Code of Civil Procedure - Order XXXVII - Summary Suits - if any part of amount claimed by the plaintiff in the suit is admitted by the defendant to be due from him, the leave to defend the suit shall be granted only if the amount so admitted is deposited by the defendant in the Court, notwithstanding the fact that the triable issue or a substantial defence is raised by the defendant.
Constitution of India - Articles 226 and 227 - The power of superintendence is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate Courts and the Tribunals within the bounds of their authorities. This power, however, is not available for correcting mere errors of law and fact. In an appropriate case where it is sufficiently demonstrated that grave injustice or failure of justice has occasioned and the Court or the Tribunal subordinate to the High Court has assumed a jurisdiction which it does not have or the jurisdiction though available has been exercised in a manner which would tantamount to overstepping the limits of jurisdiction. The High Court can step in to undo the wrong.
Coram: Hon’ble Mr
Justice Sanjeev Kumar, Judge
OWP No. 2152/2018, IA No. 01/2018
Date of order: 30.11.2018
Habibullah vs Gulzar Hussain
Appearance: For
Petitioner(s): Ms.Tabasum Zaffar, Advocate. For Respondent(s): Mr. M.A.Qayoom,
Advocate.
1. Supervisory
jurisdiction of this Court vested in terms of Section 104 of the Constitution
of Jammu and Kashmir is invoked by the petitioner to assail the validity of
order dated 29.10.2008, passed by the learned Principal District Judge, Kargil
(hereinafter referred to as the ‘Trial Court’) whereby application of
the petitioner/defendant seeking leave to defend in terms of Order XXXVII Rule
3 of Code of Civil Procedure has been rejected.
2. Briefly put,
the background facts leading to the filing of the instant petition are that the
respondent has filed a suit purportedly under the provisions of Order XXXVII of
Code of Civil Procedure for recovery of Rs.25.00 lacs along with interest on
the basis of Hundi executed by the petitioner. The learned Trial Court
entertained the suit and issued summons to the petitioner in accordance with
the procedures laid down in Order XXXVII. On being summoned, the petitioner
caused his appearance and filed an application under Order XXXVII Rule 5 CPC
seeking leave to defend. The said application was opposed by the respondent by
filing objections. The respondent claimed that in view of non-disclosure of any
cogent defence by the petitioner in the application, he (respondent) was
entitled to judgment forthwith.
3. The Trial Court
considered the application and vide its order dated 29th October,2018,
impugned in this petition, granted the petitioner conditional leave to defend.
The leave was granted subject to the petitioner depositing a sum of Rs.9.00
lacs by way of security in the form of cash in the Court. The conditional
leave, as is apparent from the order impugned, was granted on the ground that
the petitioner in the collateral criminal proceedings had admitted his liability
to pay an amount of Rs.9.00 lacs to the respondent. This has been done by the
trial Court apparently relying upon the second proviso to Order XXXVII Rule
3(5) of Code of Civil Procedure. The petitioner is aggrieved of the order
impugned, whereby his application seeking leave to defend has been granted
conditionally and is before this Court seeking exercise of power of
superintendence vested in this Court by virtue of Section 104 of the
Constitution of Jammu and Kashmir to quash the same.
4. Having heard learned
counsel for the parties and perused the record, this Court is of the considered
view that the petitioner has not been able to make out a case for exercise of
power of superintendence vested in this Court by virtue of Section 104 of
Constitution of Jammu and Kashmir. The power of superintendence vested in this
Court, which is akin to Article 227 of the Constitution of India, is not a
substitute for the revisional powers of this Court conferred by virtue of
Section 115 of the Code of Civil Procedure.
5. The Hon’ble
Supreme Court, in the case of Surya Dev Rai vs Ram Chander Rai and ors,
reported as 2003 (6) SCC 675 has elaborately considered the impact of
the amendment in Section 115 of the Code of Civil Procedure brought in by the
Act 46 of 1999 w.e.f 01.07.2002, on the power and jurisdiction of the High
Court to entertain the petition seeking a Writ of Certiorari under Article 226
of the Constitution of India or invoking the power of superintendence under
Article 227 of the Constitution of India. It was noted that prior to the
amendment in section 115 of CPC, the orders of the Civil Courts subordinate to
High Courts, where the appeal was not provided were amenable to the revisional
jurisdiction of the High Courts under Section 115 of Code of Civil Procedure,
but with the amendment, many orders of the Civil Courts have been held to be
non-revisable. It is in this context, the Hon’ble Supreme Court examined the
question, as to whether an aggrieved person, in such circumstances, is
completely deprived of the remedy of judicial review, if he has lost at the
hands of original Court and the Appellate Court, though a case of gross failure
of justice having been occasioned is made out. After threadbare discussion of
the issue and the impact of amendment to Section 115 of CPC vis-Ã -vis the
exercise of power by the High Court under Articles 226 and 227 of the
Constitution of India, the Hon’ble Supreme Court summed up its conclusion in
the following manner:
“(1) Amendment by Act No.46 of
1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure
cannot and does not affect in any manner the jurisdiction of the High Court
under Articles 226 and 227 of the Constitution.
(2) Interlocutory orders, passed
by the courts subordinate to the High Court, against which remedy of revision
has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open
to challenge in, and continue to be subject to, certiorari and supervisory
jurisdiction of the High Court.
(3) Certiorari, under Article 226
of the Constitution, is issued for correcting gross errors of jurisdiction,
i.e., when a subordinate court is found to have acted (i) without jurisdiction
- by assuming jurisdiction where there exists none, or (ii) in excess of its
jurisdiction – by overstepping or crossing the limits of jurisdiction, or (iii)
acting in flagrant disregard of law or the rules of procedure or acting in
violation of principles of natural justice where there is no procedure specified,
and thereby occasioning failure of justice.
(4) Supervisory jurisdiction
under Article 227 of the Constitution is exercised for keeping the subordinate
courts within the bounds of their jurisdiction. When the subordinate Court has
assumed a jurisdiction which it does not have or has failed to exercise a
jurisdiction which it does have or the jurisdiction though available is being
exercised by the Court in a manner not permitted by law and failure of justice
or grave injustice has occasioned thereby, the High Court may step in to
exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or
the exercise of supervisory jurisdiction, none is available to correct mere
errors of fact or of law unless the following requirements are satisfied : (i)
the error is manifest and apparent on the face of the proceedings such as when
it is based on clear ignorance or utter disregard of the provisions of law, and
(iii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error
which is self-evident, i.e., which can be perceived or demonstrated without
involving into any lengthy or complicated argument or a long-drawn process of
reasoning. Where two inferences are reasonably possible and the subordinate
court has chosen to take one view the error cannot be called gross or patent.
(7) The power to issue a writ of
certiorari and the supervisory jurisdiction are to be exercised sparingly and
only in appropriate cases where the judicial conscience of the High Court
dictates it to act lest a gross failure of justice or grave injustice should
occasion. Care, caution and circumspection need to be exercised, when any of
the abovesaid two jurisdictions is sought to be invoked during the pendency of
any suit or proceedings in a subordinate court and the error though calling for
correction is yet capable of being corrected at the conclusion of the
proceedings in an appeal or revision preferred there against and entertaining a
petition invoking certiorari or supervisory jurisdiction of High Court would
obstruct the smooth flow and/or early disposal of the suit or proceedings. The
High Court may feel inclined to intervene where the error is such, as, if not
corrected at that very moment, may become incapable of correction at a later
stage and refusal to intervene would result in travesty of justice or where
such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of
certiorari or supervisory jurisdiction will not covert itself into a Court of
Appeal and indulge in re-appreciation or evaluation of evidence or correct
errors in drawing inferences or correct errors of mere formal or technical
character.
(9) In practice, the parameters
for exercising jurisdiction to issue a writ of certiorari and those calling for
exercise of supervisory jurisdiction are almost similar and the width of
jurisdiction exercised by the High Courts in India unlike English courts has
almost obliterated the distinction between the two jurisdictions. While
exercising jurisdiction to issue a writ of certiorari the High Court may annul
or set aside the act, order or proceedings of the subordinate courts but cannot
substitute its own decision in place thereof. In exercise of supervisory
jurisdiction the High Court may not only give suitable directions so as to
guide the subordinate court as to the manner in which it would act or proceed
thereafter or afresh, the High Court may in appropriate cases itself make an
order in supersession or substitution of the order of the subordinate court as
the court should have made in the facts and circumstances of the case”.
6. While summing
up the law and the parameters for the exercise of jurisdiction under Articles
226 or 227 of the Constitution of India, the Hon’ble Supreme Court noted that
the broad principles and the parameters laid down were not exhausted and,
therefore, cannot be put in a straightjacket formula.
7. To the similar
extent are the observations made by the Hon’ble Supreme Court in the case of Shalini
Shayam Shetty & anr vs Rajendra Shankar Pati, reported as (2010)
8 Supreme Court Cases 329l. In paragraph No.49 of the said judgment,
the principles on the exercise of High Court’s jurisdiction under Article 227
of the Constitution of India, were reiterated, which paragraph reads thus:
“62. On an analysis of the
aforesaid decisions of this Court, the following principles on the exercise of
High Court's jurisdiction under Article 227 of the Constitution may be formulated:
(a) A petition under Article 226
of the Constitution is different from a petition under Article 227. The mode of
exercise of power by High Court under these two Articles is also different.
(b) In any event, a petition
under Article 227 cannot be called a writ petition. The history of the
conferment of writ jurisdiction on High Courts is substantially different from
the history of conferment of the power of Superintendence on the High Courts under
Article 227 and have
been discussed above.
(c) High Courts cannot, on the
drop of a hat, in exercise of its power of superintendence under Article 227 of
the Constitution, interfere with the orders of tribunals or Courts inferior to
it. Nor can it, in exercise of this power, act as a Court of appeal over the
orders of Court or tribunal subordinate to it. In cases where an alternative
statutory mode of redressal has been provided, that would also operate as a
restrain on the exercise of this power by the High Court.
(d) The parameters of
interference by High Courts in exercise of its power of superintendence have
been repeatedly laid down by this Court. In this regard the High Court must be
guided by the principles laid down by the Constitution Bench of this Court in
Waryam Singh (supra) and the principles in Waryam Singh (supra) have been
repeatedly followed by subsequent Constitution Benches and various other
decisions of this Court.
(e) According to the ratio in Waryam
Singh (supra), followed in subsequent cases, the High Court in exercise of its
jurisdiction of superintendence can interfere in order only to keep the
tribunals and Courts subordinate to it, `within the bounds of their authority'.
(f) In order to ensure that law
is followed by such tribunals and Courts by exercising jurisdiction which is
vested in them and by not declining to exercise the jurisdiction which is
vested in them.
(g) Apart from the situations
pointed in (e) and (f), High Court can interfere in exercise of its power of
superintendence when there has been a patent perversity in the orders of
tribunals and Courts subordinate to it or where there has been a gross and
manifest failure of justice or the basic principles of natural justice have been
flouted.
(h) In exercise of its power of
superintendence High Court cannot interfere to correct mere errors of law or
fact or just because another view than the one taken by the tribunals or Courts
subordinate to it, is a possible view. In other words the jurisdiction has to
be very sparingly exercised.
(i) High Court's power of
superintendence under Article 227 cannot be curtailed by any statute. It has
been declared a part of the basic structure of the Constitution by the
Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of
India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a
Constitutional amendment is also very doubtful.
(j) It may be true that a
statutory amendment of a rather cognate provision, like Section 115 of the
Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not
and cannot cut down the ambit of High Court's power under Article 227. At the
same time, it must be remembered that such statutory amendment does not correspondingly
expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary
and has to be exercised on equitable principle. In an appropriate case, the
power can be exercised suo motu.
(l) On a proper appreciation of
the wide and unfettered power of the High Court under Article 227, it
transpires that the main object of this Article is to keep strict
administrative and judicial control by the High Court on the administration of
justice within its territory.
(m) The object of
superintendence, both administrative and judicial, is to maintain efficiency,
smooth and orderly functioning of the entire machinery of justice in such a way
as it does not bring it into any disrepute. The power of interference under
this Article is to be kept to the minimum to ensure that the wheel of justice
does not come to a halt and the fountain of justice remains pure and unpolluted
in order to maintain public confidence in the functioning of the tribunals and
Courts subordinate to High Court.
(n) This reserve and exceptional
power of judicial intervention is not to be exercised just for grant of relief
in individual cases but should be directed for promotion of public confidence
in the administration of justice in the larger public interest whereas Article
226 is meant for protection of individual grievance. Therefore, the power under
Article 227 may be unfettered but its exercise is subject to high degree of
judicial discipline pointed out above.
(o) An improper and a frequent
exercise of this power will be counter-productive and will divest this
extraordinary power of its strength and vitality”.
8. Similar
observations have been made in the case of Radhey Shyam and anr vs Chhabi
Nath and ors, reported as (2015) 5 SCC 423. This was a
case decided by the three Judge Bench of the Supreme Court on reference made by
two Judges of the Supreme Court to consider the correctness of the law laid
down in Surya Dev Rai’s case (supra) that the order of Civil Court was amenable
to the Writ Jurisdiction under Article 226 of the Constitution of India. After
surveying the law on the point, the Hon’ble Supreme Court, in paragraph 29 of
the said judgment, concluded thus:
“Accordingly, we answer the
question referred as follows:
(i) Judicial orders of civil
court are not amenable to writ jurisdiction under Article 226 of the Constitution;
(ii) Jurisdiction under Article
227 is distinct from jurisdiction from jurisdiction under Article 226.
Contrary view in Surya Dev Rai is overruled."
9. From the
discussion of the aforesaid three judgments, it is now established beyond the
pale of any doubt that the orders of the Civil Courts are not amenable to Writ
Jurisdiction under Article 226 of the Constitution, but could be interfered
with under Article 227 of the Constitution, if the parameters laid down for the
exercise of power in Surya Dev Rai’s case (supra) and Radhey Shyam’s case
(supra) are met. The power of superintendence is intended to be used sparingly
and only in appropriate cases for the purpose of keeping the subordinate Courts
and the Tribunals within the bounds of their authorities. This power, however,
is not available for correcting mere errors of law and fact. In an appropriate
case where it is sufficiently demonstrated that grave injustice or failure of
justice has occasioned and the Court or the Tribunal subordinate to the High
Court has assumed a jurisdiction which it does not have or the jurisdiction
though available has been exercised in a manner which would tantamount to
overstepping the limits of jurisdiction. The High Court can step in to undo the
wrong. It is in this backdrop of legal position that the facts of the instant
case need to be examined.
10. The fact that
the suit of the respondent has been entertained by the trial Court under Order
XXXVII of Code of Civil Procedure is not in dispute. There is no procedural
irregularity pointed out by the petitioner in following the provisions of Order
XXXVII of Code of Civil Procedure. The petitioner has been validly served with
the summons and application seeking leave to defend has also been accepted by
the trial Court, though from the order impugned, it is not discernible as to on
what basis and for what reason the leave has been granted. Since the respondent
is not aggrieved of the order impugned, as such, this Court need not go into
the aforesaid question. Needless to say, that grant of leave in a Summary Suit
filed under Order XXXVII of Code of Civil Procedure is broadly governed by the
principles as enumerated by the Hon’ble Supreme Court in the recent judgment
passed in the case of IDBI Trusteeship Services Limited vs Hubtown
Limited, reported as (2017) 1 Supreme Court Cases 568.
Paragraph 17 of the said judgment reads as under:
“17. Accordingly, the principles
stated in paragraph 8 of Mechelec’s case will now stand superseded, given the
amendment of O.XXXVII R.3, and the binding decision of four judges in
Milkhiram’s case, as follows:
i. If the defendant satisfies the
Court that he has a substantial defence, that is, a defence that is likely to
succeed, the plaintiff is not entitled to leave to sign judgment, and the
defendant is entitled to unconditional leave to defend the suit;
ii. If the defendant raises
triable issues indicating that he has a fair or reasonable defence, although
not a positively good defence, the plaintiff is not entitled to sign judgment,
and the defendant is ordinarily entitled to unconditional leave to defend;
iii. Even if the defendant raises
triable issues, if a doubt is left with the trial judge about the defendant’s
good faith, or the genuineness of the triable issues, the trial judge may
impose conditions both as to time or mode of trial, as well as payment into
court or furnishing security. Care must be taken to see that the object of the
provisions to assist expeditious disposal of commercial causes is not defeated.
Care must also be taken to see that such triable issues are not shut out by
unduly severe orders as to deposit or security;
iv If the Defendant raises a
defence which is plausible but improbable, the trial Judge may impose
conditions as to time or mode of trial, as well as payment into court, or
furnishing security. As such a defence does not raise triable issues,
conditions as to deposit or security or both can extend to the entire principal
sum together with such interest as the court feels the justice of the case
requires.
v. If the Defendant has no
substantial defence and/or raises no genuine triable issues, and the court
finds such defence to be frivolous or vexatious, then leave to defend the suit
shall be refused, and the plaintiff is entitled to judgment forthwith;
vi. If any part of the amount
claimed by the plaintiff is admitted by the defendant to be due from him, leave
to defend the suit, (even if triable issues or a substantial defence is
raised), shall not be granted unless the amount so admitted to be due is
deposited by the defendant in court”.
11. While summing
up the law on the point and laying down the principles as enumerated above, the
Hon’ble Supreme Court considered the impact of amendment to Order XXXVII of
Code of Civil Procedure Rule 3 made in the year 1976. It may be noted that
similar amendment has been carried to Rule 3 of Order XXXVII of the State Code
of Civil Procedure by Act XI of 1983 w.e.f 15.08.1983. The Hon’ble
Supreme Court taking note of the amended provisions of Rule 3 of Order XXXVII
of Code of Civil Procedure held that the principles laid down in paragraph 8 of
Mechelec, (1976) 4 SCC 687 would stand superseded and stated the
law and the principles to be followed having regard to the amended provisions
of Order XXXVII Rule 7 of Code of Civil Procedure. As is apparent from the law
laid down and the explicit provisions contained in second proviso, if any part
of amount claimed by the plaintiff in the suit is admitted by the defendant to
be due from him, the leave to defend the suit shall be granted only if the
amount so admitted is deposited by the defendant in the Court, notwithstanding
the fact that the triable issue or a substantial defence is raised by the
defendant. It is this provision which has been invoked by the trial Court in
the instant case to grant the conditional leave to defend.
12. Learned counsel
for the petitioner vehemently submits that the petitioner had clearly
demonstrated in his application that not only the triable issues were involved
in the suit, but the petitioner had a substantial defence to offer. She,
therefore, urges that the trial Court having accepted the plea of the
petitioner in this regard should have granted the petitioner unconditional
leave to defend. It is also contended that the admission, if any, made in the
collateral criminal proceedings would not bind the petitioner in the suit. It
is, thus, submitted that having regard to the averments made in the application
seeking leave to defend, it cannot be said that any part of the claim of the
respondent has been admitted by the petitioner.
13. Per contra,
learned counsel for the respondent relying upon the judgment of the Supreme
Court in the case of Southern Sales and Services and ors vs Sauermilch
Design and Handels, (2008) 14 Supreme Court Cases 456 contends that in
view of the amendment made to Order XXXVII of Code of Civil Procedure by virtue
of Act XI of 1983 w.e.f 15.08.1983, the provision i.e, Rule 3 has been altered
to provide that deposit of any admitted amount is now a condition precedent for
grant of leave to defend in a suit filed under Order XXXVII of Code of Civil
Procedure. He, therefore, submits that earlier concept of granting
unconditional leave when a triable issue is raised on behalf of the defendant
has been supplemented by the addition of a mandate imposed upon the defendant
to deposit the admitted amount before he is granted leave to defend. He refers
to the pleadings of his plaint to contend that the respondent has categorically
referred to the admission made by the petitioner in a criminal complaint filed
by him before the learned Chief Judicial Magistrate, Kargil wherein he has
categorically admitted that he had borrowed a sum of Rs.12.00 lacs from the
respondent, but has paid three lacs and, therefore, there is only an
outstanding amount of Rs.9.00 lacs which is still payable.
14. Learned counsel
appearing for the respondent, therefore, urges that in view of the petitioner
having not denied the aforesaid averment in the plaint in his application
seeking leave, the same should be deemed to have been admitted. It is,
therefore, submitted that the trial Court committed no illegality in granting
conditional leave to the petitioner as has been done in terms of the order
impugned. Learned counsel, during the course of his arguments, also reminded
this Court of the restrictive jurisdiction of superintendence to be exercised
only in accordance with the set parameters laid down by the Hon’ble Supreme
Court.
15. In the context
of rival contentions and in the given facts of the case, the only question that
begs determination is, whether the admission made by the petitioner in
collateral criminal proceedings i.e a complaint before the learned CJM, Kargil
in the instant case, could be taken as an admission of part of claim of the
respondent as projected in the plaint and, therefore, attracting second proviso
to Rule 3 of Order XXXVII of Code of Civil Procedure, making it mandatory for
the petitioner to deposit the admitted amount for enabling him to avail of the
leave to defend. Order XXXVII of Code of Civil Procedure does not define the
term ‘Admission’. Admissions in civil law which are referable to many Rules of
the Code of Civil Procedure can be conveniently and broadly put in following three
categories:
“1. Actual admissions, oral or by
documents;
2. the express or implied
admissions from the pleadings or by non traverse by agreement;
3. By agreement or by notice”.
16. Order VIII Rule
5 of the Code of Civil Procedure deals with ‘specific denials’ and provides
that every application of fact in the plaint if not denied specifically or by
necessary implication, or stated to be not admitted in the pleadings of the
defendants, shall be taken as admitted except as against a person under
disability. There is, however, a proviso appended to sub rule 1 of Rule 5 of
Order VIII to provide that Court may, in its discretion, require any fact so
admitted to be proved otherwise than by such admission. Needless to say that
all admissions made under whatever circumstances are not irreversible. The same
can be withdrawn or explained by the maker. An Inference regarding admission
could be drawn after considering the pleadings in entirety. The admissions
could also be proved to be wrong.
17. Apart from the
aforesaid provisions in the CPC, we have Order XII Rule 6 and Order XV Rule 1
which pertain to the judgment on admission. Similarly, Section 17 of the
Evidence Act also deals with admission. This Court could have deliberated at
some length on the form of admissions as the issue is of seminal importance,
but in the given facts and circumstances, this Court has deliberately refrained
from delving further in the matter. This is so as the facts of the instant case
do not warrant such exercise. Even if, this Court accepts the plea of the
petitioner that an admission made in the collateral proceedings, i.e. a
criminal complaint filed by the petitioner in the instant case is voluntary and
gratuitous and, therefore, cannot be taken to be admission of part of claim
projected by the petitioner in the suit, even then the petitioner will have no
case. This is for the reason that the purported admission made by the
petitioner in the plaint filed by the petitioner before CJM Kargil is now a
part of pleadings of the respondent. The respondent in his plaint has
specifically referred to the aforesaid admission which averment made in
paragraph 13 of the plaint has not been specifically denied by the petitioner.
18. There is no
averment made in the application seeking leave to defend which could be
construed as refuting the aforesaid claim with regard to the admission by the
petitioner contained in the plaint. The total silence by the petitioner in the
application on the aforesaid aspect would amount to admission (see Order VIII
Rule 5). In this view of the matter, the trial Court was correct in coming to
the conclusion that the petitioner had accepted the part of claim of the
petitioner. In view of the aforesaid admission of fact made by the petitioner,
the trial Court had no option other than granting the conditional leave, making
it mandatory for the petitioner to deposit the admitted amount of Rs.9.00 lacs
before he could enter his defence in the suit.
19. The other plea
raised by the learned counsel on behalf of the petitioner that the petitioner
was not physically and mentally fit to defend his interest in the suit and,
therefore, learned trial Court should have first ascertained his physical and
mental condition and appointed next friend before deciding his application for
leave to appeal, is a plea too specious to be accepted. Learned Trial Court has
very correctly taken note of the fact that the petitioner has filed a complaint
before the learned CJM, Kargil and is appearing in two complaints filed by the
respondent under Section 138 of Negotiable Instruments Act and is also pursuing
his two petitions filed before this Court under Section 561 A Cr.P.C. In all
these matters, the petitioner is either contesting or defending, as the case
may be, without any next friend. Therefore, the plea of the petitioner has
rightly not been accepted by the trial Court. That apart, this plea can be
raised by the petitioner during the course of trial and the trial Court is not
debarred to examine the petitioner and if it finds that he suffers from some
disability which may impede his right to effectively contest the suit, it can
appoint the next friend at any stage of the suit. Having said so, this Court
does not find it a case of such a nature where this Court should exercise the
power of its superintendence under Section 104 of the Constitution of Jammu and
Kashmir. The petitioner has miserably failed to bring his case within the
parameters laid down by the Hon’ble Supreme Court for the exercise of power of
superintendence vested in this Court by virtue of Section 104 of Constitution
of Jammu and Kashmir.
20. For all these
reasons, I find no merit in this petition and the same is accordingly dismissed.
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