Hilal Ahmad Bhat vs Ab. Aziz Bhat and Others

Bansi Lal Bhat, J.â€"The petitioner has invoked the writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India read with

Sections 103 and 104 of the Constitution of Jammu and Kashmir respectively for issuance of a writ of certiorari for quashing the order passed by

the learned Principal District Judge, Budgam, on 20.05.2013 in the appeal titled Abdul Aziz Bhat and others v. Hilal Ahmad, with further prayer

that the order passed by the trial court on 01.01.2013 be confirmed. The case put forth by the petitioner is that he filed a suit for declaration,

possession and injunction against the respondents in the court of Munsiff, Magam, and upon consideration of the matter, the learned Munsiff in

terms of order dated 01.01.2013 restrained the respondents from creating any 3rd party interest in the suit-property till final disposal of the suit.

The respondents, feeling aggrieved of the order aforementioned, challenged the same before the learned Principal District Judge, Budgam, through

the medium of Civil Miscellaneous Appeal, which was allowed by the appellate court vide order dated 20.05.2013 setting aside the order of the

trial court dated 01.01.2013. It is this order which is under challenge in this writ petition, on the grounds taken therein.

The petitioner filed a suit for declaration, possession and injunction against the respondents before the court of Munsiff Magam, for adjudging of

settlement deed executed on 28.07.2012 as void. He further sought the relief of declaration as being owner in possession of land measuring 12

kanals and 12-1/2 marlas described in the plaint and a decree for permanent injunction restraining the respondents from interfering with his

possession. He also sought possession of 18 marlas of land alleged to have been forcibly occupied by respondent No. 4. In addition thereto, he

sought perpetual injunction restraining the respondent No. 1 from alienating or creating 3rd party interests in the suit property. It was alleged that

respondent No. 1 contracted marriage with one Mst. Aisha - daughter of Ghulam Rasool Khan R/O New Colony Sopore, on 18.06.1972 and

petitioner was born out of said wedlock. However, differences arose between the couple resulting in divorce. According to petitioner, 12 kanals,

71/2 marlas of land covered by survey Nos. 644/377 (18 marlas), 41(02 kanals 15 marlas), 21(1 kanal 1/2 marla), survey Nos. 131(131/2

marlas), 132(10 marlas) 386(21/2 marlas), 303(01 kanal 10 marlas), 304(01 kanal 15 marlas), 644/302(10 marlas), 17(07 marla), 18(13 marla),

582/42(12 marlas) situate at Agrikalan Tehsil Pattan, were gifted to the petitioner by respondent No. 1 at the time of pronouncement of divorce by

respondent No. 1 when some respectables intervened. The petitioner claimed to have been put in possession of the aforementioned land,

residential house and three shops located under Survey No. 138 situate at village Agrikalan, Tehsil Pattan. It was further alleged that 18 marlas of

land under Survey No. 644/307 were forcibly taken from the petitioner by respondent No. 4 while the petitioner continued in peaceful possession

of the remaining portion of the property. Allegedly, respondent No. 1 executed a family settlement deed dated 18.07.2012 settling his property

including the property gifted to the petitioner. The petitioner's case is that after filing of the suit, respondent forcibly dispossessed him from the

house on 26.12.2012. Efforts by neighbours to resolve the dispute failed on account of stubborn attitude of respondent No. 1 who threatened

them of dire consequences, resulting in filing of a complaint before the police.

In terms of order dated 01.01.2013 the trial court of Munsiff Magam, temporarily restrained the respondents from creating any 3rd party

interest in the suit property till disposal of the suit. It also kept the family settlement in abeyance. Respondents challenged the order passed by the

Munsiff Magam in appeal before the learned Principal District Judge Budgam. The appellate court, in terms of order dated 20.05.2013, allowed

the appeal and set aside the interim direction which is subject matter of challenge in the instant writ petition.

Learned counsel for the petitioner contends that appellate court failed to comprehend the controversy between the parties and dwelt upon a

matter beyond the scope of the suit. It is pointed out that despite the plea of the respondents that the learned Munsiff had failed to preserve the lis

between the parties to the suit, the learned Principal District Judge exercised jurisdiction to set aside the order of learned Munsiff dated

01.01.2013 in terms whereof subject matter of lis was protected. It is further pointed out that in terms of the aforesaid order, the learned Munsiff

had only directed the respondents to refrain from creating 3rd party interest in the suit property which was a step to protect the subject matter of

the lis and preserve the same for the benefit of party found entitled thereto at the conclusion of the trial.

It is further submitted that the learned District Judge, Budgam, proceeded to set aside the order of interim injunction without affording an

opportunity to the petitioner to establish that he was the son of respondent No. 1. It is contended that the case of the petitioner was not the case of

succession but a case of having obtained ownership rights in the subject matter of the suit on account of oral gift of the property made by

respondent No. 1 in favour of the petitioner.

Per contra, learned counsel for the respondent submitted that the impugned order passed by the learned Principal District Judge, Budgam, does

not suffer from any legal infirmity and since the petitioner had failed to make out a prima facie case in his favour, the learned Munsiff was not

justified in passing the order of temporary injunction against the respondent No. 1. It is submitted that the impugned order cannot be termed either

erroneous or perverse and, therefore, invoking of jurisdiction under Article 227 of the Constitution of India is not justified.

I have heard rival contentions of the parties at length and considered the matter which has been taken up for consideration with the consent of

parties.

Before proceeding further in the matter, it would be appropriate to have a look on the issue with regard to maintainability of the writ petition

under Articles 226 and 227 of the Constitution of India read the Sections 103 and 104 of the Constitution of Jammu & Kashmir State. It is well

settled that writ jurisdiction under Article 226 of the Constitution of India is extraordinary in nature and the same is not meant for declaring the

private Tights of the parties. The remedy available under Article 226 is not available unless there is violation of some statutory duty on the part of

the statutory authority. A writ petition is a remedy in public law which can be filed by any person but the main respondent should either be the

State, Government, governmental functionaries, or its instrumentalities/agencies within the meaning of Article 12 of the Constitution. Private

individuals cannot be equated with State or its instrumentalities/functionaries. All the respondents in the writ petition cannot be private individuals.

However, private individuals acting in collusion with the State can be respondents in a writ petition. The person against whom writ can be issued

must have some statutory or public duty to perform. Power under Article 226 is exercised at the instance of persons or citizens for vindication of

their constitutional or statutory rights. The relief under Article 226 can be claimed ex debito justified or as a matter of right when there is

infringement of fundamental rights.

However, a petition filed under Article 227, stricto-sensu, is not a writ petition. The nature of exercise of power under Article 227 stands on

substantially different footing. Jurisdiction under Article 227 is neither original nor appellate. Article 227 vests jurisdiction in the High Court both for

administrative control and judicial superintendence over the courts and tribunals subordinate to it. While in its jurisdiction under Article 226, the

High Court has power to annul or quash an order or proceedings, jurisdiction under Article 227 can be exercised to substitute the order impugned

by an order which the inferior tribunal should have passed. This is apart from annulling the proceedings or quashing of the order impugned. While

power under Article 226 is exercised when a party is affected, the power under Article 227 can be exercised by the High Court suo motu as a

custodian of justice. Thus the powers conferred under Articles 226 and 227 of Constitution of India are distinct and operate in different fields.

Interference by the High Court under Article 227 is to keep the subordinate courts within the bounds of their jurisdiction. However, mere errors of

fact or of law cannot be corrected by taking recourse to writ of certiorari or exercise of supervisory jurisdiction unless such error is manifest or

apparent on the face of the proceedings and a gross failure of justice has occasioned thereby. Such powers are to be exercised sparingly and in

appropriate cases where the judicial conscience of the court dictates it to act to bring failure of justice to halt. Caution and circumspection is to be

exercised when such jurisdiction is sought to be invoked during the pendency of any suit/proceedings before a subordinate court and the error is

capable of being corrected at the conclusion of proceedings though calling for correction. I am fortified in this view by a judgment of the apex

Court in a case titled Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, . The Hon'ble apex Court after analyzing various decisions

rendered by it, formulated the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution:-

On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the

Constitution may be formulated:

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

under these two Articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The 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, on 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 Court or tribunal

subordinate to it. In cases where an alternative statutory mode of redressed 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 its 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 (supra) and the

principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh (supra), 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 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 have 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) 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 the case of L. Chandra Kumar Vs. Union of India and others, and therefore

abridgement 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 Court's 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 High Court.

(n) 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 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 counter-productive and will divest this extraordinary power of its strength and

vitality.

Admittedly, in view of the amendment to Section 115 of Code of Civil Procedure, no revision lies against the impugned order passed by the

learned District Judge in appeal. However, the remedy by way of revision being not available would not stand in the way of invoking jurisdiction

under Article 227 of the Constitution, if the impugned order suffers from error on the face of record, i.e., the order is in utter disregard of the

provisions of law and has occasioned gross failure of justice. The power of superintendence vested in this Court under Article 227 cannot be

curtailed by any statute. Invoking of such power would be justified in a case of patent perversity in the order of the subordinate court. Curtailing of

scope of Section 115 of Code of Civil Procedure in terms of the amending Act of 2009, in any case, does not result in expanding High Courts

power of superintendence. In exercise of its jurisdiction under Article 227 of the Constitution of India, this Court has to follow the regime of law

notwithstanding the curtailment or barring of jurisdiction under Section 115 of CPC.

Adverting to the issues raised in this writ petition, it is abundantly clear that exercise of jurisdiction under Article 226 of the Constitution of

India is uncalled for. However, in the peculiar facts of the case declining to invoke supervisory jurisdiction under Article 227 of the Constitution

would occasion gross failure of justice as transgressing of limits of law by the court below is writ large on the face of the impugned order. What

stares in the face of the court is failure on the part of the court below to come to grips with the specific controversy inter se the parties and address

the issues involved in the proper perspective.

Having regard to the considerations evolved by a catena of decisions of the Hon'ble Apex Court to regulate powers vested in High Court

under Article 227 of the Constitution, be it seen that the controversy inter se the petitioner and respondent No. 1 related to the petitioner's claim of

having acquired title to the subject matter of the lis in consequence of transfer inter-vivos effected by respondent No. 1 favouring the petitioner.

Learned appellate court appears to have gone haywire by dwelling upon the aspect of spes-successionis of petitioner qua the estate of respondent

No. 1 which was totally anterior to the issue raised in the suit. Petitioner's claim to ownership of subject matter of suit rested upon the premise that

intervention of villagers in the matrimonial dispute between the respondent No. 1 and his wife Mst. Aisha (mother of the petitioner) paved way for

dissolution of marriage between the couple with respondent No. 1 pronouncing divorce and consensus arrived at between the couple leading to

gifting away of subject matter of the suit by respondent No. 1 in favour of petitioner-son, who was a minor at that time. It emerges from pleadings

of the parties that respondent No. 1 did not acknowledge paternity of the petitioner. He denied the assertions of petitioner who laid claim to

subject matter of suit as done from respondent No. 1 coupled with the delivery of possession and uninterrupted enjoyment of the same. From the

material placed before the Courts below, it emerges that petitioner's mother Mst. Aisha had filed an application before the learned Chief Judicial

Magistrate, Baramulla on 02.11.1978 alleging that respondent No. 1 had kept the petitioner-a minor child at that time, in wrongful confinement and

the learned Magistrate had issued search warrants under section 100 of Code of Criminal Procedure leading to recovery of the minor child aged

about 8 years at that time who was delivered to custody of his mother Mst. Aisha in terms of order dated 12.12.1980. This apart, respondent No.

1 subsequently appears to have filed an application under Section 25 of the Guardian and Wards Act before the learned Principal District Judge,

Baramulla, seeking custody of the petitioner who was residing with his mother Mst. Aisha. The application was determined vide order dated

29.03.1985 holding respondent No. 1 entitled to custody of the petitioner. The position emerging from judicial record would, therefore,

unmistakably reveal that the petitioner is the son of respondent No. 1 and in the face of such record, respondent No. 1 was estopped from denying

paternity of petitioner notwithstanding the fact that the petitioner's caste was recorded as 'Khan' in his school leaving certificate which was

explained to have been incorporated on account of petitioner having been brought up by his mother while living under the care and protection of

her adoptive father having caste as 'Khan'.

Temporary injunctions are granted during pendency of the suit for permanent injunction with the following well established judicial

considerations:-

(a) Existence of a prima facie case;

(b) Balance of convenience;

(c) Apprehension of irreparable loss.

In so far as existence of prima facie case is concerned, the petitioner has amply demonstrated that he was born out of wedlock between

respondent No. 1 and Mst. Aisha, though petitioner's status as such has been denied by respondent No. 1. As noticed elsewhere in this judgment,

it is established by judicial record that the petitioner is the son of respondent No. 1. The claim laid by the petitioner to the subject matter of suit

inter se the parties did not rest on the plea of spes-successionis. Learned Principal District Judge entered into an unnecessary discussion by

dwelling upon the aspect of expectant right of an heir-apparent. It was not a case of right of an heir in the estate of his father during the latter's

lifetime.

It is a well settled principle of Muslim law that vesting of property of a Muslim takes effect immediately upon his death. The petitioner in the

instant case claimed to have acquired title to the subject matter of suit by transfer inter-vivos at the hands of respondent No. 1 at the time of

divorce between respondent No. 1 and Mst. Aisha. Thus, the learned Principal District Judge was not required to dwell on the aspect of rights of

an heir-apparent. According to petitioner, the oral gift was made by respondent No. 1 upon intervention of village respectables, who intervened in

the matrimonial dispute between the parents of petitioner culminating into divorce. Merely, because petitioner did not elucidate the date and time

with exactitude did not warrant throwing out of his claim. Same holds good in regard to the entries in revenue record. Despite observing that the

assertion regarding gift falls within the realm of evidence at the trial, the learned Principal District Judge failed to notice the pleadings resulting in

denial of opportunity to the petitioner to prove his claim at the trial. Once there was a Triable issue, the temporary injunction granted by learned

Munsiff Magam, in terms of order dated 01.01.2013 was not unwarranted. It is difficult to disagree with the learned Munsiff Magam in holding that

in the event of respondent No. 1 creating a 3rd party interest in the subject matter of the suit the applicant will suffer an irreparable injury.

In view of the foregoing discussion, the inescapable conclusion is that the impugned order suffers from error of a magnitude which, if left

undisturbed, would occasion gross failure of justice. The impugned order is, accordingly, set aside and the order of the temporary injunction

granted by learned Munsiff, Magam, to the extent of protecting the subject matter of the lis by temporarily restraining respondent No. 1 from

creating 3rd party interest, is restored. In the aforementioned backdrop, this petition is allowed as detailed hereinabove. Disposed of alongwith all

connected CMPs.