Appeals, Second Appeals & Suits Connected By An Intrinsic Unity, To Be Regarded As One Legal Proceeding: J&K High Court

Justice Javed Iqbal Wani, delivering the judgment, emphasized that appeals, second appeals, and suits are interconnected steps in a unified legal pursuit of justice. Hence an appellate Court possesses the same powers and discharges the same duties as that of the original Court, entitling the appellate Court to review the evidence as a whole subject to statutory limitations, if any, and to come to its own conclusions, he added.

Background of the Case:

The genesis of the case revolved around a civil suit filed by Prof. Gh. Nabi Sidiqi against the University of Kashmir. Prof. Sidiqi sought recovery of Rs. 1,10,000/- and a decree of declaration and injunction. His claim was rooted in the assertion that he had served the University in various capacities, ultimately reaching the position of Registrar before his superannuation on 30.01.1992. However, the University rescinded the order granting him pensionary benefits on 20.08.1993, alleging discrimination in comparison to another government officer.

The trial court ruled in Sidiqi's favour, awarding him the benefits. However, instead of filing an appeal, the university directly approached the High Court, invoking its extraordinary jurisdiction under Articles 226 and 227 of the Constitution seeking quashing of the trial court judgment and restraining further proceedings in the execution of the order related to pensionary benefits.

During the course of proceedings, a preliminary objection was raised by Prof. Sidiqi's counsel, arguing that the petition was not maintainable as the impugned judgment could be challenged through an appeal rather than a writ petition.

Key Observations of the Court:

Justice Wani, while addressing the preliminary objection, delved into the provisions of the Code of Civil Procedure (CPC) and emphasized that a right of appeal is a substantive right vested in a suitor at the time of the institution of the suit, and such a right cannot be curtailed unless expressly or impliedly taken away by a competent enactment.

“A right to file an appeal gets crystalized and no clog can be put on such right and right of appeal being substantive right carries with it all rights throughout, however, subject to two exceptions, firstly when by competent enactment such right of appeal is taken away expressly or impliedly with retrospective effect; and secondly when the Court to which appeal lay at the commencement of the suit stands abolished”, the court recorded.

The court noted that the petitioner had not demonstrated any conditions warranting the bypassing of the appellate remedy available under Section 96 of the CPC. The bench reinforced the principle that the power of superintendence under Article 227 should be sparingly exercised and only in cases involving patent perversity, gross failure of justice, or violation of basic principles of natural justice.

“Ironically it is not coming forth from the record as to why the petitioner herein instead of assailing the impugned Judgment and decree in an appeal and chose to file the instant petition, invoking extraordinary and supervisory jurisdiction of this Court”, the bench remarked.

In response to a submission of the petitioner seeking the conversion of the petition into a plea under Article 227 Justice Wani referred Shalini Shayam Shetty & Anr. Vs. Rajendra Shankar Pati (2010 (8) SCC 329) outlining the principles governing the exercise of the High Court's jurisdiction under Article 227 and observed that such power should be wielded with restraint and directed towards the promotion of public confidence in the administration of justice.

In light of the above observations, the court held that the petition was grossly misconceived and not maintainable. The petitioner University was directed to pay costs amounting to Rs. 50,000/- to Prof. Gh. Nabi Sidiqi within one month from the date of the judgment.

Case Title: University of Kashmir through Registrar V/s Prof. Gh. Nabi Sidiqi and Ors.

Citation: 2023 LiveLaw (JKL) 329

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