w w w . L a w y e r S e r v i c e s . i n



Rajesh Kumar v/s Prithvi Raj & Others


Company & Directors' Information:- RAJ CORPORATION LIMITED [Active] CIN = U74900UP2008PLC035742

Company & Directors' Information:- RAJESH CORPORATION LIMITED [Active] CIN = U08011BR1993PLC005446

Company & Directors' Information:- RAJ COMPANY PRIVATE LIMITED [Active] CIN = U74999PB1949PTC000515

Company & Directors' Information:- G RAJ & COMPANY PVT LTD [Active] CIN = U67120WB1993PTC058140

Company & Directors' Information:- R M RAJ AND CO PRIVATE LIMITED [Strike Off] CIN = U99999DL1952PTC002146

Company & Directors' Information:- PRITHVI PRIVATE LIMITED [Strike Off] CIN = U45202KA1974PTC002544

Company & Directors' Information:- RAJ & RAJ PVT. LTD. [Active] CIN = U51109WB1991PTC052055

Company & Directors' Information:- RAJESH AND CO PRIVATE LIMITED [Strike Off] CIN = U12300MH1959PTC011285

    OWP. No. 2659 of 2018 & IA. No. 01 of 2018

    Decided On, 11 August 2020

    At, High Court of Jammu and Kashmir

    By, THE HONOURABLE MR. JUSTICE VINOD CHATTERJI KOUL

    For the Petitioner: V.R. Wazir, Senior Advocate, Abhishek Wazir, Advocate. For the Respondent: Aditya Gupta, F.S. Butt, Advocates.



Judgment Text


1. Setting-aside of the Order dated 22nd November 2018, passed by Munsiff, Kishtwar (for short "Trial Court") is implored for by petitioner in exercise of powers of superintendence under Article 227 of the Constitution of India.

2. The case set up by petitioner is that respondents 1 to 3 have filed a Civil Suit against petitioner and respondent 4 and 5, beseeching grant of decree for declaration, declaring Will Deed dated 26th November 2006, executed by Late Shri Deva Nand, as null and void in the eyes of law as well as neither executed before any authority, recognized by law, nor even probated having no effect upon the rights of inheritance, with OWP no.2659/2018 IA no.01/2018 consequential relief of perpetual injunction to restrain petitioner as well as respondents 4&5 from interfering in the suit land comprised in Khata no.69 and 80, Khasra nos.3265, 1957, 1965, 1923, 1978, 1979, 1226, 3251, 969, 3183, 1956, 2712, 3225, 3232. It is averred that Trial Court vide order dated 29th May 2018 framed the Issues and Issue nos.1&2 were treated as Preliminary Issues, which are:

i. Whether the instant suit is time barred and as such is liable to be dismissed outrightly? OPD

ii. Whether the instant suit has not been filed in accordance with amended CPC and is liable to be rejected under Order 7 rule 11 of CPC? OPD

3. It is also stated that Trial Court vide order dated 22nd November 2018, has observed that issue No.1, pertaining to limitation in the suit, will be treated as mixed question of law and facts with onus on both the parties to lead evidence in this regard. Hence petitioner is aggrieved thereof and challenges the same in the instant petition under Article 227 of the Constitution of India.

4. Heard and considered. I have gone through the Trial Court record and impugned order as well.

5. According to learned counsel for petitioner, impugned order is against the material record that was available before Trial Court. His next submission is that Trial Court has wrongly placed reliance on different judgments of different High Courts as all those judgments are distinguishable from the facts of the case. He has also urged that petitioner had placed on record of the Trial Court a certified copy of memo of appeal filed by the petitioner, titled Rajesh Kumar v. Prithvi OWP no.2659/2018 IA no.01/2018 Raj and others, with the written statement, wherein in paragraph 4 of the appeal, the petitioner stated that deceased, Deva Nand, had executed a Will on 26th November 2006 in favour of parties. Not only this, petitioner also placed on record certified copy of application dated 7th December 2007, filed by respondent no.1 before Additional Deputy Commissioner, Kishtwar, for obtaining certified copy of memo of appeal. In addition to this, another certified copy of an application, filed by the respondent no.1 submitted before Additional Deputy Commissioner, Kishtwar, for obtaining certified copy of Will dated 26th November 2006 on 4th February 2008, which copies were delivered to him by authorities concerned on the same date. Even certified copy of minutes of proceedings in the appeal recorded by Additional Deputy Commissioner, Kishtwar, obtained and placed on record in Trial Court on 20th February 2008, both respondents 1&2 appeared before appellate authority. In addition to this, respondents and petitioner, as is evident from the minutes of proceedings recorded on 4th February 2009, wanted to settle the dispute outside the court. Accordingly, proceedings before Additional Deputy Commissioner, Kishtwar, were adjourned. However, in the minutes of meetings of the proceedings recorded on 18th June 2011, both counsels, i.e. Sh. I. H. Hamal representing petitioner, and Sh. M. H. Waza, representing the respondent No. 1 and 2 informed the Additional Deputy Commissioner Kishtwar (Appellate Authority) that there is no possibility of settlement outside the court, which too is recorded in the minutes dated 18th June 2011. Learned OWP no.2659/2018 IA no.01/2018 counsel for petitioner has averred that appeal was adjourned for 22nd June 2011, on which date both respondents caused their appearance through their counsel before appellate authority. Sh. I. H. Hamal, learned counsel for petitioner, informed appellate authority that respondent no.6 had passed away and respondents 1 to 5 were legal representatives of respondent no.6, who were arrayed as party respondent in the appeal pending on the file of appellate authority and, therefore, Trial Court could have determined the date of knowledge about Will Deed to respondents 1&2, which was sufficient to examine commencement of period of limitation and also period of filing the suit. Thus, according to learned counsel for petitioner, observation made by Trial court that issue no.1 is a mixed question of law and fact is incorrect and is liable to be set-aside. Learned counsel has also contended that the limitation in the present case is pure question of law falling under clause (a) of sub rule (2) of order 14 and no evidence was required inasmuch as Trial Court has not minutely gone through certified copies of the memo of Appeal, Will, application filed by the respondent no.1 for obtaining the certified copy of the will. His further submission is that fact of knowledge of Will can easily be determined the day certified copies of memo of appeal were obtained by respondent no.1 as well as certified copy of Will from appellate authority which fact is evident from the certified copy itself, thus no evidence was required. Postponement of issue No.1 by Trial Court is subjecting OWP no.2659/2018 IA no.01/2018 petitioner to miscarriage of justice, allowing the suit to continue for years together.

6. Per contra, learned counsel for respondents 1&2 has stated that instant writ petition under Article 227 of the Constitution of India is not maintainable for the simples reasons that neither Trial Court has refused to exercise jurisdiction vested in it nor has Trial Court exercised jurisdiction not vested in it nor have basic principles of natural justice been violated while passing impugned order by Trial Court. His next assertion is that plaintiffs before Trial Court - respondents 1 to 3 herein, have challenged Will Deed in civil suit in view of fraud as is evident from paragraph 06 of the plaint and in paragraphs 8&9, plaintiffs have given reasons for filing the suit in the year 2016. Learned counsel has also stated that there was a compromise between plaintiffs and petitioner, and petitioner had assured not to act upon Will Deed and therefore, respondents did not participate in the proceedings before Additional Deputy Commissioner. However, he fraudulently utilized Will Deed and got mutation no.3287 dated 14 th March 2007 set-aside. Respondents came to know about the mutation having been set-aside and was being used by petitioner when disbursement of compensation of the land acquired was stopped. Learned counsel for respondents has strenuously exhorted that Will Deed has been challenged before the Trial Court, inter alia, on the ground that same was never executed by Late father of plaintiff that too without knowledge of plaintiffs or any other person from the village and Panchayat and that Will Deed is OWP no.2659/2018 IA no.01/2018 fictious as witnesses mentioned in Will Deed are not from the area of habitation of parties, but are friends and relatives of defendant, Rajesh Kumar and late father of plaintiff at the time when Will Deed was shown to be executed was not in a fit state of mind and he was suffering from multiple diseases.

7. Perusal of Trial Court record divulges that a civil suit has been filed by respondents 1 to 3 before learned Trial Court throwing challenge to Will Deed. Written statements were filed by defendants. Given the pleadings of parties, Trial Court framed the following issues vide order dated 29th May 2015:

i. Whether the instant suit is time barred and as such liable to be dismissed outrightly? OPD

ii. Whether the instant suit has not been filed in accordance with amended CPC and is liable to be rejected under Order 7 Rule 11 of CPC? OPD

iii. Whether the will deed dated 26.11.2006 shown as executed by late Devanand is null & void ab initio untenable in the eyes of law as neither executed before any authority recognized by law nor even probated having no effect upon the right of inheritance of plaintiff's? OPP

iv. Whether the plaintiffs are in possession of suit land? OPP

v. If issue no. 4 is answered in positive, whether the defendants are causing unnecessary interference and trying to dispossess the plaintiffs from their rightful possession over the suit land with respect to their specified share? OPP

vi. Relief. OP Parties

8. Issue nos. 1&2, however, were treated as preliminary issues. Accordingly, the matter was taken up by Trial Court for deciding Issue nos. 1&2. Vehement submission of counsel for defendants before Trial Court was that suit was hopelessly time barred owing to the fact that Will Deed was executed on 26th November 2006. However, Mutation no.3287 dated 14th March 2007 was effected, forcing defendants to OWP no.2659/2018 IA no.01/2018 throw challenge to Mutation no.3287 before Additional Deputy Commissioner, Kishtwar, on 14th December 2007. It was also urged that present respondents put in their attendance before Additional Deputy Commissioner on 23rd January 2008 and 2nd February 2008 and that immediately thereafter plaintiff no.1 obtained certified copies of relevant documents including Will Deed. Thus, stress laid by counsel for defendants before Trial Court was that plaintiffs had knowledge of Will Deed way back in February 2008, so the suit was time barred as it was filed in the year 2016 and therefore, sought its dismissal.

9. Glance of impugned order reveals that Trial Court has mulled over the submissions made by counsel for defendant - petitioner herein, lucidly and eloquently. Trial Court has, after giving the account of submissions and counter submissions of learned counsel for parties, rightly acceded to the submission of learned counsel for plaintiff taking into consideration as to what is provided in terms of Order VII Rule 6 of the Code of Civil Procedure. It (Order VII Rule 6, CPC) vouchsafes a ground of exemption from limitation law. Rule 6 provides that where the suit is instituted after expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed, but the Court can permit plaintiff to claim exemption from the law of limitation on any ground not set out in plaint, if such ground is not inconsistent with grounds set out in the plaint.

10. It is well-settled law that any issue or legal point, requiring evidence, could not be decided as preliminary issue and it should be decided with OWP no.2659/2018 IA no.01/2018 main case after taking evidence. As the Trial Court feels that the Issue no.1 regarding limitation can only be decided on the basis of evidence, impugned order in no way, can be held as illegal. Therefore, no illegality has been committed by learned Trial Court.

11. It is germane to mention here that all the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance cause of justice. In an adversarial system, no party should ordinarily be denied opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, provisions of the Code of Civil Procedure or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence - processual, as much as substantive. [Vide: Sushil Kumar Sen v. State of Bihar, (1975) 1 SCC 774].

OWP no.2659/2018 IA no.01/2018

12. No person has a vested right in any course of procedure. He has only right of prosecution or defence in the manner for time being by or for the Court in which the case is pending, and if, by an Act of Parliament mode of procedure is altered, he has no other right than to proceed according to altered mode. [See: Blyth v. Blyth 1966 (1) All E.R. 524 (HL)].

13. A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. [See: Shreenath and another v. Rajesh and others AIR 1998 SC 1827]. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.

14. It is pertinent to mention that Trial Court has, while passing impugned order, discussed all facets of the matter that need not be delved into here in the present writ petition under Article 227 of the Constitution of India, which provides that every High Court has power of superintendence over all courts and tribunals within its territorial jurisdiction except those which are constituted by or under a law relating to the armed forces. The power of superintendence and control over all subordinate courts and tribunals under Article 227 is both of administrative and judicial nature, and, such power could be exercised suo motu. However, power of superintendence, as said by the Supreme OWP no.2659/2018 IA no.01/2018 Court in Jasbir Singh v. State of Punjab (2006) 8 SCC 294, does not imply that High Court can influence subordinate judiciary to pass any order or judgment in a particular manner. Even it is not permissible to a High Court on a petition filed under Article 227 to review or reweigh the evidence upon which inferior court or tribunal purports to have passed the order or to correct errors of law in the decision, has been so said by the Supreme Court in Sadhana Lodh v. National Insurance Co. Ltd. (2003) 3 SCC 524.

15. Article 227 can be invoked by the High Court suo motu as a custodian of justice. However, an improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle. 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 administration in larger public interest whereas Article 226 is meant for protection of individual grievances. Therefore, "the power under Article 227 may be unfettered but", as held by the Supreme Court in Shalini Shyam Shetty and another v. Rajendra Shankar Patil, 2010 (8) SCC 329, "its exercise is subject to high degree of judicial discipline."

The object of superintendence under Article 227, both administrative and judicial, is to maintain the efficiency, smooth and orderly functioning of the entire machinery of the justice in such a way as it does not bring it into any disrepute. The power of interference OWP no.2659/2018 IA no.01/2018 under Article 227 is to be kept to the minimum to ensure that the wheel of the 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 the High Court. The Supreme Court in the case of Kokkanda B. Poondacha v. K. D. Ganapathi and another, (2011) 12 SCC 600, after reiteration of observations made by it in Shalini Shyam Shetty's case qua Article 227, held that "learned Single Judge of the High Court totally ignored the principles and parameters laid down" by the Supreme Court "for exercise of power under Articles 226 and 227 of the Constitution qua an interlocutory order passed by the Subordinate Court and set aside the order of the trial Court wit

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hout assigning any tangible reason." The jurisdiction under Article 227 must be sparingly exercised and may be exercised to correct errors of jurisdiction and the like, but not to upset the findings of the fact, which falls in the domain of an appellate court only. Same is true about the present case. The petition on hand, from the above discussion, does not at all reflect any error of jurisdiction on the part of Trial Court in passing impugned order. Regard being had to Nibaran v. Mahendra, AIR 1963 SC 1895; D. N. Banerjee v. Mukherjee, AIR 1953; SC 58; Nizzar Rawther v. Varghese Mathew, AIR 1992 Ker 312; and Khimji Vidhu v. Premier High School, AIR 2000 SC 3495. 16. From the foregoing discussion, it is deducible that instant petition does not call for any interference. The powers, vested in this Court under OWP no.2659/2018 IA no.01/2018 Article 227 of the Constitution of India, are neither substitution to revisional nor appellate power, inasmuch as order impugned is neither perverse nor has occasioned serious miscarriage of justice. Any interference by this Court would only prolong the trial inordinately. Even otherwise, impugned order does not warrant interference by exercise of extraordinary or supervisory jurisdiction of this Court, for neither decision-making process of Trial Court suffers from any bias nor does impugned order cause any miscarriage of justice or otherwise suffer from any error of law. 17. In the background of preceding discourse, the petition on hand is devoid of any merit and as a corollary thereof, the same is dismissed, with connected CM(s). Interim direction, if any, shall stand vacated. 18. Copy of this order be sent down. 19. Parties shall appear before the Trial Court on 4th September 2020. Trial Court to dispose of the civil suit as expeditiously as possible.
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