Patna High Court
Md. Mashuk And Anr vs Srimati Sima Devi And Ors on 31 August, 2024
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.16631 of 2015
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1. Md. Mashuk Son of Late Sehikh Domi
2. Md. Israil son of late Sheikh Domi.
Both resident of Village- Serbela Po Serbela P.S Salkhua District Saharsa.
... ... Petitioner/s
Versus
1. Srimati Sima Devi and Ors wife of Sri Indradeo Paswan, resident of Village-
Afjaipur Mundichak, po Afjalpur P.s Salkhua, District Saharsa.
2. Bibi Asha Khatun d/o late Anwar @ Daso at present resident of Simri Tola
Baluapar Ps. Bakhtiyarpur District Saharsa.
3. Bibi Sasrun khatoon d/o late Anwar@Daso resident of Village- Serbela Po
Serbela p.s Salkhua District Saharsa.
4. Bibi Roksana Khatun wife of Jamil Uddin resident of Village- Serbela Po
Serbela p.s Salkhua District Saharsa.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Amarnath Jha, Advocate
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
ORAL JUDGMENT
Date : 31-08-2024
The present writ petition has been filed seeking the following
relief :-
“1) For issuance of an appropriate writ in the nature of
certiorari for setting aside the order dated 28.09.2015
passed by the learned sub-Judge-V, Saharsa in
T.S.No.129/12 rejecting the petition dated 30.3.15 filed
by the petitioners under Order-6,Rule-17 of the C.P.C.
for amendment in the plaint.
ii) For stay of the proceeding of T.S.No.129/12 pending
before the learned Sub -Judge-V, Saharsa till the
disposal of the present writ application.”
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2. The learned counsel for the parties have pointed out, at
the outset, that earlier writ petitions were being filed against the
interlocutory orders (such orders which have not finally decided
the suits or proceedings in favour of the parties and the suits or
such proceedings have not stood disposed off), in view of the
law laid down by the learned Division Bench of this Court in a
judgment dated 13.05.2010, passed in C.R. no. 1067 of 2009
(Durga Devi v. Vijay Kumar Poddar & Ors.), however,
subsequently, the Hon’ble Apex Court, by a judgment rendered
in the case of Radhey Shyam and Another v. Chhabi Nath and
Others, reported in (2015) 5 SCC 423, has held that judicial
orders of the Civil Court are not amenable to writ jurisdiction
under Article 226 of the Constitution of India and the
jurisdiction under Article 227 of the Constitution of India is
distinct from the jurisdiction under Article 226 of the
Constitution of India. It would be relevant to reproduce
paragraphs no. 18 and 25 to 30 of the said judgment rendered in
the case of Radhey Shyam and Another (supra) hereinbelow :-
“18. While the above judgments dealt with the question
whether judicial order could violate a fundamental right,
it was clearly laid down that challenge to judicial orders
could lie by way of appeal or revision or under Article
227 and not by way of a writ under Articles 226 and 32.
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25. It is true that this Court has laid down that
technicalities associated with the prerogative writs in
England have no role to play under our constitutional
scheme. There is no parallel system of King’s Court in
India and of all the other courts having limited
jurisdiction subject to the supervision of the King’s
Court. Courts are set up under the Constitution or the
laws. All the courts in the jurisdiction of a High Court
are subordinate to it and subject to its control and
supervision under Article 227. Writ jurisdiction is
constitutionally conferred on all the High Courts. Broad
principles of writ jurisdiction followed in England are
applicable to India and a writ of certiorari lies against
patently erroneous or without jurisdiction orders of
tribunals or authorities or courts other than judicial
courts. There are no precedents in India for the High
Courts to issue writs to the subordinate courts. Control
of working of the subordinate courts in dealing with their
judicial orders is exercised by way of appellate or
revisional powers or power of superintendence under
Article 227. Orders of the civil court stand on different
footing from the orders of authorities or tribunals or
courts other than judicial/civil courts. While appellate or
revisional jurisdiction is regulated by the statutes, power
of superintendence under Article 227 is constitutional.
The expression “inferior court” is not referable to the
judicial courts, as rightly observed in the referring order
[Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616] in
paras 26 and 27 quoted above.
26. The Bench in Surya Dev Rai [Surya Dev Rai v. Ram
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25 of its judgment that distinction between Articles 226
and 227 stood almost obliterated. In para 24 of the said
judgment distinction in the two articles has been noted.
In view thereof, observation that scope of Articles 226
and 227 was obliterated was not correct as rightly
observed [Radhey Shyam v. Chhabi Nath, (2009) 5 SCC
616] by the referring Bench in para 32 quoted above. We
make it clear that though despite the curtailment of
revisional jurisdiction under Section 115 CPC by Act 46
of 1999, jurisdiction of the High Court under Article 227
remains unaffected, it has been wrongly assumed in
certain quarters that the said jurisdiction has been
expanded. Scope of Article 227 has been explained in
several decisions including Waryam Singh v. Amarnath
[AIR 1954 SC 215 : 1954 SCR 565] , Ouseph Mathai v.
M. Abdul Khadir [(2002) 1 SCC 319] , Shalini Shyam
Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329 :
(2010) 3 SCC (Civ) 338] and Sameer Suresh Gupta v.
Rahul Kumar Agarwal [(2013) 9 SCC 374 : (2013) 4
SCC (Civ) 345] . In Shalini Shyam Shetty [(2010) 8 SCC
329 : (2010) 3 SCC (Civ) 338] this Court observed:
(SCC p. 352, paras 64-67)
“64. However, this Court unfortunately discerns
that of late there is a growing trend amongst
several High Courts to entertain writ petition in
cases of pure property disputes. Disputes relating
to partition suits, matters relating to execution of
a decree, in cases of dispute between landlord and
tenant and also in a case of money decree and in
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property are involved, writ courts are entertaining
such disputes. In some cases the High Courts, in a
routine manner, entertain petitions under Article
227 over such disputes and such petitions are
treated as writ petitions.
65. We would like to make it clear that in view of
the law referred to above in cases of property
rights and in disputes between private individuals
writ court should not interfere unless there is any
infraction of statute or it can be shown that a
private individual is acting in collusion with a
statutory authority.
66. We may also observe that in some High Courts
there is a tendency of entertaining petitions under
Article 227 of the Constitution by terming them as
writ petitions. This is sought to be justified on an
erroneous appreciation of the ratio in Surya Dev
[Surya Dev Rai v. Ram Chander Rai, (2003) 6
SCC 675] and in view of the recent amendment to
Section 115 of the Civil Procedure Code by the
Civil Procedure Code (Amendment) Act, 1999. It
is urged that as a result of the amendment, scope
of Section 115 CPC has been curtailed. In our
view, even if the scope of Section 115 CPC is
curtailed that has not resulted in expanding the
High Court’s power of superintendence. It is too
well known to be reiterated that in exercising its
jurisdiction, High Court must follow the regime of
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67. As a result of frequent interference by the
Hon’ble High Court either under Article 226 or
227 of the Constitution with pending civil and at
times criminal cases, the disposal of cases by the
civil and criminal courts gets further impeded and
thus causing serious problems in the
administration of justice. This Court hopes and
trusts that in exercising its power either under
Article 226 or 227, the Hon’ble High Court will
follow the time-honoured principles discussed
above. Those principles have been formulated by
this Court for ends of justice and the High Courts
as the highest courts of justice within their
jurisdiction will adhere to them strictly.”
(emphasis supplied)
27. Thus, we are of the view that judicial orders of civil
courts are not amenable to a writ of certiorari under
Article 226. We are also in agreement with the view
[Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616] of
the referring Bench that a writ of mandamus does not lie
against a private person not discharging any public duty.
Scope of Article 227 is different from Article 226.
28. We may also deal with the submission made on
behalf of the respondent that the view in Surya Dev Rai
[Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675]
stands approved by larger Benches in Shail [Shail v.
Manoj Kumar, (2004) 4 SCC 785 : 2004 SCC (Cri)
1401] , Mahendra Saree Emporium (2) [Mahendra
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Saree Emporium (2) v. G.V. Srinivasa Murthy, (2005) 1
SCC 481] and Salem Advocate Bar Assn. (2) [Salem
Advocate Bar Assn. (2) v. Union of India, (2005) 6 SCC
344] and on that ground correctness of the said view
cannot be gone into by this Bench. In Shail [Shail v.
Manoj Kumar, (2004) 4 SCC 785 : 2004 SCC (Cri)
1401], though reference has been made to Surya Dev
Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC
675] , the same is only for the purpose of scope of power
under Article 227 as is clear from para 3 of the said
judgment. There is no discussion on the issue of
maintainability of a petition under Article 226. In
Mahendra Saree Emporium (2) [Mahendra Saree
Emporium (2) v. G.V. Srinivasa Murthy, (2005) 1 SCC
481] , reference to Surya Dev Rai [Surya Dev Rai v.
Ram Chander Rai, (2003) 6 SCC 675] is made in para 9
of the judgment only for the proposition that no
subordinate legislation can whittle down the jurisdiction
conferred by the Constitution. Similarly, in Salem
Advocate Bar Assn. (2) [Salem Advocate Bar Assn. (2) v.
Union of India, (2005) 6 SCC 344] in para 40, reference
to Surya Dev Rai [Surya Dev Rai v. Ram Chander Rai,
(2003) 6 SCC 675] is for the same purpose. We are,
thus, unable to accept the submission of the learned
counsel for the respondent.
29. Accordingly, we answer the question referred as
follows:
29.1. Judicial orders of the civil court are not
amenable to writ jurisdiction under Article 226 of
the Constitution.
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29.2. Jurisdiction under Article 227 is distinct
from jurisdiction under Article 226.
29.3. Contrary view in Surya Dev Rai [Surya Dev
Rai v. Ram Chander Rai, (2003) 6 SCC 675] is
overruled.
30. The matters may now be listed before the
appropriate Bench for further orders.”
3. It is further submitted that in view of the law laid
down by the Hon’ble Apex Court in the case of Radhey Shyam
and Another (supra), The Rules of The High Court at Patna
have also been amended and vide Rule 6 of Chapter IIIA, it has
been stipulated as follows :-
“(6) Petitions under Article-227 of the Constitution of
India in respect of any order or any proceeding before
any Civil Court, would be filed in Civil Miscellaneous
Jurisdiction and would be numbered as Civil
Miscellaneous no. (C. Misc. No.).”
4. The learned counsel for the petitioners submits that
considering the aforesaid aspect of the matter, four weeks’ time
be granted for converting the present writ petition into a Civil
Miscellaneous Petition. Time so sought, is granted.
5. The registry is directed to extend its cooperation to the
learned counsel for the petitioners in order to ensure that the
present writ petition is converted into Civil Miscellaneous
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Petition at the earliest, whereafter, the registry shall list the
present case on priority basis, before the concerned Bench, in
seisin of the subject matter of the present case, in view of the
fact that the present case is pending since more than eight years.
(Mohit Kumar Shah, J)
kanchan/-
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