-Report by Sanju Agarwal
The Delhi High Court has stated in the case of GHULAM SARWAR vs SMT. NILOFAR KHAN & ORS. that the High Court should respect the exercise of discretionary powers by the District judiciary and not act in a manner that conveys an impression that the court is playing the role of a headmaster.
The parties to the suit occupy different areas of the same property. The respondents (originally the plaintiff) had complained that the petitioner had installed a locked iron on the terrace of the fourth floor which restrained the access of the respondents. A decree of mandatory and permanent injunction had been sought in the suit by the respondents restraining the petitioner from interfering with the right of access to the terrace of the respondents. It was also accompanied by an application under Order 39, rules 1 and 2 of the CPC, seeking an ad interim injunction that would restrain the petitioners from fixing iron grills on the passage to the rooftop. The learned SCJ upheld the respondents’ rights to access the terrace only for common amenities such as installing an antenna, water connection, etc., between 9 am to 5 pm. The respondents had to ask for the keys an hour in advance.
An appeal was preferred before the learned ADJ wherein it was held that since the parties were locked in litigation, providing limited access after recognizing the respondents’ rights was unreasonable. The learned ADJ modified the decision of the SCJ and directed the petitioners to give a set of keys to the locked terrace gate to the respondents to give them independent access at all times during the pendency of the suit.
The petitioner aggrieved by the above decisions had filed the petitioner under Article 227 of the Constitution. The Court held that this was not a case that invoked the jurisdiction of the court under Article 227 of the Indian Constitution. It was stated that it was a discretionary order and free from any perversity, therefore immune from any challenge under Article 227. Such a challenge to order can only be justified when the exercise of such discretionary power is perverse in nature.
It was also observed:
“I am constrained to observe that, if the High Court were to start interfering with such orders under Article 227 of the Constitution of India, it is bound to shake the confidence of the district judiciary and seriously impede the dispassionate exercise, by them, of the discretion that the law vests in them. In my considered opinion, it is only as a matter of chance hierarchal circumstance that this Court is “above” the district judiciary. Else, the district judiciary, and the learned Courts of which it is comprised, exercise jurisdiction which, subjectively, is co-equal to the jurisdiction exercised by this Court.”
The court held that the order passed is well reasoned, however, the access has been granted to the respondents for a limited purpose and availing of the facility shall not be abused.