Raj Kumar Dubey vs Anil Kumar Dubey

Janak Raj Kotwal, J.—This is a petition u/s 104 of the Constitution of Jammu and Kashmir. Heard. I have perused the record.

Facts essential for disposal of this petition are that Petitioner (plaintiff) has filed a suit in the Court of learned Munsiff, Katra for permanent

prohibitory injunction retraining respondents (defendants) from causing interference in his ownership and exclusive possession of land measuring 1

kanal comprised in Khasra No. 570/205 min situate at Katra and further restraining them from obstructing or causing hindrance in his user and

enjoyment of the suit land.

2.1. Case set up by petitioner before the trial Court is that land measuring 2 kanals and 10 marlas comprised in Khasra No. 570/205 min was

purchased by his father late Sh. Baij Nath vide a sale deed registered on 02.09.1964. After death of his father, the said land devolved upon him,

his mother, two brothers and three sisters. His mother, brothers and sisters, however, gifted their share in the said land extending up to 1 kanal and

10 marlas to him by virtue of gift deeds dated 27.09.2003 and 30.09.2003. He has constructed his house in 10 marlas of the said land and

remaining 1 kanal of land thereof has been properly fenced by him. He has alleged in the plaint that the respondents taking advantage of the

contiguity of their land with the said 1 kanal of land (suit land) had tried to encroach upon and have been interfering with this land without any right

or title.

2.2. Respondents (defendants) have opposed the suit. They contended in their written statement that Ghansham Dass, who was the grandfather of

the petitioner and respondents 2, 3 and 4 and Mansa Ram were real brothers. Land measuring 2 kanals and 10 marlas was purchased by them out

of the joint family funds benami in the name of the father of the petitioner. Later by a family settlement, which was recorded in the form of a

memorandum of settlement on 28th Magh 2022 Bk, one and a half kanals of this land was given in share to Ghansham Dass and the remaining one

kanal to Mansa Ram. They have contended further that on the same day three sons of Ghansham Dass, that is, father of the petitioner, father of

respondents 2 to 4 and respondent No. 5 occupied 10 marlas of land each out the land having fallen to the share of Ghansham Dass in which they

have constructed their respective guest houses. Respondents' contention as regards the suit land is that this is the one kanal of land, which had

fallen to the share of Mansa Ram but was never occupied by him and continued in the possession of the respondents 2 to 4 since Magh, 2022 Bk.

Access to this land is only from the house of respondents 2 to 4 and they have constructed a shed and water tank on the suit land.

2.3. On filing of the suit, learned trial Court initially by an ad interim injunction temporarily restrained the respondents from interfering with the

ownership and possession of the petitioner (plaintiff) over the suit land and subsequently, after hearing both sides, learned trial Court by its order

dated 13.08.2010 confirmed the ad interim injunction and directed the respondents not to interfere in peaceful possession and ownership of the

appellant over the suit land.

2.4. Respondents questioned the order of the learned trial Court dated 13.08.2010 in Civil 1st Miscellaneous Appeal No. 19 before the learned

District Judge, Reasi. Learned appellate Court after hearing both sides and perusal of record on the trial Court file, allowed the appeal vide order

dated 22.12.2012 and modified the order passed by the trial Court by directing both the parties to maintain status quo qua the suit land till final

disposal of the suit. Learned District Judge pointed out that the trial Court in a way has pronounced judgment regarding ownership and possession

of the plaintiff qua the suit land, which was not permissible while adjudicating upon an application for temporary injunction. Having regard to

respective pleadings, learned District Judge observed that question as to whether land measuring 2 kanals 10 marlas inclusive of the suit land was

purchased by father of the petitioner herein or was purchased benami in his name was a fair issue to be decided at trial of the case. Learned

District Judge also observed that genuineness of the documents relied upon by the parties could be tested only at trial of the case and pointed out

that observation of learned trial Court that respondents (defendants) have not annexed any document to in support of their possession of the suit

land was against the facts. In this context, learned District Judge referred to the copy of family settlement dated 28th Magh 2022 Bk, original 'Bahi'

and a family dispute settlement dated 02.09.2005 relied upon by the respondents. Learned Appellate Court observed in this regard that formal

proof of these documents was not necessary for the purpose of deciding the application for temporary injunction.

Feeling aggrieved by the order passed by the learned District Judge, petitioner (plaintiff) seeks to invoke supervisory jurisdiction of this court u/s

104 of the Constitution of Jammu and Kashmir (herein after the State Constitution).

Mr. Vikram Sharma, learned counsel for the petitioner assailed the impugned order contending that the order is illegal, having been passed in

violation of the principles governing the grant of temporary injunction and law governing the admissibility of documentary evidence. He submitted

that the documents relied upon by the respondents (defendants) and taken into consideration by the learned appellate Court were not admissible

and did not confer even remotest title in the suit land on the respondents, much less a title better than that of the petitioner (plaintiff). Mr. Sharma

thus concluded that learned appellate court has committed error of law and fact by granting injunction against a person having better title.

Mr. P.N. Raina, learned Senior Advocate, appearing on behalf of the respondents, on the other hand submitted that no case for invoking the

supervisory jurisdiction of this Court u/s 104 of the State Constitution has been disclosed in the petition nor is made out. Mr. Raina would say that

mere dissatisfaction of a party with a decision or order of a court or tribunal is no ground for invoking supervisory jurisdiction of the High Court.

Mr. Raina submitted that supervisory jurisdiction of the High Court cannot be invoked for setting aside an order passed by the lower court and can

be exercised only in a case where a larger public interest is involved. Mr. Raina relied upon Shalini Shyam Shetty and Another Vs. Rajendra

Shankar Patil, and Kokkanda B. Poondacha and Others Vs. K.D. Ganapathi and Another, . In this behalf Mr. Sharma submitted that even in a

petition u/s 104 of the State Constitution, this Court has power to set aside an illegal order of a subordinate Court by issuance of a writ of

certiorari. He relied upon a DB judgment of this Court rendered in LPAOW No. 52/2012, Sudershana Gupta and Others Vs. Girdhari Lal .

Because of the rival submissions, it needs to be underlined that the impugned order passed by the learned District judge, Reasi is neither

appealable nor revisable u/s 115 C.P.C. Petitioner (plaintiff) has thus chosen to file this petition u/s 104 of the State Constitution, which

corresponds with Article 227 of the Constitution of India (hereinafter the Constitution). In invoking the power of this Court u/s 104, which is the

power of control and superintendence over the courts subject to appellate or provisional jurisdiction of this Court, petitioner has sought setting

aside of the impugned order. No way the petitioner has invoked the writ jurisdiction of this Court under Article 226 of the Constitution read with

section 103 of the State Constitution nor has sought the writ of Certiorari to quash or set aside the impugned order.

In Shalini Shayam Shetty (supra) Hon'ble Supreme Court has surveyed judicial pronouncements as to the nature of the power of

superintendence and control conferred on the High Courts by the Constitution under Article 227 (section 104 of the State Constitution). Supreme

Court in this case has started with the Constitution Bench judgment of the Court in Waryam Singh and Another Vs. Amarnath and Another, ,

where the Court, while relying upon a Special Bench judgment delivered by Harries, C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee, ,

has held that this power is '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'. Besides, the Supreme Court has referred to Constitution Bench judgment of the same court in

Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, in which the Court followed Waryam

Singh's case and pointed out that 'High Court's power of interference under Article 227 is no greater than its power under Article 226 and the

power of interference under Article 227 of the Constitution is limited to ensure that the tribunals function within the limits of its authority'. Supreme

Court also referred to another Constitution Bench Judgment in State of Gujarat etc. Vs. Vakhtsinghji Sursinghji Vaghela and Others etc., , in which

the Court has opined that the supervisory power under Article 227 is 'meant to keep the subordinate tribunal within the limits of their authority and

to ensure that they obey law'.

On the analysis of the aforesaid and other decisions, Supreme Court in para. 49 of the reporting in Shalini Shayam Shetty case, has formulated

the following principles on the exercise of High Court's power under Article 227 of the Constitution:

(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. 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, 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 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) 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 CPC by the CPC (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 exercise suo moto.

(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 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 counterproductive and will divest this extraordinary power of its strength and

vitality.

Judicial pronouncements as to the object and scope of the power of the High Court under Article 227 of the Constitution (section 104 of the

State Constitution) would leave little scope to interfere with the orders of the subordinate courts as a matter of routine. This power cannot be taken

as 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 decision of a

subordinate court as has been sought by the petitioner in this case. 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.

High Court in exercise of its power under Article 227 of the Constitution should interfere in order only to keep the 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

which is vested in them and not declining to exercise the jurisdiction which is vested in them. Apart from the above, 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 have been flouted.

In the backdrop of the criteria for interference in exercise of power under Article 227 of the Constitution (Section 104 of the State

Constitution) laid down in Waryam Singh's case followed subsequently right up to Shalini Shyam Shetty, it is seen that dispute in the case on hand

relates to possession as well as ownership of the suit land. Both the parties have their own version about being owner(s) as well as in possession of

the suit land. Both of them have relied upon certain documents. In such cases, it is only just and proper that nature of the disputed property is

preserved till final disposal of the lis and that is what the learned appellate Court had ordered to be done. I am unable to be persuaded to take a

view that the order passed by learned appellate Court calls for interference in exercise of the power of supervision and control of this court and to

say that interim arrangement should have been other than that directed by the learned appellate Court.

It appears, being conscious that a case for invoking jurisdiction of this Court u/s 104 of the State Constitution may not be possible, learned

counsel for petitioner by relying upon the Division Bench judgment of this Court in Sudershana Gupta (supra) has sought to make out a case for

interference by this Court by issuance of a writ of certiorari to quash the impugned order.

Learned Division Bench of this Court seems to have taken the view that in an appropriate case writ of certiorari can be issued in respect of an

order passed by a Civil Court in a dispute between private parties and exercise of this constitutional power cannot be refused by holding that State

or any public Authority is not party in the writ petition. Having taken this view, learned Division Bench has taken therein respondent's petition u/s

104 of the State Constitution read with Article 227 of the Constitution as having been filed both under Article 226 of the Constitution read with

section 103 of the State Constitution as also u/s 104 of the State Constitution.

Having regard to the facts of the case on hand and the impugned interim direction issue by the learned District Judge, I do not feel necessity of

entering into question as to whether the petition filed in terms of section 104 of the State Constitution (Article 227 of the Constitution) by the

petitioner be treated as a writ petition under Article 226 of the Constitution read with section 103 of the State Constitution and interference should

be made by issuing writ of certiorari? This is because in my well-considered view impugned order does not deserve any interference even in

exercise of writ jurisdiction of this Court under Article 226 of the Constitution for obvious reasons.

In support of the view that interference with the impugned order is not required even in exercise of writ jurisdiction by issuing writ of certiorari,

it is useful to refer to the judgment of the Supreme Court in Surya Dev Rai Vs. Ram Chander Rai and Others, , which seems to be the one case in

which Supreme Court has held that a writ of certiorari is maintainable against the order of a Civil Court. The judgment would show that criteria for

issuing writ of certiorari would be no different than that for exercising supervisory jurisdiction under Article 227 of the Constitution. In sub-paras.

(5), (7) and (8) of the reporting in Surya Dev Rai their Lordships have held;

38.(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the

following requirements are satisfied: (i) the error is manifest and apparent on the fact of the proceedings such as when it is based on clear ignorance

or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

(6) * * *

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the

judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and

circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or

proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings

in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would

obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as,

if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice

or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or

evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

For the aforementioned, no case of interference with the impugned order passed by the learned District Judge, Reasi is made out, be it in

exercise of writ jurisdiction under Article 226 of the Constitution read with section 103 of the State Constitution or supervisory jurisdiction under

Article 227 read with section 104 of the State Constitution. Petition is, therefore, dismissed as without any merit. Record be remitted back.