IMPORTANT POINT
There should not be tendency in High Courts to entertain petitions under Article 226 or under Section 104 of Constitution of State of Jammu & Kashmir, against orders, against which revision is barred in terms of amended Act of CPC.

1. Petitioners, through instant writ petition under Article 227 of the Constitution of India read with Section 104 of J&K Constitution, seek writ of certiorari quashing/declaring orders dated 14th July 2014 and 29th June 2015, passed by learned Sub Judge, Budgam (for short “Trial Court”), in case titled Mohammad Yousuf Shah and another versus Akber Ganie and others, as illegal, bad, erroneous, against law and justice. They further seek writ of mandamus, directing/commanding Trial Court/Sub Judge, Budgam, to dispose of the matter after hearing final arguments in the matter in consonance with the directions passed by Principal District Judge, Budgam, vide judgment dated 24th July 2006.

2. Petitioners’ case is that they had filed civil suit for grant of a decree of permanent injunction/prohibitory injunction against respondents (defendants below), which was pending disposal before Trial Court. The suit, as contended, by petitioners, was actually filed before learned Munsiff, Chadoora, by petitioners, Learned Munsiff, vide judgment dated 14th June 2006, dismissed the suit under Order 7 Rule 11 CPC, which was put to challenge. Learned Principal District Judge Budgam, vide judgment dated 14th July 2006 set-aside the said” judgment and in view of complaint of by petitioners, the case-file was sent to files of Trial Court instead of Munsiff, Chadoora. Parties appeared before Trial Court and led evidence and that the case was listed for arguments, but amazingly Trial Court vide order dated 14th July 2014, erroneously returned the plaint to petitioner for its presentation before learned Munsiff Chadoora under Order 7 Rule 10-A CPC. Petitioners aver that they even filed review petition along with application for condonation of delay, but Trial Court vide order dated 29th June 2015 dismissed the same. Aggrieved thereof, petition on hand.

3. Respondents 1 to 5, in their reply, state writ petition is liable to be dismissed as petitioners have approached this Court as if they have filed appeal against the order of Trial Court and that order under challenge has been passed on the desire of counsel for plaintiffs/petitioners, when he made submission to Trial Court to send case-file to learned Munsiff, Chadoora, while invoking powers under Order 7 Rule 10-A CPC. The writ petition is stated to hit by latches.

4. I have heard learned counsel for parties at length. I have gone through, the pleadings and given my thoughtful consideration to the matter.

5. Before deciding the controversy emanating from present petition, the question that arises for consideration is whether present petition filed under Section 104 of the Constitution of State of Jammu and Kashmir is maintainable. The fact that the High Courts have powers under Articles 226 and 227 of the Constitution of India, is undisputed, but care is to be taken when the same is warranted to be exercised because powers under such Articles have to be utilized very cautiously, carefully, sparingly and in rarest of rare cases. There should not be tendency in High Courts to entertain petitions under Article 226, or for that matter under Section 104 of Constitution of State of Jammu & Kashmir, against the orders, against which revision is barred in terms of amended Act of CPC. The Supreme Court in this regard in Shalini Shyam Shetty v. Rajendra Shankar Patil (2010 AIR SCW 6387) has held that frequent interference by High Courts either under Article 226 or 227 of the Constitution in pending civil and at times criminal cases impedes disposal of cases by the civil and criminal courts and thus causing serious problem in the administration of justice.

6. The Apex Court in Shalini Shyam Shetty’s case (supra) 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 paragraph Nos. 80, 81 and 82 of the judgment supra herein:—

“80. We may also obs