- (1.) This matter has been placed before the Bench of three Judges in pursuance of an order dated April 15, 2009 passed by the bench of two Hon'ble Judges to consider the correctness of the law laid down by this Court in Surya Dev Rai vs. Ram Chander Rai and others, 2003 6 SCC 675 that an order of civil court was amenable to writ jurisdiction under Article 226 of the Constitution. The reference order, inter alia, reads:- 30. .........Therefore, this Court unfortunately is in disagreement with the view which has been expressed in Surya Dev Rai insofar as correction of or any interference with judicial orders of civil court by a writ of certiorari is concerned. 31. 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. 32. The essential distinctions in the exercise of power between Articles 226 and 227 are well known and pointed out in Surya Dev Rai and with that we have no disagreement. But we are unable to agree with the legal proposition laid down in Surya Dev Rai that judicial orders passed by a civil court can be examined and then corrected/reversed by the writ court under Article 226 in exercise of its power under a writ of certiorari. We are of the view that the aforesaid proposition laid down in Surya Dev Rai, is contrary to the ratio in Mirajkar and the ratio in Mirajkar has not been overruled in Rupa Ashok Hurra, 2002 4 SCC 388. 33. In view of our difference of opinion with the views expressed in Surya Dev Rai, 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 on the question discussed above."
(2.) Since this Bench has to decide the referred question, it is not necessary to mention the facts of the case in detail. Suffice it to say that assailing an interim order of civil court in a pending suit, the defendant-respondent filed a writ petition before the Allahabad High Court and the High Court having vacated the said interim order granted in favour of the plaintiff-appellant, the appellant moved this Court by way of a special leave petition, inter alia, contending that the writ petition under Article 226 was not maintainable against the order of the civil court and, thus, the impugned order could not be passed by the High Court. On behalf of the respondent, reliance was placed on the decision of this Court in Surya Dev Rai laying down that a writ petition under Article 226 was maintainable against the order of the civil court and thus it was submitted that the High Court was justified in passing the impugned order.
(3.) As already mentioned, the Bench of two Hon'ble Judges who heard the matter was not persuaded to follow the law laid down in Surya Dev Rai. It was observed that the judgment in Surya Dev Rai did not correctly appreciate the ratio in the earlier Nine Judge judgment of this Court in Naresh Shridhar Mirajkar and others vs. State of Maharashtra, 1967 AIR(SC) 1 wherein this Court came to the conclusion that "Certiorari does not lie to quash the judgments of inferior courts of civil jurisdiction (para 63)". With reference to the observations in Surya Dev Rai for not following the conclusion in Mirajkar, the referring Bench inter alia observed: "25. In our view the appreciation of the ratio in Mirajkar by the learned Judges, in Surya Dev Rai, with great respect, was possibly a little erroneous and with that we cannot agree. 26. The two-Judge Bench in Surya Dev Rai did not, as obviously it could not overrule the ratio in Mirajkar, a Constitution Bench decision of a nine- Judge Bench. But the learned Judges justified their different view in Surya Dev Rai, inter alia on the ground that the 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 is based, has been changed and in support of that quoted paras 103 and 109 from Halsbury's Laws of England, 4th Edn. (Reissue), Vol. 1(1). Those paras are set out below: "103. The prerogative remedies of certiorari, prohibition and mandamus: historical development.-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 into the King's Bench for review or to remove indictments for trial in that court; mandamus was directed to inferior courts and tribunals, and to public officers and bodies, to order the performance of a public duty. All three were called prerogative writs;... 109. The nature of certiorari and prohibition.-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." The aforesaid paragraphs are based on general principles which are older than the time when Mirajkar 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 Mirajkar and which has not been overruled and is holding the field for decades. 27. It is clear from the law laid down in Mirajkar in para 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. The passage in the subsequent edition of Halsbury (4th Edn.) which has been quoted in Surya Dev Rai does not show at all that there has been any change in law on the points in issue pointed out above. 28. The learned Judges in Surya Dev Rai stated in SCC para 18, p. 687 of the Report that the decision rendered in Mirajkar was considered by the Constitution Bench in Rupa Ashok Hurra v. Ashok Hurra and wherein the learned Judges took a different view and in support of that, the following para from Rupa Ashok Hurra has been quoted: (Surya Dev Rai case, SCC pp. 687-88, para 18) "(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." 29. We are constrained to point out again that in Rupa Ashok Hurra the Constitution Bench did not take any view which is contrary to the views expressed in Mirajkar. On the other hand, the ratio in Mirajkar was referred to with respect and was relied on in Rupa Ashok Hurra. Mirajkar was referred to in SCC para 8, p. 399 and again in SCC para 11 on p. 402 and again in SCC para 59, p. 418 and also in SCC para 60, p. 419 of Rupa Ashok Hurra. Nowhere even any whisper of a divergence from the ratio in Mirajkar was expressed. Rather passages from Mirajkar have been quoted with approval. 30. In fact the question which was referred to the Constitution Bench in Rupa Ashok Hurra is quoted in para 1 of the judgment and it is clear from the perusal of the said paragraph that the question for consideration in Rupa Ashok Hurra was totally different. Therefore, this Court unfortunately is in disagreement with the view which has been expressed in Surya Dev Rai insofar as correction of or any interference with judicial orders of civil court by a writ of certiorari is concerned.";