay in the year 2017 for challenging the order dated 31 st December 2015 passed by the court of learned Special Mobile Magistrate/Sub Judge Anantnag in the suit titled Mohammad Assan Wani vs Mohammad Ayoub Ahanger & Ors. The learned Appellate Court issued notice in the said application for appearance of the other side and after hearing learned counsel appearing for the parties, the learned Appellate Court observed that the Applicants/petitioners herein had the knowledge about the impugned order which came to be passed on 31 st December 2015 and the shut down as alleged by the applicant has been shown in the year 2016 as one of the ground which prevented the applicant from approaching the Court but there is no evidence or any other material produced by the applicant before this Court which would show and suggest that there was any shut down in the valley for the whole year 2016. The Appellate Court further observed that the applicant needed to satisfy the Court that delay caused was beyond her control and despite due diligence, she could not approach the Court within the period of limitation and if provision of law are not implemented and complied in letter and spirit, certainly this provision contained in the statute would become meaningless and right of other side which may accrue after the period of limitation is over, is to be respected and can be taken away only if sufficient cause is shown by the Applicant and the learned Appellate Court accordingly, dismissed the application for condonation of delay so filed by the petitioners.
4) This writ petition has been filed under Article 227 of the Constitution of India. It is settled law that the High Court under Article 227 of the Constitution can exercise power of superintendence over all the Courts and the Tribunals throughout the territories in relation to which, it exercises jurisdiction. The power of superintendence is not to be exercised unless there has been:
(a) An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or
(b) Gross abuse of jurisdiction; or
(c) An unjustifiable refusal to exercise jurisdiction vested in the courts or tribunals.
5) Judicial pronouncements as to the object and scope of power of the High Courts under Article 227 of the Constitution would leave little scope to interfere with the orders of subordinate courts as a matter of routine. This power cannot be taken as a right of another Appeal to the aggrieved party, nor this power can be invoked to point out an error of law or fact in the Order or judgment/decision of Subordinate Court as has been asserted by petitioner in the case in hand. This power cannot be used to make out that the decision of the Subordinate Court could have been or must have been other than what it is. The High Courts in exercise of its power under Article 227 of the Constitution should interfere with the Trial Court orders only to keep Tribunals and Courts subordinate to it, 'within the bounds of their authority' and to ensure that law is followed by such Tribunals and Courts by exercising jurisdiction vested in them and not declining to exercise the jurisdiction which is vested in them.
6) Further, the judgment rendered by the Hon'ble Apex Court in the case of Laxmikant Revchand Bhojwani v. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.
7) The Supreme Court in Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675, after discussing ambit of powers vested in the High Court under Article 227 of the Constitution, has laid down certain propositions, including that "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. The Supreme Court cautioned that be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law. The Supreme Court has also laid down that care, caution and circumspection need to be exercised and the High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. However, the Hon'ble Supreme Court in Radhey Shyam v. Chhabi Nath (2015 AIR SCW 1849), has taken a different view from one that was taken in Surya Dev Rai's case (supra) concerning jurisdiction of the High Courts under Article 226 and 227 of the Constitution of India, against the judicial order of Civil Court. The Hon'ble Supreme Court, while deciding the question referred to in Radhey Shyam's case (supra), held that judicial orders of Civil Courts are not amenable to writ jurisdiction under Article 226 of the Constitution and that jurisdiction under Article 227 of the Constitution is distinct from jurisdiction under Article 226 of the Constitution of India. The contrary view taken in Surya Dev's case has, thus, been overruled. However, the position qua jurisdiction of the High Court under Article 227 of the Constitution, elaborately dealt with in Surya Dev Rai's case, has not been changed.
8) Article 227 of the Constitution, which the learned counsel for the petitioners has relied upon, vests the High Courts with the power of superintendence over the subordinate courts and Tribunals within their respective jurisdictions. The extent and scope of jurisdiction vested in the High Court under Article 227 of the Constitution was considered by the Supreme Court in the case of Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616. The Court, while doing so, held that the said Article vests the High Courts with a power of superintendence which is to be exercised very sparingly to keep tribunals and courts within bounds of their authority. It was further held that under Article 227, orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage has been occasioned and that such power is not to be exercised to correct a mistake of fact and of law.
9) It is well settled by the decision of this Court in Waryam Singh v. Amarnath [AIR 1954 SC 215] that the "power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee [AIR 1951 Cal 193], to 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".
10) I am fortified by the decision of the Hon'ble Supreme Court in Sadhana Lodh Versus National Insurance Co. Ltd. and another reported as (2003) 3 SCC 524:
"The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal".
11) In Shalini Shyam Shetty vs Rajendra Shankar Patil reported as (2010) 8 SCC 329, the Hon'ble Supreme Court has observed as under:
"64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions.
65. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority.
67. As a result of frequent interference by the 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".
12) The Hon'ble Supreme Court in Estralla Rubber Versus Dass Estate (P) Ltd. reported as (2001) 8 SCC 97 has held:
"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.
7. This Court in Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand in AIR Para 12 has stated that the power under Article 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and, not for correcting mere errors. Reference also has been made in this regard to the case Waryam Singh v. Amarnath. This Court in Bathutmal Raich and Oswal v. Laxmibai R. Tarte has observed that the power of superintendence under Article 227 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 and that the High Court in exercising its jurisdiction under Article 227 cannot convert itself into a court of appeal when the legislature has not conferred a right of appeal. Judged by these pronounced principles, the High Court clearly exceeded its jurisdiction under Article 227 in passing the impugned order".
13) In the light of the aforesaid discussion and the law laid down by the Hon'ble Supreme Court, coupled with the peculiar facts and circumstances of the case, this Court is not inclined to show indulgence in the present writ petition while exercising the jurisdiction under Article 227 of the Constitution of India, as such, the present petition being devoid of any merit, deserves dismissal at very threshold and is, accordingly, dismissed for the reasons stated hereinabove, however, no order as to costs.
(Wasim Sadiq Nargal) Judge SRINAGAR:
04.07.2023 "Hamid"
1. Whether the Order is Reportable? Yes/No
2. Whether the Order is Speaking? Yes/No