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JAMMU & KASHMIR HIGH COURT
Mansoor Ahmad Mir, J.
Kuldip Singh & Ors. -Appellant
Versus
Krishna Devi & Ors. -Resopndent
OWP No. 1354/2010 & CMA No. 1828/2010
Decided On : 20-02-2013
Writ Jurisdiction - Quashing of Order - Civil Procedure Code - Order 13 Rule 2 CPC - Sale Deed - Hot Haste - Application of Mind - Jurisdiction - Amendment of 2009 - Article 226 and 227 - Superintendence - Interlocutory Orders - Private Parties - Public Function - Failure of Justice
Fact of the Case:
The petitioners sought to quash an order dismissing their application to place on record a Sale Deed in a suit for declaration of nullity of a sale deed. They argued that the impugned order was passed hastily and without due consideration of their grounds.
Finding of the Court:
The court found that the petitioners did not question the competence-jurisdiction of the trial Court and that the petition was in the nature of a revision petition, which was restricted by the amendment of 2009. The court emphasized the need for cautious exercise of powers under Article 226 and 227, especially in private litigations.
Issues: The issues revolved around the jurisdiction of the court to entertain the petition, the impact of the amendment of 2009 on the revisional powers, and the maintainability of a writ petition against private parties.
Ratio Decidendi: The court relied on precedents to establish that the High Court's power of superintendence under Article 227 should be sparingly exercised, especially in private litigations, and that interference with interlocutory orders is permissible only when the subordinate Court has acted without or in excess of jurisdiction.
Final Decision: The petition was dismissed as the court found that the trial court did not act without or in excess of jurisdiction, and the writ petition was not maintainable against private parties.
2. It appears that petitioners along with proforma respondents have filed suit for declaration to the effect that sale deed dated 29.05.1999 registered in the court of Sub Registrar Mufassil, Jammu on 02.06.1999 executed by their father in favour of respondents 1 to 5 in respect of land measuring 3 kanals 01 marlas under lying khasra No.284 situated at Village Chak Kalu, Tehsil and Distt. Jammu was null and void. The case of the petitioners is that the suit property was the agricultural land and the same was their ancestral property. However, the respondent No.1 resisted by filing objections that said land was exclusively owned by one Janak Singh predecessor-in-interest of the petitioners which is factually incorrect.
3. During pendency of the suit, petitioners filed application under Order 13 Rule 2 CPC for permission to place on record the Sale Deed which was registered about more than 65 years back but learned Sub Judge, Jammu dismissed the said application vide order dated 14.09.2010 on the ground that said document was very much with the petitioners which was withheld by them for the reasons best known to them and allowing the application at this stage will amount to taking the other side by surprise when the applicants have already concluded their evidence and non-applicants are leading their evidence. It is this order, which is called in question in the present petition.
Precisely, the case of the petitioners is that impugned order has been passed in hot haste; without application of mind and without taking into consideration the grounds taken by the petitioners in the application.
4. Petitioners have not questioned the competence-jurisdiction of the trial Court. Petitioners have also not averred in the writ petition that trial Court or appellate Court have passed the order without or in excess of jurisdiction.
5. 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 Article 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.
6. The Apex Court in case titled Shalini Shyam Shetty v. Rajendra Shankar Patil reported as 2010 AIR SCW 6387 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 Para 80,81 and 82 of the judgment supra herein:-
"80. 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 know
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