Under Article 227 of the Constitution of India, the High Court cannot convert itself into a Court of appeal: Hugh Court of J&K and Ladakh

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Serial No. 40 Supplementary 1 List CM(M) No.139 2021 CM No.6285 2021 Shahid Ahmad Lone & Ors. Through: Mr T. A. Lone Advocate. Dated: 27th of September 2021. … Petitioner(s) … Respondent(s) Sonaullah Shah. Oral Hon’ble Mr Justice Ali Mohammad Magrey Judge. By medium of this Petition filed under Article 227 of the Constitution of India the Petitioners Defendants in the Suit have assailed the validity of Order dated 26th of August 2021 passed by the Court of learned Munsiff Kupwara in the Suit filed by the Plaintiff Respondent herein titled ‘Sonaullah Shah v. Shahid Ahmad Lone & Ors.’ in terms whereof the learned trial Court has temporarily restrained the Petitioners Defendants from causing any sort of interference with regard to the possession and construction of residential house over the suit property measuring 01 Kanal and 10 Marlas covered under Survey No. 2024 situate at Awoora. CM(M) No. 139 2021 CM No. 6285 2021 Learned Counsel for the Petitioners Defendants submitted that the impugned Order passed by the learned Court below is without jurisdiction in view of the fact that the Suit property is situated in village Awoora which village falls under the jurisdiction of the Court of learned Sub Judge Trehgam. It is further submitted that by passing the impugned Order which is interim in nature the learned trial Court has virtually granted the whole relief in favour of the Plaintiff Respondent that was prayed in the main Suit. Heard the learned Counsel for the Petitioners Defendants perused the pleadings on record and considered the matter. At the very outset what requires to be stated herein this case is that the High Courts under Article 227 of the Constitution have little scope to interfere with the orders of the subordinate Courts as a matter of routine. This power cannot be taken as right of another appeal to the aggrieved party nor can this power be invoked to point out an error of law or fact in the order or decision of a subordinate Court. It also cannot be used to make out that the decision of the subordinate Court could have been or must have been other than what it actually was. The High Court in exercise of its power under Article 227 of the Constitution ordinarily shows indulgence in the Orders passed by the Tribunals or Courts subordinate to it only to keep such Tribunals or Courts within the bounds of their authority the object being to ensure that law is followed by such Tribunals and Courts in exercising jurisdiction which CM(M) No. 139 2021 CM No. 6285 2021 is vested in them. That apart the High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the Tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. The judgment of law cited by the learned Counsel for the Plaintiff Appellant having been passed in a case involving different set of facts and circumstances is distinguishable as such not applicable to the case in hand. The Hon’ble Supreme Court while dealing with the issue of the scope of the High Court in exercising jurisdiction under Article 227 of the Constitution in a landmark judgment rendered in case titled ‘Shalini Shyam Shetty v. Rajendra Shankar Patil’ reported as ‘2010 SCC 329’ has formulated the following principles: “(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 CM(M) No. 139 2021 CM No. 6285 2021 Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh supra) and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. e) According to the ratio in Waryam Singhfollowed 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 inandHigh Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate 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 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 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 CodeAct 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. CM(M) No. 139 2021 CM No. 6285 2021 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 unfettered 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.” On an appreciation of the aforesaid principles laid down by the Apex Court of the country with regard to exercise of jurisdiction by the High Court under Article 227 of the Constitution of India what can be seen is that the present case does not fall in any of the aforesaid principles evolved by the Supreme Court. The Order impugned passed by the learned trial Court has not resulted in any gross and manifest failure of justice nor has there been any illegality or perversity committed by the Court below while passing the impugned Order. Besides the Order passed by the learned trial Court is only interim in nature and subject to Objections from the other side therefore in such circumstances the Petitioners Defendants instead of filing the present Petition before this Court under Article 227 of the Constitution ought to have filed an application before the learned trial Court seeking vacation modification alteration of the Order impugned. CM(M) No. 139 2021 CM No. 6285 2021 Apart from the above perspective the law is that under the guise of exercising jurisdiction under Article 227 of the Constitution of India the High Court cannot convert itself into a Court of appeal. It is equally well settled that the supervisory jurisdiction extends to keeping the Tribunals and subordinate Courts within the bounds of their authority. Reliance in this respect can be placed on a catena of Judgments of the Apex Court including the ones in Satyanarayan Laxminarayan Hedge & Ors. v. Milikarjun Bhavanappa Tirumale Bathutmal Raichand Oswal v. Laxmibai R. Tarta & Anr.M S India Pipe Fitting Co. v. Farduddin M. A. Baker & Anr.Ganpat Ladha v. Sashikant Vishnu ShindeMrs Labhkuwar Bhagwani Shaha & Ors. v. Janardhan Mahadeo Kalan & Anr.Chandavarkar Sita Ratna Rao v. Ashalata S. GuramVenkatlal G. Pittie & Anr. V. Bright BrosLtd.State of Maharashtra v. Milind & Ors.State through Special Cell New Delhi v. Navjot Sandhu Alias Afshan Guru & Ors.Ranjeet Singh v. Ravi PrakashShamshad Ahmad & Ors. v. Tilak Raj Bajaj through Lrs & Ors. and Celina Coelho Pereira& Ors. v. Ulhas Mahabaleshwar Kholkar & Ors.No. 139 2021 CM No. 6285 2021 however shall not preclude the Petitioners Defendants in filing an appropriate motion for seeking vacation modification alteration of the Order dated 26th of August 2021 passed by the learned trial Court on the available grounds. It is also made clear that nothing said in this Order hereinabove shall be construed as an expression of opinion with regard to the merits of the case and that the same shall be gone into and considered by the learned trial Court. September 27th 2021 Judge Whether the Judgment is reportable Yes No. Yes No. Whether the Judgment is speaking 

Summary: The High Courts, under Article 227 of the Constitution, have little scope to interfere with the orders of the subordinate Courts as a matter of routine. This power cannot be taken as right of another appeal to the aggrieved party nor can this power be invoked to point out an error of law or fact in the order or decision of a subordinate Court as held by the Hon’ble High Court of J&amp;K and Ladakh through a learned bench of Justice Ali Mohammad Magrey in the case of Shahid Ahmad Lone &amp; Ors. Vs Sonaullah Shah [CM(M) No.139/2021 CM No.6285/2021]. By medium of a Petition, filed under Article 227 of the Constitution of India, the Petitioners in the Suit had assailed the validity of Order dated 26th of August, 2021 passed by the Court of learned Munsiff, Kupwara in the Suit filed by the Respondent herein titled ‘Sonaullah Shah v. Shahid Ahmad Lone &amp; Ors.’, in terms whereof the learned trial Court has temporarily restrained the Petitioners from causing any sort of interference with regard to the possession and construction of residential house over the suit property measuring 01 Kanal and 10 Marlas covered under Survey No. 2024 situate at Awoora. Learned Counsel for the Petitioners/ Defendants submitted that the impugned Order passed by the learned Court below is without jurisdiction in view of the fact that the Suit property is situated in village Awoora, which village falls under the jurisdiction of the Court of learned Sub-Judge, Trehgam. It is further submitted that by passing the impugned Order, which is interim in nature, the learned trial Court has virtually granted the whole relief in favour of the Plaintiff/ Respondent that was prayed in the main Suit. After hearing the learned counsels, the Hon’ble High Court, at the very outset, stated that the High Courts, under Article 227 of the Constitution, have little scope to interfere with the orders of the subordinate Courts as a matter of routine. This power cannot be taken as right of another appeal to the aggrieved party nor can this power be invoked to point out an error of law or fact in the order or decision of a subordinate Court. It, also, cannot be used to make out that the decision of the subordinate Court could have been or must have been other than what it actually was. The High Court, in exercise of its power under Article 227 of the Constitution, ordinarily shows indulgence in the Orders passed by the Tribunals or Courts subordinate to it only to keep such Tribunals or Courts within the bounds of their authority, the object being to ensure that law is followed by such Tribunals and Courts in exercising jurisdiction which is vested in them. In conclusion, the Hon’ble court relied on a landmark judgment rendered in case titled ‘Shalini Shyam Shetty v. Rajendra Shankar Patil’ to state that “The Order impugned passed by the learned trial Court has not resulted in any gross and manifest failure of justice nor has there been any illegality or perversity committed by the Court below while passing the impugned Order. Besides, the Order passed by the learned trial Court is only interim in nature and subject to Objections from the other side, therefore, in such circumstances, the Petitioners/ Defendants, instead of filing the present Petition before this Court under Article 227 of the Constitution, ought to have filed an application before the learned trial Court seeking vacation/ modification/ alteration of the Order impugned.”