Binod Kumar Roy, Lakshmi Bihari, JJ. - (1.) A learned single Judge, vide his order dated 6.5.1999, opined that in view of the Full Bench judgment (delivered by Hon'ble Mr. Justice B. P. Jeevan Reddy, C.J., Hon'ble Mr. Justice V. N. Khare and Hon'ble Mr. Justice V. N. Mehrotra, the first two have been elevated to the Hon'ble Supreme Court) in Ganga Saran v. Civil Judge. Hapur and others, 1991 ACJ 186 : 1991 (1) AWC 213, this writ petition filed for quashing the order passed by the Civil Judge (Junior Division), Varanasi, refusing to grant interim injunction in favour of the petitioner and that part of the appellate order passed by the Additional District Judge, Varanasi, affirming the same, is not maintainable, but as the learned counsel for the writ petitioner relied upon a single Judge judgment of this Court in Ram Singh v. Special Judge and others, 1992 (Supp 2) RD 362, which, relying upon Dwarika Nath v. Income Tax Officer, AIR 1966 SC 81 and M. V. Elisabeth and others v. Harman Investment and Trading Pvt. Ltd., JT 1992 (2) SC 65, had explained away the Full Bench decision. He further opined that the said decision is contrary to the Full Bench decision and referred the matter to a larger Bench for reconsideration of the decision of the learned single Judge. The Hon'ble Chief Justice, vide his order dated 31.8.1999 directed placing this case before a Bench presided over by one of us (Binod Kumar Roy, J.), that is how this case has been placed before us.
(2.) The following two questions were formulated for adjudication by the three Judges Full Bench of this Court in Ganga Saran (supra) : "(1) Whether the judgment of the Supreme Court in Qamaruddin v. Rasul Baksh, 1990 AWC 308, has the effect of overruling the Full Bench decision of this Court in Jupitor Chit Fund (P.) Ltd. v. Dwarka Diesh, AIR 1979 All 218, as affirmed by the judgment of the Supreme Court in Vishesh Kumar v. Shanti Prasad, AIR 1980 SC 892 and Sri Vishnu Awatar v. Shiv Awatar, AIR SC 1575. (2) Whether a writ lies against a civil court's decision? in short whether an appellate order passed by the District Judge or an order passed by it in exercise of its revisionary power conferred upon it by Section 115, C.P.C. (as amended by U.P. Amendment Act, 1978) is amenable to writ jurisdiction of this Court?" 2.1. The Full Bench answered Question No. 1 'in negative' and Question No. 2 'in affirmative' only to this extent that where 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 principle that ordinarily interlocutory order passed in the civil suit is not amenable to extraordinary jurisdiction of the High Court, will not preclude such a writ petition being issued by the High Court, under Article 226 of the Constitution within the ambit of well-established and recognised principles laid down by the Supreme Court. 2.2. While recording its answer to Question No. 2, the Full Bench in paragraph 11 of its judgment had observed as follows : "With respect to second question to be answered by us, we are not inclined to deal it elaborately here. Suffice it to say that the view of the Supreme Court in Qamaruddin's case (supra) that ordinarily an interlocutory order passed in civil suit is not amenable to extraordinary jurisdiction of High Court under Article 226 of the Constitution, no doubt is based upon recognised principle taken into consideration by the Court in refusing the writ. In our opinion, this view of the Supreme Court in Qamaruddin's case is based on assumption that a revision under Section 115, C.P.C. to High Court is maintainable and the party aggrieved can invoke revisional jurisdiction of the High Court. But in a situation where a revision is barred against the appellate or revisional order passed by the district courts and the said order suffers from apparent error of law and further causes manifest injustice to the party aggrieved, can it be said that such an order is not amenable to extraordinary jurisdiction of the High Court under Article 226 of the Constitution. In our opinion, although 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 view taken by the Supreme Court in Qamaruddin's case (supra) will not preclude such a writ being issued by the High Court under Article 226 of the Constitution. But only such writ petition under Articles 226 or 227 of the Constitution would be maintainable where writ can be issued within the ambit of the well-established and recognised principles laid down by the Supreme Court as well as various High Courts in that regard. The opinion expressed by the Supreme Court in Qamaruddin's case (supra) to the extent that a writ of mandamus cannot be issued to a private individual unless he is under statutory duty to perform a duty is in accordance with well-established principles regarding writ of certiorari and mandamus and need no reiteration or elaboration at our hand. Indeed in one case counsel for the respondent did not appear but the said counsel contended himself by saying that the matter may be sent back to the lower court after quashing the impugned order if a writ of mandamus cannot be issued to a private individual under Article 226 of the Constitution. This contention is not correct. Where an aggrieved party approaches High Court under Article 226 of the Constitution against an order passed in civil suit refusing to issue injunction to a private individual mho is not under statutory duly 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 Article 226 of the Constitution would not be maintainable. Following the decision of the Supreme Court in Qamaruddin's case (supra), this Court cannot issue a writ of mandamus to a private party unless he is under statutory duty to perform public duty. It is not shown to us that the respondents in these petitions are under any statutory duty and, therefore, these petitions are not maintainable."
(3.) Sitting singly, a learned Judge (Sakha Ram Singh. J.) in Ram Singh v. Special Judge and others, 1992 (Supp 2) RD 362, after noticing the ratio laid down by the Full Bench in Ganga Saran (supra) proceeded to pose a doubt in following words : "What is in doubt is whether a writ of mandamus against a private person can be issued if such private person is not under any statutory obligations to perform a public duty for the performance of which a writ of mandamus is normally issued." and held that the High Court under Article 226 of the Constitution can also pass any order including an order of injunction against a private individual in exercise of its inherent power after referring to the decisions of the Supreme Court in Dwarika Nath v. Income Tax Officer, AIR 1966 SC 81 and M. V. Elisabeth and others v. Herman Investment and Trading Pvt. Ltd.. JT 1992 (21 SC 65 : AIR 1993 SC 1014. 3.1. In Dwarika Nath (supra), an income-tax assessee filed a writ application in this Court, inter alia, for a writ of certiorari to quash the order of the Income Tax Commissioner, the Income Tax Officer and for a writ of mandamus directing the Commissioner to pass a fresh order in accordance with a decision of the Bombay High Court and direct the Income Tax Officer to pass a fresh order in accordance with law and to issue a notice of demand as required by Section 29 of the Income-tax Act. Thus, there was no question of issuance of a writ of mandamus against a private person who was under no statutory obligation to perform a public duty. 3.2. In M. V. Elisabeth (supra), the Supreme Court held that a right conferred by the Indian Carriage of Goods by Sea Act, 1925. In respect of outward cargo is one of the rights which can be enforced by arrest and detention of the foreign ships and thus, there was breach of statutory right.;