Javed Iqbal Wani, J
1. The petitioners in the instant petition filed under Article 226 read with Article 227 of the Constitution of India seek quashment of order dated
15.04.2013 and 07.05.2013 (for short impugned orders) passed by the Court of Munsiff, Budgam, (hereinafter for short the Trial Court), and order
dated 15.05.2015 passed by the court of District Judge, Budgam (hereinafter for short the Appellate Court)
Petitioners’ case: -
1. Petitioner No. 1 herein claims to be daughter of one Mohammad s/o Karim Mutation number 2127 is claimed to have been attested in favours of
Mohammad including the petitioner No. 1 herein, whereby land to the extent of 3 Kanals 01 Marla, under Khasra number 888 situated at
KarewaDamodar, Budgam, is stated to have been attested. The said land is stated to have been intended to be sold by the petitioner No. 1 herein in
the year 2013 and while seeking relevant revenue papers for the purpose the petitioner came to know that the land has been shown to have gifted by
her to one Nazir Ahmad and Bashir Ahmad pursuant to an oral gift and a mutation No. 4842 attested thereuponwhereafter the said land had been
gifted orally to one Endowment Finance Company.
2. A revision petition is stated to have been filed by the petitioner No. 1 herein before the Settlement Commissioner against the mutation No.4842 and
an order of status quo is stated to have been passed on 14.07.1993 while staying the said mutation by the Commissioner.
3. The aforesaidNazir Ahmad &Bashir Ahmad are stated to have sold the said land to various persons in between and lastly stated to have been
acquired by the respondent herein pursuant to a decree passed by the Court of Sub-Judge, Budgam. The respondent herein is stated to have filed a
suit against petitioners herein for permanent injunction upon coming to know about the order of status quo passed by the Settlement Commissioner
before the Trial Court, which Court is stated to have granted an interim restraint orderagainst the petitioners herein in terms of order dated 15.04.2013.
4. The said order dated 15.04.2013 is stated to have been challenged by the petitioners herein by way of an appeal before Principal District Judge,
Srinagar. A civil suit is also stated to have beenfiled by the petitioner No. 1 herein challenging the oral gift, sale deeds as also the decree passed in
favour of the respondent herein, in respect of the land in question.
5. The aforesaid appeal is stated to have been disposed of on 22.04.2013, directing the parties to appear before the Trial Court on 23.04.2013, while
directing maintenance of status quo and treating the appeal filed by the petitioner No. 1 herein as a written statement to the suit.
6. The Trial Court is stated to have finally disposed of application for interim relief in terms of impugned order dated 07.05.2013 confirming the initial
interim order dated 15.04.2013. The Trial Court is stated to have passed ananotherorder on 17.05.2013 directing theSHO concerned to implement the
order passed in letter and spirit whereupon the petitioner herein is states to have beenevicted from the land in question besides effecting her arrest.
The said order is stated to have been challenged by the petitionerbefore this Court in OWP No. 858/2013and the said petition is stated to have been
disposed of by this Court while opining that the appeal is pending against the final order passed by the Trial Court as petitioner herein had challenged
final order dated 07.05.2013 passed by the Trial court in an appeal before District Judge, Budgam, and as such directed the District Judge to decide
application for interim relief within two weeks in terms of order dated 29.06.2013.
7. The Appellate Court is stated to have instead chosen to decide the appeal itself and dismissed the same after a lapse of two years in terms of
impugned order dated 15.05.2015.
8. The impugned orders are being assailed inter alia on the grounds that both the Courts below did not consider the material put forth on record, and
that, the Appellate Court did not appreciate the fact that the Settlement Commissioner had granted an order of status quo with respect to the suit
property on 22.03.2013 passed prior to the institution of the suit, the court below, as such, arecontended to have committed illegality while exceeding
jurisdiction. It is further alleged that the Appellate Court as well as the Trial Court have committed illegalityin not exercising powers within the
parameters of law, overlooking the fact that there had been an order of status quo in operation dated 23.03.2012 passed by the Settlement
Commissioner.
Respondent’s case
9. Per contra objections to the petition have been filed by the respondent, wherein besides questioning the maintainability of the petition, it is being
contended that the respondent herein is the rightful owner of the land in question having acquired ownership pursuant to a valid decree of the Court
dated 07.04.2007 and a consequent mutation attested thereof being mutation No. 6574. The petitioner no. 1 is stated to have surrendered her
possession and ownership in respect of the land in question in the year 1993 in favour Nazir Ahmad Bhat and Bashir Ahmad Manhasand that the
petitioner No. 1 had never been thereafter in possession of the said land, and that the petitioner even admitted the position of being out of possession in
a statement made on 16.11.2013 by her in a suit filed before the Court of Sub-Judge, Budgam. It is being further contended that the impugned orders
have been passed validly and lawfully by the Courts below and that no error whatsoever has been committed by the said courts, as the entire material
and factual position has been looked into by the said courts.
10. The writ petition is stated to be involving complicated and disputed questions of fact, as such, not maintainable.
Analysis
11. Before adverting to the issues involved in the petition, it would be appropriate and adventurous to refer to the ambit and scope of Articles 226 and
227 as laid down by the Apex Court in case titled as“ShaliniShayam Shetty &anr Vs. Rajendra Shankar Pati†reported in 2010 (8) SCC 3291,
wherein following has laid down:
“62.On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of
the Constitution may be formulated:
(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 Court’s underArticle227and 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 laiddown by this Court. In this
regard the High Court must be guided by the principles laid down by the Constitution Benchof this Court in Waryam Singh (supra) and the principles in
Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), followed 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 inthem.
(g) A part from the situations pointed in (e) and
(f) High 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 bevery sparingly exercised.
(i) High Court's power of superintendence under Article 227cannot be curtailed by any statute. It has been declared a partof 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 (1997) 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 Code
(Amendment) Act, 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 one quitable principle. In an appropriate case, the power can be exercised suo moto.
(l) On a proper appreciation of the wide and unfettered power ofthe High Court under Article 227, it transpires that the mainobject of this Article is to
keep strict administrative and judicialcontrol by the High Court on the administration of justice withinitsterritory.
(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 notbring 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 butshould 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 itsexercise 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 vitalityâ€.
And in case titled as “Radhey Shayam and anr. Vs. Chhabi Nath and ors†reported in 2015 (5) SCC 423, following has been provided while
considering the view taken by the Apex Court in case titled as “Surya Dev Rai vs. Ram Chander Rai and ors†reported in 2003 (6) SCC675:
“Accordingly, we answer the question referred as follows:
(i) Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution;
(ii) Jurisdiction under Article 227 is distinct from jurisdiction from jurisdiction under Article 226. Contrary view in Surya Dev Rai is over ruled.
12. Law is no more res-integra that temporary/interim injunctions operate pendent-lite i.e., during the pendency of the suit, appeal or other proceedings
for a specific period. It does not conclude the rights and liabilities of the parties finally. Interim injunction, which is normally granted while deciding and
disposing of main application for interim relief operates till the disposal of the main proceedings. The power to grant injunction is extraordinary in
nature and has to be exercised cautiously and with circumspection. Grant of injunction is in the discretion of the Court in order to meet the ends of
justice. The grant of injunction is in nature equitable relief and the court has undoubtedly power to impose such terms and conditions as it thinks fit.
Before granting an injunction the court has to satisfy about the following factors.
(a)Whether the plaintiff has prima facie case?
(b) Whether the plaintiff would suffered irreparably injury if his prayer for temporary injunction as disallowed?
(c) Whether the balance of convenience is in favour of the plaintiff. The above three factors are described as “Three Pillars†on which foundation
of every order of injunction rests. It is also known as “Triple Test†for grant of interim injunction.
13. Further the Apex Court in case titled as “Colgate Palmolive (India) Ltd. V. Hindustan Lever Ltd.†reported in 1999 (7) SCC 1, has laid down
following principles of law in regard to temporary injunctions:
(i) “Extent of damages being an adequate remedy;
(ii) Protect the plaintiff’s interest for violation of his rights though, however, having regard to the injury that may be suffered by the defendants by
reason therefore;
(iii) The court while dealing with the matter ought not to ignore the factum of strength of one party’s case being stronger than the other’s;
(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each caseâ€"the relief being
kept flexible;
(v) The issue is to be looked at from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury
keeping in view the strength of the parties’ case;
(vi) Balance of convenience of inconvenience ought to be considered as an important requirement even if there is a serious question of prima facie
case in support of the grant;
(vii) Whether the grant or refusal of injunction will adversely affect the interest of the general public which can or cannot be compensate otherwise.â€
14. Keeping in mind the aforesaid legal position and reverting back to the case in hand admittedly the petitioners herein have questioned concurrent
orders of the court below, whereunder the final interim impugned order dated 07.05.2013 passed by the Trial Court has been confirmed by the
Appellate Court in terms of impugned order dated 15.05.2015.
15. Indisputably the petitioner no. 1 herein has conceded to be out of possession of the land in question. Fact also remains that the petitioner has not in
opposition to the claimlodged by the respondent herein qua the ownership and possession of the land in question, produced credible cogent material qua
interim relief before the courts below for dislodging the claim of the respondent herein. Both the courts below while considering the claim of the
petitioners herein as against the claim of the respondent herein have not overlooked the factum of strength of the case of the respondent herein being
stronger than that of the case of the petitioners herein. Both the courts below have also seemingly noticed and considered the matter on the touch
stone of the principlesof“Three Pillars†supra, inasmuch as the principles of law laid down by the Apex Court in “Colgate Palmolive (India)
Ltd. V. Hindustan Lever Ltd.†supra.
16. Further the case set up by the petitioners in the instant petition cannot said to be potent enough against the respondent herein qua the impugned
orders, in view of law laid down by the Apex Court in “Shalini Shayam Shetty†supra wherein risking repetition at clause (c) & clause (h)
following principles of law had been laid down: -
(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 order
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.
(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 exercised.
17. Viewed, thus, what has been observed, considered and analyzed hereinabove the petition entails dismissal, and is accordingly, dismissed.
18. It is made clear that nothing hereinabove shall be construed to be expression of any opinion about the merits of the case.
