Radhey Shyam & ANR.
Vs. Chhabi Nath & Ors.  INSC 753 (15 April 2009)
JURISDICTION CIVIL APPEAL NO. 2548 OF 2009 (@ SPECIAL LEAVE PETITION (CIVIL)
NO. 6323 OF 2008) Radhey Shyam & Another .....Appellant(s) - Versus -
Chhabi Nath & Others ....Respondent(s)
1. The subject matter
of challenge in this appeal is an order dated 12.10.2007 passed by a learned
Single Judge of Allahabad High Court, whereby the learned Judge interfered in a
writ petition with the proceedings which were pending before a Civil Court.
1. From a perusal of
the record, it appears that the appellants on 16.5.2005 filed a Civil Suit
being No. 462 of 2005 in the Court of learned Civil Judge (Junior Division)
Jaunpur, for injunction restraining the defendants from interfering with the
possession of the disputed land. In that suit, an application seeking temporary
injunction (numbered 6C) was also filed. It appears that initially the trial
court issued notices to the defendants but did not grant any ad interim ex
1. Being aggrieved
thereby, the appellants filed a civil revision being C.R. No.246 of 2005 before
the District Judge, Jaunpur and that was admitted by the learned District Judge
and an order of maintenance of status quo was passed till the disposal of the
application for temporary injunction - (Application No.
6-C). It was also
observed by the District Judge that after the plaintiff's suit is decided, the
revision petition would become infructuous.
1. Against the said
order, the defendants- respondents filed a writ petition before the High Court
(Writ Petition No. 4215 of 2005) and the same was dismissed by the High Court.
It appears that the said application for temporary injunction No. 6-C was
renumbered as No.58-C. Thereafter, by an order dated 9.11.2005, interim
application for injunction- 6-C/58-C was allowed on merits by the learned
Single Judge, Jaunpur. Being aggrieved thereby, the defendants- respondents
filed Misc. Civil Appeal being No. 198 of 2005 before the learned Addl.
District Judge, Jaunpur.
The said civil appeal
was heard by the learned Addl. District Judge, Jaunpur and the same was allowed
and the order dated 9.11.2005 was set aside and the matter was remanded to the
trial court with a direction to re- hear the said application No.6-C. It was
further directed that the parties were to appear before the trial court on
25.11.2006 and the trial court was directed to dispose of the application
without granting unnecessary adjournments. On 5.2.2007, the trial court was
however pleased to dismiss the application No. 58-C as according to the trial
court, the order dated 9.11.2005 passed by the Civil Judge, Jaunpur became infructuous
by the effect of the order dated 4.11.2006 passed by the Addl. District Judge,
Jaunpur in Civil Misc. Appeal No. 198 of 2005. Against the said order of the
trial court i.e. 5.2.2007, the appellants preferred a revision before the Addl.
District Judge, Jaunpur and it was numbered as Civil Revision No. 39 of 2007,
which was allowed by an order dated 5.9.2007.
Against the said
order dated 5.9.2007, the respondents filed a writ petition, in which the
impugned order was passed which is challenged before this court in this appeal.
1. In the impugned
order, the Hon'ble High Court after noting the earlier stages of the
proceedings held that the revision court committed an error in remanding the
matter to the trial court for disposal of the application No. 58-Ga, when in
fact the said application became infructuous. By saying so, the High Court
allowed the writ petition and held that the impugned order of the District
Jugge cannot be sustained.
1. One of the grounds
raised in this appeal before this court is, whether the High Court in exercise
of its extraordinary writ jurisdiction can interfere with a judicial order
passed by a civil court of competent jurisdiction.
1. From the aforesaid
narration of events, it is clear that the proceedings in this case arose out of
purely civil disputes relating to property and the parties have filed suits
before the Civil Court, and the suits are pending. The parties to the
proceedings are all private individuals. Neither the State nor a `State' nor an
authority under Article 12 is a party to this proceeding. This is clear from
the cause title of this appeal.
1. Now the question
is, whether private individuals are amenable to the jurisdiction of writ court
in connection with the private disputes relating to property, possession and
title between private individuals.
1. As early as in
1957, a Constitution Bench of India and Another - AIR 1957 SC 529 - held that a
writ of mandamus or an order in the nature of mandamus is not to be made
against a private individual. A writ of and/or in the nature of Mandamus
normally is issued asking a person to do a particular thing which is in the
nature of his public duty. In Sohan Lal (supra) rival claims of property were
in issue and the learned Judges held in paragraph 5 that the writ court should
refrain themselves from entering the said field. Since in view of the court
such an exercise calls for "entering into a field of investigation which
is more appropriate for a Civil Court in a properly constituted suit to do
rather than for a Court exercising the prerogative of issuing writs" (see
para 5, page 531).
The learned Judges
held that if only it can be proved that the appellant-Sohan Lal acted in
collusion with Union of India in evicting the respondent-Jagan Nath, then an
order of mandamus can be issued (see para 7), but it will not issue otherwise.
1. Only in the case
of a writ of Habeas Corpus, it can be issued against private individual, if it
is proved that the private individual is illegally holding another person in
detention (see Mohd. Ikram Hussain 1625)
1. Following the
aforesaid principle, this Court fails to understand how can the writ court
intervene in a dispute over property rights between private individuals. Apart
from the decision in the case of Sohan Lal (supra), subsequently in the case of
three-Judge Bench of
this Court explaining the general principle relating to High Court's
jurisdiction under Article 226 held that the jurisdiction of the High Court is
extraordinary in nature and is vested in the High Court not for the purpose of
declaring the private rights of the parties but it is conferred for the purpose
of ensuring that the law of the land is implicitly obeyed and that the various
tribunals and public authorities are kept within the limits of the jurisdiction
(see para 5). The learned Judges reiterated the principle further by saying:-
"...In a proceeding under Article 226 the High Court is not concerned
merely with the determination of the private rights of the parties; the only
object of such a proceeding under Article 226 is to ensure that the law of the
land is implicitly obeyed and that various authorities and tribunals act within
the limits of their respective jurisdiction."
1. The learned Judges
in Hanif (supra) referred 1955 (1) SCR 250 - and held that "it is obvious
that the remedy provided under Article 226 is a remedy against the violation of
the rights of a citizen by the State or statutory authority. In other words, it
is a remedy in public law." This principle holds good till today.
1. Subsequently also
in Hindustan Steel Limited, (1) SCC 273 - this Court relying on the ratio in
Sohan Lal (supra) held that since serious questions as to the validity of the
respondent's title was raised and dispute is on the possession of land and as
the respondent failed to produce any clear, conclusive and unimpeachable
documentary evidence, the matter cannot be dealt with by a writ court.
Referring to Sohan Lal (supra) in paragraph 16, the learned Judges held :-
"...proceedings by way of a writ were not appropriate in a case where the
decision of the court would amount to a decree declaring a party's title and
ordering restoration of possession. This Court further held that the proper
remedy in such a case is by way of a title suit in a civil court and the
alternative remedy of obtaining relief by a writ of mandamus or an order in the
nature of mandamus could only be had if the facts were not in dispute and the
title of the property in dispute was clear."
1. Similarly, in the
case of State of Rajasthan that the writ petition is not the appropriate remedy
in order to give a declaration of a person's title to property, the Court made
it very clear that disputed questions of title cannot be satisfactorily
adjudicated in a writ petition (para 7, page 1020 of the report).
1. Same caution was
sounded in a subsequent Rajgaria - AIR 1993 SC 1225 - wherein the learned Judges
held that regular suit is the appropriate remedy for settlement of disputes
relating to property rights between private persons. Remedy under Article 226
of the Constitution is not available except where violation of some statutory
duty on the part of a statutory authority is complained of. The Court made it
very clear by making the following observations:- "The High Court cannot
allow the constitutional jurisdiction to be used for deciding disputes, for
which remedies, under the general law, civil or criminal, are available. It is
not intended to replace the ordinary remedies by way of a suit or application
available to a litigant. The jurisdiction is special and extra-ordinary and
should not be exercised casually or lightly."
1. Relying on the
ratio in the case of Mohan Pandey (supra), this Court again in Prasanna Kumar
Roy SCC 403 - held that in a dispute between the landlord and tenant, a tenant
cannot be evicted from the premises by a writ court on the basis of an order
under Section 144 Cr.P.C. This Court, therefore, deprecated the practice of
writ court intervening in private disputes.
1. Rather, recently
in P.R. Murlidharan and - 2006 (4) SCC 501 - Justice P.K. Balasubramanyan (as
His Lordship then was) in a concurring but a separate opinion held that it
would be an abuse of the process for the petitioner to approach the writ court
seeking for a writ of mandamus directing the police authorities to protect his
property without first establishing his possession in an appropriate civil
court. The learned Judge made very pertinent observations by saying that:-
"...The temptation to grant relief in cases of this nature should be
resisted by the High Court. The wide jurisdiction under Article 226 of the
Constitution would remain effective and meaningful only when it is exercised
prudently and in appropriate situations."
Ram Chander Rai and
others - 2003 (6) SCC 675 - a two- Judge Bench of this Court held, possibly for
the first time the "orders and proceedings of a judicial court subordinate
to the High Court are amenable to the writ jurisdiction of the High Court under
Article 226 of the Constitution (para 19, page 688 of the report). The
attention of the Court was not drawn to the earlier Constitution Bench judgment
in Sohan Lal (supra) or the three-Judge Bench judgment in Hanif (supra). Both
these judgments are still holding the field.
20. Before coming to
the aforesaid conclusion, the learned judges in Surya Dev Rai (supra) noticed
the contrary view expressed in a Nine-Judge Constitution Bench judgment of this
Court in the case of Naresh AIR 1967 SC 1 (V 54 C 1).
In Mirajkar(supra) a
nine-Judge Constitution Bench considered the history of writ of Certiorari and
after considering various English and Indian decisions came to the conclusion
"Certiorari does not lie to quash the judgments of inferior Courts of
civil jurisdiction." (See paragraph 63 page 18 of the Report). The learned
judges in saying so followed the law relating to Certiorari as prevalent in
England and held that in England the judicial orders passed by civil Courts of
plenary jurisdiction in relation to matters brought before them are not
amenable to the jurisdiction of Certiorari.
21. The learned
judges in Surya Dev Rai (supra), however, opined that the judges never held in
Mirajkar (supra) that the law relating to Certiorari in England was accepted by
Supreme Court. But this observation in Surya Dev Rai (supra) appears to have
been made without properly considering the concurring and a separate opinion
given by Justice Sarkar in Mirajkar (supra) wherein His Lordship clearly held
"As certiorari is a technical word of English law and had its origin in
that law, for determining its scope and contents we have necessarily to resort
to English law." (See Para 82 page 23).
22. In our view the
appreciation of the ratio in Mirajkar (supra) by learned judges, in Surya Dev
Rai (supra), with great respect, was possibly a little erroneous and with that
we cannot agree.
23. The two-Judge
Bench in Surya Dev Rai (supra), did not, as obviously it could not, overrule
the ratio in Mirjakar (supra), a Constitution Bench decision of a nine-Judge
Bench. But the learned Judges justified their different view in Surya Dev Rai
(supra), inter alia on the ground that law relating to Certiorari changed both
in England and in India. In support of that opinion, the learned Judges held
that the statement of law in Halsbury, on which the ratio in Mirajkar (supra)
is based, has been changed and in support of that quoted the paragraphs 103 and
109 from Halsbury's Laws of England, 4th Edn. (Reissue), Vol. 1 (1). Those
paragraphs are set out below:- "103. Historically, prohibition was a writ
whereby the royal courts of common law prohibited other courts from
entertaining matters falling within the exclusive jurisdiction of the common
certiorari was issued
to bring the record of an inferior court into the King's Bench for review or to
remove indictments for trial in that court; mandamus was directed to inferior
courts and tribunals, and to public officers and bodies, to order the
performance of a public duty. All three were called prerogative writs;
* * * 109. Certiorari
lies to bring decisions of an inferior court, tribunal, public authority or any
other body of persons before the High Court for review so that the Court may
determine whether they should be quashed, or to quash such decisions. The order
of prohibition is an order issuing out of the High Court and directed to an
inferior court or tribunal or public authority which forbids that court or
tribunal or authority to act in excess of its jurisdiction or contrary to law.
Both certiorari and
prohibition are employed for the control of inferior courts, tribunals and
24. The aforesaid
paragraphs are based on general principles which are older than the time when
Mirajkar (supra) was decided are still good. Those principles nowhere indicate
that judgments of an inferior civil court of plenary jurisdiction are amenable
to correction by a writ of certiorari. In any event, change of law in England
cannot dilute the binding nature of the ratio in Mirjakar (supra) and which has
not been overruled and is holding the field for decades. It is clear from the
law laid down in Mirajkar (supra) in paragraph 63 that a distinction has been
made between judicial orders of inferior courts of civil jurisdiction and
orders of inferior tribunals or court which are not civil courts and which
cannot pass judicial orders. Therefore, judicial orders passed by civil courts
of plenary jurisdiction stand on a different footing in view of the law
pronounced in para 63 in Mirajkar (supra). The passage in the subsequent
edition of Halsbury (4th Edition) which has been quoted in Surya Dev Rai
(supra) does not at all show that there has been any change in law on the
points in issue pointed out above.
25. Learned judges in
Surya Dev Rai (supra) stated in paragraph 18, page 687 of the report that
decision rendered in Mirajkar (supra) was considered by the and another -
(2002) 4 SCC 388 - and wherein the learned judges took a different view and in
support of that, the following paragraph from Rupa Ashok Hurra (supra) has been
quoted: "(i) that it is a well-settled principle that the technicalities
associated with the prerogative writs in English law have no role to play under
our constitutional scheme; (ii) that a writ of certiorari to call for records
and examine the same for passing appropriate orders, is issued by a superior
court to an inferior court which certifies its records for examination; and
(iii) that a High Court cannot issue a writ to another High Court, nor can one
Bench of a High Court issue a writ to a different Bench of the High Court; much
less can the writ jurisdiction of a High Court be invoked to seek issuance of a
writ of certiorari to the Supreme Court. The High Courts are not constituted as
inferior courts in our constitutional scheme."
26. We are
constrained to point out again that in Rupa Ashok Hurra (supra) the
Constitution Bench did not take any view which is contrary to the views
expressed in Mirajkar (supra). On the other hand, the ratio in Mirajkar (supra)
was referred to with respect and was relied on in Rupa Ashok Hurra (supra). Mirajkar
(supra) was referred to in paragraph 8 page 399 and again in paragraph 11 in
page 402 and again in paragraph 59 page 418 and also in paragraph 60 page 419
of Rupa Ashok Hurra (supra). Nowhere even any whisper of a divergence from the
ratio in Mirajkar (supra) was expressed. Rather passages from Mirajkar (supra)
have been quoted with approval.
27. In fact the
question which was referred to the Constitution Bench in Rupa Ashok Hurra
(supra) is quoted in paragraph 1 of the judgment and it is clear from the
perusal of the said paragraph that the question for consideration in Rupa Ashok
Hurra (supra) was totally different.
28. Therefore, this
Court unfortunately is in disagreement with the view which has been expressed
in Surya Dev Rai (supra) in so far as correction of or any interference with
judicial orders of Civil Court by a writ of certiorari is concerned.
28. Under Article 227
of the Constitution, the High Court does not issue a writ of certiorari.
Article 227 of the Constitution vests the High Courts with a power of
superintendence which is to be very sparingly exercised to keep tribunals and
Courts within the bounds of their authority. Under Article 227, orders of both
Civil and Criminal Courts can be examined only in very exceptional cases when
manifest miscarriage of justice has been occasioned. Such power,however, is not
to be exercised to correct a mistake of fact and of law.The essential
distinctions in the exercise of power between Article 226 and 227 are well
known and pointed out in Surya Dev Rai (supra) and with that we have no
30. But we are unable
to agree with the legal proposition laid down in Surya Dev Rai (supra) that
judicial orders passed by a Civil Court can be examined and then
corrected/reversed by the writ Court under Article 226 in exercise of its power
under a writ of certiorari.
31. We are of the
view that the aforesaid proposition laid down in Surya Dev Rai (supra), is
contrary to the ratio in Mirajkar (supra) and the ratio in Mirajkar(supra) has
not been overruled in Rupa Ashok Hurra(supra).
32. In view of our
difference of opinion with the views expressed in Surya Dev Rai (supra), matter
may be placed before His Lordship the Hon'ble the Chief Justice of India for
constituting a Larger Bench, to consider the correctness or otherwise of the
law laid down in Surya Dev Rai (supra) on the question discussed above.
(Dr. ARIJIT PASAYAT)