Rajinder Singh Jamwal vs Kiran

Tashi Rabstan, J.—Petitioner through the medium of instant petition under Section 104 of the Constitution of the Jammu and Kashmir has

invoked writ jurisdiction of this Court for setting aside order dated 20.01.2014 in case titled as Rajinder Singh Jamwal v. Smt. Kiran (hereinafter

for short as 'impugned order') by virtue of which learned trial Court has directed filing of objections to the amended petition on the grounds taken

in the memo of petition. As per the averments made in the petition, it appears that petitioner has filed petition under Section 13 of the Hindu

Marriage Act before the Court of learned Additional District Judge, (Matrimonial Cases), Jammu. Thereafter he filed application for amendment of

the divorce petition, which came to be allowed vide order dated 14.08.2012 permitting the petitioner to file amended petition. It is also contended

that petitioner appeared before the trial Court for his cross-examination by the counsel for the respondent, but instead of proceeding further with

the cross-examination, trial Court vide order dated 20.01.2014 has fixed the case for filing of objections to the amended petition causing serious

injustice and prejudice to the petitioner thereby making all the proceedings conducted by the Court an exercise in futility. It is contended that the

issues were framed on 06.02.2013 and till passing of impugned order dated 20.01.2014, respondent has not shown any willingness to file

objections to the amended petition. It is this order which is called-in-question in the present petition.

Heard learned counsel for the parties and perused the record.

It is not in dispute that petition under Section 13 of the Hindu Marriage Act is pending consideration before the Court of learned Additional

District Judge (Matrimonial Cases), Jammu. It is contended that the Court below has failed to appreciate that respondent appeared before it on

06.02.2013 and assisted in framing the issues, meaning thereby she has waived her right to file objections to the amended petition. Order

impugned, in fact, set at naught all the proceedings conducted by the trial Court. At the stage of leading evidence, the court below had not shown

any reasons to permit the respondent to file objections to the amended petition. It is contended that order impugned operates harshly against him.

Respondent has refuted all the allegations levelled against her by filing objections to the divorce petition, but in the instant case, she has not filed

objections despite considerable long time.

Precisely, the case of the petitioner is that impugned order has been passed in hot haste; without application of mind and without taking into

consideration the grounds taken by the petitioner in the petition. It is also the case of the petitioner that when he was leading his evidence, the court

below had not shown any reasons to permit respondent to file objections to the amended petition. It is also the case of the petitioner that the

proceedings conducted by the Court below were conducted without taking into count the mandate of Order XVII CPC and Section 25(1) of the

Hindu Marriage Act, 1980.

Now, before deciding the controversy raised in the present petition, the question for consideration would be whether the present petition filed

under Section 104 of the Constitution of State of Jammu & Kashmir would be maintainable? The answer is negated for the following reasons.

Petitioner has not questioned the competence jurisdiction of the trial Court. Petitioner has also not averred in the petition that trial Court or

appellate Court has passed the order without or in excess of jurisdiction.

The maintainability of the petition is put under cloud by its very own averments on the ground that Civil Procedure Code has undergone a sea

change with the amendment of 2009. The amendment has restricted the powers of the revisional Court. Virtually, petition is in the nature of revision

petition and if such a practice is adopted and allowed that will render the aim and object of the amendment infructuous and meaningless. The fact

of this Court having vast powers under Articles 226 and 227 is undisputed, but care has to be taken when the same is warranted to be exercised,

because the powers under such Articles has to be utilized very cautiously, carefully, sparingly and in rarest of the rare cases.

The Apex Court in case titled Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, has observed that there is tendency in High Courts

to entertain petition under Article 227 of the Constitution against the orders against which revision is barred in terms of amended Act of CPC. It is

apt to reproduce paragraph Nos. 80, 81 and 82 of the judgment supra herein:--

We may also observe that in some High Courts there is tendency of entertaining petitions under Article 227 of the Constitution by terming

them as writ petitions. This is sought, to be justified on an erroneous appreciation of the ratio in Surya Dev (supra) and in view of the recent

amendment to Section 115 of the Civil Procedure Code by Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the

amendment, scope of Section 115 of CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted

in expanding High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow

the regime of law.

As a result of frequent interference by Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times

criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of

justice.

This Court hopes and trusts that in exercising its power either under Article 226 or 227, Hon'ble High Court will follow the time honoured

principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest Courts of

justice within their jurisdiction will adhere to them strictly.

The Apex Court in a case titled Kokkanda B. Poondacha and Others Vs. K.D. Ganapathi and Another, , held that invoking of writ or

supervisory jurisdiction against interlocutory orders is permissible only when subordinate Court has acted without or in excess of jurisdiction and

not otherwise.

This Court also in case titled Abdul Rehman Dar and Others Vs. Showkat Ali Bhat and Others, and in case titled Kuldip Singh and others v.

Krishna Devi and others passed by the Hon'ble Division Bench of this Court in LPAOW No. 30/2013 dated 16.04.2013, while following the

aforesaid judgments of the Apex Court has laid down the same principle.

That if a party which loses the case before the trial Court or before the appellate Court is allowed to file writ petition and thereafter if such writ

petition is entertained without any check and balance that will amount to beating litigation and in breach of the purpose, aim and object of the

legislation which was made basis for amendment of the CPC.

In Shalini Shyam 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 under Article 227 of the Constitution (Section 104 of the Constitution of Jammu and

Kashmir) Hon'ble Supreme Court in this case has started with the constitutional Bench's 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, , had held that the power of superintendence conferred by Article 227 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. Hon'ble

Supreme Court has 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 Art. 227 is meant to keep the subordinate Tribunal within the limits of their

authority and to ensure that they obey law.

Apex Court in case Shalini Shyam Shetty's case (supra) also held that if the litigating parties are private and not State functionaries, the writ is

also not maintainable and a distinction has been made with respect to the powers of High Court under Article 226 and 227 of the Constitution of

India. On the analysis of the aforesaid and other decisions Hon'ble Supreme Court in para No. 62 has formulated the following principles on the

exercise of High Courts power under Article 227 of the Constitution. It is apt to reproduce paragraph No. 62 here as under:--

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 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 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 Courts' 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 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 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,

Parties in this case are private persons and not the State and, therefore, a question arises as to whether Writ Petition is maintainable against an

individual in his personal capacity? The answer is in negative.

It is beaten law of the land that Writ Petition is a remedy in public law, which can be filed by any person, but the main respondent should either

be Govt. Agency or a State, or its instrumentalities within the meaning of Article 12. Private persons cannot be said to be the State or

instrumentalities of the State and all the respondents in the writ petition cannot be private parties. Under Article 226 of the Constitution of India,

High Court can issue writ against any person, but the persons must have some statutory or public function to perform. It is apt to reproduce

paragraph No. 64 of the judgment passed in case Shalini Shyam Shetty (supra) herein as under:--

It is well settled that a writ petition is a remedy in public law which may be filed by any person but the main respondent should be either

Government, Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be

equated with State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in

collusion with State can be respondents in a writ petition. Under the phraseology of Article 226, High Court can issue writ to any person, but the

person against whom writ will be issued must have some statutory or public duty to perform.

Moreover, the Apex Court in its latest judgment titled as Jacky Vs. Tiny @ Antony and Others, has also held in paragraph No. 17 as under:--

A petition under Article 226 or Article 227 of Constitution of India can neither be entertained to decide the landlord-tenant dispute nor it is

maintainable against a private individual to determine an intense dispute including the question whether one party harassing the other party. The

High Court under Article 227 has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the

powers vested in them within the bounds of their authority but it was not the case of the 1st respondents that the order passed by the Munsiff

Court was without any jurisdiction or was so exercised exceeding its jurisdiction. If a suit is not maintainable, it was well within the jurisdiction of

the High Court to decide the same in appropriate proceedings but in no case power under Articles 226 and 227 of Constitution of India can be

exercised to question a plaint.

It is not the case of the petitioner that trial Court has acted without or in excess of jurisdiction; nor is the State party herein, therefore, the writ

petition cannot stand the test laid down by the Apex Court in the judgment reproduced hereinbefore. Even otherwise, the order passed by the

Matrimonial Court does not warrant exercise of extra ordinary or supervisory jurisdiction of the Court, for, neither the decision making process of

the Matrimonial Court suffers from any vice nor does the order cause any miscarriage of justice or otherwise suffers from any error of law.

From all what has been said hereinabove, this petition fails and is, accordingly, dismissed along with connected CMA(s), if any.

However, the contention of learned counsel that while allowing order impugned to operate, it would amount to setting the clock back and all

the proceedings held by the Court below from the date the amended petition was allowed would be a nullity and the lis would not be concluded

during the life time of the petitioner. It is also contended that this Court while exercising jurisdiction of superintendence is required to take the

administrative as well judicial notice by directing the Court below to pass the order within the shortest possible time. There is however, some force

in the contention of learned counsel for the petitioner that the proceedings, which are already delayed cannot be brooked any further delay, as

such, some directions need to be issued for expeditiously disposal of the petition. This apart, the proceedings before the Matrimonial Court, which

were otherwise required to be decided expeditiously, having been already unduly delayed, the interests of justice may not warrant any further delay

in the conclusion of proceedings pending before the Matrimonial Court. Therefore, the trial Court is directed to take up the matter on priority basis

and decide the same expeditiously preferably within a period of six months from today. Copy of this order along with record be sent to the Court

below forthwith.