MOHAN LAL vs BALWANT RAJ

1 The petitioner has invoked the power of superintendence of this court vested in terms of Section 104 of the Constitution of Jammu and

Kashmir for setting aside the order dated 12.8.2016 passed by the learned 2nd Additional District Judge, Jammu (Trial Court for short ) in

File No. 38/Civil titled Mohan Lal Vs Balwant Raj.Â

The background facts leading to the filing of this petition deserve to be noticed, though briefly. The petitioner filed a suit under Order XXXVII of

the Code of Civil Procedure against the respondent for recovery of an amount of Rs.1.00 lac on the basis of Hundi allegedly executed by the

respondent in favour of the petitioner. In response to requisite notice issued by the Trial Court, the respondent caused his appearance in the

Trial Court within the statutory period of ten days and sought leave to defend the suit on the ground that there was neither any moneyÂ

transaction between the parties nor had he executed or signed the Hundi. The respondent, however, absented from the court after filing

application seeking leave to defend and was thus, set ex parte by the Trial Court on 13.02.2002.  On the adjourned date i.e. 26.2.2002, the

respondent moved an application for setting aside an ex parte proceedings. The Trial Court instead decreed the suit of petitioner on

23.11.2002.  Subsequently the respondent moved for setting aside decree but the application made for the purpose was dismissed by theÂ

Trial Court on 28.4.2004 holding that the decree passed under Order XXXVII of the Code of Civil Procedure,  was not an ex

parte decree .Â

3 Aggrieved, the respondent filed revision petition before this Court. Vide order dated 14.11.2006, this Court allowed the revision petition treating

the same as an application under Order XXXVII Rule 4 of the Code of Civil Procedure and granted leave to the defendant to defend the

suit subject to his filing security from a surety of substance and means. As is gatherable from the records, on receipt of file from this court, the

respondent who was supposed to file security from a surety of substance and means in terms of Order dated 14.11.2006, instead filed his written

statement. It further appears that on the basis of pleadings of the parties , five issues were framed by the Trial Court , three of whichÂ

were treated as preliminary and decided in favour of the petitioner . The revision petition filed against the decision on preliminary issues by the

respondent was dismissed by this court. Resultantly, the remaining issues were tried by the Trial Court by providing opportunity to the parties to lead

evidence. The Trial Court after considering the arguments of the learned counsel for the parties and appreciating the evidence that had come on

record, dismissed the suit of the petitioner vide its judgment dated 12.8.2016, impugned in this petition. It is this judgment and decree dated 12.8.2016

passed by the Trial Court, which is called in question in this petition.Â

4 I have heard learned counsel for the parties and perused the record.Â

5 At the very outset, learned counsel for the respondent has raised preliminary objection to the maintainability of this petition on two counts;

one that the judgment impugned is a decree passed by the Trial Court on merits which is appealable before the High Court under Section 96

of the Code of Civil Procedure and therefore, in the face of availability of equally efficacious statutory remedy, the petitioner cannot be

permitted to invoke the power of superintendence of this Court vested by virtue of Section 104 of the Constitution of J&K , and second that

the suit has been dismissed by the Trial Court on appreciation of evidence and returning findings of fact which cannot be  gone

into by this Court in exercise of its jurisdiction vested under Section 104 of the Constitution of J&K.

6 On the other hand, learned counsel for the petitioner would argue that since the judgment and decree impugned in this petition has been

passed by the Trial Court in flagrant violation of provision of Order XXXVII of the Code of Civil Procedure and therefore, this CourtÂ

has ample powers vested in terms of Section 104 of the Constitution of J&K to pass appropriate orders to keep the Trial Court within the

bounds of its jurisdiction. He would submit that once the respondent failed to file surety as directed by the High Court, the leave to defend given to

him conditionally, would be deemed to have been withdrawn. That being so, contends learned counsel, the petitioner was entitled to the

judgment forthwith. The manner in which the learned Trial Court proceeded in the matter, is unknown to law. Once there was no leave to defend

granted to the respondent, there was no occasion for the Trial Court to permit the respondent to file written statement, strike issues and take evidence

in the suit. He would, therefore, urge that instant case is a perfect example of completely obliterating the procedure envisaged in

Order XXXVII of the Code of Civil Procedure, and therefore, it is imperative that this Court in the exercise of its power of superintendenceÂ

should undo injustice done to the petitioner. This argument of learned counsel for the petitioner is countered by learned counsel for the respondent by

urging that the plea which learned counsel for the petitioner is now urging before this Court is not available to him, as the same shall be deemed to

have been abandoned by his conduct. He would submit that the petitioner never objected to the filing of written statement, striking of the issues in suit

and even when the parties were directed by the Trial Court to lead their evidence. He would further submit that even before this Court when the

revision was filed by the respondent against the decision of the Trial Court on preliminary issues, no such plea was raised by the petitioner. He thus,

pleaded that the plea that he was entitled to judgment on the failure of the respondent to file surety in terms of order of this court, has been waived by

the petitioner and, therefore, cannot be permitted to be raised in this petition. 7 Having heard learned counsel for the parties at some length, it is

appropriate to first set out the provision of Order XXXVII, Rule 3 which read as under :   Â

‘3. Procedure for the appearance of defendant.- (1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 2,

serve on the defendant a copy of the plaint and annexure thereto and the defendant may, at any time within ten days of such service, enter an

appearance either in person or by pleader and, in either case, he shall file in court an address for service of notice on him.Â

(2) Unless otherwise ordered, all summons, notices and other judicial processes, required to be served on the defendant, shall be deemed to have been

duly served on him if they are left at the address given by him for such service.Â

(3) On the day of entering the appearance, notice of such appearance shall be given by the defendant to the plaintiff’s pleader, or, if the plaintiff

sues in person, to the plaintiff himself, either by notice delivered at or sent by a prepaid letter directed to the address of the plaintiff’s pleader or of

the plaintiff, as the case may be.Â

(4) If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4A in Appendix

B or such other Form as may be prescribed from time to time, returnable not less than ten days from the date of service supported by an affidavit

verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit.

(5) The defendant may at any time within ten days from the service of such summons for judgment, affidavit or otherwise disclosing such facts as

may be deemed sufficient to entitle him to defend , apply on such summons for leave to defend such suit, and leave to defend may be granted to him

unconditionally or upon such terms as may appear to the court or judge to be just:

Provided that leave to defend shall not be refused unless the court is satisfied that the facts disclosed by the defendant do not indicate that he has a

substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious:Â

Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit

shall not be granted unless the amount so admitted to be due is deposited by the defendant in court.Â

(6) At the hearing of such summons for judgment,â€"Â

(a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment

forthwith; orÂ

(b) if the defendant is permitted to defend as to the whole or any part of the claim, the court or judge may direct him to give such security and within

such time as may be fixed by the court of judge and that, on failure to give such security within the time specified by the court or judge or to carry out

such other directions as may have been given by the court or judge, the plaintiff shall be entitled to judgment forthwith.Â

(7) The court or judge may, for sufficient cause shown by the defendant, excuse the delay the defendant in entering an appearance or in applying for

leave to defend the suit.’

8 From careful perusal of Rule 3 of Order XXXVII of the Code of Civil Procedure, it is abundantly clear that in a suit to which this order applies, the

defendant who receives summons under Rule 2 may enter appearance within ten days. Upon such appearance, the plaintiff would serve upon himÂ

the summons for judgment returnable not less than ten days from the date of service supported by an affidavit verifying the cause of

action and the amount claimed and also stating that in his belief there is no defence to the suit. Upon receipt of such summons for the judgment

and affidavit etc, the defendant may, at any time within ten days, apply for leave to defend the suit. Sub Rule-6 further provides that at the hearing of

such summons for judgment, if the defendant has not applied for leave to defend or if such application is made and is refused, the plaintiff shall be

entitled to judgment forthwith. It is, in the aforesaid sub Rule, further provided that if the defendant is granted leave to defend subject to surety as may

be fixed by the court, on failure to give such  surety within the time specified by the Court, the plaintiff shall be entitled to judgment forthwith.Â

9 Admittedly, the instant case is covered by Rule 3(6) (b) of Order XXXVII of the Code of Civil Procedure. Learned counsel for the petitioner is thus,

correct in his submission that once the respondent failed to file surety, subject to which leave to defend had been granted to him, the petitioner became

entitled to judgment forthwith and there was no occasion for the Trial Court to hold the trial and dismiss the suit upon appreciation of evidence. This

plea of the petitioner however, is required to be decided on the touch stone of law on the plea of waiver which has been pressed into service by the

counsel opposite.Â

10 Being mindful of the judicial restraint on exercise of power of superintendence vested in this court under Section 104 of the Constitution of J&K

explained in some detail by the Supreme Court of India in the case of Shalini Shyam Shetty and Another Vs Rajinder Shankar Patil, (2010) 8

Supreme Court Cases 329, I have examined the issues raised in this petition. Undoubtedly, the power of superintendence  can be invoked by

this court even suo motu wherever it is required to keep the subordinate courts within the bounds of its jurisdiction. Such power though wide in

amplitude, is required to be used sparingly and in rarest of the rare cases. Though there is no bar on the exercise of this jurisdiction against the order

or decree which may be revisable or appealable, as the case may be, yet this court would be loathe to interfere with such orders which may be

assailed by the aggrieved parties by way of statutory appeal or revision. At this juncture, it would be apt to recollect the principles laid down by the

Supreme Court in Paragraph No.49 of the judgment rendered in the case of Shalini Shyam Shetty and Another ((Supra) Paragraph No. 49 of the

aforesaid judgment reads thus:Â Â

“49. 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:Â

(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.Â

(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.Â

(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 redressal has been provided, that would also operate as a

restrain on the exercise of this power by the High Court.Â

(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.Â

(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'.Â

(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.Â

(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.Â

(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.Â

(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 the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC

261 and therefore abridgement by a Constitutional amendment is also very doubtful.Â

(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.Â

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

(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.Â

(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.Â

(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.Â

(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.Â

11 The judgment and decree impugned in this petition is appealable in terms of Section 96 of the Code of Civil Procedure. Since the order impugned

has been passed by the 2nd Additional District Judge, Jammu  and therefore, the appeal would lie to this court only. Needless to say that in the

appeal, the petitioner will have full opportunity to assail the judgment and decree impugned both on law and fact. The issue as to whether the

petitioner was entitled to judgment forthwith on failure of respondent to file surety, the condition subject to which leave to defend was granted by

this court to the respondent can be well agitated in the appeal. Similarly the plea of the respondent that by permitting him to file written statement and

participate in the trial thereafter, the right which might have accrued to the petitioner to have the judgment forthwith, is deemed to have been

waived  can also be put forth as sheet anchor to defend the decree passed by the Trial Court, should the petitioner avail the remedy of appeal

against the order impugned. 12 In view of the foregoing reasons, I do not find it to be a fit case where interference by this Court with the judgment

and decree of the Trial Court impugned in this petition, is called for. More so, when statutory remedy of appeal which is equally efficacious is available

to the petitioner under Section 96 of the Code of Civil Procedure. This petition is, therefore, found to be devoid of any merit and therefore, dismissed.

The petitioner is, however, at liberty to avail of remedy of appeal and in case he avails such remedy, the time spent by the petitioner in prosecuting this

petition, shall be excluded from computation of limitation.       Â

On the analogy of reasoning given in the judgment dated 06.4.2018 passed in OW 104 No. 91/2017, this petition too is found to be devoid of any merit

and therefore, dismissed. The petitioner however, is left free to avail the remedy of appeal and in case he avails such remedy, the time spent by

the petitioner in prosecuting this petition shall be excluded from computation of limitation.