HARCHARAN SINGH Vs. CHARAN SINGH

JUDGEMENT

(1.) AN order passed by the 1st Civil Subordinate Municipal Magistrate, Jammu dated 15th May, 1995 is the subject matter of challenge in this petition. This has been so done under Article 226 of the Constitution of India. Even though, in the heading or in the body of the petition, nothing is being mentioned invoking supervisory jurisdiction, lengthy arguments have been addressed vis -a -vis scope of Article 227, which Article is said to be in para -metria with Section 104 of the Constitution of Jammu and Kashmir. It is urged that in the exercise of supervisory power, the order passed by the court below be set aside. The basic argument which has been raised is that the court which passed the order had no jurisdiction. It is submitted that under the Evacuees (Administration of property) Act, 2006, the civil court had not jurisdiction. It is submitted that this aspect of the matter has not been taken care of by the civil court and therefore, the order can be upset in the exercise of power under Articles 227 and Section 104 of the Constitution of Jammu and Kashmir.

(2.) WHATEVER be the interpretation of the constitutional provisions referred to above, atleast, one aspect of the matter is well settled. If a party has a right of appeal against an order, which is subject matter of challenge, then the jurisdiction is normally not to be exercised. In AIR 1963 SC 1895, Nibaran Chandra Bag vs. Mahendra Nath Ghugu, it has been categorically held that the jurisdiction conferred by Article 227 is not by any means appellate in its nature. Therefore, wherever remedy of appeal is available, a party has to be left free to pursue with that remedy. As a matter of fact, earlier, similar order is said to have challenged in appeal. The predecessor in interest of the present petitioners were able to get relief from the appellate authority. The only factors which appears to have let the petitioners to come to this court is delay and laches. This is again a matter on which the petitioners can make out a case for condonation of delay. As indicated above a remedy of appeal is available and therefore the supervisory jurisdiction as invoked by the petitioners would not be available to them. What was said by this court in 1986 KLJ 307, Gian Devi vs. Sub Judge (CJM), Jammu and Others that powers under Section 104 of the Jammu and Kashmir Constitution have to be very sparingly exercised and this court in the guise of exercising its jurisdiction should not circumvent the procedural law or the law of limitation would apply to this case. The above observations made earlier by this Court having a binding effect on me. In view of the above, this petition is found to be without merit and is dismissed. Petitioners, are however, at liberty to seek remedy of appeal available to them in forums created under the alternate law.