Jammu & Kashmir High Court
Tsewang Rigzin vs Ladakh Amchi Sabha on 23 April, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT JAMMU
CM(M) No. 111/2025
Tsewang Rigzin ..... Petitioner (s)
Through :- Mr. S.R. Hussain Advocate (Th. V.C)
V/s
Ladakh Amchi Sabha .....Respondent(s)
Through :- None
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1 Through the medium of present petition under Article 227 of the
Constitution of India, the petitioner has challenged judgment and decree dated
29.03.2025, passed by the learned Sub Judge (Special Mobile Magistrate), Leh
(hereinafter referred to as the “trial Court”), whereby a decree of eviction in
respect of two shops situated near the Tehsil Office, Leh, has been passed in
favour of the respondent-plaintiff and against the petitioner-defendant.
2 At the very outset, the learned counsel for the petitioner was
requested to satisfy this Court as to how a petition under 227 of the
Constitution of India is maintainable for assailing a judgment and decree
passed by a Civil Court in view of the provisions contained in Section 96 of the
CPC which provide for remedy of appeal against an original decree.
3 Learned counsel for the petitioner has submitted that there is no
absolute bar to entertaining a petition under Article 227 of the Constitution of
India against an original decree passed by a Civil Court and in appropriate
2
cases, where manifest injustice has occurred, the High Court can exercise its
supervisory jurisdiction in spite of availability of an alternative remedy.
According to the learned counsel, in the present case, there are special
circumstances which warrant exercise of supervisory jurisdiction by this Court.
4 In the above context, the learned counsel for the petitioner has
submitted that the petitioner-defendant had filed a suit for permanent
prohibitory injunction against the respondent-plaintiff before the Court of
learned Sub Judge, Leh, which related to the same property which is the
subject matter of the impugned judgment and decree. It has been submitted that
the said suit was clubbed with the suit filed by the respondent-plaintiff, but the
trial Court, vide the impugned judgment and decree, has only decided the suit
filed by the respondent-plaintiff, ignoring the suit filed by the petitioner. It has
been further submitted that the learned trial Court has travelled beyond its
jurisdiction by directing the petitioner herein to handover vacant possession of
the suit shops to the respondent/plaintiff, which amounts to execution of the
decree and curtailment of limitation period for filing an appeal against the said
decree. Lastly, it has been contended that the sister of President of the
respondent-Sabha happens to be a Judicial Officer in the same Court and that
there is a potential conflict of interest which has compelled the petitioner to
invoke the supervisory jurisdiction of this Court.
5 Heard and considered.
6 So far as the principles governing the exercise of jurisdiction
under Article 227 of the Constitution of India by the High Court are concerned,
the same have been laid down by the Supreme Court and various High Courts
of the Country in a number of judgments. One of the celebrated judgments on
3
the issue is the judgment delivered by the Supreme Court in the case of
Shalini Shyam Shetty vs. Rajendra Shankar Patil, (2010) 8 SCC 329. In the
said case, the Supreme Court, after analyzing various precedents delivered by it
on the issue, culled out the following principles on the exercise of High Courts’
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 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 thisCourt
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
4subordinate 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 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
& others, reported in (1997) 3 SCC 261 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 motu.
(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
5unfettered 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”.
7 From a perusal of the aforesaid principles laid down by the
Supreme Court, it is clear that in cases where an alternative statutory mode of
redressal has been provided, the same operates as a restraint on the exercise of
power under Article 227 of the Constitution. It is also manifest that the power
under Article 227 of the Constitution can be exercised by the High Court only
in cases where there has been a gross and manifest failure of justice or where
the basic principles of natural justice have been violated by the subordinate
authority. The Supreme Court has clarified that while exercising power of
superintendence under Article 227 of the Constitution, the High Court cannot
sit as a Court of appeal over the orders of the Courts or Tribunals subordinate
to it, and mere errors of law or fact cannot be interfered with by the High Court
while exercising its power of superintendence.
8 With the aforesaid legal position in mind, let us advert to the facts
of the present case.
9 It is not in dispute that the impugned judgment and decree passed
by the learned trial Court is appealable in nature. Thus, there is an alternative
remedy available to the petitioner-defendant. The contention of the learned
counsel for the petitioner that the suit filed by the petitioner for permanent
prohibitory injunction against the respondent regarding the same shops was
required to be decided along with the suit which is subject matter of the
impugned judgment and decree, is without any substance, because the
petitioner has not placed on record any order passed by the trial Court whereby
6
the two suits were clubbed together. Even if the two suits were directed to be
clubbed together, still then, it will have no bearing on the present case,
because, as per interim order dated 01.05.2015, passed in the suit filed by the
petitioner, it was, inter alia, made clear that the respondent herein would have
the opportunity to evict the petitioner herein after adopting due process of law
by filing a suit. This is what has been done by the plaintiff-respondent and the
same has culminated in the impugned judgment and decree. Thus, there is no
error, much less a gross error, committed by the trial Court that would warrant
interference by this Court under its supervisory jurisdiction.
10 The second contention raised by the learned counsel for the
petitioner is also without any substance, because, by granting time for vacation
of the suit shops, the learned trial Court has, in effect, deferred the filing of
execution petition by the respondent. Once a judgment and decree is passed by
a Civil Court, it becomes executable immediately thereafter. The learned trial
Court, by giving the petitioner time to vacate the suit shops has, in effect,
deferred the execution of impugned decree dated 29.03.2025 by about one
month, as such, no prejudice has been caused to the petitioner. The argument
raised by the learned counsel in this regard is also without any merit.
11 Lastly, the contention of the petitioner that the District Court, Leh
is presided over by the sister of the President of the respondent-Sabha is also
factually incorrect, as the District Court, Leh, is presently presided over by a
male Judicial Officer. Thus, the allegation leveled by the petitioner in this
regard is without any substance.
12 For what has been discussed hereinabove, it is clear that the
petitioner has made an attempt to approach this Court directly without availing
7
the alternative and efficacious remedy of appeal provided under Section 96 of
the CPC and without there being any reason, much less a justifiable reason for
the same. The petition is, therefore, held to be not maintainable and is,
accordingly, dismissed, leaving it open to the petitioner to avail the appropriate
remedy available under law. Anything said in this order shall not be taken as an
expression of opinion on the merits of the case of the petitioner/defendant.
(SANJAY DHAR)
JUDGE
Jammu
23.04.2025
Sanjeev
WHETHER ORDER IS REPORTABLE:YES/No
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