J&K HC | Supervisory jurisdiction is to be exercised sparingly only in appropriate cases for purposes of keeping Subordinate courts and Tribunals within bounds of their authorities; Petition dismissed  

Jammu and Kashmir High Court: Javed Iqbal Wani J., while dismissing the present petition, discusses the ambit and scope of Article 227 of the Constitution and the statutory restriction of filing written statement within a stipulated period as mentioned under Order VIII Rule 1, Code of Civil Procedure.

Background

In the instant petition, Supervisory Jurisdiction of the present Court is invoked by the petitioner for quashing order dated 10-03-2016 (impugned order), passed by the Second Additional District and Sessions Judge, Jammu. In terms of impugned order, the right to file written statement of the defendant petitioner herein is closed by the Trial court after the court notices that the defendant has failed to deposit costs imposed upon him for setting aside ex-parte proceedings initiated by order dated 20-01-2016.

 Observations

On ambit and scope of Supervisory Jurisdiction under Article 227

Court considered the case of Shalini Shyam Shetty v. Rajendra Shankar Pati, (2010) 8 SCC 329, wherein the Court discussed the scope and ambit of Supervisory Jurisdiction, at length;

“(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.

(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 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 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 Singh, 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 in them.

(g) Apart 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 be very sparingly exercised.

(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 (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 on equitable principle. In an appropriate case, the power can be exercised suo moto.

(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.

(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

The Court further clarified the said premise, citing Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423, which overruled the decision in Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675; “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 under Article 226. Contrary view in Surya Dev Rai is overruled.”

On application of Order VIII Rule 1 of Code of Civil Procedure, 1908

The Court while making an observation over the applicability of Order VIII Rule 1, said, “(…) defendant indisputably has failed to file the written statement within the stipulated period of time prescribed under Order VIII Rule 1 or proviso appended thereto, even  if it is assumed that the summons were served upon him on 11-03-2015 when he appeared before the Trial court notwithstanding the permission granted to the defendant to file the same in terms of order dated 20-01-2016 i.e. when his ex-parte proceedings were set aside by the Trial court. Since the defendant failed to file the written statement within the period prescribed under Order VIII CPC, the closure of right to file the same in terms of impugned order by the Trial court becomes irrelevant and insignificant.”

 Decision

Reiterating the scope of Supervisory Jurisdiction, the Court dismissed the present petition along with the connected IAs. [Ghulam Mohd. v. Manzoor Ahmed,  2020 SCC OnLine J&K 607, decided on 21-11-2020]


Sakshi Shukla, Editorial Assistant has put this story together

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