S. Gajinder Singh vs S. Bhupinder Singh

Janak Raj Kotwal, J.—These two writ petitions have been filed by defendant No. 1 of civil suit No. 46 pending in the Court of learned Sub

Judge, Pattan. OWP No. 55/2013 has been filed by the petitioner under Article 226/ 227 of the Constitution of India (for short the Constitution)

read with sections 103/ 104 of the Constitution of Jammu and Kashmir (for short the State Constitution) to seek writ of certiorari to quash order

dated 14.12.2012 passed by learned 1st Additional District Judge, Baramulla in an appeal filed by the petitioner against order dated 26.12.2011

passed by the learned trial court in the civil suit. OWP No. 21 has been filed by the petitioner under section 104 of the State Constitution seeking

quashing of an order dated 31.12.2013 passed by the learned trial Court.

Heard. I have perused the record.

Background facts essential to be recapitulated for OWP 55, briefly, are these:

3.1. Petitioner/defendant No. 1 and respondents 1 to 5/plaintiffs are the successors-in-interest of Sardar Gopal Singh s/o Sardar Krishan Singh.

Respondents 1 to 5 have filed suit for declaration, permanent injunction, possession and recovery of usufructs in respect of land (orchard)

measuring 58 kanals 4 marlas against the petitioner in the trial court claiming that the property of late Gopal Singh has been inherited by his four

sons in equal shares. Petitioner has contested this suit contending inter alia that he is in exclusive possession of the suit property inasmuch as the

respondents 1 to 5 are living outside the State and have received full consideration of their shares in the suit property from him against proper

receipts and the Consolidation Officer has declared him the owner of the said property. Respondents 1 to 5 have also alleged in the suit that the

decree in favour of petitioner-defendant had been passed by the Consolidation Officer on the basis of vague and fraudulent receipts.

3.2. Along with the suit plaintiffs had filed application for appointment of receiver qua the suit property and temporary injunction which, however,

were dismissed by the learned trial court and appeal against the order of the trial court was dismissed by learned Add. District Judge, Baramulla.

Revision against the order of the appellate court was dismissed by this Court. In the meantime respondents 1 to 5 had challenged the decree

passed by the Tehsildar Consolidation (Consolidation Officer) before the Director Land Records, which was ultimately set aside by the Financial

(Consolidation) Commissioner vide his judgment dated 21.10.2008 in revision against the order of Director Land Records. Pursuant to setting

aside of the decree passed by the Consolidation Officer by the Financial (Consolidation) Commissioner, respondents 1 to 5 approached this Court

for review of the order passed in the revision petition but this Court vide order dated 02.05.2009 disposed of the review application observing that

setting aside of the decree above referred is not the discovery of evidence of a type so as to make it base for review because the said decree is

not sole foundation of judgment. The judgment as referred can be taken benefit, if any second application is filed before the trial court for

appointment of receiver subject of course to exceptions and permissible limits and powers of trial court.

3.3. Respondents 1-5/plaintiffs therefore, filed fresh application for appointment of receiver under Order 40 CPC before the trial court. Learned

trial court vide its order dated 26.12.2011, while relying upon Arjun Singh Vs. Mohindra Kumar and Others, , rejected petitioner's objection that

the subsequent application for appointment of receiver, after dismissal of earlier one, was not maintainable, allowed the application and appointed

the petitioner-defendant as receiver of the suit property, laying down conditions in which it was to be maintained and providing for payment of

10% of the total profit as remuneration to him. Petitioner challenged the order passed by the learned trial court in appeal before learned 1st

Additional District Judge, Baramulla. Learned appellate court by its detailed order dated 14.12.2012, impugned in OWP No. 55, found that the

trial court had considered subsequent application for appointment of receiver in the changed circumstances arising due to setting aside of the

decree passed by Consolidation Officer by the Financial Commissioner and without disturbing possession of defendant No. 1-petitioner appointed

him receiver of the property and therefore, did not find any illegality or irregularity in the order passed by the trial court and dismissed the appeal.

Facts relevant for OWP No. 21, briefly, are these:

4.1. During pendency of OWP No. 55/2013 supra in this Court, respondents-defendants 1 to 5 moved an application for change of receiver.

Alongside they also moved an application requesting the trial court to order the Nazir of the court to make full inventory of stocks of the fruit

plucked from the trees growing on the suit property. Learned trial court vide impugned order dated 31.12.2013 has directed Tehsildar, Pattan to

get the fruit auctioned in his presence after notice to both the parties to avoid decay of the fruit. Further by the same order, the receiver appointed

by the Court has been directed to deposit the auction proceeds in the court.

Petitioner-defendant No. 1 in seeking the quashment of order dated 14.12.2012 passed by the learned appellate court, has assailed the order

passed by learned trial court as well as the impugned order on various grounds. He has contended that earlier application for appointment of

receiver having been dismissed, subsequent application was without jurisdiction. Both the courts have exercised their discretion illegally and without

application of mind, impugned order is perverse inasmuch as there was no change in circumstances justifying filing of subsequent application for

appointment of receiver. The order was bad in law because question as regards appointment of receiver was set at rest by this court in the revision

petition and the appellant court has fallen into error by upholding the order passed by the trial court.

Mr. M.A. Makhdoomi, learned counsel for petitioner-defendant submitted that petitioner being in possession of the suit property could not have

been appointed receiver of the same property and that there was no change in circumstances as far as possession of the property is concerned so

learned trial court has acted illegally in allowing the subsequent application and appointing the petitioner as receiver of the property. Mr.

Makhdoomi thus concluded that learned appellate court has committed an error of law and fact by concurring with the order passed by learned

trial court which had been passed illegally and suffers from blatant error in law.

Mr. J.H. Reshi, learned counsel for the respondent on the other hand submitted that neither of the writ petitions is maintainable as no case for

invoking writ jurisdiction of this Court under section 103 of the State Constitution or the supervisory jurisdiction under section 104 of the State

Constitution is made out or has been disclosed in the petitions in both the cases. Mr. Reshi would say that mere dissatisfaction of a party with a

decision or order of a court or tribunal is no ground for invoking supervisory or writ jurisdiction of the High Court. Mr. Reshi 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. Reshi relied upon Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, . In this behalf

Mr. Makhdoomi submitted that this Court has the power to set aside an illegal order passed by a subordinate Court in exercise of writ jurisdiction

under section 103 of the State Constitution read with Article 226 of the Constitution as well as supervisory jurisdiction under section 104 of the

State Constitution read with Article 227 of the Constitution of India. Mr. Makhdoomi also relied upon Shalini Shayam Shetti (supra) besides Surya

Dev Rai Vs. Ram Chander Rai and Others, .

It may be pointed at the outset that in OWP No. 55/2013, petitioner has styled the petition as a writ petition under Article 226/ 227 of the

Constitution read with section 103/ 104 of the State Constitution and has sought certiorari quashing the order dated 14.12.2012 passed by the

learned appellate Court. The question arising is whether a case for invoking writ jurisdiction of this Court under section 103 of State Constitution

(Article 226 of the Constitution) or in alternative supervisory jurisdiction under section 104 (Article 227) is made out or not and this question is

being considered in the backdrop that, these are two different concepts under the Constitution as well as the State Constitution.

Contextually, it needs to be underlined that the orders impugned in both the petitions undisputedly are neither appealable nor revisable under

section 115 CPC. Petitioner has therefore, invoked writ as well as supervisory jurisdiction of the Court.

In Shalni 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 Court's by the Constitution under Article 227 and in the State of Jammu and Kashmir by

section 104 of the State Constitution as well. Supreme Court in this case has started with the Constitution Bench judgement of the Court in

Waryam Singh and Another Vs. Amarnath and Another, , where the Court, while relying upon a Special Bench judgement 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 judgement 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 jurisdiction 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 Court's 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 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 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 jurisdiction of the High Court under Article 227 of the Constitution (section 104 of

the State Constitution) would make it clear that this jurisdiction is not to be exercised as a matter of routine in interfering with the orders passed by

the subordinate court and tribunals. This jurisdiction cannot be taken as right of another appeal to a party feeling not satisfied with an order passed

by a court or tribunal. Nor this jurisdiction can be invoked to point out an error of law or fact in the order or decision of a subordinate court or

tribunal as has been sought by the petitioner in this case. This jurisdiction cannot be used to make out that the decision of the subordinate court or

tribunal could have been or must have been other than what it was.

High Court in exercise of its jurisdiction under Article 227 of the Constitution should interfere in order only to keep the courts and tribunals

subordinate to it, 'within the bounds of their authority'. 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. Apart from the above, High Court can interfere in

exercise of its jurisdiction 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 jurisdiction 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 Shayam Shetty, it is seen that suit by respondents 1 to 5

(plaintiffs) involves assertion of their right to share in joint property having been inherited by them along with the petitioner (plaintiff) from their

father, Gopal Singh. It may be taken as indisputable that the suit property is in the use and occupation of the petitioner and the respondents have

been compelled to file the suit as petitioner is not allowing them to enter the said property. Petitioner earlier had resisted the suit mainly on the

ground that respondents had sold their share in the joint property to him against receipt of consideration and he accordingly has been declared as

owner of the said property by a decree passed by the Settlement Officer. It appears because of the said decree trial Court had refused injunction

as well as appointment of receiver qua the suit land in earlier applications of the respondents and said refusal came to be upheld in appeal before

the District Judge as well as revision before this Court. However, in the meantime, decree, whatsoever, passed by the Settlement Officer came to

be set aside by the Financial (Consolidation) Commissioner. In the scenario so changed, respondents (Plaintiffs) approached this Court for review

of the order passed in revision petition but this Court finding no case for review, however, observed, while disposing of the review application, that

setting aside of the decree was no ground for reviewing the order but the judgment can be taken benefit of if a second, application is filed before

the trial Court for appointment of receiver subject of course to exceptions and permissible limits and powers of the trial Court. It was in such

changed scenario that the respondents/plaintiffs filed fresh application for appointment of receiver qua the suit property.

Having regard to the fact that the suit property has been inherited by the petitioner and respondents 1 to 5 from a common ancestor and in that

they are co-owners of the property and having regard to the claim put forth by the petitioner, order of the learned trial Court appointing the

petitioner as receiver of the suit land on an application moved in the changed scenario cannot be said to be suffering from any error of law or fact

calling for interference by this Court in exercise of inherent jurisdiction under Article 227 of the Constitution (section 104 of the State Constitution).

In no case it can be said that learned trial court has traversed the bounds of its authority or order is perverse or suffers from manifest failure of

justice. Appointing a co-owner, claiming to be in exclusive possession of a joint property, as receiver of the said property rather is too apt to

safeguard the interests of all the co-owners. Contextually, it is seen that orders like grant of temporary injunction, appointment of a Commissioner

for local inspection or Receiver are routine interlocutory measures taken by the courts in furtherance of proceedings in a case and preservation of

lis. Such orders can be granted, refused, modified or granted even after refusal if there is change in circumstances. A decision taken by the trial

court in this regard and upheld by appellate court would normally not call for scrutiny of the High Court in exercise of supervisory jurisdiction

unless a case for supervision as per criteria stated above is made out, which in this case, however, is not. Neither the order passed by the learned

trial court nor the impugned order passed by the learned appellate court, therefore, call for any interference in exercise of power of supervision of

this Court. Likewise, applying the same principle, the order impugned in OWP No. 21/2014, which is purely an interim measure aimed at

safeguarding the interests of both the parties in the fruit yielded by the suit property (orchard), does not call for any interference by this Court.

It appears, being conscious that a case for invoking supervisory jurisdiction of this Court under Article 227 of the Constitution (Section 104 of

the State Constitution) may not be possible, petitioner has styled the petition in OWP No. 55/2013 as one under Articles 226/ 227 of the

Constitution read with section 103/ 104 of the State Constitution. It was argued by Mr. Makhdoomi that this Court can interfere with and correct

the order passed by learned trial court as also the impugned order passed by the appellate court in exercise of writ jurisdiction by issuing a writ of

certiorari under Article 226 of the Constitution. In support, Mr. Makhdoomi has relied upon Surya Dev Rai's case supra.

Surya Dev Rai 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. Judgment in that case also had attracted the attention of Their Lordships in Shalini Shayam Shetty's case (supra) and Their Lordships have

observed in para 46 of the reporting (P. 345 SCC):

In a rather recent decision of the Supreme Court in Surya Dev Rai v. Ram Chander Rai, a two-Judge Bench of this Court discussed the

principles of interference by the High Court under Article 227. Of course in Surya Dev Rai this Court held that a writ of certiorari is maintainable

against the order of a civil court, subordinate to the High Court (SCC p. 688, para 19 of the Report). The correctness of that ratio was doubted

by another Division Bench of this Court in Radhey Shyam v. Chhabi Nath and a request to the Hon'ble Chief Justice for a reference to a larger

Bench is pending. But insofar as the formulation of the principles on the scope of interference by the High Court under Article 227 is concerned,

there is no divergence of views.

The judgment in Surya Dev Rai, however, would show that criteria for issuing writ of certiorari under Article 226 of the Constitution (Section

103 of the State Constitution) for quashing an order passed by a civil court would be no different than that for exercising supervisory jurisdiction

under Article 227 of the Constitution (Section 104 of the State 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.

It is in place to refer to and be cognizant of the observation of their Lordships in para 66 of the reporting in Shalini Shyam Shetty:

We may also observe that in some High Courts there is a 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 and in view of the recent amendment to

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

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

the 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.

For the aforementioned, no case of interference with the impugned orders passed by the learned trial court and the appellate court 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. Both the petitions are, therefore, dismissed as without any merit. Interim

direction vacated.