Judges cannot override defined jurisdiction and expose the administration of justice to individualistic whims and fancies: J&K&L High Court

The High Court of Jammu and Kashmir and Ladakh ruled on Tuesday that Sections 107 and 108 read with Ordinance 43 Rule 2 CPC do not allow an appellate court to mutate the very scenario of the prosecution in court. trial and create a new factual situation foreign to the original lis and continue to defer its own perception-based outcome to a given civil suit.

The bench comprising Judge Rahul Bharti was hearing a plea under section 227 and the moot question that came to judgment was whether an appellate court may, in purported exercise of jurisdiction under order 43 rule 1(r) CPC, dodge the primary cause of a civil action and the appealable order passed therein, and self-generate a new situation to deal with.

Facts of the case:

The plaintiff, as a plaintiff, filed a civil action on April 21, 2022 in the Anantnag Deputy Judge Court to seek a declaration and injunction decree. The applicant’s right to take legal action was linked to his alleged status as chairman of the municipal committee of Bijbehara. The sole named defendant in the lawsuit is the Chief Executive Officer of Bijbehara Municipal Executive Committee, Anantnag, Kashmir, Defendant No. 1.

The alleged cause of action for the Petitioner to file the Complaint was the publication of a notice dated April 20, 2022 by the Respondent General Manager for the purpose of calling a special meeting under Rule 27 of Procedure and Business regarding an alleged resolution for a motion of no confidence was reportedly signed by nine of the sixteen elected members of the Municipal Committee of the Municipal Committee of Bijbehara.

The Magistrate Court of Deputy Judge, Anantnag, by its order dated April 21, 2022, has come to stay, ad interim, the execution of the said communication of the Respondent, Director General, Municipal Executive Committee, Bijbehara read with resolution carrying censorship. The Respondents 2 to 10 in their written statement stated that it was only when the Claimant failed to act in calling the meeting for a new election that the original Respondent Executive Officer, Bijbehara Municipal Executive Committee, intervened. , by the constraint of the statutory provisions.

After hearing from both parties, Deputy Justice Anantnag issued a final order dated May 26, 2022, thereby denying the petitioner’s request for a temporary injunction and also rescinding the temporary restraining order, with a new instruction to the Executive Director Municipal Executive Committee, Bijbehara to exercise the motion of no confidence process strictly in accordance with the provisions of the Municipal Law of 2000

This order was challenged on appeal to the Lower Court of Appeal of the Additional District Judge, Anantnag, who demanded the official minutes of the Municipal Committee Office, Bijbehara and compelled the petitioner and the respondents to undertake new proceedings & exercise of resolution/motion of no confidence.

Additional District Judge, Anantnag also appointed a Deputy Judge, serving as Secretary, District Legal Services Authority (DLAS), Anantnag on a fee of Rs. 20,000/- payable by Respondents 2 to 10 to oversee the filing of a new motion of no confidence by the respondents against the petitioner before the secretary of the municipal committee Bijbehara. Accordingly, the junior judge carried out the instructions and submitted his report.

Relying on said Deputy Judge’s Report as Supervisor, Additional District Judge, Anantnag came to rehear the case verbatim and issued a 30-page Impugned Judgment dated 07/20/ 2022 bearing a declaration that the petitioner has lost the majority in the municipal committee of Bijbehara and does not have the right to hold the position of president.

Court observations:

Judging on the case, the bench observed that under Ordinance 43, Rule 1(r) CPC, it was mandated by the Anantnag Additional District Judge Court of Appeal to hear the appeal and decide on the merits in accordance with the principle of judicial hierarchy and domain. civil courts. The intended result of the appeal thus filed by the petitioner in the court of the additional district judge, Anantnag would have been either the impugned order of the court of the junior judge, Anantnag being set aside or affirmed/varied/amended, following the judicial decision well established. principles.

The court observed that instead of disposing of the appeal as warranted by law, the court of the additional district judge, Anantnag allowed himself a distraction and took a detour. The additional district judge effectively “abandoned” the exercise of reviewing the submissions thus made by the parties on the merits of the case on appeal and reviewing the trial court’s order, and resorted to become the “self-imposed” supervisory authority of the municipal committee, Bijbehara, the bench noted.

Expressing its dissatisfaction, the formation noted that a judicial officer in exercise, paid by the litigants, had just been placed at the service of the litigants by the auxiliary district judge of Anantnag without taking the trouble to mention it to the Under what provision of the CCP and the Civil Courts Act, 1977 Svt., such undertaking has been contemplated and carried out and whereby the authority in law and statute has ordered a Deputy Judge to act as as a supervisor in the internal political affairs of a municipal committee.

The bench also disagreed with the judgment rendered by the ADJ bearing a declaration that the petitioner has lost the majority in the municipal committee of Bijbehara and does not have the right to hold the position of president, then transmitting a writ as Directive to the Chief Executive, Bijbehara Municipal Committee shall proceed according to the rules of Jammu and Kashmir Municipality.

“Additional District Judge, Anantnag parted with the judgment with the words ‘appeal expunged and entered into the records after due compilation’. entered by Additional District Judge, Anantnag to void his said judgment” Judge Bharti observed.

Rejecting the respondents’ assertion that the powers of the appellate court coincide, namely the courts of first instance under Article 107 and Article 108 read with O 43 R 2, the bench observed that said provisions cannot be read to allow an appellate court to possess the power to mutate the very scenario of the prosecution in the trial court and create a new factual situation foreign to the original lis.

It will be nothing but an act of perversion of jurisdiction, as occurred in this case at the hands of Additional District Judge Anantnag, the bench pointed out.

“Everyone in the case is unable to know and show from the contested judgment of the additional district judge what was done to the contested order of the trial court and the work invested in passing said order which has been appealed, as well as the paralysis of the civil action entered in the civil court file without anyone understanding what disposition remains to be given to the action” registered the bench in annoyance.


The contested order and the proceedings related to the passing of said court order of the Anantnag Additional District Judge were set aside finding it null and void ab initio.

The Anantnag District Judge has been instructed to recall the appeal from the Anantnag Additional District Judge Court with a further instruction to hear and decide for himself within 30 days from the date of receipt of the copy of this judgment.

The bench also ordered that the Senior District Judge of Anantnag request Deputy Judge (DLSA Secretary) Anantnag to release the costs of Twenty Thousand Rupees (Rs 20,000/-) if received and paid by the Respondents and the same will then be returned to the respondents against receipt.

Case Title: Majid Nabi Khan v Managing Director MC Bijbehara

Reference: 2022 LiveLaw (JKL) 106

Click here to read/download the judgment

Thelma J. Longworth