MOHAMMAD KHURSHID ALAM AND OTHERS vs SARITA BHATEJA AND OTHERS

IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 06.10.2026
Pronounced on: 30.10.2026
Uploaded on: 30.10.2026
Whether the operative part or full
judgment is pronounced: Full


CM(M) No.283/2026

MOHAMMAD KHURSHID ALAM AND OTHERS
...PETITIONER(S)/APPELLANT(S)
Through: - Mr. A.M. Dar, Sr. Advocate with
Ms. Monisa, Advocate.
Vs.
SARITA BHATEJA AND OTHERS.
…RESPONDENT(S)
Through: - Mr. M.A. Makhdoomi, Advocate with
Ms. Shaista, Advocate.
CORAM: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT

1) The petitioners, through the medium of this petition
filed under Article 227 of the Constitution of India, have
assailed the order dated 29.06.2026 passed by the Court of
learned Additional District Judge, Srinagar (for short, ‘the
Trial Court’) in suit titled “ Sarita Bhateja v. Lakhwinder
Singh and others”, whereby the learned Trial Court has
allowed the application filed by respondent No.1/plaintiff
under Order VIII Rule 9 of the CPC and permitted her to file
replication to the written statement of the petitioners.
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2) The petitioners have impugned the order dated
29.06.2026 on the ground that the learned Trial Court
exercised its jurisdiction with material irregularity,
disregarding the settled propositions of law on subsequent
pleadings. Permission to file a replication cannot be granted
mechanically; the Court is required to examine whether the
written statement introduces new facts that warrant a reply
from the plaintiff. The learned Trial Court manifestly failed
to adhere to this legal requirement. Moreover, it failed to
appreciate that the petitioners' written statement set up no
counter-claim, new fact, or affirmative defense, but merely
denied the averments in the amended plaint and had raised
recognized defences concerning limitation, bona fide
purchase, absence of notice of alleged fraud, legal effect of
registered sale deeds, possession, jurisdiction, protection
under Section 41 of the Transfer of Property Act, and the
effect of the proceedings at Hoshiarpur.
3) Learned Senior Counsel for the petitioners has
reiterated the submissions and contentions as recorded
above by this Court. He has relied upon the judgment of the
Hon'ble Supreme Court of India in “ Sheikh Noorul Hassan
v. Nahakkapam Indrajit Singh and others” , 2024 INSC
391, wherein it has been held that replicaion is not a
substitute for amendment and new cause of action or a plea
CM(M) No.283/2026 Page 2 of 15

inconsistent with the original plaint cannot be introduced
through subsequent pleading.
4) Per contra , learned counsel for respondent No.1 has
argued that the learned Trial Court has rightly allowed the
replication upon considering the written statement. He
submitted that the impugned order causes no prejudice to
the petitioners and does not decide the rights of the parties
with finality, emphasizing the well-settled principle that
mere pleadings carry no evidentiary value unless proved by
cogent evidence. He has relied upon the judgment of the
Hon'ble Supreme Court of India in Shalini Shyam Shetty v.
Rajendra Shankar Patil, (2010) 8 SCC 329.
5) Heard and perused the record.
6) Record reveals that after permission was granted to
respondent No. 1 to amend the suit, and amended plaint
came to be filed seeking a decree of declaration be passed,
declaring the impugned power of attorney and the
consequential sale deeds drawn and executed by the
defendants inter se in in respect of the suit property
comprising of land measuring 4 Kanals comprising Survey
No.1531/61 (1 Kanal 4 Marlas) and Survey
No.1941/1448/59 (2 Kanals 16 Marlas), along with
structures raised over it, situated at Kursoo Padshahi Bagh
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Srinagar and land measuring 15 marlas falling under Survey
no. 1941/1448/59 min situated at Kursoo Padshahi Bagh
Srinagar, as null and void, inoperative, and ineffective
against the rights and interest of respondent No.1 and not
binding on her. Respondent No. 1 also sought a decree for
possession regarding the above-mentioned property and for
permanent prohibitory injunction restraining defendant No.
3 or anyone claiming through her from alienating or creating
third party interest in the suit property.
7) The petitioners filed written statement and objected to
the suit on various grounds. Respondent No.1 filed an
application for filing replication to the averments made in
Paras 2, 3, 4, 5 6 of the preliminary objections and Paras
7(ii) and 7(iv) under the heading “para-wise reply” of the
written statement of the petitioners and also to the written
statement of defendant No.7 i.e. respondent No.4. In their
response, the petitioners submitted that Respondent No. 1
was attempting to set up an entirely new cause of action
inconsistent with her original pleadings. They contended
that such an approach is impermissible in law as a party
cannot be allowed to re-frame its case through a replication
and accordingly prayed for dismissal of the application. The
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learned Trial Court, in terms of the order impugned, allowed
the application preferred by respondent No.1.
8) It was vehemently argued by the learned counsel for
Respondent No. 1 that no prejudice has been caused to the
petitioners by permitting Respondent No. 1 to file a
replication to the specific pleas raised in the written
statement. As such, the petition deserves to be dismissed.
9) In Shalini Shyam Shetty v. Rajendra Shankar
Patil , (2010) 8 SCC 329, the Hon’ble Apex Court has dealt
in detail the scope of interference under Article 227 of
Constitution of India and the relevant paras are extracted as
under:
49. 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 the 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, at 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
CM(M) No.283/2026 Page 5 of 15

power, act as a court of appeal over the orders
of the 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 their 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 [AIR 1954 SC 215] and
the principles in Waryam Singh [AIR 1954 SC 215]
have been repeatedly followed by subsequent
Constitution Benches and various other decisions
of this Court.
( e ) According to the ratio in Waryam Singh [AIR 1954
SC 215] , 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 the
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 ) The 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
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Bench of this Court in L. Chandra Kumar v. Union
of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577]
and therefore abridgment 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 the 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
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exercise is subject to high degree of judicial
discipline pointed out above.
(o ) An improper and a frequent exercise of this
power will be counterproductive and will divest
this extraordinary power of its strength and
vitality.
10) In Garment Craft v. Prakash Chand Goel , (2022) 4
SCC 181, the Hon’ble Apex Court has held as under:
“15. Having heard the counsel for the parties, we are clearly
of the view that the impugned order is contrary to law and
cannot be sustained for several reasons, but primarily for
deviation from the limited jurisdiction exercised by the High
Court under Article 227 of the Constitution of India. The High
Court exercising supervisory jurisdiction does not act as
a court of first appeal to reappreciate, reweigh the
evidence or facts upon which the determination under
challenge is based. Supervisory jurisdiction is not to
correct every error of fact or even a legal flaw when the
final finding is justified or can be supported. The High
Court is not to substitute its own decision on facts and
conclusion, for that of the inferior court or tribunal.
[ Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar ,
(2010) 1 SCC 217] The jurisdiction exercised is in the
nature of correctional jurisdiction to set right grave
dereliction of duty or flagrant abuse, violation of
fundamental principles of law or justice. The power under
Article 227 is exercised sparingly in appropriate cases, like
when there is no evidence at all to justify, or the finding is so
perverse that no reasonable person can possibly come to
such a conclusion that the court or tribunal has come to. It
is axiomatic that such discretionary relief must be
exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227,
this Court in Estralla Rubber v. Dass Estate (P) Ltd. has
observed :
“ 6 . The scope and ambit of exercise of power and
jurisdiction by a High Court under Article 227 of the
Constitution of India is examined and explained in a
number of decisions of this Court. The exercise of
power under this article involves a duty on the
High Court to keep inferior courts and tribunals
within the bounds of their authority and to see
that they do the duty expected or required of
them in a legal manner. The High Court is not
CM(M) No.283/2026 Page 8 of 15

vested with any unlimited prerogative to correct
all kinds of hardship or wrong decisions made
within the limits of the jurisdiction of the
subordinate courts or tribunals. Exercise of this
power and interfering with the orders of the
courts or tribunals is restricted to cases of
serious dereliction of duty and flagrant violation
of fundamental principles of law or justice, where
if the High Court does not interfere, a grave
injustice remains uncorrected. It is also well
settled that the High Court while acting under this
Article cannot exercise its power as an appellate
court or substitute its own judgment in place of
that of the subordinate court to correct an error,
which is not apparent on the face of the record.
The High Court can set aside or ignore the findings
of facts of an inferior court or tribunal, if there is no
evidence at all to justify or the finding is so perverse,
that no reasonable person can possibly come to
such a conclusion, which the court or tribunal has
come to.”
11) From the authoritative pronouncements of the Hon’ble
Apex Court cited above, it is well settled that this Court,
while exercising powers under Article 227 of the Constitution
of India, does not sit as a court of appeal or revision. Its
supervisory jurisdiction is strictly confined to determining
whether a subordinate court has committed a jurisdictional
error resulting in a grave miscarriage of justice. A mere error
of law or fact, howsoever grave, cannot be rectified under
Article 227 unless it partakes the character of a
jurisdictional error on the part of the court below resulting
in miscarriage of justice.
12) The scope of Order VIII Rule 9 has been considered by
the Hon'ble Supreme Court of India in “ Sheikh Noorul
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Hassan v. Nahakkapam Indrajit Singh and Others” , and
para 21 of the said judgement is extracted as under:
21. However, such leave is not to be granted
mechanically. The Court before granting leave must
consider the averments made in the plaint/election
petition, the written statement and the replication.
Upon consideration thereof, if the Court feels that to
ensure a fair and effective trial of the issues already
raised, the plaintiff/election petitioner must get
opportunity to explain/clarify the facts newly raised
or pleaded in the written statement, it may grant
leave upon such terms and it deems fit. Further, while
considering grant of leave, the Court must bear in
mind that, - (a) a replication is not needed to merely
traverse facts pleaded in the written statement, and
(c) a new cause of action or plea inconsistent with the
plea taken in original petition/plaint is not to be
permitted in the replication .
13) It would be also profitable to take note of the judgment
of the Hon'ble Supreme Court of India in K. Laxman v.
Thekkayil Padmini , (2009) 1 SCC 354, and the relevant
Para 29 is extracted as under:
29. Pleadings as we understand under the Code of Civil
Procedure (for short “the Code”) and as is defined under the
provision of Rule 1, Order 6 of the Code consist only of a
plaint and a written statement. The respondent-plaintiff
could have filed a replication in respect to the plea raised in
the written statement, which if allowed by the court would
have become the part of the pleadings, but mere non-filing of
a replication does not and could not mean that there has
been admission of the facts pleaded in the written statement.
The specific objection in the form of denial was raised in the
affidavits filed in respect of the injunction applications which
were accepted on record by the trial court and moreover the
acceptance on record of the said affidavit was neither
challenged nor questioned by the present appellant.
14) The settled legal position emerging from the decisions
cited above is that a replication cannot be allowed routinely
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to traverse the written statement, nor can it be used as a
substitute for amending the plaint. No new cause of action
or inconsistent plea can be introduced through a replication.
However, if the Court is satisfied that a response from the
plaintiff is required to clarify or meet new facts pleaded in
the written statement for a full and fair adjudication of the
dispute, it may grant leave subject to appropriate conditions.
15) In light of the above legal position, this Court would
now examine the contentions raised by the petitioners. The
perusal of the order impugned reveals that respondent No.1
has been permitted to file replica in reply to Para 2 of the
preliminary objections raised in written statement, wherein
the petitioners have asserted that they are bona fide
purchasers in good faith. Respondent No. 1 has simply
explained in detail the lack of bona fides on the part of the
petitioners.
16) Further, in Para 3 of the preliminary objections of the
written statement, reference was made to the proceedings
before the Hoshiarpur Court, and in terms of replication,
respondent No. 1 has simply clarified the proceedings before
the Court at Hoshiarpur.
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17) Further, in Para 4 of the preliminary objections of the
written statement filed by the petitioners, it was stated by
them that the suit was time-barred, and in the replication,
respondent No. 1 has denied the same. Granting leave to
Respondent No. 1 to reply to Paragraph 4 of the preliminary
objections was unjustified, as leave to file a replication
cannot be granted merely to deny the pleas raised in the
written statement.
18) Further, in the averments made in Para 5 of the
preliminary objections, it was stated that respondent No.1
very cleverly filed the application for amendment of the suit
after twelve long years and, in fact, respondent No.1 has
changed the entire cause of action of the suit by seeking fake
and fictitious deletion of the defendants and also by inserting
new cause of action which was not permissible. Respondent
No.1 has categorically explained in the replication that the
cause of action has not been changed and the petitioners
have no right whatsoever to agitate their grievances against
the amendment once it has been allowed by the Court after
due consideration.
19) Further, in Para 6 of the preliminary objections of the
written statement, it was stated that the petitioners were
protected under law, especially by Section 41 of the Transfer
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of Property Act, which virtually protects the bona fide
purchaser. Respondent No. 1 was permitted to respond to
the same in the replication, wherein it was stated that
Section 41 was not applicable and there was complete failure
on the part of the petitioners and their predecessors to
exercise due diligence and care, as there was no consent of
original co-owner Radha Krishan Kutyala, the predecessor-
in-interest of respondent No. 1.
20) In Para 7(ii) of the para-wise reply of the written
statement, it was stated by the petitioners that respondent
No.1 and her predecessor-in-interest were to be presumed
as migrants. Respondent No.1 has responded to the same by
asserting that if the status of respondent No. 1 is assumed
as migrant, then the Jammu and Kashmir Migrant
Immovable Property (Preservation, Protection and Restraint
on Distress Sales) Act, 1997, was required to be followed
mandatorily for selling the migrant property. It is further
stated in the replication that the brazen dichotomy of the
stand of the petitioners is too conspicuous to ignore, which
is self-destructive, and the stand of the petitioners, that they
were bona fide purchasers, falls flat in the face of facts
emanating.
CM(M) No.283/2026 Page 13 of 15

21) Besides, in Para 7(iv) of the para-wise reply, it was
stated that defendant Nos.1 and 2 are in collusion with
respondent No.1, and defendant No.1 has been declared by
the Court as absconder. Respondent No. 1 in her replica has
denied that defendant No.1 had any familial relationship
with her, and it is stated that defendant No. 2 is her step-
cousin who got separated from the family in the year 1946
and is a black sheep who has been in litigation with the
predecessor-in-interest of respondent No.1 for the last 50
years.
22) This Court has taken note of the facts pleaded by the
petitioners in their written statement sought to be replied to
by respondent No.1, and this Court does not find that
respondent No.1 has set up an inconsistent case in her
replication. The trial court permitted the replication to meet
specific facts introduced by the petitioners rather than as a
mere traversal of the written statement, though leave ought
to have been restricted so as to exclude a response to the
plea of limitation.
23) It is not the case where the learned Trial Court has,
without assigning any reason and without considering the
pleas, sought to be replied to by respondent No. 1, has
permitted respondent No.1 to file replication. In fact, the
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learned Trial Court carefully examined the facts pleaded by
the petitioners in their written statement before granting
leave to Respondent No.1 to explain and clarify those
averments. Upon an objective appraisal of the impugned
order, this Court is of the view that, except for the leave
granted to Respondent No. 1 to respond to the plea of
limitation, the learned Trial Court has exercised its
jurisdiction strictly within the parameters of law. The mere
fact that Respondent No. 1 was permitted to address the
issue of limitation would not, by itself, justify setting aside
the impugned order in its entirety, particularly when it has
not resulted any mis-carriage of justice to the petitioners.
24) In view of the above, this Court is of the considered view
that the impugned order has not resulted in any miscarriage
of justice, nor has the learned Trial Court committed any
jurisdictional error warranting interference by this Court.
This petition is found to be without merit, dismissed.
(Rajnesh Oswal)
Judge
Srinagar,
30.10.2026
“Bhat Altaf-Secretary”
Whether the judgment is reportable: YES



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