Bindu Singh Jamwal and another vs Chanchal Singh and others

Moksha Khajuria Kazmi, J

1 By this petition filed under Article 227 of the Constitution of India, the petitioners seek issuance of an appropriate writ, order, or direction in the nature of writ of certiorari calling for the records of Transfer Application bearing Case No. 15/2025 titled Chanchal Singh and others vs. Bindu Singh Jamwal and another from the Court of learned Principal District Judge, Jammu, and for setting aside order dated 28.05.2025, whereby while transferring the civil suit No. 839/2024, instituted on 03.10.2024, titled Bindu Singh Jamwal and another vs. Chanchal Singh and others, from the Court of learned Sub Judge, Special Railway Magistrate, Jammu to the Court of learned Sub Judge (Passenger Tax), Jammu, the Court below, has gone beyond the scope of the transfer application and returned certain findings which are highly perverse and have a grave and serious impact on the merits of the civil suit titled Bindu Singh Jamwal vs. Chanchal Singh and others.

Factual Matrix:

2 The petitioners herein have filed a civil suit titled Bindu Singh Jamwal and another vs. Chanchal Singh and others before the Court of learned Sub Judge, Special Railway Magistrate, Jammu, seeking a permanent prohibitory injunction restraining the respondents (defendants in the civil suit) from causing any interference with the barbed fencing being erected by the petitioners over the suit land or interruption in the peaceful ownership, use, and possession of the petitioners over the suit land falling under Khasra No. 78 situated at Barnai, Tehsil Jammu North District Jammu. A description of the property was provided in the sketch appended to the plaint. Along with the civil suit, an application under Order 39 Rules 1, 2, and 3 read with Section 151 CPC for grant of temporary injunction was also filed. On being put to notice, the respondents have filed their written statement alleging that the predecessor-in-interest of the petitioners, namely Jagdev Singh, along with his two brothers, Sukhdev Singh and Harvdev Singh, had approached respondent No. 1 and other co-sharers for exchange of the suit land with their land comprised in Khasra No. 226 situated at Village Barnai in the year 1968. It was further alleged that land falling under Khasra No. 226 was exchanged with the suit land and that Jagdev Singh and his brothers retained the land falling under Khasra No. 226, and in lieu thereof, possession of the suit land was handed over to respondent No. 1 and his co-sharers. The respondents have asserted that the exchange of land was oral.They have further stated that they had filed a civil suit titled Chanchal Singh and another vs. Bindu Singh Jamwal and another in 2023 before the Court of learned 2nd Subordinate Civil Judge, Passenger Tax, Jammu, for perpetual injunction with respect to land measuring 01 Kanal 04 Marlas comprised in Khasra No. 78 situated at Village Barnai, Tehsil Jammu North District Jammu, in which the Court passed a restraining order dated 02.12.2023. However, this restraining order was never served on the petitioners, nor were summons ever issued to them. The petitioners only came to know of the restraining order after the respondents filed their written statement in the present civil suit.

3 It is pertinent to mention that before instituting the suit before the learned 2nd Subordinate Civil Judge (Passenger Tax), Jammu, the respondents had filed a similar suit on the same property before the learned 1st Additional Munsiff (Forest Judge), Jammu, which was subsequently abandoned and dismissed. This fact was not disclosed by the respondents, who filed a verbatim fresh suit.

4 The Court of learned Sub Judge, Special Railway Magistrate, Jammu, after hearing learned counsel for the parties and considering their pleadings, passed a detailed order dated 12.11.2024 whereby the respondents were restrained from causing any interference in the suit property and from creating any third-party interest in respect thereof. The respondents filed a Civil Misc. Appeal titled Chanchal Singh and others vs. Bindu Singh Jamwal and another before the Court of learned Principal District Judge, Jammu against the order dated 12.11.2024. The learned Principal District Judge, Jammu, vide order dated 22.11.2024, disposed of the appeal by directing the parties to maintain status quo with respect to the nature and possession of the suit land measuring 01 Kanal 04 Marlas. The interim directions passed by the trial court were directed to remain in force for the remaining part of the suit land. It is pertinent to mention that the property subject matter of the civil suit titled Chanchal Singh and another vs. Bindu Singh Jamwal and another pending before the Court of learned 2nd Subordinate Civil Judge, Passenger Tax, Jammu, and the property subject matter of the civil suit titled Bindu Singh Jamwal and another vs. Chanchal Singh and others pending before the Court of learned Sub Judge, Special Railway Magistrate, Jammu, are different in their description. Thereafter, both parties filed applications seeking implementation of the order dated 12.11.2024 passed by the learned Railway Judge, Jammu, and merged in the order of the learned Principal District Judge, Jammu, through Police Station Domana, Jammu. The respondents themselves sought implementation through the revenue agency by order dated 14.01.2025.The respondents have also filed an application under Section 10 CPC in the civil suit titled Bindu Singh Jamwal and another vs. Chanchal Singh and others, where no order was passed by the learned Sub Judge, Special Railway Magistrate, Jammu. Consequently, the respondents approached this Court by way of WP(C) No. 622/2025, wherein, vide order dated 17.03.2025, the learned trial court was directed to decide the application under Section 10 CPC expeditiously.

5 Before the learned trial Court could decide the application under Section 10 CPC, the respondents filed a transfer application titled Chanchal Singh and others vs. Bindu Singh Jamwal and another before the learned Principal District Judge, Jammu, seeking transfer of civil suit No. 839/2024 titled Bindu Singh Jamwal and another vs. Chanchal Singh and others from the Court of learned Sub Judge, Special Railway Magistrate, Jammu to any other court of competent jurisdiction.

6 The petitioners filed detailed objections to the transfer application, stating, inter alia, that the respondents targeted the Presiding Officer by leveling baseless allegations without any material evidence and sought to malign the Court’s image. After hearing the parties, the learned trial court passed the impugned order dated 28.05.2025, whereby the civil suit filed by the petitioners was transferred from the Court of learned Sub Judge, Special Railway Magistrate, Jammu to the Court of learned 2nd Subordinate Civil Judge, Passenger Tax, Jammu, where the civil suit filed by the respondents is pending. However, the learned Court below, while transferring the suit, made certain findings and observations on the merits which are likely to adversely prejudice the rights of the petitioners in the main suit.

The petitioners have challenged the impugned order on the grounds that it is bad in law and liable to be set aside as the learned Court below exceeded its jurisdiction while deciding the transfer application by commenting on the merits of the case. Such observations and comments are likely to prejudice the petitioners’ right to a fair trial and proper contest of their civil suit. The impugned order is legally unsustainable and liable to be set aside, particularly the findings that “the subject matter of the two suits from the very description given in two plaints appears to be the same, though there is a slight variation in the particulars of the owners of the adjoining properties”. According to the petitioners, these findings are highly perverse and cause grave prejudice to the petitioners’ rights. In other words, learned counsel for the petitioners submits that the observations made by the Court below in paragraph 4 of the order are unnecessary, beyond jurisdiction, and likely to affect the petitioners adversely during trial. Accordingly, the petitioners are constrained to move the present writ petition praying that the impugned order be quashed or that the portion of the order in paragraph 4 containing the above observations be expunged.

Despite having been granted opportunities, no reply has been filed in the present petition. However, learned counsel for the respondents submits that the impugned order has already been implemented and the suit stands transferred to the transferee Court, where proceedings are presently ongoing.

9 I have heard learned counsel for the parties and perused the material on record, including the impugned order.

10 The primary grievance raised in this petition is that the learned Principal District Judge, while deciding a procedural issue of transfer, exceeded his jurisdiction by rendering findings on the subject matter of the suits, and thereby prejudiced the rights of the petitioners in the adjudication of their case on merits. Learned counsel for the petitioners submits that such findings are unnecessary, beyond jurisdiction, and liable to be expunged. It is contended that the trial Court, having now received the case after transfer, may be influenced by these remarks, thereby compromising the fairness of the proceedings.

11 The Hon’ble  Supreme Court  in Shalini  Shyam Shetty  and another v. Rajendra Shankar Patil, (2010) 8 SCC 329, while interpreting Article 227 of the Constitution has observed that the High Court must be circumspect in exercising its supervisory jurisdiction and should not act as an appellate court. The power under Article 227 is intended to ensure that the Courts below function within their limits and do not act in disregard of the law. Similarly, in Waryam Singh and another v. Amarnath and another, AIR 1954 SC 215, the Supreme Court has held that the power under Article 227 is to ensure that subordinate Courts act within the bounds of their authority and to correct a patent perversity or miscarriage of justice. Furthermore, in State Through Special Cell v. Navjot Sandhu @ Afsan Guru, (2003) 6 SCC 641, the Apex Court has clarified that observations made at the interlocutory stage should not prejudice the final adjudication.

12 A perusal of paragraphs 4 to 6 of the impugned order shows that the learned Principal District Judge not only allowed the transfer application but also made substantive remarks on the nature of the suits, the similarity of subject matter, and the alleged non-disclosure of previous litigation. These are matters which can only be finally adjudicated by the trial Court on full appreciation of evidence.

The learned Court below, under the guise of transferring the suit, ventured into commenting on the merits. Such comments, particularly that the “subject matter of the two suits from the very description given in two plaints appears to be the same” are likely to influence the trial Court’s determination of rights, especially since both suits are now pending before the same court.

14 In light of the above, the impugned order dated 28.05.2025 is liable to be interfered with to the limited extent that the remarks in paragraph 4 of the order, viz., “It needs to be noted that the subject matter of the two suits from the very description given in the two plaints appears to be the same, though there is a slight variation in the particulars of the owners of the adjoining properties…” are hereby expunged from the record. The remaining part of the order directing transfer of the suit stands affirmed. It is made clear that the observations made in the impugned order as well as in this order shall not influence the trial Court in adjudicating the rights of the parties on merits. The trial Court shall proceed uninfluenced by any observation made in the order dated 28.05.2025 or in this order.

15 Accordingly, the writ petition is partly allowed. The portion of the order dated 28.05.2025, as quoted in paragraph 4, beginning with “It needs to be noted that...” and ending with “...with a view to avoid conflicting judgments,” is hereby expunged from the record. The remaining part of the impugned order stands affirmed. The trial Court is directed to dispose of both suits expeditiously and uninfluenced by any observations made in the impugned transfer order or in this order.