Tej Swaroop Abrol vs Vishwa Nath Kundal

Tashi Rabstan, J.—Petitioner, Tej Swaroop Abrol, has filed this petition u/art. 104 of the Constitution of State of Jammu and Kashmir,

seeking quashment of interim order dated 18.02.2010 passed by the Sub Judge (C.J.M.), Jammu (hereinafter referred to as ""Trial Court""),

whereby Trial Court, while allowing application filed by respondent herein, u/s. 12(4) of the J & K Houses & Shops Rent Control Act, directed

petitioner to clear the arrears of rent immediately and the matter was directed to be listed on 15th March, 2010. Feeling aggrieved, petitioner has

come up with present petition.

The facts in short are that petitioner herein is tenant of respondent with respect to a Shop situated at Janipur, Jammu, which he took on rent in

the month of June, 2007. As per the averments made in the writ petition, the agreed monthly rent was Rs. 4400/-. When petitioner failed to pay

the rent regularly, respondent-landlord filed an application before Trial Court in the month of April 2009, seeking a direction to petitioner-tenant to

clear the arrears of rent and also to pay the rent regularly. Meanwhile, petitioner-tenant also filed an application before the Trial Court u/s. 27 of

the Houses and Shops Rent Control Act, 1966, seeking a direction to respondent-landlord to make repairs in the rented premises. Before the Trial

Court could decide the application to clear the arrears of rent, the petitioner-tenant in order to counter the claim of respondent-landlord also filed

an application, seeking fixation of 'fair rent' in the month of August 2009. The petitioner-tenant claimed before the trial court that as per his

estimation the approximate 'fair rent' of the rented out premises was Rs. 1500/- per month.

He accordingly, prayed before the trial court to fix the 'fair rent' in respect of the rented out premises. The trial court pending disposal of the

application for fixation of 'fair rent' as also the application seeking repairs of the rented out premises, vide interim order dated 18.02.2010 directed

the petitioner-tenant to clear the arrears of rent immediately and directed for listing of the case on 15.03.2010. The petitioner-tenant was also

directed to file estimate of the repairs duly prepared by the Assistant Engineer of PWD with certificate of necessity. It is this order which is the

bone of contention in the present petition filed u/s. 104 of the Constitution of Jammu & Kashmir.

It is contended that the order, impugned herein, has been passed by the trial court without jurisdiction and without applying application of mind

because the trial court without deciding the main issue as regards fixation of 'fair rent, directed the petitioner-tenant to clear the arrears of rent,

which amounts to deciding the main matter. Therefore, as per the averments made in the petition, the trial court while directing the petitioner-tenant

to clear the arrears of rent has deviated from the main issue.

It is worthwhile to mention here that before filing the present petition, petitioner-tenant also filed a Civil Revision before this Court, bearing No.

21/2010 seeking revision of the order, impugned herein. This Court vide order dated 09.09.2011 while dismissing the Civil Revision, being not

maintainable, held that in view of amendment to S. 115 of the Code of Civil Procedure, revision against the order made in a suit or other

proceedings is not maintainable; the same is maintainable only, in case the order if passed would end the suit or other proceedings. Since the same

was not the position, therefore, the revision was held to be not maintainable.

However, it was provided that dismissal order would not stand in the way of petitioner in working out his remedy. Thus, it is how the present

petition has been filed by the petitioner.

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

u/art. 104 of the Constitution of state of Jammu & Kashmir would be maintainable? The answer is negated for the following reasons.

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-defendant No. 1 in the application. Petitioner has not questioned the competence-jurisdiction of

the trial Court. Petitioner has also not averred in the writ petition that trial Court or appellate Court have 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 CPC 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 u/art. 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 u/art. 227 of the Constitution against the orders against which revision is barred in terms of amended Act of CPC. It is apt to

reproduce Paragraphs 80, 81 and 82 of the judgment supra herein:-

We may also observe that in some High Courts there is tendency of entertaining petitions u/art. 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 S.

115 of the CPC by CPC (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of S. 115 of CPC has been curtailed. In

our view, even if the scope of S. 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 u/art. 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 u/art. 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 not

otherwise.

This Court also in case titled Abdul Rehman Dar and Others Vs. Showkat Ali Bhat and Others, while following the aforesaid judgments of the

Apex Court has laid down the same principle.

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

petitions are 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.

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

maintainable and a distinction has been made with respect to the powers of High Court u/art. 226 and 227. It is apt to reproduce paragraph No.

62:-

On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction u/art. 227 of the

Constitution may be formulated:

(a) A petition u/art. 226 of the Constitution is different from a petition u/art. 227. The mode of exercise of power by High Court under these two

Articles is also different.

(b) In any event, a petition u/art. 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 u/art. 227 and have been discussed

above.

(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence u/art. 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 Court's power of superintendence u/art. 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 S. 115 of the CPC by the CPC (Amendment) Act, 1999 does not

and cannot cut down the ambit of High Court's power u/art. 227. At the same time, it must be remembered that such statutory amendment does

not correspondingly expand the High Court's jurisdiction of superintendence u/art. 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 Art. 226 is meant for protection of individual

grievance. Therefore, the power u/art. 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.

It is not the case of the petitioner that trial Court has acted without or in excess of jurisdiction or that the order of trial court suffers from any

perversity and has resulted in serious miscarriage of justice. The instant case, therefore, does not fall within the parameters laid down by Apex

Court for entertaining petition u/art. 227 of the Constitution of India which is corresponding to S. 104 of the Constitution of Jammu and Kashmir.

The petition is held to be not maintainable. Accordingly, the same is dismissed along with connected CMA, if any.

Order accordingly.