IN THE SUPREME COURT OF INDIA CIVIL APPELLATE 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)

J U D G M E N T

GANGULY, J.

1. Leave granted.

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.   

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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 parte injunction.   

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.   

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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

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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.   

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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.   

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1. As early as in 1957, a Constitution Bench of

this Court in the case of Shri Sohan Lal Vs. Union 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.    

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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 Vs. The State of Uttar Pradesh and others – AIR 1964 SC 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  Mohd. Hanif Vs.  The State of Assam – 1969 (2) SCC 782 – a 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

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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 to the decision of this Court in Basappa Vs. Nagappa – 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, Rourkela Vs.  Smt. Kalyani Banerjee and Others – 1973 (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 8

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 Vs. Bhawani Singh – AIR 1992 SC 1018 – this Court held 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

decision of the case of  Mohan Pandey Vs.  Usha Rani Rajgaria –  AIR  1993  SC  1225  –  wherein  the  learned

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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 Karmakar Vs. State of West Bengal and others – 1996 (3) 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.   

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1. Rather,  recently  in  P.R.  Murlidharan  and others Vs. Swami Dharmananda Theertha Padar and others – 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.”

1. It is only in the case of Surya Dev Rai Vs. 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 11

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 Shridhar Mirajkar and others Vs. State of Maharashtra – 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.   

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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 13

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  writwhereby  the  royal  courts  of  common  lawprohibited  other  courts  from  entertainingmatters  falling  within  the  exclusivejurisdiction  of  the  common  law  courts;certiorari was issued to bring the record ofan inferior court into the King’s Bench forreview or to remove indictments for trial inthat court; mandamus was directed to inferiorcourts and tribunals, and to public officersand  bodies,  to  order  the  performance  of  apublic duty. All three were called prerogativewrits; * * *

109. Certiorari lies to bring decisions of aninferior court, tribunal, public authority orany  other  body  of  persons  before  the  HighCourt  for  review  so  that  the  Court  maydetermine whether they should be quashed, orto  quash  such  decisions.  The  order  ofprohibition  is  an  order  issuing  out  of  theHigh Court and directed to an inferior courtor tribunal or public authority which forbidsthat court or tribunal or authority to act inexcess of its jurisdiction or contrary to law.Both certiorari and prohibition are employedfor the control of inferior courts, tribunalsand public authorities.”

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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.  

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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 Constitution Bench in Rupa Ashok Hurra Vs. Ashok Hurra 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.”   

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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 17

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 disagreement.

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

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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.

.......................J. (Dr. ARIJIT PASAYAT)

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.......................J. New Delhi (ASOK KUMAR GANGULY) April 15  , 2009

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