Akash Taroch @APPELLANT@Hash Gagan And Ors

This is a petition filed under Section 104 of the Constitution of Jammu and Kashmir, challenging the order dated 20.8.2018 passed by the court of learned Ist Additional District Judge, Jammu whereby the appeal filed by the petitioner-plaintiff against the order dated 19th of September, 2017 passed by the court of learned Sub Registrar, Jammu has been dismissed.

Needless to say that by virtue of judgment and order dated 19.9.2017, the learned Sub Registrar (Munsiff), Jammu had dismissed the application filed by the petitioner-applicant under Order 39 Rule 1 & 2 read with Section 151 of the Civil Procedure Code and the interim directions vacated.

I have gone through the judgment and order impugned dated 20.8.2018 passed by the appellate court.

The appellate court noticed that the learned Sub Registrar (Munsiff) after taking into consideration the material on record and hearing the parties had come to the conclusion that the plaintiff had failed to make out a prima facie case in his favour and also returned a finding that the balance of convenience was also not in his favour.

The appellate court also came to the conclusion that the appellant-petitioner had not produced any documentary evidence to show his possession over the suit shop and that there was no material evidence on record, which could establish his possession over the shop, which was the subject matter of the suit.

The scope and ambit of the powers exerciseable by the High Courts in their supervisory jurisdiction under Article 227 of the Constitution of India, which is analogous to Section 104 of the Constitution of Jammu and Kashmir, is no longer res integra.

The Apex Court in Shalini Shyam Shetty and anr v. Rajendra Shankar Patil, (2010)8 SCC 329, placed reliance upon a constitution bench judgment of the Apex Court in Waryam Singh & anr vs. Amarnath & anr, AIR 1954 SC 215 and crystallized the parameters for such an exercise as under:

(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. This history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.

(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh, followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, "within the bounds of their authority".

(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice has been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India and therefore abridgment by a constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Courts. Jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exceeded just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."

Testing the facts of the present case on the touchstone of the aforementioned principles, it cannot be said that the view expressed by the appellate court is in any manner perverse or one where it can be alleged that there was any failure to exercise jurisdiction by the appellate court.

For the reasons mentioned above, the petition is found to be without any merit and is accordingly dismissed along with connected IA(s).