Civil Procedure Code

WRIT AGAINST JUDICIAL ORDERS: ARTICLE 226

In case of Radhey Shyam & Anr vs Chhabi Nath & Ors in Civil Appeal No. 2548 of 2009, after the reference by two-judge bench, the larger bench of Supreme Court held following:

25. 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.

Earlier, in case of Surya Dev Rai vs. Ram Chander Rai and others, Appeal (Civil) 6110 of 2003 following was held by the Supreme Court:

Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder: –

(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 above said 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.”

The two-judge bench of the Supreme Court in case of Radhey Shyam & Anr vs Chhabi Nath & Ors in Civil Appeal No. 2548 of 2009 referred to larger bench on following point:

  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. 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. 
  1. 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).”

In case of Naresh Shridhar Mirajkar and others vs. State of Maharashtra, on 3rd March, 1966, the Constitution Bench (9 judge) by majority held following:

“…………………. On these facts, the question which arises for our decision is whether a judicial order passed by the High Court prohibiting the publication in newspapers of evidence given by a witness pending the hearing of the suit, is amenable to be corrected by a writ of certiorari issued by this Court under Art. 32(2). This question has two broad facets; does the impugned order violate the fundamental rights of the petitioners under Art. 19(1)(a), (d) and (g); and if it does, is it amenable to the writ jurisdiction of this Court under Art. 32(2)? Thus, in the present proceedings, we will limit our discussion and decision to the points which have a material bearing on the broad problem posed by the petitions before us…………….

The power and jurisdiction of this Court is so narrow that nothing on the merits of a controversy of a civil case        can ever come up before it under Art. 32. It is unlikely that this Court will torture cases to fit them into Art. 32. A person may try but he will find this a Sisyphean task. It cannot be brought here by pleading breach of fundamental rights. It is only when a Judge directly acts in some collateral matter so as to cause a breach of a fundamental right that the ordinary process of appeals being unavailable or insufficient a case under Art. 32 can be made out.         If there is a decision in a civil proceeding, an appeal is the only appropriate remedy…………………

The High Court was competent to pass the impugned orders, but assuming that it exceeded its jurisdiction, the order does not infringe Art. 19 (1) (a). The High Court has jurisdiction to decide if it has jurisdiction to restrain the publication of any document or information relating to the trial of a pending suit or concerning which the suit is brought. If it erroneously assumes on this matter, a jurisdiction not vested in it by law, its decision may be set aside in appropriate proceedings, but the decision is not open to attack on the ground that it infringes the fundamental right under Art. 19 (1) (a)………” 

In Jacky Vs Tiny @ Antony and Ors, Civil Appeal No. 4453 of 2014, the Supreme Court held following:

“17. A petition under Article 226 or Article 227 of Constitution of India can neither be entertained to decide the landlord-tenant dispute nor it is maintainable against a private individual to determine an intense dispute including the question whether one party harassing the other party. The High Court under Article 227 has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them within the bounds of their authority but it was not the case of the 1st respondent that the order passed by the Munsiff Court was without any jurisdiction or was so exercised exceeding its jurisdiction. If a suit is not maintainable it was well within the jurisdiction of the High Court to decide the same in appropriate proceedings but in no case power under Articles 226 and 227 of Constitution of India can be exercised to question a plaint.”  

In one of the earliest case with regard to writ against decision of Election Tribunal, the Supreme Court in case of Hari Vishnu Kamath vs Syed Ahmad Ishaque And Others (decided on 9th December, 1954), following issue was framed:

“The first question that arises for decision in this appeal is whether High Courts have jurisdiction under article 226 to issue writs against decisions of Election Tribunals. That article confers on High Courts power to issue appropriate writs to any person or authority within their territorial jurisdiction, in terms absolute and unqualified, and Election Tribunals functioning within the territorial jurisdiction of the High Courts would fall within the sweep of that power. If we are to recognise or admit any limitation on this power, that must be founded on some provision in the Constitution itself. The contention of Mr. Pathak for the first respondent is that such a limitation has been imposed on that power by article 329(b), which is as follows:……..” 

It was answered in following manner in said case by the Supreme Court:

It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned Counsel on either side were unable to suggest any clear-cut rule by which, the boundary between the two classes of errors could be demarcated. Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, C. J. in Batuk K. Vyas v. Surat Municipality(3) that no error could be said to be apparent on the face of the record if it was not self-evident, and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases.”

It is now established law that Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution.

Rajni Sinha

Advocate High Court

Mobile No.:7738080174

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