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HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Janak Raj Kotwal, J.
S. Gajinder Singh -Appellant
Versus
S. Bhupinder Singh & Ors. -Resopndent
OWP No. 55-2013 c-w OWP No. 21-2014
Decided On : 04-04-2014
Writ Petitions - Jurisdiction of High Court - Article 226/227 of the Constitution - Sections 103/104 of the Constitution of Jammu and Kashmir - Summary of Acts and Sections: Article 226/227, Section 103/104 of the Constitution of Jammu and Kashmir - The judgment discusses the nature of the power of superintendence and control conferred on the High Courts by the Constitution under Article 227 and in the State of Jammu and Kashmir by section 104 of the State Constitution. It emphasizes that the jurisdiction under Article 227 is not to be exercised as a matter of routine in interfering with the orders passed by the subordinate court and tribunals. The judgment also highlights the criteria for interference in exercise of jurisdiction under Article 227 of the Constitution, stating that the High Court should interfere only to keep the courts and tribunals subordinate to it within the bounds of their authority and to ensure that law is followed by such tribunals and courts. It further outlines the principles for the exercise of High Court's jurisdiction under Article 227, emphasizing that the power is discretionary and has to be exercised on equitable principles. The judgment also discusses the criteria for issuing a writ of certiorari under Article 226 of the Constitution and the exercise of supervisory jurisdiction, stating that both are available to correct errors only if the error is manifest and apparent on the face of the proceedings and a grave injustice or gross failure of justice has occasioned thereby.
Fact of the Case:
The petitioner, defendant No. 1, and respondents 1 to 5, plaintiffs, are involved in a civil suit regarding the ownership and possession of a land property. The respondents filed a suit for declaration, permanent injunction, possession, and recovery of usufructs against the petitioner, claiming that the property has been inherited by them from their father. The petitioner contested the suit, claiming exclusive possession and ownership of the property. The respondents also alleged that the decree in favor of the petitioner had been passed based on vague and fraudulent receipts. The trial court rejected the petitioner's objection and appointed the petitioner as the receiver of the suit property. The appellate court upheld the trial court's decision. During the pendency of the case, the respondents moved an application for a change of receiver and requested the trial court to order the inventory of stocks of the fruit plucked from the trees on the suit property. The trial court directed the auction of the fruit and the receiver to deposit the auction proceeds in the court.
Finding of the Court:
The court found that the orders passed by the trial court and the appellate court did not call for any interference in exercise of power of supervision of the High Court. The court dismissed both the writ petitions as without any merit and vacated the interim direction.
Issues: The issues involved in the case include the jurisdiction of the High Court under Article 226/227 of the Constitution and Sections 103/104 of the Constitution of Jammu and Kashmir, the appointment of a receiver for the suit property, and the interim measures aimed at safeguarding the interests of both parties in the fruit yielded by the suit property.
Ratio Decidendi: The court emphasized that the jurisdiction under Article 227 is not to be exercised as a matter of routine in interfering with the orders passed by the subordinate court and tribunals. It outlined the criteria for interference in exercise of jurisdiction under Article 227, stating that the High Court should interfere only to keep the courts and tribunals subordinate to it within the bounds of their authority and to ensure that law is followed by such tribunals and courts. The court also discussed the criteria for issuing a writ of certiorari under Article 226 of the Constitution and the exercise of supervisory jurisdiction, stating that both are available to correct errors only if the error is manifest and apparent on the face of the proceedings and a grave injustice or gross failure of justice has occasioned thereby.
Final Decision: Both the writ petitions were dismissed as without any merit, and the interim direction was vacated.
2. OWP No. 55/2013 has been filed by the petitioner under Article 226/227 of the Constitution of India (for short the Constitution) read with sections 103/104 of the Constitution of Jammu and Kashmir (for short the State Constitution) to seek writ of certiorari to quash order dated 14.12.2012 passed by learned 1st Additional District Judge, Baramulla in an appeal filed by the petitioner against order dated 26.12.2011 passed by the learned trial court in the civil suit. OWP No. 21 has been filed by the petitioner under section 104 of the State Constitution seeking quashing of an order dated 31.12.2013 passed by the learned trial Court.
3. Heard. I have perused the record.
4. Background facts essential to be recapitulated for OWP 55, briefly, are these:
4.1. Petitioner/defendant No. 1 and respondents 1 to 5/ plaintiffs are the successors-in-interest of Sardar Gopal Singh s/o Sardar Krishan Singh. Respondents 1 to 5 have filed suit for declaration, permanent injunction, possession and recovery of usufructs in respect of land (orchard) measuring 58 kanals 4 marlas against the petitioner in the trial court claiming that the property of late Gopal Singh has been inherited by his four sons in equal shares. Petitioner has contested this suit contending inter alia that he is in exclusive possession of the suit property inasmuch as the respondents 1 to 5 are living outside the State and have received full consideration of their shares in the suit property from him against proper receipts and the Consolidation Officer has declared him the owner of the said property. Respondents 1 to 5 have also alleged in the suit that the decree in favour of petitioner-defendant had been passed by the Consolidation Officer on the basis of vague and fraudulent receipts.
4.2. Along with the suit plaintiffs had filed application for appointment of receiver qua the suit property and temporary injunction which, however, were dismissed by the learned trial court and appeal against the order of the trial court was dismissed by learned Add. District Judge, Baramulla. Revision against the order of the appellate court was dismissed by this Court. In the meantime respondents 1 to 5 had challenged the decree passed by the Tehsildar Consolidation (Consolidation Officer) before the Director Land Records, which was ultimately set aside by the Financial (Consolidation) Commissioner vide his judgment dated 21.10.2008 in revision against the order of Director Land Records. Pursuant to setting aside of the decree passed by the Consolidation Officer by the Financial (Consolidation) Commissioner, respondents 1 to 5 approached this Court for review of the order passed in the revision petition but this Court vide order dated 02.05.2009 disposed of the review application observing that "setting aside of the decree above referred is not the discovery of evidence of a type so as to make it base for review because the said decree is not sole foundation of judgment. The judgment as referred can be taken benefit, if any second application is filed before the trial court for appointment of receiver subject of course to exceptions and permissible limits and powers of trial court."
4.3. Respondents l-5/plaintiffs therefore, filed fresh application for appointment of receiver under Order 40 CPC before the trial court. Learned trial court vide its order dated 26.12.2011, while relying upon Arjun Singh v. Mohinder Singh, AIR 1964 SC 993, rejected petitioner's objection that the subsequent application for appointment of receiver, after dismissal of earlier one, was not maintainable, allowed the application and appointed the petitioner-defendant as receiver of the suit property, laying down conditions in which it was to be maintained and providing for payment of 10% of the total profit as remuneration to him. Petitioner challenged the order passed by the learned
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