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CASE NO.: Appeal (civil)  6110 of 2003

PETITIONER: Surya Dev Rai                                                 

RESPONDENT: Ram Chander Rai & Ors.                           

DATE OF JUDGMENT: 07/08/2003

BENCH: R.C. Lahoti & Ashok Bhan.

JUDGMENT:

J U D G M E N T

[@ S.L.P. (c) NO.12492 of 2002]

R.C. Lahoti, J.

       Leave granted.

       The appellant filed a suit, for issuance of permanent preventive  injunction based on his title and possession over the suit property  which is a piece of agricultural land, in the Court of Civil Judge.  He  also sought for relief by way of ad interim injunction under Order  XXXIX Rules 1 and 2 of the C.P.C.  The prayer was rejected by the trial  court as also by the appellate court.  Feeling aggrieved thereby the  appellant filed a petition (C.M.W.P.No.20038 of 2002) in the High  Court labeling it as one under Article 226 of the Constitution.  The High  Court has summarily dismissed the petition forming an opinion that  the petition was not maintainable as the appellant was seeking interim  injunction against private respondents.  Reference is made in the  impugned order to a Full Bench decision of Allahabad High Court in  Ganga Saran Vs. Civil Judge, Hapur, Ghaziabad & Ors. (1991)  Allahabad Law Journal 159. Earlier the remedy of final civil revision  under Section 115 of the C.P.C. could have been availed of by the  appellant herein but that remedy is not available to the appellant  because of the amendment made in Section 115 of the C.P.C. by  Amendment Act 46 of 1999 w.e.f. 01.07.2002.                   This appeal raises a question of frequent occurrence before the  High Courts as to what is the impact of the amendment in Section 115  of the C.P.C. brought in by Act 46 of 1999 w.e.f. 01.07.2002, on the  power and jurisdiction of the High Court to entertain petitions seeking  a writ of certiorari under Article 226 of the Constitution or invoking the  power of superintendence under Article 227 of the Constitution as  against similar orders, acts or proceedings of the courts   subordinate    to the High Courts, against which earlier the remedy of filing civil  revision under Section 115 of the C.P.C. was available to the person  aggrieved.   Is an aggrieved person completely deprived of the remedy  of judicial review, if he has lost at the hands of the original court and  the appellate court though a case of gross failure of justice having  been occasioned, can  be made out?           Section 115 of the Code of Civil Procedure as amended  does  not now permit a revision petition being filed against an order  disposing of an appeal against the order of the trial court whether  confirming, reversing or modifying the order of injunction granted by

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the trial court.  The reason is that the order of the High Court passed  either way would not have the effect of finally disposing of the suit or  other proceedings.  The exercise of revisional jurisdiction in such a  case is taken away by the proviso inserted under sub-section (1) of  Section 115 of the CPC.  The amendment is based on the Malimath  Committee’s recommendations.  The Committee was of the opinion  that the expression employed in Section 115 CPC, which enables  interference in revision on the ground that the order if allowed to  stand would occasion a failure of justice or cause irreparable injury to  the party against whom it was made, left open wide scope for the  exercise of the revisional power with all types of interlocutory orders  and this was substantially contributing towards delay in the disposal of  cases.  The Committee did not favour denuding the High Court of the  power of revision but strongly felt that the power should be  suitably  curtailed.  The effect of the erstwhile clause (b) of the proviso, being  deleted and a new proviso having been inserted, is that the revisional  jurisdiction, in respect of an interlocutory order passed in a trial or  other proceedings, is substantially curtailed.  A revisional jurisdiction   cannot be exercised unless the requirement of the proviso is satisfied.

       As a preclude to search for answer to the question posed it  becomes necessary to recollect and restate a few well-established  principles relating to the Constitutional jurisdiction conferred on the  High Court under Articles 226 and 227 of the Constitution in the  backdrop of the amended Section 115 of the C.P.C.   

Writ of Certiorari  

       According to Corpus Juris Secundum (Vol.14, page 121)  certiorari is a writ issued from a superior court to an inferior court or  tribunal commanding the latter to send up the record of a particular  case.             H.W.R. Wade & C.F. Forsyth define certiorari in these words :-                 "Certiorari is used to bring up into the  High Court the decision of some inferior  tribunal or authority in order that it may be  investigated.  If the decision does not pass  the test, it is quashed â\200\223 that is to say, it is  declared completely invalid, so that no one  need respect it.                  The underlying policy is that all  inferior courts and authorities have only  limited jurisdiction or powers and must be  kept within their legal bounds.  This is the  concern of the Crown, for the sake of orderly  administration of justice, but it is a private  complaint which sets the Crown in motion."  (Administrative Law, Eighth Edition, page  591).

                        The learned authors go on to add that problem arose on  exercising control over justices of the peace, both in their judicial and  their administrative functions as also the problem of controlling  the  special statutory body which was addressed to by the Court of King’s  Bench.  "The most useful instruments which the Court found ready to  hand were the prerogative writs.  But not unnaturally the control  exercised was strictly legal, and no longer political.  Certiorari would  issue to call up  the records of justices of the peace and commissioners  for examination in the King’s Bench and for quashing if any legal  defect was found.  At first there was much quashing for defects of  form on the record, i.e. for error on the face.  Later, as the doctrine of

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ultra vires developed, that became the dominant principle of control"  (page 592).                  The nature and scope of the writ of certiorari and when can it  issue was beautifully set out in a concise passage, quoted hereafter,  by Lord Chancellor Viscount Simon in  Ryots of Garabandho and  other villages Vs. Zamindar of Parlakimedi and Anr. â\200\223 AIR 1943  PC 164. "The ancient writ of certiorari in England is an original writ  which may issue out of a superior Court requiring that the record of  the proceedings in some cause or matter pending before an inferior  Court should be transmitted into the superior Court to be there dealt  with.  The writ is so named because, in its original Latin form, it  required that the King should "be certified" of the proceedings to be  investigated, and the object is to secure by the exercise of the  authority of a superior Court, that the jurisdiction of the inferior  tribunal should be properly exercised.  This writ does not issue to  correct purely executive acts, but, on the other hand, its application is  not narrowly limited to inferior "Courts" in the strictest sense.  Broadly  speaking, it may be said that if the act done by the inferior body is a  judicial act, as distinguished from being a ministerial act, certiorari will  lie.  The remedy, in point of principle, is derived from the  superintending authority which the Sovereign’s Superior Courts, and in  particular the Court of King’s Bench, possess and exercise over inferior  jurisdictions.  This principle has been transplanted to other parts of the  King’s dominions, and operates, within certain limits, in British India."

Article 226 of the Constitution of India preserves to the High  Court power to issue writ of certiorari amongst others.  The principles  on which the writ of certiorari is issued are well-settled.  It would  suffice for our purpose to quote from the 7-Judge Bench decision of  this Court in Hari Vishnu Kamath Vs. Ahmad Ishaque and Ors. â\200\223  (1955) 1 SCR 1104.  The four propositions laid down therein  were    summarized by the Constitution Bench in The Custodian of Evacuee  Property Bangalore Vs. Khan Saheb Abdul Shukoor etc.  â\200\223 (1961)  3 SCR 855 as under :- "â\200¦â\200¦the High Court was not justified in  looking into the order of December 2, 1952,  as an appellate court, though it would be  justified in scrutinizing that order as if it was  brought before it under Article 226 of the  Constitution for issue of a writ of certiorari.   The limit of the jurisdiction of the High Court  in issuing writs of certiorari was considered  by this Court in Hari Vishnu Kamath Vs.  Ahmad Ishaque 1955-I S 1104 : ((s) AIR  1955 SC 233) and the following four  propositions were laid down :-

       "(1)    Certiorari will be issued for correcting  errors of jurisdiction;

       (2)     Certiorari will also be issued when the  Court or Tribunal acts illegally in the exercise  of its undoubted jurisdiction, as when it  decides without giving an opportunity to the  parties to be heard, or violates the principles  of natural justice;

       (3)     The court issuing a writ of certiorari  acts in exercise of a supervisory and not  appellate jurisdiction.   One consequence  of  this is that the court will not review findings  of fact reached by the inferior court or  tribunal, even if they be erroneous.

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       (4)     An error in the decision or  determination itself may also be amenable to  a writ of certiorari if it is a manifest error  apparent on the face of the proceedings,  e.g., when it is based on clear ignorance or  disregard of the provisions of law.  In other  words, it is a patent error which can be  corrected by certiorari but not a mere wrong  decision."          

In the initial years the Supreme Court was not inclined to depart  from the traditional role of certiorari jurisdiction and consistent with  the historical background felt itself bound by such procedural  technicalities as were well-known to the English judges.  In   later  years the Supreme Court has relaxed the procedural and technical  rigours, yet the broad and fundamental principles governing the  exercise of jurisdiction have not been given a go-by.

In the exercise of certiorari jurisdiction the High Court proceeds  on an assumption that a Court which has jurisdiction over a subject- matter has the jurisdiction to decide wrongly as well as rightly.  The  High Court would not, therefore, for the purpose of certiorari assign to  itself the role of an Appellate Court and step into re-appreciating or  evaluating the evidence and substitute its own findings in place of  those arrived at by the inferior court.   

       In Nagendra Nath Bora & Anr.  Vs.  Commissioner of Hills  Division and Appeals, Assam & Ors., (1958) SCR 1240, the  parameters for the exercise of jurisdiction, calling upon the issuance of  writ of certiorari where so set out by the Constitution Bench : â\200\223

"The Common law writ, now called the order of  certiorari, which has also been adopted by our  Constitution, is not meant to take the place of an  appeal where the Statute does not confer a right of  appeal.  Its purpose is only to determine, on an  examination of the record, whether the inferior  tribunal has exceeded its jurisdiction or has not  proceeded in accordance with the essential  requirements of the law which it was meant to  administer.  Mere formal or technical errors, even  though of law, will not be sufficient to attract this  extra-ordinary jurisdiction.  Where the errors  cannot be said to be errors of law apparent on the  face of the record, but they are merely errors in  appreciation of documentary evidence or affidavits,  errors in drawing inferences or omission to draw  inference or in other words errors which a court  sitting as a court of appeal only, could have  examined and, if necessary, corrected and the  appellate authority under a statute in question has  unlimited jurisdiction to examine and appreciate  the evidence in the exercise of its appellate or  revisional jurisdiction and it has not been shown  that in exercising its powers the appellate authority  disregarded any mandatory provisions of the law  but what can be said at the most was that it had  disregarded certain executive instructions not  having the force of law, there is not case for the  exercise of the jurisdiction under Article 226."          

The Constitution Bench in T.C. Basappa  Vs.  T. Nagappa &  Anr., (1955) 1 SCR 250, held that certiorari may be and is generally

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granted when a court has acted (i) without jurisdiction, or (ii) in  excess of its jurisdiction.  The want of jurisdiction may arise from the  nature of the subject-matter of the proceedings or from the absence of  some preliminary proceedings or the court itself may not have been  legally constituted or suffering from certain disability by reason of   extraneous circumstances.  Certiorari may also issue if the court or  tribunal though competent has acted in flagrant disregard of the rules  or procedure or in violation of the principles of natural justice where no  particular procedure is prescribed.  An error in the decision or  determination itself may also be amenable  to a writ of certiorari  subject to the following factors being available if the error is manifest  and apparent on the face of the proceedings such as when it is based  on clear ignorance or disregard of the provisions of law but a mere  wrong decision is not amenable to a writ of certiorari.

Any authority or body of persons constituted by law or having  legal authority to adjudicate upon questions affecting the rights of a  subject and enjoined with a duty to act judicially or quasi-judicially is  amenable to the certiorari jurisdiction of the High Court.  The  proceedings of judicial courts subordinate to High Court can be  subjected to certiorari.   

While dealing with the question whether the orders and the  proceedings of subordinate Court are amenable to certiorari writ  jurisdiction of the High Court, we would be failing in our duty if we do  not make a reference to a larger Bench and a Constitution Bench  decisions of this Court and clear a confusion  lest it should arise at  some point of time.  Naresh Shridhar Mirajkar & Ors. Vs. State of  Maharashra and Anr. â\200\223 (1966) 3 SCR 744, is a nine-Judges Bench  decision of this Court.  A learned judge of Bombay High Court sitting  on the Original Side passed an oral order restraining the Press from  publishing certain court proceedings. This order was sought to be  impugned by filing a writ petition under Article 226 of the Constitution  before a Division Bench of the High Court which dismissed the writ  petition on the ground that the impugned order was a judicial order of  the High Court and hence not amenable to a writ under Article 226.   The petitioner then moved this Court under Article 32 of the  Constitution for enforcement of his fundamental rights under Article  19(1)(a) and (g) of the Constitution.  During the course of majority  judgment Chief Justice Gajendragadkar quoted the following passage  from Halsbury Laws Of England (Vol.11 pages 129, 130) from the foot- note : "(â\200¦.in the case of judgments of inferior  courts of civil jurisdiction) it has been  suggested that certiorari might be granted to  quash them for want of jurisdiction [Kemp v.  Balne (1844), 1 Dow. & L. 885, at p.887],  inasmuch as an error did not lie upon that  ground.  But there appears to be no reported  case in which the judgment of an inferior  Court of civil jurisdiction has been quashed  on certiorari, either for want of jurisdiction or  on any other ground".  

His Lordship then said :

"The ultimate proposition is set out in terms:  "Certiorari does not lie to quash the  judgments of inferior Courts of civil  jurisdiction".*  These observations would  indicate that in England the judicial orders  passed by civil Courts of plenary jurisdiction  in or in relation to matters brought before  them are not held to be amenable to the

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jurisdiction to issue writs of certiorari."

[*Para 239, page 130 from Halsbury, ibid]

A perusal of the judgment shows that the above passage has  been quoted "incidentally" and that too for the purpose of finding  authority for the proposition that a judge sitting on the Original Side of  the High Court cannot be called a court ’inferior or subordinate to High  Court’ so as to make his orders amenable to writ jurisdiction of the  High Court.  Secondly, the abovesaid passage has been quoted but  nowhere the Court has laid down as law by way its own holding that a  writ of certiorari by High Court cannot be directed to Court subordinate  to it.  And lastly, the passage from Halsbury quoted in Naresh  Shridhar Mirajkar’s case (supra) is from third edition of Halsbury  Laws of England (Simond’s Edition, 1955).  The law has undergone a  change in England itself and this changed legal position has been  noted in a Constitution Bench decision of this Court in Rupa Ashok  Hurra Vs. Ashok Hurra and Anr. â\200\223 (2002) 4 SCC 388. Justice SSM  Quadri speaking for the Constitution Bench has quoted the following  passage from Halsbury’s Laws of England, 4th Edn.(Reissue) Vol.1 (1) :         "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 law courts;  certiorari was issued to bring the record of  an inferior court in the King’s Bench for  review or to remove indictments 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  public authorities."          

               Naresh Shridhar Mirajkar’s case was cited before the  Constitution Bench in Rupa Ashok Hurra’s case and considered.  It  has been clearly held : (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 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 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.

Thus, there is no manner of doubt that the orders and  proceedings of a judicial court subordinate to High Court are amenable

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to writ jurisdiction of High Court under Article 226 of the Constitution.

Authority in abundance is available for the proposition that an  error apparent on face of record can be corrected by certiorari.  The  broad working rule for determining what is a patent error or an error  apparent on the face of the record was well set out in Satyanarayan  Laxminarayan Hegde and Ors. Vs. Mallikarjun Bhavanappa  Tirumale, (1960) 1 SCR 890.  It was held that the alleged error  should be self-evident.  An error which needs to be established by  lengthy  and complicated arguments or an error in a long-drawn  process of reasoning on points where there may conceivably be two  opinions cannot be called a patent error.  In a writ of certiorari the  High Court may quash the proceedings of the tribunal, authority or  court but may not substitute its own findings or directions in lieu of  one given in the proceedings forming the subject-matter of certiorari.

Certiorari jurisdiction though available is not to be exercised as  a matter of course.  The High Court would be justified in refusing the  writ of certiorari if no failure of justice has been occasioned.  In  exercising the certiorari jurisdiction the procedure ordinarily followed  by the High Court is to command the inferior court or tribunal to  certify its record or proceedings to the High Court for its inspection so  as to enable the High Court to determine whether on the face of the  record the inferior court has committed any of the preceding errors  occasioning failure of justice.          Supervisory jurisdiction under Article 227 Article 227 of the Constitution confers on every High Court the  power of superintendence over all courts and tribunals throughout  the  territories in relation to which it exercises jurisdiction excepting any  court or tribunal constituted by or under any law relating to the armed  forces.  Without prejudice to the generality of such power the High  Court has been conferred with certain specific powers by sub-Articles  (2) and (3) of Article 227 with which we are not concerned hereat.  It  is well-settled that the power of superintendence so conferred on the  High Court is administrative as well as judicial, and is  capable of being  invoked at the instance of any person aggrieved or may even be  exercised suo motu.  The paramount consideration behind vesting  such wide power of superintendence in the High Court is paving the  path of justice and removing any obstacles therein.  The power under  Article 227 is wider than the one conferred on the High Court by Article  226 in the sense that the power of superintendence is not subject to  those technicalities of procedure or traditional fetters which are to be  found in certiorari jurisdiction.  Else the parameters invoking the  exercise of power are almost similar.           The history of supervisory jurisdiction exercised by the High  Court,  and how the jurisdiction has culminated into its present shape  under Article 227 of the Constitution, was traced in Waryam Singh &  Anr.  Vs.  Amarnath & Anr. (1954) SCR 565.  The jurisdiction can be  traced back to Section 15 of High Courts Act 1861 which gave a power  of judicial superintendence to the High Court apart from and  independently of the provisions of other laws conferring revisionsal  jurisdiction on the High Court.  Section 107 of the Government of India  Act 1915 and then Section 224 of the Government of India Act 1935,  were similarly worded and reproduced the predecessor provision.   However, sub-section (2) was added in Section 224 which confined the  jurisdiction of the High Court to such judgments of the inferior courts  which were not otherwise subject to appeal or revision.  That  restriction has not been carried forward in Article 227 of the  Constitution.  In that sense Article 227 of the Constitution has width  and vigour unprecedented.

Difference between a writ of certiorari under Article 226 and

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supervisory jurisdiction under Article 227.

The difference between Articles 226 and 227 of the Constitution  was well brought out in Umaji Keshao Meshram and Ors. Vs. Smt.  Radhikabai and Anr., (1986) Supp. SCC 401.  Proceedings under  Article 226 are in exercise of the original jurisdiction of the High Court  while proceedings under Article 227 of the Constitution are not original  but only supervisory.  Article 227 substantially reproduces the  provisions of Section 107 of the Government of India Act, 1915  excepting that the power of superintendence has been extended by  this Article to tribunals as well.  Though the power is akin to that of an  ordinary court of appeal, yet the power under Article 227 is intended  to be used sparingly and only in appropriate cases for the purpose of  keeping the subordinate courts and tribunals within the bounds of their  authority and not for correcting  mere errors.  The power may be  exercised in cases occasioning  grave injustice or failure of justice such  as when (i) the court or tribunal has assumed a jurisdiction which it  does not have, (ii) has failed to exercise a jurisdiction which it does  have, such failure occasioning a failure of justice, and (iii) the  jurisdiction though available is being exercised in a manner which  tantamounts to overstepping the limits of jurisdiction.   

Upon a review of decided cases and a survey of the occasions  wherein the High Courts have exercised jurisdiction to command a writ  of certiorari or to exercise supervisory jurisdiction under Article 227 in  the given facts and circumstances in a variety of cases, it seems that  the distinction between the two jurisdictions stands almost obliterated  in practice.  Probably, this is the reason why it has become customary  with the lawyers labeling their petitions as one common under Articles  226 and 227 of the Constitution, though such practice has been  deprecated in some judicial pronouncement.  Without entering into  niceties and technicality of the subject, we venture to state the broad  general difference between the two jurisdictions.  Firstly, the writ of  certiorari is an exercise of its original jurisdiction by the High Court;  exercise of supervisory jurisdiction is not an original jurisdiction and in  this sense it is akin to appellate revisional or corrective jurisdiction.   Secondly, in a writ of certiorari, the record of the proceedings having  been certified and sent up by the inferior court or tribunal to the High  Court, the High Court if inclined to exercise its jurisdiction, may simply  annul or quash the proceedings and then do no more.  In exercise of  supervisory jurisdiction the High Court may not only quash or set aside  the impugned proceedings, judgment or order but it may also make  such directions as the facts and circumstances of the case may  warrant, may be by way of guiding the inferior court or tribunal as to  the manner in which it would now proceed further or afresh as  commended to or guided by the High Court.  In appropriate cases the  High Court, while exercising supervisory jurisdiction, may substitute  such a decision of its own in place of the impugned decision, as the  inferior court or tribunal should have made.  Lastly, the jurisdiction  under Article 226 of the Constitution is capable of being exercised on a  prayer made by or on behalf of the party aggrieved; the supervisory  jurisdiction is capable of being exercised suo motu as well.

In order to safeguard against a mere appellate or revisional  jurisdiction being exercised in the garb of exercise of supervisory  jurisdiction under Article 227 of the Constitution, the courts have  devised self-imposed rules of discipline on their power.  Supervisory  jurisdiction may be refused  to be exercised when an alternative  efficacious remedy by way of appeal or revision is available to the  person aggrieved.  The High Court may have regard to legislative  policy formulated on experience and expressed by enactments  where  the Legislature in exercise of its wisdom has deliberately chosen  certain orders and proceedings to be kept away from exercise of  appellate and revisional jurisdiction in the hope of accelerating the  conclusion of the proceedings and avoiding delay and procrastination

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which is occasioned by subjecting every order at every stage of  proceedings to judicial review by way of appeal or revision. So long as  an error is capable of being corrected by a superior court in exercise of  appellate or revisional jurisdiction though available to be exercised  only at the conclusion of the proceedings, it would be sound exercise  of discretion on the part of the High Court to refuse to exercise power  of superintendence during the pendency of the proceedings.  However,  there may be cases where but for invoking the supervisory jurisdiction,  the jurisdictional error committed by the inferior court or tribunal  would be incapable of being remedied once   the proceedings have  concluded.

In Chandrasekhar Singh & Ors.  Vs.  Siva Ram Singh &  Ors., (1979) 3 SCC 118, the scope of jurisdiction under Article 227 of  the Constitution came up for the consideration of this Court in the  context of Sections 435 and 439 of the Criminal Procedure Code which  prohibits a second revision to the High Court against decision in first  revision rendered by the Sessions Judge.  On a review of earlier  decisions, the three-Judges Bench summed up the position of law as  under :-

(i)    that the powers conferred on the High Court under Article 227 of  the Constitution cannot, in any way, be curtailed by the provisions  of the Code of Criminal procedure;

(ii)   the scope of interference by the High Court under Article 227 is  restricted.  The power of superintendence conferred by Article 227  is to be exercised sparingly and only in appropriate cases in order  to keep the subordinate Courts within the bounds of their  authority and not for correcting mere errors;

(iii)   that the power of judicial interference under Article 227 of the  Constitution is not greater than the power under Article 226 of the  Constitution;

(iv) that the power of superintendence under Article 227 of the  Constitution cannot be invoked to correct an error of fact which  only a superior Court can do in exercise of its statutory power as  the Court of Appeal; the High Court cannot, in exercise of its  jurisdiction under Article 227, convert itself into a Court of  Appeal.

Later, a two-judge Bench of this Court in Baby Vs.  Travancore  Devaswom Board & Ors., (1998) 8 SCC 310, clarified that in spite of  the revisional jurisdiction being not available to the High Court, it still  had powers under Article 227 of the Constitution of India to quash the  orders passed by the Tribunals if the findings of fact had been arrived  at by non-consideration of the relevant and material documents, the  consideration of which could have led to an opposite conclusion.  This  power of the High Court under the Constitution of India is always in  addition to the revisional jurisdiction conferred on it.  

Does the amendment in Section 115 of C.P.C have any impact  on jurisdiction under Articles 226 and 227?   The Constitution Bench in L. Chandra Kumar  Vs.  Union of  India & Ors., (1997) 3 SCC 261, dealt with the nature of power of  judicial review conferred by Article 226 of the Constitution and the  power of superintendence conferred by Article 227.  It was held that  the jurisdiction conferred on the Supreme Court under Article 32 of the  Constitution and on the High Courts under Articles 226 and 227 of the  Constitution is part of the basic structure of the Constitution, forming  its integral and essential feature, which cannot be tampered with much  less taken away even by constitutional amendment, not to speak of a  parliamentary legislation.  A recent Division Bench decision by Delhi

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High Court (Dalveer Bhandari and H.R. Malhotra, JJ) in Criminal Writ  Petition NO.s.758, 917 and 1295 of 2002 â\200\223 Govind Vs. State (Govt.  of NCT of Delhi) decided on April 7, 2003 (reported as [2003] 6 ILD  468 makes an indepth survey of decided cases including almost all the  leading decisions by this Court and holds â\200\223 "The power of the High  Court under Article 226 cannot be whittled down, nullified, curtailed,  abrogated, diluted or taken either by judicial pronouncement or by the  legislative enactment or even by the amendment of the Constitution.   The power of judicial review is an inherent part of the basic structure  and it cannot be abrogated without affecting the basic structure of the  Constitution."  The essence of  constitutional and legal principles,  relevant to the issue at hand, has been correctly summed up by the  Division Bench of the High Court and we record our approval of the  same.

       It is interesting to recall two landmark decisions delivered by  High Courts and adorning the judicial archives.  In Balkrishna Hari  Phansalkar Vs.  Emperor,  AIR 1933 Bombay 1, the question arose  before a Special Bench: whether the power of superintendence  conferred on the High Court by Section 107 of Government of India  Act 1915 can be controlled by the Governor-General exercising his  power to legislate.  The occasion arose because of the resistance  offered by the State Government to the High Court exercising its  power of superintendence over the Courts of Magistrates established  under Emergency Powers Ordinance, 1932.  Chief Justice Beaumont  held that even if power of revision is taken away, the power of  superintendence over the courts constituted by the ordinance was still  available.  The Governor-General cannot control the powers conferred  on the High Court by an Act of Imperial Parliament.  However,  speaking of the care and caution to be observed while exercising the  power of superintendence though possessed by the High Court, the  learned Chief Justice held that the power of superintendence is not the  same thing as the hearing of an appeal.  An illegal conviction may be  set aside under power of superintendence but - "we must exercise our  discretion on judicial grounds, and only interfere if considerations of  justice require us to do so."    

       In Manmatha Nath Biswas Vs. Emperor, (1932-33) 37  C.W.N. 201, a conviction based on no legal reason and unsustainable  in law came up for the scrutiny of the High Court under the power of  superintendence in spite of right of appeal having been allowed to  lapse.  Speaking of the nature of power of superintendence, the  Division Bench, speaking through Chief Justice Rankin,  held that the  power of superintendence vesting in the High Court under Section 107  of the Government of India Act, 1915, is not a limitless power  available to be exercised for removing hardship of particular decisions.   The power of superintendence is a power of known and well- recognised character and should be exercised on those judicial  principles which give it its character.  The mere misconception on a  point of law or a wrong decision on facts or a failure to mention by the  Courts in its judgment every element of the offence, would not allow  the order of the Magistrate being interfered with in exercise of the  power of superintendence but the High Court can and should see that  no man is convicted without a legal reason.  A defect of jurisdiction or  fraud on the part of the prosecutor or error on the "face of the  proceedings" as understood in Indian practice, provides a ground for  the exercise of the power of superintendence.  The line between the  two classes of case must be, however, kept clear and straight.  In  general words, the High Court’s power of superintendence is a power  to keep subordinate Courts within the bounds of their authority, to see  that they do what their duty requires and that they do it in a legal  manner.          The principles deducible, well-settled as they are, have been  well summed up and stated by a two-judges Bench of this Court

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recently in State, through Special Cell, New Delhi  Vs.  Navjot  Sandhu @ Afshan Guru and Ors., JT 2003 (4) SC 605, para 28.   This Court held :  (i)  the jurisdiction under Article 227 cannot be  limited or fettered by any Act of the state  Legislature;

(ii)   the supervisory jurisdiction is wide and can be  used to meet the ends of justice, also to  interfere even with interlocutory order;

(iii)   the power must be exercised sparingly, only  to move subordinate courts and Tribunals  within the bounds of their authority to see that  they obey the law.  The power is not available  to be exercised to correct mere errors  (whether on the facts or laws) and also cannot  be exercised "as the cloak of an appeal in  disguise".  

       In Shiv Shakti Coop. Housing Society, Nagpur  Vs.  M/s.  Swaraj Developers & Ors., (2003) 4 Scale 241, another two-Judges  bench of this Court dealt with Section 115 of the C.P.C.   The Court at  the end of its judgment noted the submission of the learned counsel  for a party that even if the revisional applications are held to be not  maintainable, there should not be a bar on a challenge being made  under Article 227 of the Constitution for which an opportunity was  prayed to be allowed.  The Court observed â\200\223 "If any remedy is  available to a party, no liberty is necessary to be granted for availing  the same."   

       We are of the opinion that the curtailment of revisional  jurisdiction of the High Court does not take away â\200\223 and could not have  taken away - the constitutional jurisdiction of the High Court to issue a  writ of certiorari to a civil court nor the power of superintendence  conferred on the High Court under Article 227 of the Constitution is  taken away or whittled down.  The power exists, untrammelled by the  amendment in Section 115 of the CPC, and is available to be exercised  subject to rules of self discipline and practice which are well settled.  

We have carefully perused the Full Bench decision of the  Allahabad High Court in Ganga Saran’s case relied on  by the  learned counsel for respondent and referred to in the impugned order  of the High Court.  We do not think that the decision of the Full Bench  has been correctly read.  Rather, vide para 11, the Full Bench has  itself held that where the order of the Civil Court suffers from patent  error of law and further causes manifest injustice to the party  aggrieved then the same can be subjected to writ of certiorari.  The  Full Bench added that every interlocutory order passed in a civil suit is  not subject to review under Article 226 of the Constitution but if it is  found from the order impugned that fundamental principle of law has  been violated and further such an order causes substantial injustice to  the party aggrieved the jurisdiction of the High Court to issue a writ of  certiorari is not precluded.  However, the following sentence occurs in  the judgment of the Full Bench:-                 "where an aggrieved party approaches  the High Court under Art. 226 of the  Constitution against an order passed in civil  suit refusing to issue injunction to a private  individual who is not under statutory duty to  perform public duty or vacating an order of  injunction, the main relief is for issue of a  writ of mandamus to a private individual and  such a writ petition under Art.226 of the

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Constitution would not be maintainable."

                It seems that the High Court in its decision impugned herein  formed an impression from the above-quoted passage that a prayer  for issuance of injunction having been refused by trial court as well as  the appellate court, both being subordinate to High Court and the  dispute being between two private parties, issuance of injunction by  High Court amounts to issuance of a mandamus against a private  party which is not permissible in law.

The above quoted sentence from Ganga Saran’s case cannot  be read torn out of the context.  All that the Full Bench has said is that  while exercising  certiorari jurisdiction over  a decision of the court  below refusing to issue an order of injunction, the High Court would  not, while issuing a writ of certiorari, also issue a mandamus against a  private party.  Article 227 of the Constitution has not been referred to  by the Full Bench.  Earlier in this judgment we have already pointed  out the distinction between Article 226 and Article 227 of the  Constitution and we need not reiterate the same.  In this context, we  may quote the Constitution Bench decision in T.C. Basappa Vs. T.  Nagappa and Anr., (1955) 1 SCR 250 and Province of Bombay Vs.  Khushaldas S. Advani (dead) by Lrs., 1950 SCR 621, as also a  three-Judge Bench decision in Dwarka Nath Vs. Income-tax  Officer, Special Circle, D Ward, Kanpur and Anr., (1965) 3 SCR  536, which have held in no uncertain terms, as the law has always  been, that a writ of certiorari is issued against the acts or proceedings  of a judicial or quasi-judicial body conferred with power to determine  questions affecting the rights of subjects and obliged to act judicially.   We are therefore of the opinion that the writ of certiorari   is directed  against the act, order of proceedings of the subordinate Court, it can  issue even if the lis is between two private parties.

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 â\200\223 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

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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 abovesaid 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.   Though we have tried to lay down broad principles and working  rules, the fact remains that the parameters for exercise of jurisdiction  under Articles 226 or 227 of the Constitution cannot be tied down in a

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straitjacket formula or rigid rules.  Not less than often the High Court  would be faced with dilemma.  If it intervenes in pending proceedings  there is bound to be delay in termination of proceedings.  If it does not  intervene, the error of the moment may earn immunity from  correction.  The facts and circumstances of a given case may make it  more appropriate for the High Court to exercise self-restraint and not  to intervene because the error of jurisdiction though committed is yet  capable of being taken care of and corrected at  a later stage and the  wrong done, if any, would be set right and rights and equities adjusted  in appeal or revision preferred at the conclusion of the proceedings.  But there may be cases where ’a stitch in time would save nine’. At the  end, we may sum up by saying that the power is there but the  exercise is discretionary which will be governed solely by the dictates  of judicial conscience enriched by judicial experience and practical  wisdom of the Judge.

       The appeal is allowed.  The order of the High Court refusing to  entertain the petition filed by the appellant, holding it not  maintainable, is set aside.  The petition shall stand restored on the file  of the High Court, to be dealt with by an appropriate Bench  consistently with the rules of the High Court, depending on whether  the petitioner before the High Court is seeking a writ of certiorari or  invoking the supervisory jurisdiction of the High Court.   

       Costs made easy.