STATE TIMES NEWS
JAMMU: Justice Rahul Bharti of Jammu & Kashmir and Ladakh High Court held that Judges can’t overstep defined jurisdiction & expose administration of justice to individualistic ‘whims & fancies’. Court also ruled that Section 107 and 108 read with order 43, Rule of 2 CPC does not empower an appellate court to mutate very script of the suit before the trial court and create a new fact situation alien to the original list and proceed on to carry forward its own perception-based outcome to a given civil suit. Justice Rahul Bharti was hearing a plea under Article 227 and moot question that had fallen for adjudication was as to whether an appellate court can, in purported exercise of its jurisdiction under Order 43 rule 1(r) CPC, sidestep main cause of a civil suit and the appealable order passed therein, and self-generate a new situation to deal with.
The facts of case is that petitioner, as being the plaintiff, filed a civil suit on 21st April 2022 before the Court of Sub Judge, Anantnag for seeking a decree of declaration and injunction. The petitioner’s right to sue related to his purported status as being President of the Municipal Committee, Bijbehara. The sole defendant named in the suit is Executive Officer, Municipal Executive Committee, Bijbehara, Anantnag. The purported cause of action for the petitioner to file the suit was issuance of a notice dated 20th April 2022 by the defendant Executive Officer for convening a special meeting under rule 27 of the Procedure & Business with respect to a purported resolution for motion of No-confidence alleged to be signed by nine out of sixteen elected Municipality Committee members of the Municipal Committee, Bijbehara. The trial court of Sub Judge, Anantnag, vide its order dated 21st April 2022 came to stay, ad interim, the operation of the said Communication of the defendant Executive Officer, Municipal Executive Committee, Bijbehara read with the resolution bearing No-confidence. Sub Judge Anantnag passed a final order dated 26th May 2022 thereby dismissing the temporary injunction application of the petitioner, and also vacating the interim direction of stay of the communication, with a further direction to the Executive Officer Municipal Executive Committee, Bijbehara, to exercise the process of No-confidence motion strictly in terms of the provisions of the Municipal Act, 2000. The order came was challenged in an appeal before the lower appellate court of the Additional District Judge, Anantnag who called for official record from the office of the Municipal Committee, Bijbehara and made both the petitioner and the respondents to undertake a fresh process & exercise for resolution/motion of no-confidence. The Additional District Judge, Anantnag also nominated a Sub Judge, serving as Secretary, District Legal Services Authority (DLAS), Anantnag on fees of Rs 20,000 payable by respondents to supervise laying of a new No-confidence Motion by the respondents against petitioner before the Secretary Municipal Committee Bijbehara. Borrowing reliance from the report of the Sub Judge as Supervisor, the Additional District Judge, Anantnag came to conduct fresh hearing of the matter and passed a 30-page impugned judgment dated 20/07/2022 bearing a declaration that petitioner has lost majority in the Municipal Committee Bijbehara and has no right to hold the office of the President.
Justice Rahul Bharti observed that adjudicating on the matter the bench observed that under Order 43 rule 1(r) CPC it was mandated upon the appellate court of Additional District Judge, Anantnag to hear the appeal and dispose it on its merits in conformity with the principle of judicial hierarchy and domain of civil courts. The intended outcome of the appeal so filed by the petitioner before the court of Additional District Judge, Anantnag would have been either the order impugned of the Court of Sub Judge, Anantnag getting set aside or confirmed/varied/altered, following the well settled legal principles. “Court also frowned on the Judgement delivered by the ADJ bearing a declaration that the petitioner has lost majority in the Municipal Committee Bijbehara and has no right to hold the office of the President, and then passing on a writ like directive to the Executive Officer, Municipal Committee Bijbehara to proceed as per Jammu & Kashmir Municipality Rules. The Additional District Judge, Anantnag parted with the judgment with wordings appeal disposed of and be consigned to records after due compilation. It is lost to imagination as to what fate the trial court order dated 21st April 2022 and suit of the petitioner was consigned by the Additional District Judge, Anantnag vide his said judgment” Justice Bharti observed. Justice Rahul Bharti observed that impugned order and related proceedings of said order of the Court of Additional District Judge, Anantnag were set at naught by holding the same as null and void abinitio and directed the District Judge Anantnag to recall the appeal from the Court of Additional District Judge Anantnag with an additional direction to hear and adjudicate it by himself within 30 days from the date of receipt of copy of this judgment. High Court also directed that Principal District Judge, Anantnag shall call upon the Sub Judge (Secretary DLSA) Anantnag to remit fee of Rs 20,000, if received, and the same shall then be returned to the respondents against receipt.