Snail pace proceedings add to agony of litigants, tarnish image of Justice system

HC directs all District judges to take action, speedup justice delivery

22/05/2022

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
OW104 No. 105/2013
IA No. 111/2013

Reserved on: 06.04.2022
Pronounced on: 12.05.2022
Mohd. Yasin … Petitioner(s)
Mr. R. K. S. Thakur, Advocate
and Ms. Anandita Rattan Thakur, Advocate
v/s
Mohan Lal and others …Respondent(s)
Mr. P. N. Raina, Sr. Advocate
with Mr. J. A. Hamal, Advocate
MR. JUSTICE RAHUL BHARTI
JUDGMENT
1. Heard learned counsel for the parties.
2. A state of divergence of the decisions of the trial court of learned Munsiff, Jammu and of the appellate court of the learned District Judge, Jammu with respect to disposal of a temporary injunction application, under Order XXXIX of the Code of Civil Procedure, (in short, CPC), in a civil suit filed by the respondent nos. 1 to 3 against two persons i.e., the petitioner herein and Mst. Zohra Bano, proforma respondent herein, presents itself for scrutiny and examination sought from this Court under Article 227 of the Constitution of India read with the then in force Section 104 of the Constitution of Jammu and Kashmir.
3. The present petition came to be filed on 10.09.2013. It has awaited almost nine years for getting its disposal meaning thereby issue of a temporary injunction in a civil suit has not taken final rest from April, 2012 till ongoing 2022 and that sets an exigency of its kind in the adjudication of the present petition.
4. Factual context of the matter feeding the present petition needs to be set out at the outset before taking the call as to whether the case is the one in which this Court shall spare its supervisory indulgence under Article 227 of Constitution of India.
5. The genesis of the dispute in the civil suit, to put it in its barest form, relates to the identity of a plot of land firstly in terms of its revenue demarcation obtaining in the sale deed of the respondent nos. 2 and 3 on the one hand and the sale deed of the petitioner on the other hand and secondly as to the actual khasra location of the plot of land in dispute. In fact, it would be a safer observation to make that both sides to the dispute find themselves converged to the same plot of land with conflict as to which is the khasra number of the said plot in dispute.
6. The respondent nos. 2 and 3 claim to be joint purchaser of a residential plot of land measuring 14.5 marlas by virtue of a registered sale deed dated 24.04.1999 executed by the erstwhile recorded owner Abdul Gani, acting through attorney holder Mohan Lal, for a sale consideration of Rs. 20,000/-. In the said sale deed, the mention of said plot of land is that it is in khasra no. 215 min, khata no. 161 and khewat no. 13 falling in revenue village Narwal Bala, Jammu. From the record of the file it is gatherable that a mutation no. 698/Jeem dated 11/06/2007 has also been attested w.r.t the sale transaction so effected in terms of sale deed above referred.
7. The above named attorney holder Mohan Lal is the respondent no. 1 in the present petition.
8. Same very above named person Mohan Lal was also an attorney holder of one Rattan Lal with respect to a plot of land measuring 15 marlas in khasra no. 225, khata no. 164 min and khewat no. 14 falling in revenue village Narwal Bala, tehsil and district Jammu. A sale deed dated 17.04.2001 for the sale of said plot of land was executed in favour of Mst. Zohra Bano, the proforma respondent, by the recorded owner Rattan Lal through attorney holder said Mohan Lal and for this sale transaction also mutation number 1657 has been attested.
9. The respondent nos. 2 & 3 and Mst. Zohra Bano, the proforma respondent, did not come across in any conflict in terms of the location of the plot of land so purchased by them at their respective end. Mst. Zohra Bano, the proforma respondent, came to sell her 15 marlas of plot of land in khasra no which came to be mentioned 225 min to the petitioner herein by virtue of a sale deed dated 28.02.2011 that is after being the owner for almost 10 years. Thus, while in her sale deed from Rattan Lal, the location of plot was in khasra number 225 but when it came to be a sale deed by Mst. Zohra Bano , the proforma respondent, to the petitioner the khasra number mentioned is khasra number 225 min. It is not forthcoming from the record as to whether the petitioner has got mutation attested in his favour in terms of sale deed so made.
10. It seems that it was upon coming into scene of the petitioner as a new buyer that a case of immediate conflict came to set in between him and the respondent nos. 2 and 3 as to the site of the respective plot purchased by both the parties i.e. the petitioner purchasing from Mst. Zohra Bano, and the respondent nos. 2 and 3 purchased from Abdul Gani. Going by the time line of the sale-purchase, the respondents 2 & 3 are first one to become owners and have the possession of the plot and then Mst. Zohra Bano, the proforma respondent, was later in terms of her purchase and possession of the plot.
11. The dispute so set in led the respondent nos. 2 and 3, joined by respondent no. 1, to file a civil suit for permanent prohibitory injunction against the petitioner on 23.04.2011 before the court of the learned Sub-Registrar, Munsiff, Jammu asking for a decree of permanent prohibitory injunction w.r.t 14.5 marlas of plot in khasra number 215 min. The petitioner upon his service in the suit had filed his written statement disclosing thereby his title document in the form of sale deed dated 28.02.2011 executed by Mst. Zohra Bano, the proforma respondent, upon knowing which the respondent nos. 1 to 3 came to seek and allowed withdrawal of the suit on 28.05.2011.
12. The respondent nos. 2 and 3, as being the owners, in terms of their sale deed dated 24.04.1999 of the plot of the land of 14.5 marlas, joined by the respondent no.1, Mohan Lal, the erstwhile attorney holder through whom said sale deed was executed by the erstwhile owner Abdul Gani, then came to file a civil suit for declaration with consequential reliefs of mandatory injunction as well as permanent prohibitory injunction against the petitioner and Mst. Zohra Bano, the proforma respondent.
13. This second civil suit was filed on 07.05.2011 before the Court of the learned Munsiff, Jammu, in which vide an ad-interim ex-parte order dated 07.05.2011, the court of learned Munsiff, Jammu had directed status-quo to be maintained on spot with respect to the suit land by both the parties. It is out of this civil suit that the matter of issuance of temporary injunction has journeyed to this Court through the present petition.
14. In the second civil suit, the respondent nos. 2 and 3 came to reiterate and set up a situation that though their plot of land measuring 14.5 marlas as per sale deed dated 24.04.1999 is relatable to khasra no. 215min but actually the location of the plot under their possession from very inception of purchase is found in khasra no. 213/214 with 12 marlas falling in khasra no. 213 and 03 marlas in khasra no. 214. The disclosure of the actual khasra number to be 213/214 housing the plot of 14.5 marlas of the respondent nos. 2 and 3 is said to have come forth upon an investigation by the revenue authorities conducted on spot with a report made thereupon when the respondents 2 & 3 had approached the Revenue Authority during the pendency of the first civil suit. The Trial Court of learned Munsiff Jammu vide its ad interim ex parte order dated 07/05/2011 had directed maintenance of status quo by both the parties quo the suit plot.
15. The petitioner filed his written statement in the said second suit to confront the case set up by the respondents which has been annexed with the present petition as well. However though it is mentioned that the proforma respondent too had filed her written statement in the case but copy of the same is not forming the part of the record of the present file.
16. The petitioner, through his written statement, besides posing preliminary objections to the civil suit also joined issue of facts against the plaint set up case of the respondents. Along with the suit, the temporary injunction application filed by the respondent nos. 2 and 3 under Order 39 Rule 1 & 2 read with Section 151 CPC was also contested and opposed by the petitioner herein.
17. Said application for temporary injunction came to be decided by the Court of learned Munsiff, Jammu vide its order dated 08.12.2011 thereby dismissing the application of temporary injunction of the respondent nos. 2 and 3 in holding that the respondent nos. 2 and 3, as being the plaintiffs in the suit, not entitled for issuance of temporary injunction in their favour as against the petitioner and Mst. Zohra Bano, as defendants in the suit, the Court of learned Munsiff, Jammu, logged its focus on the role of Mohan Lal, the respondent no. 1 herein, who acted as an attorney of Abdul Gani while executing the sale deed of 14.5 marlas of plot of land in khasra no. 215 min to the respondent nos. 2 and 3, and also acted as attorney of Rattan Lal in executing the sale deed dated 17.04.2001 of the 15 marlas of plot of land in khasra no. 225 both falling in revenue village Narwal Bala, Tehsil and District Jammu. By reference to said Mohan Lal’s status and role, the Court of learned Munsiff, Jammu, drew a strong view that the respondent nos. 2 and 3 cannot afford to take a contrary plea that 14.5 marlas of plot of land mentioned to be in khasra no. 215 min but in terms of its actual position is located upon khasra no. 213/214 of revenue village, Narwal Bala. The trial court adverted to the fact of revenue report figuring in the matter whereby the site of the suit plot is allegedly identified to be khasra number 213 (12 marlas) & 214 (3 marlas). However, the trial court appears to have skipped or missed the factual inference borne out from the said alleged revenue report, being referred and relied in the plaint by the respondent nos. 2 & 3 in their favour, that even the petitioner’s plot of land by reference to his sale deed dated 28.02.2011 is not actually found to be in khasra number 225. It is forthcoming from the order dated 08.12.2011 of the Court of learned Munsiff Jammu that there was an escape of observation on its part to the fact that head knocking situation was obtaining between the respondents 2 & 3 and the petitioner about suit plot which sufficed to be a prima facie case.
18. However, it was only the role of Mohan Lal, attending both sides, predominantly weighing upon its application of mind that the Court of learned Munsiff, Jammu, felt persuaded to hold that the respondent nos. 2 and 3 have no prima-facie case in their favour and that meant the other two factors i.e. balance of convenience and irreparable injury needed no consideration from the Court of learned Munsiff, Jammu and that is why the said trial court has not touched the same.
19. Aggrieved of this order dated 08.12.2011 of the Court of learned Munsiff, Jammu, the respondent nos. 2 and 3, joined by the respondent no. 1, came to file a civil miscellaneous appeal under Order 41 Rule 1 (r) of the Code of Civil Procedure before the Court of the learned Principal District Judge, Jammu on 26.12.2011 in which pending hearing of the said appeal a direction of status-quo had come to take effect vide an interim order dated 28/12/2011.
20. Vide its judgment dated 03.04.2012, the appellate court of learned Principal District Judge, Jammu, came to set-aside the order dated 08.12.2011 of the Court of learned Munsiff, Jammu, and consequently directed for status-quo to continue in the suit qua the suit land by directing both the parties to maintain the same and no construction to be raised by either of the two parties till the trial court modifies, reverses or alters the order at a later stage in the changed circumstances.
21. The Court of the learned Principal District Judge, Jammu, summarized the gist of the dispute to the effect that the defendants, who are the petitioner and the proforma respondent herein, are claiming that they are constructing at khasra no. 225 whereas the plaintiffs i.e. respondents herein are claiming their plot in khasra nos. 213/214/215 but the petitioner and the proforma respondent under the plea and garb of khasra no. 225 were trying to confuse and take benefit of the same, and so there is a dispute with regard to the identification of the land which can be decided only when the parties are allowed to lead evidence. The appellate court of the learned District Judge, Jammu saw it a triable issue as to what is the actual site of the plot being the bone of contention.
22. With respect to the direction of the status quo as to the suit land so set into place by the appellate court in terms of order dated 03.04.2012, the petitioner in particular and the proforma respondent as well seemed to have felt no botheration and did not call in question the same before this Court in terms of jurisdiction under Article 227 of Constitution of India or seek its modification/alteration/ amendment from the trail court in exercise of liberty reserved in the order dated 03/04/2012.
23. It was almost after one year of operation of above said direction of status quo that the petitioner came to file a review petition on file no. 14/Misc., on 05.05.2013 before the court of learned Principal District Judge, Jammu thereby seeking review of the order dated 03.04.2012 on mixed question of facts and perception entertained by the petitioner vis-à-vis order dated 03.04.2012 of the appellate court of learned Principal District Judge, Jammu. It is pertinent to mention here that the petitioner had not availed the usage of the liberty granted by the Court of Principal District Judge, Jammu in its order dated 03.04.2012 for either of the parties to seek modification/reversal/alteration of the status quo order at a later stage in the changed circumstances. The Court of Principal District Judge, Jammu came to dismiss the said review petition of the petitioner vide its order dated 30.08.2013 by holding that the said review was not maintainable because the order dated 03.04.2012 was unambiguous and self-explanatory without any error apparent on the face of record.
24. It is upon passing of said order dated 30.08.2013 of dismissal of review petition that the petitioner ventured to seek the indulgence of this Court for exercising its supervisory jurisdiction under Article 227 of the Constitution of India read with Section 104 of the Constitution of J&K for examining the legality and validity of the original order dated 03.04.2012 passed in the miscellaneous appeal read with order dated 30.08.2013 passed in review petition by the Court of learned Principal District Judge, Jammu.
25. Before delving into the adjudication of the present petition, it would be apt to bear in perspective the nature firstly of the jurisdiction exercised by a civil court in the matter of grant of temporary injunction in a civil suit acting under Order 39 rule 1 & 2 of the Code of Civil Procedure, and secondly of the jurisdiction exercised by an appellate court acting under Order 43 rule 1 (r) of the Code of Civil Procedure while dealing with a final order passed under Order 39 rule 1 & 2 of the Code of Civil Procedure as the present case involves the blend of the said two jurisdiction.
26. An adjudication of matter under Order 39 rule 1 & 2 CPC by a civil court in a civil suit is done in and under the alleged facts and counter facts, which are in a state of haze, and interplay of supporting documents set up in the respective pleadings of the parties. This adjudication, thus by its nature, is in the domain of discretion to be exercised bearing the guidance of well entrenched parameters which are known and referred to the extent being ad nausem and these are (i) prima facie case, (ii) balance of convenience and (iii) irreparable injury, all the three tests the best of judicial minds by the peculiarity of the cases coming for adjudication. The seriousness attending exercise of the discretion to issue or not a temporary injunction under Order 39 rule 1 & 2 CPC by a civil court in any given cause can be gauzed from the perspective that it is recognized that grant or refusal of a temporary injunction has serious consequences depending upon nature thereof and in dealing with such matters the court(s) must make all endeavours to protect the interest of the parties. In the matter of adjudication of a temporary injunction, the contention of the parties to the lis are meant to be considered objectively by the court as a finding on prima facie case would be a finding of fact sustaining a conclusion that a case for trial has been made out and there are other requisite factors weighing for grant of injunction. In this regard input is available from AIR 2008 SC 2291 Mandali Ranganna and others v. T. Ramachandra and ors. and AIR 2006 SC 3275 M. Gurudas and ors. v. Rasaranjan and ors. Thus, a trial court bears a very demanding duty to consider and decide a temporary injunction application in a matter not only by an active application of mind to the full facts, pleaded directly as well as inferentially, and the substantive law applicable thereupon but also timely and expeditiously without letting any procrastination lest the main lis starts suffering suffocation and frustration from the perspective of deserving party in the suit. In fact the languishment of determination of temporary injunction application in a civil suit is painful and distressing even recognized by the Hon’ble Supreme Court in para 13 of AIR 2013 SC 1099 Mohd. Mehtab Khan & Ors., case which yearns to be reproduced to deliver its desired dictum to all the concerned in the adjudication of civil suit and the matter of temporary injunction therein. Para 13 reads as under:-
“13. While the bar under Section 6(3) of the SR Act may not apply to the instant case in view of the initial forum in which the suit was filed and the appeal arising from the interim order being under the Letters Patent issued to the Bombay High Court, as held by a Constitution Bench of this Court P.S. Sathappan (Dead) by L.Rs. v. Andhra Bank Ltd. and Ors. (2004) 11 SCC 672, what is ironical is that the correctness of the order passed in respect of the interim entitlement of the parties has reached this Court under Article 136 of the Constitution. Ordinarily and in the normal course, by this time, the suit itself should have been disposed of. Tragically, the logical conclusion to the suit is no where in sight and it is on account of the proverbial delays that have plagued the system that interim matters are being contested to the last court with the greatest of vehemence and fervour. Given the ground realities of the situation it is neither feasible nor practical to take the view that interim matters, even though they may be inextricably connected with the merits of the main suit, should always be answered by maintaining a strict neutrality, namely, by a refusal to adjudicate. Such a stance by the courts is neither feasible nor practicable. Courts, therefore, will have to venture to decide interim matters on consideration of issues that are best left for adjudication in the full trial of the suit. In view of the inherent risk in performing such an exercise which is bound to become delicate in most cases the principles that the courts must follow in this regard are required to be stated in some detail though it must be made clear that such principles cannot be entrapped within any straitjacket formula or any precise laid down norms. Courts must endeavour to find out if interim relief can be granted on consideration of issues other than those involved in the main suit and also whether partial interim relief would satisfy the ends of justice till final disposal of the matter. The consequences of grant of injunction on the Defendant if the Plaintiff is to lose the suit alongwith the consequences on the Plaintiff where injunction is refused but eventually the suit is decreed has to be carefully weighed and balanced by the Court in every given case. Interim reliefs which amount to pre-trial decrees must be avoided wherever possible. Though experience has shown that observations and clarifications to the effect that the findings recorded are prima facie and tentative, meant or intended only for deciding the interim entitlement of the parties have not worked well and interim findings on issues concerning the main suit has had a telling effect in the process of final adjudication it is here that strict exercise of judicial discipline will be of considerable help and assistance. The power of self-correction and comprehension of the orders of superior forums in the proper perspective will go a long way in resolving the dangers inherent in deciding an interim matter on issues that may have a close connection with those arising in the main suit.”
27. The appellate jurisdiction vested in an appellate court under Order 43 Rule 1 (r) of the Code of Civil Procedure although is a confined jurisdiction but, nevertheless, it is very much there for an appellate court to see and examine the legality of an order passed under Order 39 rule 1 & 2 of the Code of Civil procedure. An appeal against an order of grant/non grant of a temporary injunction in a civil suit is said to be an appeal on principle 1990 SCC (Supp.1) 727 Wander Limited Vs Antox India Private Ltd. because the order passed by the civil court is borne out of its judicially exercised discretion. That being so, an appellate court is meant to bear in mind the position of law as held and expounded by Hon’ble the Supreme Court which is that the appellate Court is not meant to substitute its own view in the matter merely on the ground that in its opinion the facts of the case called for a different conclusion because such an exercise would not be a correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order as held by the Hon’ble the Supreme Court in AIR 2013 SC 1099 Mohd. Mehtab Khan and ors. v. Khushnuma Ibrahim and ors. Though the appellate court is not at liberty to substitute its own view and opinion contrary to discretion exercised by the trial court in granting or not temporary injunction but being an appellate court it has the jurisdiction to examine as to whether or not the trial court has passed the order under appeal upon taking care to make appreciation and appraisal of the facts and circumstances, in their fullness, of the case and understanding of law attending thereupon. If the same is found to be done then there cannot be a substitution of opinion taking place in the appeal.
28. Now in the background of the understanding of above stated position of law, the scope of indulgence to be made under Article 227 of the Constitution of India with respect to an order/judgment passed by an appellate court in dealing and deciding with appealable orders under the Code of Civil Procedure needs to be probed by reference to the judgments of the Hon’ble Supreme Court of India before proceeding to deal with the petition on its merit.
29. In AIR 1987 SC 117 Chandavarkar Sita Ratna Rao’s case, the Hon’ble Supreme Court of India came to examine the position when the High Court of Bombay had come to deal with a case under Article 227 of the Constitution of India with respect to a judgment/order passed by the appellate bench of Small Cause Court, Bombay which had set aside the original order of the Court of Small Cause, Bombay with respect to an issue as to status of a person not entitled to protection against dispossession under the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947. High Court of Bombay had come to set aside the order of the appellate Bench of Small Causes Court by exercising jurisdiction under article 227 of the Constitution of India. Para 16, 17 and 21 of said judgment are reproduced herein next to understand the basis for the High Court to act under article 227 Constitution of India in a situation wherein two courts below have met in a cause with a divergent verdicts:
“16. This appeal challenges the said judgment and order. As mentioned hereinbefore two questions require consideration-how far and to what extent in exercise of its jurisdiction under Article 226 or 227 of the Constitution and in this respect regarding power to deal with factual findings, the jurisdiction of the High Court is akin both under Articles 226 and 227 of the Constitution, can the High Court interfere with the findings of fact? It is well-settled that the High Court can set aside or ignore the findings of fact of an appropriate court if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the courts below have come or in other words a finding which was perverse in law. This principle is well-settled. In D.N. Banerji v. P.R. Mukharjee and Ors. 1953 SCR 302 at p.305: (AIR 1953 SC 58 at p.59), it was laid down by this Court that unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention it was not for the High Court under Articles 226 and 227 of the Constitution to interfere. If there is evidence on record on which a finding can be arrived at and if the court has not misdirected itself either on law or on fact, then in exercise of the power under Article 226 or Article 227 of the Constitution, the High Court should refrain from interfering with such findings made by the appropriate authorities. We have noted that both the trial court and the appellate court after discussing evidence have come to the conclusion that the appellant was a licensee in possession on or before 1st February, 1973. The learned trial court had expressed doubt about Ex. A but ultimately accepted the position. There was leave and licence agreement. The learned appellate bench of the Court of Small Causes doubted Ex. A and said that it was a concocted story. It is true that there were discrepancies in the evidence of the obstructionists and there was inconsistency in the conduct of the judgment-debtor in resisting the suit. Yet all these are for the Court's finding facts and if such fact-finding bodies have acted properly in law and if the findings could not be described as perverse in law in the sense that no reasonable person properly instructed in law could have come to such a finding, such findings should not be interfered with within the exercise of the jurisdiction by the High Court under Articles 226 and Article 227 of the Constitution.
17. In case of finding of facts, the Court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Babhutmal Raichand Oswal v. Laxmibai R. Tarte and Anr. AIR 1975 SC 1297 where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J. as the learned Chief Justice then was, observed at page 1301 on the report as follows:
“The Special Civil Application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Warryam Singh v. Amarnath, 1954 SCR 565 : AIR 1954 SC 215 that the:
“..... power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 Cal 193 to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors.”
This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bora v. The Commr. of Hills Division, 1958 SCR 1240: AIR 1958 SC 398 and it was pointed out by Sinha, J., as he then was, speaking on behalf of the Court in that case:
“It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution the power of interference is limited to seeing that the tribunal functions within the limits of its authority.”
21. It is true that in exercise of jurisdiction under Article 227 of the Constitution the High Court could go into the question of facts or look into the evidence if justice so requires it, if there is any mis-direction in law or a view of fact taken in the teeth of preponderance of evidence. But the High Court should decline to exercise its jurisdiction under Articles 226 and 227 of the Constitution to look into the fact in the absence of clear cut down reasons where the question depends upon the appreciation of evidence. The High Court also should not interfere with a finding within the jurisdiction of the inferior tribunal except where the findings were perverse and not based on any material evidence or it resulted in manifest of injustice (See Trimbak Gangadhar Telang (supra)). Except to the limited extent indicated above, the High Court has no jurisdiction. In our opinion therefore, in the facts and circumstances of this case on the question that the High Court has sought to interfere, it is manifest that the High Court has gone into questions which depended upon appreciation of evidence and indeed the very fact that the learned trial judge came to one conclusion and the appellate bench came to another conclusion is indication of the position that two views were possible in this case. In preferring one view to another of factual appreciation of evidence, the High Court transgressed its limits of jurisdiction under Article 227 of the Constitution. On the first point, therefore, the High Court was in error.”
30. In fact, the Hon’ble Supreme Court of India has, in AIR 2010 SCW 6387 Shalini Shyam Shetty & anr.’s case, captured and consolidated the judicial understanding upon the nature and scope of constitutional jurisdiction exercised under Article 227 of the Constitution of India by a High Court rendering said judgment to be a highlight judgment on the subject admitting of perpetual reference for guiding the High Court/s in exercise of jurisdiction under Article 227 Constitution of India. High Court’s power of interference/indulgence with an interlocutory order of subordinate court is circumscribed with scope only to the extent that in case the trial court has acted without jurisdiction or in excess and order resulting in failure of justice. High Court is not supposed to assume the role of a court of appeal under Article 227 jurisdiction. However in a situation of dichotomy, as is the present case, judgment in AIR 2020 SC 270 Santosh Chaturvedi’s case while drawing reliance and reference from Shalini Shetty’s case supra holds the relevance as in the said case the order passed by the original judicial forum was overturned by the appellate judicial forum but the High Court of Allahabad had restored the original order of the judicial authority. The Hon’ble Supreme Court of India had dealt with the case from the position as stated in para 8 by stating that in the case instead of examining the extent of jurisdiction, what is required to be noticed is as to whether the nature of consideration as made by the Prescribed Authority as also the High Court was justified as against the conclusions reached by the appellate authority and which among the divergent opinions is to be accepted.
31. Bearing in mind the scope available before this Court under Article 227 of the Constitution of India, now upon the evaluation of the case from a very straight perspective, the present petition disqualifies itself from being credited with any benefit of bonafide. The reason for that, to put it very tersely, is that the exercise of filing the review petition against the appellate order dated 03.04.2012 was meant solely to create a pretext for bringing the said order dated 03.04.2012 into question before this Court otherwise, it defies reason and understanding that the petitioner having suffered no botheration for a period of almost one year from the passing of said order dated 03.04.2012 would first venture in review petition and then bring the matter born out of the review petition so as to get the order dated 03.04.2012 into question before this Court. Having risked second time indulgence of the appellate court of the District Judge and failing to get an outcome of his taste suffices for dismissal of the present petition. A suitor/litigant cannot take liberty with a sacrosanct requirement of coming to any court of law forthrightly and straightforward as the law as well as court mind it seriously to be juggled. The filing of review before the Court of learned District Judge Jammu against judgment dated 03.04.2012 by the petitioner might have been an act of craft by his wit but then under the guise of order of rejection of said review petition filing the present petition to call in question judgment dated 03.04.2012 is nothing but attempting to be crafty with the court and hence earns condemnation of dismissal of his petition.
32. Otherwise also in the judicial estimate of this court, as to the legal soundness of the judgment dated 03.04.2012 of the court of District Judge, Jammu, there is no scope for disturbing it. The resolution of the present dispute in the suit rests on the evidentiary examination of the facts in the case as to what is the exact khasra number location of the plot on which the respondent nos. 1 and 2 and the petitioner have found themselves converged to claim that the same very plot is held and is possessed by them in terms of their ownership claim.
33. The respondent nos. 1 and 2 have set up a situation in the plaint, and upon which they cannot be non-suited when the trial of the suit taking place with their 14.5 marlas of plot of land actually held by them by reference to khasra number 215 min is found to be located in khasra nos. 213 and 214 with which the petitioner or for that matter Mst. Zohra Bano, the proforma respondent by no stretch of claim can be heard to say that khasra nos. 213 and 214 is relatable to them. On the other hand, the petitioner’s claim that his 15 marlas of plot of land in khasra no. 225 min is the very site on which the respondent nos. 2 and 3 are identifying location of 213 and 214 cannot be cast aside at the instance of respondent nos. 1 and 2 because in case, the admitted identified site of the plot of land is khasra no. 225 min or even 225 by reference to sale deed of Mst. Zohra Bano, the proforma respondent, then the respondent nos. 2 and 3 would find themselves losing the ground and the litigation. Thus, the dispute involved in the matter begs for a resolution not by self judgments of both the parties to the suit but by an adjudication to be done by the civil court. In the light of this fact, the order passed by the Court of learned Munsiff, Jammu, falling short of taking the dispute in its full perspective, came to be corrected by the Appellate Court of learned District Judge, Jammu.
34. In a case where a civil court in passing an order with respect to issuance or non issuance of a temporary injunction in a matter is found to be amiss in its application of mind by keeping in view the full factual aspect of the case then the scope for interference by an appellate court in an appeal under Order 43 Rule 1 (r) Code of Civil Procedure would be made out. In exercising its appellate jurisdiction available within the scope of Order 43 Rule 1 (r) of the Code of Civil Procedure, the Appellate Court of learned District Judge, Jammu, did not fell into error of understanding as to the facts of the case in the context of dealing with the application of temporary injunction, so the said order dated 03.04.2012 would warrant no interference of this Court under Article 227 of the Constitution of India.
35. From the perusal of the material on record of this petition produced from both the sides, there are salient aspects if commented upon by this Court would cause an irreparable prejudice to the cause of both sides in terms of adjudication of the suit and, as such, this Court is refraining from reflecting upon those facts.
36. The learned Counsel for the petitioner has made vehement and seemingly sound submissions for making a case for interference but the same can not discount the position of facts as adverted to above. Reliance by the learned Counsel for the petitioner upon the citations AIR 2019 J&K 57, AIR 2004 J&K 1302018(2) JKJ 104, 2000 (7) SCC 104, 1999 SC 1823 are not fitting the context of the present case and as such serve no benefit to the petitioner’s case.
37. Before putting the present petition to its long awaited disposal by dismissal, this Court finds that only indulgence under Article 227 of the Constitution of India which deserves to be afforded in the case is to be given and should be given to the trial court of learned Munsiff Jammu. It seems that the civil suit between the parties has lost its progress in the long pendency of the present petition. This Court, vide its order dated 09/03/2022, has already directed the trial court to proceed with the trial of the suit expeditiously and without any un-necessary adjournments to either of the parties. Said direction is reinforced with a direction that in case the civil suit is in the stage of examination of witnesses then the trial court shall endeavor to complete the trial within one year period. In case the suit is at pre-evidence stage then the trial court shall complete the trial within two year period. The time schedule shall start its run from the date of service of the copy of this judgment upon the Court of learned Munsiff Jammu. Extension of time shall be available only upon the trial court submitting reasons for the extension and seeking extension from this Court.
38. Taking judicial notice of the fact that Injunction Suits, be it for Permanent Prohibitory or Mandatory, along with the temporary injunction applications and appeals there-from, in the subordinate courts proceed on such a snail pace that the same start to compound the agony of a genuine party to the litigation, be it the plaintiff or the defendant, appellant or respondent there needs to be some remedial course to be pressed into service. This litigation dragging tendency particularly with respect to injunction suits has almost virused an unspoken disenchantment and disappointment amongst the law abiding and faith bearing citizens, who find themselves led to and locked in the injunction related litigation, for whom the administration of justice by the courts is meant to be an institutional service by the conviction of the Constitution of India. This public trust is too precious to be lost to an inertia attending the courts doing the adjudication. It is a time for the Civil Courts, both of trial as well as appellate jurisdiction, to brace up and be expediency and efficiency oriented in dealing with the injunction suits and appeals. Recognizing the position that under the J&K Civil Courts Act, Svt. 1977 the District Judge is vested with control over all civil courts within the local limits of its jurisdiction and that civil business cognizable by the civil court is distributed under his control and further that under the Code of Civil Procedure 1908 , every civil court of a grade inferior to that of a District Court is in subordination to it, so the District Judges of all the districts of the Union Territories of J&K and of Ladakh are called upon with a note of request to be proactive in auditing and monitoring the ongoing status of the civil suits for injunctions pending in the civil courts under their respective control and subordination and also the main/misc. appeals arising out of injunction suits and set some priority in their disposal considering case wise status as to the length of time the cases are running in pendency so as to contribute in maintaining the public faith in the Institution of Judiciary which is a shared unceasing responsibility to be discharged faithfully and unfailingly by none else than the Individuals who serve the Judicial Institution at a given point of time before passing on the mantle.
39. Learned Registrar General of the High Court of Jammu & Kashmir And Ladakh is directed to circulate the copy of this judgment along with the extract of the para 38 above to all the learned Principal District Judges of the Union Territories of Jammu & Kashmir as well as of Ladakh for notice and action taking.
40. The present petition is, thus, dismissed.
(RAHUL BHARTI)
JUDGE
Jammu
12.05.2022

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