Author: Gaurav Anand Gogia Symbiosis Law School, Pune
“5. Do you think the division of property in the Hindu Succession Act is still governed by our patriarchal society? Substantiate.”
The answer to the above question, the following issues are required to be taken into consideration.
Whether Judicial Orders to Civil Court are amenable to Writ Jurisdiction Under Article 226 of the Constitution of India?
Whether Jurisdiction Under Article 227 is distinct from the jurisdiction under article 226?
To deal with the above issues following two judgments of the Hon’ble Supreme Court of India are required to be taken into consideration.
Firstly, in the case of Surya Dev Rai V. Ram Chandra Rai AIR 2003 SC 3044. In said Judgment Hon’ble Apex Court held that parameters for exercise of Jurisdiction Under Article 226 & Under Article 227 of the Constitution cannot be tied down in a straight jacket formula of rigid rules. Further the Writ of Certiorari Under Article 226 of the Constitution can be issued by the Hon’ble High Court, while sub-ordinate courts is found to have (i) Withour Jurisdiction; (ii) acting in fragment disregard of court or (iii) access of its jurisdiction, etc. while Supervisional Jurisdiction Under Article 227 can be excercised for keeping the subordinate court within the bounds of their jurisdiction when subordinate courts have assumed a jurisdiction which it doesn’t have or have failed to exercise the jurisdiction which it does have or the jurisdiction though available is being excercised by the court in a manner not permitted by Law etc.
“37. 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 or 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 (ii) 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 abovesaid two jurisdictions issought 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 lid.
(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 annual or set aside the at, 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.”
That, above view of the bench if Two Judges of the Hon’ble Supreme Court is overruled by a larger bench if the Hon’ble Supreme Court consisting of Three Judges in the case of Radhey Shyam V. Chhabinath AIR 2015 SC 3269 to the extent that the order of the civil court is amenable to the Writ Jurisdiction Under Article 226 of the Constitution of India.
In the above judgment it is held by the Hon’ble Supreme Court that orders of Judicial force stood on different footings from the quasi-judicial or authorities or tribunals. Further, Hon’ble Apex Court has clearly laid down that Judicial Orders of Civil Court are not amenable to a Writ of Certiorari in the Supervision of 226.And, writ of mandamus does lie against private/person not discharging public duty & scope of Article 227 is different from Article 226. It is held that Writ of Certiorari can be prayed for to remove, adjudicate on validity of Judicial act do not cover orders of Civil Courts and orders of Civil Courts may be challenged Under Article 227 of the court or revision, by not Under Article 226 or Article 32of the Constitution. Petition seeking writ of Certiorari may lie against patently __________ orders of orders without jurisdiction Under Article 226 & Under Article 227 of the Constitution are quite different & distinct. Finally, court has answered the above both questions as under: –
“Judicial order of Civil Court are not amenable to Writ Jurisdiction Under Article 226 of the Constitution.
Jurisdiction Under Article 227 is distinct from jurisdiction Under Article 226. Contrary view of Surya Dev Rai is overruled.”
The relevant Para No. 11, 14, 15, 22, 23, 24, 25, 26 are reproduced hereunder:-
“11. It is necessary to clarify that expression “judicial acts” is not meant to refer to judicial orders of civil courts as the matter before this Court arose out of the order of Election Tribunal and no direct decision of this Court, except Surya Devi Rai, has been brought to our notice where writ of certiorari may have been issued against an order of a judicial court. In fact, when the question as to scope of jurisdiction arose in subsequent decisions, it was clarified that orders of judicial courts stood on different footing from the quasi judicial orders of authorities or Tribunals.
In Rupa Ashok Hurra (supra) it was held that final order of this Court cannot be challenged Under Article 32 as violative of fundamental right. Judgment of this Court in Triveniben v. State of Gujarat MANU/SC/0520/1989 : (1989) 1 SCC 678 was referred to with approval to the effect that a judicial order could not violate a fundamental right. It was observed:
In Triveniben v. State of Gujarat speaking for himself and other three learned Judges of the Constitution Bench, Oza, J., reiterating the same principle, observed: (SCC p. 697, para 22)It is well settled now that a judgment of court can never be challenged Under Articles 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to challenge as violating Article 14 or Article 21 as has been laid down by this Court in Naresh Shridhar Mirajkar v. State of Maharashtra and also in A.R. Antulay v. R.S. Nayak [MANU/SC/0002/1988 : 1988 (2) SCC 602], the only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court and that is what has consistently been held by this Court. But it will not be open to this Court in exercise of jurisdiction Under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper.
We consider it inappropriate to burden this judgment with discussion of the decisions in other cases taking the same view. Suffice it to mention that various Benches of this Court reiterated the same principle in the following cases: A.R. Antulay v. R.S. Nayak, Krishna Swami v. Union of India [MANU/SC/0222/1993 : 1992 (4) SCC 605], Mohd. Aslam v. Union of India [MANU/SC/0421/1996 : 1996 (2) SCC 749], Khoday Distilleries Ltd. v. Registrar General, Supreme Court of India [MANU/SC/1104/1996 : 1996 (3) SCC 114], Gurbachan Singh v. Union of India [MANU/SC/1105/1996 : 1996 (3) SCC 117], Babu Singh Bains v. Union of India [MANU/SC/0039/1997 : 1996 (6) SCC 565] and P. Ashokan v. Union of India [MANU/SC/0103/1998 : 1998 (3) SCC 56.
It is, however, true that in Supreme Court Bar Assn. v. Union of India [MANU/SC/0291/1998 : 1998 (4) SCC 409 a Constitution Bench and in M.S. Ahlawat v. State of Haryana [MANU/SC/0687/1999 : 2000 (1) SCC 278] a three-Judge Bench, and in other cases different Benches quashed the earlier judgments/orders of this Court in an application filed Under Article 32 of the Constitution. But in those cases no one joined issue with regard to the maintainability of the writ petition Under Article 32 of the Constitution. Therefore, those cases cannot be read as authority for the proposition that a writ of certiorari Under Article 32 would lie to challenge an earlier final judgment of this Court.
On the analysis of the ratio laid down in the aforementioned cases, we reaffirm our considered view that a final judgment/order passed by this Court cannot be assailed in an application Under Article 32 of the Constitution of India by an aggrieved person, whether he was a party to the case or not.
In fairness to the learned Counsel for the parties, we record that all of them at the close of the hearing of these cases conceded that the jurisdiction of this Court Under Article 32 of the Constitution cannot be invoked to challenge the validity of a final judgment/order passed by this Court after exhausting the remedy of review Under Article 137 of the Constitution read with Order XL Rule 1 of the Supreme Court Rules, 1966.
22. 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 Article 226 and 32.
The Bench in Surya Dev Rai also observed in para 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 Article 226 and 227 was obliterated was not correct as rightly observed by the referring Bench in Para 32 quoted above. We make it clear that though despite the curtailment of revisional jurisdiction Under Section 115 Code of Civil Procedure 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 and Anr. v. Amarnath and Anr. MANU/SC/0121/1954 : AIR 1954 SC 215 : 1954 SCR 565, Ouseph Mathai v. M. Abdul Khadir MANU/SC/0718/2001 : 2002 (1) SCC 319, Shalini Shyam Shetty v. Rajendra Shankar Patil MANU/SC/0508/2010 : 2010 (8) SCC 329 and Sameer Suresh Gupta v. Rahul Kumar Agarwal MANU/SC/0555/2013 : 2013 (9) SCC 374.
In Shalini Shyam Shetty, this Court observed:
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 various other cases where disputed questions of 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.
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.
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 and in view of the recent amendment to Section 115 of the Code of Civil Procedure by the Code of Civil Procedure (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 Code of Civil Procedure has been curtailed. In our view, even if the scope of Section 115 Code of Civil Procedure 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 law.
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.
23. 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 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.
We may also deal with the submission made on behalf of the Respondent that the view in Surya Dev Rai stands approved by larger Benches in Shail, Mahendra Saree Emporium and Salem Advocate Bar Assn and on that ground correctness of the said view cannot be gone into by this Bench. In Shail, though reference has been made to Surya Dev Rai, 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, reference to Surya Dev Rai 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 Bar Assn. in para 40, reference to Surya Dev Rai is for the same purpose. We are, thus, unable to accept the submission of learned Counsel for the Respondent.
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.
The matters may now be listed before the appropriate Bench for further orders.”
From the above it is evident that Writ Under Article 227 of the Constitution of India is amenable to the Judicial orders of the Civil Court can be challenged by way of Writ Under Article 227 or by way of appeal or revision Under Article 227 the Hon’ble High Court doesn’t possess Original Jurisdiction and have Supervisory Jurisdcition over the Subordinate Courts. Hence, in order to escape the hierarchy of the courts and address the important questions of law, a plaintiff prefers a Writ Petition to directly approach the Hon’ble High Court and Hon’ble Supreme Court instead of an appeal and preserves its crucial time and interests in the matter.