Jammu & Kashmir High Court
Bindu Singh Jamwal And Another vs Chanchal Singh And Others on 30 June, 2025
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT JAMMU
CM(M) No. 163/2025
Bindu Singh Jamwal and another ....petitioners
Through :- Mr. Koshal Parihar Advocate
V/s
Chanchal Singh and others
Through :- Mr S.H.Ashrafi Advocate
Mr. P.S.Parmar Advocate
CORAM:
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGMENT(ORAL)
1 By this petition filed under Article 227 of the Constitution of
India, the petitioners seek issuance of an appropriate writ, order, or direction
in the nature of writ of certiorari calling for the records of Transfer
Application bearing Case No. 15/2025 titled Chanchal Singh and others vs.
Bindu Singh Jamwal and another from the Court of learned Principal District
Judge, Jammu, and for setting aside order dated 28.05.2025, whereby while
transferring the civil suit No. 839/2024, instituted on 03.10.2024, titled Bindu
Singh Jamwal and another vs. Chanchal Singh and others, from the Court of
learned Sub Judge, Special Railway Magistrate, Jammu to the Court of
learned Sub Judge (Passenger Tax), Jammu, the Court below, has gone
beyond the scope of the transfer application and returned certain findings
which are highly perverse and have a grave and serious impact on the merits
of the civil suit titled Bindu Singh Jamwal vs. Chanchal Singh and others.
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Factual Matrix:
2 The petitioners herein have filed a civil suit titled Bindu Singh
Jamwal and another vs. Chanchal Singh and others before the Court of
learned Sub Judge, Special Railway Magistrate, Jammu, seeking a permanent
prohibitory injunction restraining the respondents (defendants in the civil suit)
from causing any interference with the barbed fencing being erected by the
petitioners over the suit land or interruption in the peaceful ownership, use,
and possession of the petitioners over the suit land falling under Khasra
No. 78 situated at Barnai, Tehsil Jammu North District Jammu. A description
of the property was provided in the sketch appended to the plaint. Along with
the civil suit, an application under Order 39 Rules 1, 2, and 3 read with
Section 151 CPC for grant of temporary injunction was also filed. On being
put to notice, the respondents have filed their written statement alleging that
the predecessor-in-interest of the petitioners, namely Jagdev Singh, along
with his two brothers, Sukhdev Singh and Harvdev Singh, had approached
respondent No. 1 and other co-sharers for exchange of the suit land with their
land comprised in Khasra No. 226 situated at Village Barnai in the year 1968.
It was further alleged that land falling under Khasra No. 226 was exchanged
with the suit land and that Jagdev Singh and his brothers retained the land
falling under Khasra No. 226, and in lieu thereof, possession of the suit land
was handed over to respondent No. 1 and his co-sharers. The respondents
have asserted that the exchange of land was oral.They have further stated that
they had filed a civil suit titled Chanchal Singh and another vs. Bindu Singh
Jamwal and another in 2023 before the Court of learned 2nd Subordinate
Civil Judge, Passenger Tax, Jammu, for perpetual injunction with respect to
land measuring 01 Kanal 04 Marlas comprised in Khasra No. 78 situated at
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Village Barnai, Tehsil Jammu North District Jammu, in which the Court
passed a restraining order dated 02.12.2023. However, this restraining order
was never served on the petitioners, nor were summons ever issued to them.
The petitioners only came to know of the restraining order after the
respondents filed their written statement in the present civil suit.
3 It is pertinent to mention that before instituting the suit before the
learned 2nd Subordinate Civil Judge (Passenger Tax), Jammu, the
respondents had filed a similar suit on the same property before the learned
1st Additional Munsiff (Forest Judge), Jammu, which was subsequently
abandoned and dismissed. This fact was not disclosed by the respondents,
who filed a verbatim fresh suit.
4 The Court of learned Sub Judge, Special Railway Magistrate,
Jammu, after hearing learned counsel for the parties and considering their
pleadings, passed a detailed order dated 12.11.2024 whereby the respondents
were restrained from causing any interference in the suit property and from
creating any third-party interest in respect thereof. The respondents filed a
Civil Misc. Appeal titled Chanchal Singh and others vs. Bindu Singh Jamwal
and another before the Court of learned Principal District Judge, Jammu
against the order dated 12.11.2024. The learned Principal District Judge,
Jammu, vide order dated 22.11.2024, disposed of the appeal by directing the
parties to maintain status quo with respect to the nature and possession of the
suit land measuring 01 Kanal 04 Marlas. The interim directions passed by the
trial court were directed to remain in force for the remaining part of the suit
land. It is pertinent to mention that the property subject matter of the civil suit
titled Chanchal Singh and another vs. Bindu Singh Jamwal and another
pending before the Court of learned 2nd Subordinate Civil Judge, Passenger
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Tax, Jammu, and the property subject matter of the civil suit titled Bindu
Singh Jamwal and another vs. Chanchal Singh and others pending before the
Court of learned Sub Judge, Special Railway Magistrate, Jammu, are different
in their description. Thereafter, both parties filed applications seeking
implementation of the order dated 12.11.2024 passed by the learned Railway
Judge, Jammu, and merged in the order of the learned Principal District
Judge, Jammu, through Police Station Domana, Jammu. The respondents
themselves sought implementation through the revenue agency by order dated
14.01.2025.The respondents have also filed an application under Section 10
CPC in the civil suit titled Bindu Singh Jamwal and another vs. Chanchal
Singh and others, where no order was passed by the learned Sub Judge,
Special Railway Magistrate, Jammu. Consequently, the respondents
approached this Court by way of WP(C) No. 622/2025, wherein, vide order
dated 17.03.2025, the learned trial court was directed to decide the application
under Section 10 CPC expeditiously.
5 Before the learned trial Court could decide the application under
Section 10 CPC, the respondents filed a transfer application titled Chanchal
Singh and others vs. Bindu Singh Jamwal and another before the learned
Principal District Judge, Jammu, seeking transfer of civil suit No. 839/2024
titled Bindu Singh Jamwal and another vs. Chanchal Singh and others from
the Court of learned Sub Judge, Special Railway Magistrate, Jammu to any
other court of competent jurisdiction.
6 The petitioners filed detailed objections to the transfer
application, stating, inter alia, that the respondents targeted the Presiding
Officer by leveling baseless allegations without any material evidence and
sought to malign the Court’s image. After hearing the parties, the learned trial
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court passed the impugned order dated 28.05.2025, whereby the civil suit
filed by the petitioners was transferred from the Court of learned Sub Judge,
Special Railway Magistrate, Jammu to the Court of learned 2nd Subordinate
Civil Judge, Passenger Tax, Jammu, where the civil suit filed by the
respondents is pending. However, the learned Court below, while transferring
the suit, made certain findings and observations on the merits which are likely
to adversely prejudice the rights of the petitioners in the main suit.
7. The petitioners have challenged the impugned order on the
grounds that it is bad in law and liable to be set aside as the learned Court
below exceeded its jurisdiction while deciding the transfer application by
commenting on the merits of the case. Such observations and comments are
likely to prejudice the petitioners’ right to a fair trial and proper contest of
their civil suit. The impugned order is legally unsustainable and liable to be
set aside, particularly the findings that “the subject matter of the two suits
from the very description given in two plaints appears to be the same, though
there is a slight variation in the particulars of the owners of the adjoining
properties”. According to the petitioners, these findings are highly perverse
and cause grave prejudice to the petitioners’ rights. In other words, learned
counsel for the petitioners submits that the observations made by the Court
below in paragraph 4 of the order are unnecessary, beyond jurisdiction, and
likely to affect the petitioners adversely during trial. Accordingly, the
petitioners are constrained to move the present writ petition praying that the
impugned order be quashed or that the portion of the order in paragraph 4
containing the above observations be expunged.
8. Despite having been granted opportunities, no reply has been
filed in the present petition. However, learned counsel for the respondents
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submits that the impugned order has already been implemented and the suit
stands transferred to the transferee Court, where proceedings are presently
ongoing.
9 I have heard learned counsel for the parties and perused the
material on record, including the impugned order.
10 The primary grievance raised in this petition is that the learned
Principal District Judge, while deciding a procedural issue of transfer,
exceeded his jurisdiction by rendering findings on the subject matter of the
suits, and thereby prejudiced the rights of the petitioners in the adjudication of
their case on merits. Learned counsel for the petitioners submits that such
findings are unnecessary, beyond jurisdiction, and liable to be expunged. It is
contended that the trial Court, having now received the case after transfer,
may be influenced by these remarks, thereby compromising the fairness of the
proceedings.
11 The Hon’ble Supreme Court in Shalini Shyam Shetty and
another v. Rajendra Shankar Patil, (2010) 8 SCC 329, while interpreting
Article 227 of the Constitution has observed that the High Court must be
circumspect in exercising its supervisory jurisdiction and should not act as an
appellate court. The power under Article 227 is intended to ensure that the
Courts below function within their limits and do not act in disregard of the
law. Similarly, in Waryam Singh and another v. Amarnath and another,
AIR 1954 SC 215, the Supreme Court has held that the power under Article
227 is to ensure that subordinate Courts act within the bounds of their
authority and to correct a patent perversity or miscarriage of justice.
Furthermore, in State Through Special Cell v. Navjot Sandhu @ Afsan
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Guru, (2003) 6 SCC 641, the Apex Court has clarified that observations
made at the interlocutory stage should not prejudice the final adjudication.
12 A perusal of paragraphs 4 to 6 of the impugned order shows that
the learned Principal District Judge not only allowed the transfer application
but also made substantive remarks on the nature of the suits, the similarity of
subject matter, and the alleged non-disclosure of previous litigation. These are
matters which can only be finally adjudicated by the trial Court on full
appreciation of evidence.
13. The learned Court below, under the guise of transferring the suit,
ventured into commenting on the merits. Such comments, particularly that the
“subject matter of the two suits from the very description given in two plaints
appears to be the same” are likely to influence the trial Court’s determination
of rights, especially since both suits are now pending before the same court.
14 In light of the above, the impugned order dated 28.05.2025 is
liable to be interfered with to the limited extent that the remarks in paragraph
4 of the order, viz., “It needs to be noted that the subject matter of the two
suits from the very description given in the two plaints appears to be the
same, though there is a slight variation in the particulars of the owners of the
adjoining properties…” are hereby expunged from the record. The remaining
part of the order directing transfer of the suit stands affirmed. It is made clear
that the observations made in the impugned order as well as in this order shall
not influence the trial Court in adjudicating the rights of the parties on merits.
The trial Court shall proceed uninfluenced by any observation made in the
order dated 28.05.2025 or in this order.
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15 Accordingly, the writ petition is partly allowed. The portion of
the order dated 28.05.2025, as quoted in paragraph 4, beginning with “It
needs to be noted that…” and ending with “…with a view to avoid conflicting
judgments,” is hereby expunged from the record. The remaining part of the
impugned order stands affirmed. The trial Court is directed to dispose of both
suits expeditiously and uninfluenced by any observations made in the
impugned transfer order or in this order.
(MOKSHA KHAJURIA KAZMI)
JUDGE
Jammu
30.06.2025
Sanjeev
Whether approved for judgment: Yes/No