The power of superintendence under Section 104 of the Constitution of Jammu and Kashmir should be exercised only in cases where the lower court has failed to exercise its jurisdiction or has exercised it in a manner not permitted by law, resulting in failure of justice or grave injustice.

1. The question arising for consideration is, a revision petition directed against an interlocutory order being not maintainable in terms of Section 115 Code of Civil Procedure, whether can be treated as a petition under Section 104 of the Constitution of Jammu and Kashmir, and if so, are there any pre-conditions required to be satisfied?

2. The State Legislature by amendment Act of 2009 incorporated certain changes in different provisions of CPC including Section 115. In sub-section (1) of Section 115, the existing proviso was substituted by the Amendment Act. It reads:

"Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings."

3. The above provision curtails and restricts the revision jurisdiction of the High Court. Thus, if an order passed in a suit would have not disposed of the suit finally, even if the order had been passed in favour of the party applying for revision, shall not be revisable. Such an order in its nature is an interlocutory order. An order interlocutory in nature would mean an order, which does not decide the substantive right of any of the parties in a suit. These are discretionary orders and such like orders are basically those orders, which are passed during the pendency of a lis towards the progress of a suit.

4. The legislature in its wisdom has taken away the revisional jurisdiction of the High Court, which is a correctional jurisdiction, in respect of interlocutory orders in view of the above quoted provisions. But at the same time, Section 104 of the Constitution of Jammu and Kashmir confers the power of superintendence in the High Court over the orders passed by the subordinate courts in the proceedings pending before them without any exception to an interlocutory order.

5. Section 104 of the Constitution of Jammu and Kashmir provides as follows:

"104. Superintendence and control of subordinate courts.--

(1) The High Court shall have superintendence and control over all courts for the time being subject to its appellate or revisional jurisdiction and all such courts shall be subordinate to the High Court.

(2) Without prejudice to the generality of the foregoing provision, the High Court may--

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts;

(c) prescribe forms in which booms, entries and accounts shall be kept by the officers of any such court.

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practicing therein:

Provided that any rules made, forms prescribed or tables settled under subsection (2) or sub-section (3) shall not be inconsistent with the provisions of any law for the time being in force, and shall require the previous approval of the Governor."

6. From the bare reading of Section 104, it clearly transpires that power of superintendence vested in the High Court under this Section almost akin to powers vested under Section 115 of CPC being correctional in nature. Now on one hand, Section 115 of CPC restricts the power of High Court, whereas on the other hand, power vested in the High Court under Section 104 of the Constitution does not admit of any restriction. In such a situation, can a petition filed under Section 115 of CPC be treated as a petition under Section 104 of the Constitution? If the power vested in the High Court in terms of Section 104 of the Constitution is to be understood as vast and unbridled, then the answer would be in the affirmative, meaning thereby that in every case, a party to a suit would be free to seek indulgence of High Court under Section 104 for questioning the legality of an interlocutory order.

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