Ghulam Ahmad Magray Vs. State of J&K and Ors. - (High Court of Jammu and Kashmir) (30 Nov 2018)

Right of appeal is not restricted to parties to suit only

MANU/JK/1101/2018

Civil

Instant petition has been preferred by Petitioner under Section 104 of the Constitution of Jammu and Kashmir read with Article 227 of the Constitution of India, seeking quashment of judgment passed by Trial Court. Petitioner's case is that he has filed a suit against Respondent No. 6 and other co-sharers for partition of ancestral property along with prayer for injunction to restrain official Respondents from granting sanction for installation of power connection and waterpipes through the yard of Petitioner. Learned City Munsif, Srinagar, is said to have passed status quo order on 26th June 2016, which is in operation. Petitioner has argued that, Respondent No. 6 has earned impugned judgment by exercise of fraud on Court while suppressing pendency of earlier suit concerning same subject matter and order of status quo granted.

Judicial pronouncements as to the object and scope of power of the High Courts under Article 227 of the Constitution (Section 104 of the State Constitution) would leave little scope to interfere with the orders of subordinate Courts as a matter of routine. This power cannot be taken as a right of another Appeal to the aggrieved party. Nor this power can be invoked to point out an error of law or fact in the Order or judgment/decision of Subordinate Court as has been asserted by petitioner in the case in hand. This power cannot be used to make out that the decision of the Subordinate Court could have been or must have been other than what it is. The High Courts in exercise of its power under Article 227 of the Constitution should interfere with the Trial Court orders only to keep Tribunals and Courts subordinate to it, 'within the bounds of their authority' and to ensure that law is followed by such Tribunals and Courts by exercising jurisdiction vested in them and not declining to exercise the jurisdiction which is vested in them.

It is now settled that, ordinarily an application under Article 227 of the Constitution of India would not be maintainable where an appeal lies. An appeal may lie from the decree under Section 96 of the CPC. When an appeal could be filed, ordinarily, an application under Article 227 of the Constitution of India would not be entertained.

In the present case, Petitioner could and can very well fall back upon the remedy as available under Section 96 of the Code of Civil Procedure, 1908 (CPC). It provides that, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. Right of appeal is not restricted to parties to suit only. If a person is adversely affected by a judgment, to which he is not a party, he can be allowed to appeal against such judgment. Reference in this regard is made to Nazir Ahmad Dar v. Mst Naza & Ors. It has been held in the said case that, Section 96 of CPC, does not refer to or enumerate the person or persons, who can file an appeal and that it is no more res integra that, the right to file appeal is not restricted to parties to suit/action or to the legal representatives of the parties.

A person, who is aggrieved by a judgment, sought to be appealed against, may be allowed to appeal against the judgment if he is adversely affected by the judgment. Such person has to persuade and convince the Court while seeking permission to file the appeal that the judgment in question prejudicially affects his interests. That apart, may be, Petitioner can explore the remedy of filing independent suit seeking to declare the decree impugned as null and void, if it is his case that impugned decree has been obtained by Respondent by fraud and misrepresentation. Instant petition dismissed.

Tags : STATUS QUO INDEPENDENT SUIT REMEDY