S. No. 164
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case No. :CM(M) No. 117/2024
CM No. 3139/2024
Sheetal Devi, Age 27 years, D/o Petitioner(s)
…..
Bansi Lal, W/o Sunil Kumar, R/o
Kundrorian, Tehsil Katra, District
Reasi, A/p Umala, Tehsil & District
Udhampur.
Through: Mr. Ajay Kumar, Advocate.
Vs
Sunil Kumar S/o Bihari Lal,
.…. Respondent(s)
R/o Kundrorian, Tehsil Kata,
District Reasi.
Through:
Coram: WASIM SADIQ NARGAL, JUDGE
HON’BLE MR. JUSTICE
JUDGMENT
31.05.2024
1. Through the medium of instant petition filed under Article 227 of
the Constitution of India, the petitioner is seeking quashment of the judgment
and decree dated 05.03.2024 passed by the learned Principal District Judge,
Reasi ( Court below in File No. 93/Divorce
hereinafter referred to as the “ ”)
Sunil Kumar Vs. Sheetal Devi.
Petition titled, “ ”
BRIEF FACTS OF THE CASE
2. The facts giving rise to the filing of the instant petition are that the
respondent filed a petition under Section 9 of the Hindu Marriage Act, 1980
( Act of 1980 by arraying the petitioner as
hereinafter referred to as the “ ”)
respondent No. 1, her father as respondent No. 2 and her mother as respondent
No. 3 before the Court below.
3. The further case of the petitioner is that although the Act of 1980
stood repealed and the Hindu Marriage Act, 1955 had come into operation, yet
2 CM(M) No. 117/2024
the Court below took cognizance of the matter and proceeded further in the case
by summoning the petitioner and her parents in the petition under Section 9 of
the Act of 1980. The petitioner had filed her response to the petition under
Section 9 of the Act of 1980 by denying the allegations leveled against the
petitioner.
4. The further case of the petitioner is that the petitioner had engaged a
counsel to represent her at Reasi and on 15.03.2023, the petitioner could not
cause her appearance, as she had to appear in another case at Katra, on which
date, the petitioner was set ex-parte by the learned Munsiff, Katra.
5. The further fact of the matter is that the petitioner through her
counsel had moved an application for setting aside the ex-parte proceedings
initiated against her, but the application of the petitioner came to be dismissed
vide order dated 09.01.2024 and since then, she was proceeded ex-parte all
along.
6. The short submission advanced by the learned counsel for the
petitioner is that the judgment and decree impugned are ex-parte, as the
petitioner has not been allowed an opportunity to explain her stand either
through herself or through her evidence.
7. Learned counsel for the petitioner further submits that the judgment
and decree impugned has caused substantial prejudice to the petitioner and is
legally not sustainable in light of the fact that the petition under Section 9 of the
Hindu Marriage Act has been filed under the provisions of the Act of 1980,
which is non-existent and non-operational, as according to the learned counsel
for the petitioner, on the date of filing of the petition under Section 9 of the Act
3 CM(M) No. 117/2024
of 1980, only Hindu Marriage Act, 1955 was in operation and in existence and
this aspect of the matter has been ignored by the Court below.
8. The further case of the petitioner is that the petitioner has filed a
petition under Section 12 of the Domestic Violence Act (hereinafter referred to
Act against the respondent and her in-laws and at present, the case is
as the “ ”)
pending before the Court of Sub-Judge/Special Mobile Magistrate, Udhampur,
wherein the respondents have been directed to pay Rs. 3,000/- per month to the
petitioner.
9. Learned counsel for the petitioner further submits that in order to
defeat the order dated 31.10.2022 passed under the Act, the respondent has
obtained the aforesaid judgment and decree, which is impugned in the present
petition and likely to cause grave prejudice to the petitioner.
LEGAL ANALYSIS
10. Heard learned counsel for the petitioner and perused the judgment
dated 05.03.2024 passed by the learned Court below, which is impugned in the
present writ petition.
11. The law has been settled as naught by the Apex Court in
authoritative pronouncements that the power under Article 227 of the
Constitution of India is to be exercised sparingly in appropriate cases like, when,
there is no evidence at all to justify the finding or 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. It is axiomatic that such discretionary relief must be
exercised to ensure that there is no miscarriage of justice.
4 CM(M) No. 117/2024
12. I have gone through the petition filed by the petitioner, the record
annexed with the petition minutely and the grounds urged in the instant petition.
Accordingly, this Court is of the view that it is not a case, where the powers
within the scope and ambit of the exercise of power and jurisdiction vested in
this Court under Article 227 of the Constitution of India has to be exercised.
13. The Apex Court in catena of judgments has already held that the
High Court has to exercise such wide powers under Article 227 with great care
and circumspection and the same cannot be exercised to correct all errors of a
judgment of Court and 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. Even the power to re-appreciate the evidence would only be
justified in rare and exceptional situations, where the grave injustice would be
done, unless the Court interferes and the exercise of such discretionary power
would depend upon the peculiar facts of each case with the sole objective of
ensuring that there is no miscarriage of justice. The Apex Court in the case of
Jai Singh Vs. Municipal Corporation of Delhi; (2010) 9 SCC 385 has held 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 the 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
5 CM(M) No. 117/2024
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 cannot 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 reappreciate 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 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.”
14. Further, the Apex Court in M/S Garment Craft Vs. Praksh Chand
Goel; (2022) 4 SCC 181 has held as under:-
15. Having heard the counsel for the parties, we are clearly
“
of the view that the impugned order is contrary to law and
cannot be sustained for several reasons, but primarily for
deviation from the limited jurisdiction exercised by the High
Court under Article 227 of the Constitution of India. The
High Court exercising supervisory jurisdiction does not act as
a court of first appeal to reappreciate, reweigh the evidence or
facts upon which the determination under challenge is based.
Supervisory jurisdiction is not to correct every error of fact or
even a legal flaw when the final finding is justified or can be
supported. The High Court is not to substitute its own
decision on facts and conclusion, for that of the inferior court
or tribunal. The jurisdiction exercised is in the nature of
correctional jurisdiction to set right grave dereliction of duty
or flagrant abuse, violation of fundamental principles of law
or justice. The power under Article 227 is exercised sparingly
in appropriate cases, like when there is no evidence at ail to
justify, or the finding is so perverse that no reasonable person
can possibly come to such a conclusion that the court or
tribunal has come to. It is axiomatic that such discretionary
relief must be exercised to ensure there is no miscarriage of
justice. 16. Explaining the scope of jurisdiction under Article
227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. has
pe and ambit of exercise of power and
observed: “6. The sco
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
6 CM(M) No. 117/2024
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."
15. The record reveals that on presentation of the petition by the private
respondent (petitioner therein), the respondent (petitioner herein) was summoned
to appear before the Court on 24.09.2021. On the said date, Mr. Ajay Salaria,
Advocate filed objections on behalf of the respondents on 25.07.2022. The
record further reveals that after filing of the objections, the respondent opted not
to appear in the case before the Court and despite providing number of
opportunities, neither the respondent nor her counsel caused appearance before
the Court and ultimately, vide order dated 15.03.2023, ex-parte proceedings
were initiated against the respondent and the petitioner was directed to lead ex-
parte evidence.
16. The record further reveals that on 19.08.2023, learned counsel for
the respondent filed an application for setting aside the proceedings initiated
against her, which was ultimately dismissed vide order dated 09.01.2024, being
devoid of any merit. Thus, from a bare perusal of the impugned judgment and
decree passed by the learned Court below, it is come to fore that the petitioner,
by her own conduct and volition, was set ex-parte on 15.03.2023 and even the
said application for seeking ex-parte was dismissed on 09.01.2024, which was
gladly and voluntarily accepted by the petitioner and no grievance was raised
7 CM(M) No. 117/2024
thereafter. It is also relevant to highlight the conduct of the petitioners in the
proceedings before the Court below. It appears from the record that the
petitioner chooses not to challenge the earlier order dated 09.01.2024, whereby
the application for setting aside ex-parte proceedings filed by the petitioner
(respondent therein) was dismissed. Thereafter, the petitioner allowed the
proceedings to culminate. Subsequently, by virtue of ex-parte decree dated
05.03.2024, the Court below settled the matter. A challenge, if at all, should
have been thrown to the earlier order at the relevant stage. This Court in light of
the conduct alongwith the limited powers of judicial interference under Article
227 of the Constitution of India, does not deem appropriate to grant the relief, as
prayed for. In any event, the Court does not find any grave illegality or flagrant
violation of fundamental principle of law so as to warrant judicial interference
by this Court under the limited scope of power under Article 227 of the
Constitution of India.
17. Thus, in light of what has been discussed hereinabove coupled with
the said legal position, the instant petition which is devoid of any merit deserves
dismissal and is, accordingly, dismissed in limine alongwith connected
application, as the challenge thrown by the petitioner to the judgment and decree
dated 05.03.2024 passed by the learned Principal District Judge, Reasi is
ill-founded and without any basis.
(Wasim Sadiq Nargal)
Judge
JAMMU
31.05.2024
Ram Krishan
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No
Ram Krishan
2024.06.05 15:36
I attest to the accuracy and
integrity of this document