On September 14, 2022, the Jammu & Kashmir and Ladakh High Court at Srinagar gave its decision in the case of Abdul Majeed Ganie v. Abdul Rahim Bhat, whereby it confirmed the position that judicial orders of a civil court are not amenable to writ jurisdiction under Article 226 of the Constitution of India.
The writ petition was preferred by Abdul Majeed Ganie (‘Petitioner’) invoking the extraordinary writ jurisdiction of the High Court under Article 226 of the Constitution of India to issue a writ of certiorari to inter-alia quash the judgment and consent decree dated November 13, 2019 (“Judgment and Consent Decree”) passed by the trial court and to quash the execution petition filed by the respondents for executing the Judgment and Consent Decree. The order dated July 20, 2022 passed by the trial court dismissing an application filed by the Petitioner under Order 23 Rule 3 of the Code of Civil Procedure praying for recalling the Judgment and Consent Decree on the ground that the same was obtained under coercion was also challenged in the Writ Petition (“Impugned Order”).
Prior to filing the writ petition, a civil suit for permanent prohibitory injunction was filed by the respondents against the Petitioner and there was also a FIR No.93/ 2018 under Sections 341, 323 RPC registered in Police Station, Beerwah against the son of the Petitioner (“Criminal Case”). During the pendency of the civil suit before the trial court, the parties entered a compromise and the trial court passed the Judgment and Consent Decree. Due to the compromise, not only the criminal case pending against the son of the Petitioner was settled but also the pending civil suit before the trial court.
On October 25, 2021 the Petitioner filed the aforesaid application before the trial court for recalling the Judgment and Consent Decree pursuant to which the Impugned Order was passed.
The issue which arose for consideration before the High Court was that whether the extraordinary writ jurisdiction vested by Article 226 of the Constitution of India can be invoked to challenge judicial orders passed by civil courts?
The High Court observed that a compromise deed is essentially a contract between the parties superimposed by the decree of the Court and such decrees can be avoided only by approaching the same Court by demonstrating that the compromise on the basis of which the decree was passed was not lawful.
The High Court also observed that after the Petitioner took advantage of the Judgment and Consent Decree, he sought re-opening the civil suit by seeking recall of the Judgment and Consent Decree after nearly three years and only when the Judgment and Consent Decree was put to execution by the respondents.
The High Court noted that while the Judgment and Consent Decree was not appealable and the remedy to recall a compromise decree obtained by fraud, coercion or undue influence is provided under Order 23 Rule 3 of the Code of Civil Procedure, the trial court rightly observed that the Petitioner has failed to make out a case for recalling the Judgment and Consent Decree.
The High Court reiterated that proceedings under Article 226 are in the exercise of original jurisdiction of the High Court while proceedings under Article 227 are not original but only supervisory and the supervisory power may be exercised in the following cases of grave injustice and failure of justice:
(i) The court or tribunal has assumed jurisdiction which it does not have;
(ii) Jurisdiction though available is being exercised in a manner which tantamounts to overstepping limits of jurisdiction.
In view of the above, the High Court held that the writ petition is not maintainable in law and observed that the Impugned Order passed by the trial court was well considered and does not suffer from any serious jurisdictional error nor does it merit invoking the power of superintendence vested in it by Article 227 of the Constitution to grant the reliefs prayed for by the Petitioner. Accordingly, the writ petition was dismissed.
Please find attached a copy of the order.
This update has been contributed by Abeezar E. Faizullabhoy (Senior Partner) and Aashdin B. Chivalwala (Principal Associate).
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