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2022 SCC OnLine J&K 867 : AIR 2023 (NOC 441) 174

In the High Court of Jammu and Kashmir and Ladakh†

(BEFORE SANJAY DHAR, J.)

Shabir Ahmad Ganai … Petitioner(s);

Versus
Ghulam Mohi UD DIN Wani … Respondent(s).
CM(M) No. 189/2022
Decided on November 4, 2022, [Reserved on : 29.10.2022]
Advocates who appeared in this case:
Mr. N.A. Kuchai, Advocate.
Mr. F.A. Wani, Advocate.
The Judgment of the Court was delivered by
SANJAY DHAR, J.:— The petitioner has invoked jurisdiction of this
Court under Article 227 of the Constitution of India for setting aside
order dated 24.05.2017 passed by learned Principal District Judge,
Budgam, whereby, in a Miscellaneous Appeal filed against order dated
16.11.2015 of learned Munsiff, Chadoora, the petitioner has been
temporarily restrained from causing any interference in possession of
the respondent over the suit property.
2. It appears that the respondent herein (hereinafter referred to as
the plaintiff) has filed a suit for permanent prohibitory injunction
against the petitioner (hereinafter referred to as the defendant) before
the Court of Munsiff, Chadoora. In the suit, the plaintiff has sought a
permanent injunction restraining the defendant from interfering in
possession of the plaintiff over the property comprising land measuring
04 marlas falling under Khasra No. 33-min situated at Zangibagh B. K.
Pora, Budgam and the construction raised thereon.
3. The case of the plaintiff before the trial court is that he is owner in
possession of the suit property which he has purchased from its original
owner, Shri Ghulam Hassan Sofi, by virtue sale deed registered with
the concerned Sub-Registrar on 08.10.2010 and that he has
constructed a single storeyed house on the said land. It is alleged in
the plaint that the defendant is pressurizing the plaintiff and trying to
dispossess him from the suit property. According to the plaintiff, on
28.06.2015, the defendant along with his associates came to the suit
property and tried to dispossess the plaintiff therefrom which compelled
the plaintiff to file an application under Section 156(3) of the Cr. P. C.
before the Court of Judicial Magistrate, 1st Class (Sub Judge), Chadoora.
4. The defendant contested the suit by filing his written statement,
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wherein it is claimed that he has purchased the suit land from the
plaintiff and his son and in this regard, payments have been made
through cheques and cash to the son of the plaintiff. The defendant
further claims that he has raised a structure on the suit land whereafter
he sold the same to one Mtr. Gulshan Ara. It is further averred in the
written statement that because the plaintiff's son was involved in
certain criminal activities, as such, the sale deed could not be executed
by the plaintiff in favour of the defendant. The defendant further claims
that he has now purchased the suit property back from Mtr. Gulshan
Ara and paid an amount of Rs. 2.20,000/to her out of the settled sale
consideration of Rs. 3,75,000/. It is claimed that the defendant is
presently in actual physical possession of the suit property.
5. Along with the suit, plaintiff filed an application seeking
temporary injunction against the defendant and the same was disposed
of by the learned trial court vide its order dated 16.11.2015. The
learned trial court while holding that there is a prima facie case in
favour of the plaintiff and that the balance of convenience lies in favour
of the plaintiff, observed that in case an order is not passed in favour of
the plaintiff, he would suffer an irreparable loss. However, the learned
trial court opined that on the basis of the material on record, it is not
possible to determine the question of possession over the suit land and,
as such, interim exparte order was modified and the parties were
directed to maintain status quo with respect to the suit property.
6. The aforesaid order of the trial court came to be challenged by the
plaintiff by way of a miscellaneous appeal before the Court of District
Judge, Budgam. The learned District Judge, Budgam, modified the
order of the learned trial court and restrained the defendant from
interfering in possession of the plaintiff over the suit property. It was
observed by the learned Appellate Court that once the learned trial
court came to a conclusion that prima facie case and balance of
convenience lies in favour of plaintiff and in case interim order is not
passed in his favour, he is going to suffer an irreparable loss, it was not
open to the trial court to pass an order of status quo simplicitor without
rendering a tentative finding on the question of possession of suit
property. It is this order of the Appellate Court which is under challenge
before this Court in these proceedings.
7. The defendant/petitioner has challenged the impugned order on
the grounds that the learned Appellate Court has exercised its
jurisdiction illegally and with material irregularity, inasmuch as the
impugned order has given a licence to the plaintiff to dispossess the
defendant from the suit property. It has been contended that the
documents on record clearly show that the defendant is in possession of
the suit property, as such, it was not open to the learned Appellate
Court to modify the order passed by the learned trial court.
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8. I have heard learned counsel for the parties and perused the
material on record.
9. Before dealing with the contentions raised by the petitioner in the
instant petition, it would be apt to examine the nature and scope of
jurisdiction of this Court under Article 227 of the Constitution of India.
Under the aforesaid Article, the High Court is vested with the
supervisory power to ensure that all subordinate courts and Tribunals
exercise their powers vested in them within the bounds of their
authority. The nature and scope of power of the High Court under
Article 227 of the Constitution has been a subject matter of discussion
in several judgments of the Supreme Court. It would be apt to notice
some of these judgments to have an idea about the nature and scope of
the supervisory power of the High Court under Article 227.
10. The Supreme Court in the case of Jai Singh v. Municipal
Corporation of Delhi, (2010) 9 SCC 385, while considering the aforesaid
aspect, has observed as under:
“15. We have anxiously considered the submissions of the learned
counsel. Before we consider the factual and legal issues involved
herein, we may notice certain well recognized principles governing
the exercise of jurisdiction by the High Court under Article 227 of the
Constitution of India. Undoubtedly the High Court, under this Article,
has the jurisdiction to ensure that all subordinate courts as well as
statutory or quasi judicial tribunals, exercise the powers vested in
them, within the bounds of their authority. The High Court has the
power and the jurisdiction to ensure that they act in accordance with
well established principles of law. The High Court is vested with the
powers of superintendence and/or judicial revision, even in matters
where no revision or appeal lies to the High Court. The jurisdiction
under this Article is, in some ways, wider than the power and
jurisdiction under Article 226 of the Constitution of India. It is,
however, well to remember the well known adage that greater the
power, greater the care and caution in exercise thereof. The High
Court is, therefore, expected to exercise such wide powers with great
care, caution and circumspection. The exercise of jurisdiction must
be within the well recognized constraints. It can not be exercised like
a ‘bull in a china shop’, to correct all errors of judgment of a court, or
tribunal, acting within the limits of its jurisdiction. This correctional
jurisdiction can be exercised in cases where orders have been passed
in grave dereliction of duty or in flagrant abuse of fundamental
principles of law or justice. The High Court cannot lightly or liberally
act as an appellate court and re-appreciate the evidence. Generally,
it cannot substitute its own conclusions for the conclusions reached
by the courts below or the statutory/quasi judicial tribunals. The
power to re-appreciate evidence would only be justified in rare and
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exceptional situations where grave injustice would be done unless

the High Court interferes. The exercise of such discretionary power
would depend on the peculiar facts of each case, with the sole
objective of ensuring that there is no miscarriage of justice.
11. In a recent judgment in the case of Garment Craft v. Prakash
Chand Goel, (2022) 4 SCC 181, the Supreme Court while explaining
the power of the High Court under Article 227 of the Constitution, relied
upon its earlier judgment in the case of Estralla Rubber v. Dass Estate
(Pvt) Ltd., (2001) 8 SCC 97 and quoted with approval the following
observations of the aforesaid judgment:
“6. The scope and ambit of exercise of power and jurisdiction by a
High Court under Article 227 of the Constitution of India is examined
and explained in a number of decisions of this Court. The exercise of
power under this article involves a duty on the High Court to keep
inferior courts and tribunals within the bounds of their authority and
to see that they do the duty expected or required of them in a legal
manner. The High Court is not vested with any unlimited prerogative
to correct all kinds of hardship or wrong decisions made within the
limits of the jurisdiction of the subordinate courts or tribunals.
Exercise of this power and interfering with the orders of the courts or
tribunals is restricted to cases of serious dereliction of duty and
flagrant violation of fundamental principles of law or justice, where if
the High Court does not interfere, a grave injustice remains
uncorrected. It is also well settled that the High Court while acting
under this article cannot exercise its power as an appellate court or
substitute its own judgment in place of that of the subordinate court
to correct an error, which is not apparent on the face of the record.
The High Court can set aside or ignore the findings of facts of an
inferior court or tribunal, if there is no evidence at all to justify or the
finding is so perverse, that no reasonable person can possibly come
to such a conclusion, which the court or tribunal has come to.”
12. From the foregoing analysis of law on the subject, it is clear that
the High Court while exercising its powers under Article 227 of the
Constitution has not to act as an appellate court and substitute its own
judgment in place of the subordinate courts to correct an error. The
High Court has to exercise its supervisory power with great care and
caution and this jurisdiction can be exercised where there is any
flagrant abuse of fundamental principles of law or justice and not
otherwise. It is in the light of these principles that the instant case is
required to be examined.
13. In the instant case, the plaintiff/respondent claims to be owner
in possession of the suit property. He has placed on record copy of the
registered sale deed by virtue of which he has purchased the property
in question. The revenue record relating to the property in question
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reflects the name of the plaintiff as its owner in possession. As against

this, the defendant/petitioner is relying upon the bank statements,
according to which certain amounts have been transferred to the
account of son of the plaintiff. Reliance is also being placed by
petitioner/defendant upon agreement to sell executed by him in favour
of Mtr. Gulshan Ara as also another agreement to sell executed by Mtr.
Gulshan Ara in faovur of the defendant in respect of the suit property.
The plaintiff is not a party to either of these agreements.
14. Admittedly, the plaintiff is the recorded owner of the property in
question. Simply, on the basis of the bank statement which shows
certain payments having been made to the son of the plaintiff, it cannot
even, prima facie, be stated that the plaintiff has sold the property to
the defendant. The fact of the matter remains that the property belongs
to the plaintiff and not to his son. So far as the two agreements to sell
relied upon by the defendant are concerned, the same relate to a
transaction to which plaintiff is not a party. Therefore, on the basis of
documents, it cannot even, prima facie, be said that the plaintiff has
either sold the property to the defendant or that he has delivered
possession thereof to the defendant. The plea of the defendant that he
has purchased the suit land from the plaintiff without execution of any
document in this regard cannot be accepted because sale of an
immovable property can only be made by a registered instrument.
Thus, the learned Appellate Court has rightly observed that the material
on record, prima facies, shows that the plaintiff happens to be the
owner in possession of the suit property.
15. So far as the order passed by the learned trial court, whereby
parties have been directed to maintain status quo, is concerned, the
same is clearly not in accordance with law, inasmuch as the learned
trial court has, without recording a tentative opinion as to the
possession of the suit property, directed the parties to maintain status
quo, that too after holding that there is a prima facie case in favour of
the plaintiff and that balance of convenience lies in his favour.
16. It has become a routine for the trial courts to pass status quo
orders without specifying as to which of the parties to the dispute is in
possession of the suit property. Such orders tend to invite applications
for initiation of contempt proceedings as also the applications for
implementation of the court orders by the police. Without there being
any opinion as regards the possession of the suit property, even the
police finds it very difficult to implement such orders. This situation
generally results in chaos and confusion. This Court has, in the case of
Farid Ahmad v. Liaqat Ali, SLJ 2000 86, deprecated such practice being
adopted by the trial courts. While doing so, this Court has relied upon
the following observations of the High Court of Madras in the case of D.
Albert v. Lalitah, AIR 1989 Mad 73:
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“It is no doubt true that parties are well aware of the real state of
things as they exist. But when they are fighting with each other, in a
court of law, advancing cases diametrically opposed to each other,
neither of them can be expected to meekly reconcile to the situation
and stop interfering with the possession of the opposite party even if
that is the real ‘status quo’. Invariably, the immediate consequence
is that the party who is not in possession would attempt to get into
possession by asserting that he had been in possession already and
on the date of the ‘status quo’ order he was in possession with the
result that there would be a clash between the parties leading to
intervention by police and criminal proceedings. There is no
justification whatever for a civil court driving the parties to criminal
proceedings by passing an order of ‘status quo’ without indicating
what the status quo is. This is nothing but a grave dereliction on the
part of the civil Court of its duty to decide a disputed question of
fact. The Court is bound to decide prima facie on the materials
available, whether the plaintiff is in possession or the defendant is in
possession. Leaving the matter in doubt and ambiguity by passing
an order of ‘status quo’ will result in more dangerous consequences
than even deciding wrongly but clearly that one of the parties is in
possession.”
“…….Whenever a Court passes an order directing the preservation
of ‘status quo’ it should by the same order state in unequivocal
terms what the ‘status quo’ is. Otherwise the court will be failing to
do its duty”
17. Thus, it is clear that while passing an interim order directing the
parties to maintain status quo, the trial courts should in no uncertain
terms record a tentative finding as to which of the parties is in
possession of the disputed property. In the instant case, the learned
trial court has miserably failed to render an opinion on this aspect of
the matter despite there being over-whelming material on record on
the basis of which the learned trial court could have come to a correct
conclusion in this regard. The Appellate Court has, therefore, rightly
modified the order of the learned trial court.
18. For the foregoing reasons, I do not find any error, much less a
gross error, having been committed by the learned Appellate Court
while passing the impugned order. The petition lacks merit and is
dismissed accordingly.
———
†
Principal Bench at Srinagar

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