Discretionary Power Under Article 227 Of Constitution Must Be Exercised Only To Ensure That There Is No Miscarriage Of Justice: J&K&L HC

The Jammu and Kashmir and Ladakh High Court has underscored the careful exercise of powers under Article 227 of the Indian Constitution, emphasizing that such authority should not be wielded mechanically but reserved for cases of grave legal error or fundamental violations of justice.

The Single-Judge Bench of Justice Wasim Sadiq Nargal made these observations while dismissing a petition filed under Article 227, which challenged the decisions of trial court in a civil property dispute.

"The law has been settled by the Apex Court in authoritative pronouncements by holding that the power under Article 227 of the Constitution of India is to be exercised sparingly in appropriate cases where there is no evidence at all to justify the finding or when the finding is so perverse that no reasonable person can possibly come to such a conclusion that the Court or the Tribunal has come to. Thus, it is axiomatic that such discretionary power must be exercised only to ensure that there is no miscarriage of justice," the Court said

The petitioner contended that the lower courts' orders were not based on substantial evidence and were thus perverse, also citing the respondents' failure to comply with procedural requirements, particularly the mandatory notice under Section 80 of the Code of Civil Procedure (CPC).

However, the Court pointed out that the supervisory jurisdiction under Article 227 is not a substitute for an appeal but a corrective tool for ensuring justice in cases where trial courts exceed their jurisdiction or commit a grave miscarriage of justice. The Court stressed that this power should be exercised only in instances of patent perversity or serious legal infirmity, not for mere errors of fact. "...the order of the appellate Court, which is impugned in instant case, has been passed after meticulous and proper application of mind and, thus, there is no error, perversity or any such finding given by the Appellate Court, which may look so unreasonable to compel this Court to interfere and exercise the discretionary power vested in this Court under Article 227 of the Constitution of India," the Bench opined.

The Court relied on the Supreme Court's judgments in Waryam Singh v. Amarnath and Radhey Shyam v. Chhabi Nath, reiterating that Article 227 is to be invoked sparingly and only in exceptional cases. It further highlighted the petitioner's failure to comply with Section 80 CPC, which mandates a two-month notice to the government or a public officer before instituting a suit.

The Court deemed this non-compliance as fatal to the petitioner's case, reinforcing the mandatory nature of the provision. "..this Court is of the view that the petitioner has no legal right to possess the suit property and he has filed the suit without arraying the State and SDM, Marh as necessary parties, who were required to be impleaded. Besides, this Court is also of the view that notice in terms of Section 80 of the CPC has not been issued to the respondents before filing of the suit and, as such, the petitioner has filed the suit by concealing the material facts, i.e., the eviction order dated 17.07.2019 passed by the SDM, Marh. Therefore, this Court is in agreement with the finding by the Appellate Court that the petitioner was not entitled to any interim injunction because of the legal defect in the suit and, thus, the appeal was allowed and the order passed by the trial Court, which was under challenge before the Appellate Court, was set aside," it said.

The Single-Judge criticized the petitioner for bypassing mandatory legal procedures and directly invoking Article 227. Consequently, the Court found no justification for exercising its extraordinary powers under Article 227 and dismissed the petition.

"Since, the opinion, which has been expressed by the Appellate Court was limited for disposal of the appeal only, which, however, will not influence the merits of the suit, pending before the trial Court. Accordingly, this Court deems it proper that before proceeding further in the matter, the trial Court shall decide the question of maintainability of the suit keeping in view the objections raised in the written statement filed by the defendants/respondents herein, within a period of four weeks from the date copy of this order is served to the trial Court by either of the parties. In addition, Registry is also directed to serve copy of this order to the learned trial Court (3rd Additional Munsiff, Jammu). The parties are directed to appear before the trial Court on 02.09.2024....the instant petition preferred by the petitioner is found bereft of any merit and the same is, accordingly, dismissed in limine alongwith connected applications," the Court ordered.

Cause Title: Kailash Nath v. Mulkh Raj & Ors.

Appearance:-

Petitioner: Advocate Vikas Mangotra

Respondent: Advocate Rakesh Chargotra

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