M. Katju, J. - (1.) THIS writ petition is filed by the plaintiff petitioner against refusal to grant temporary injunction in a civil suit. According to the Full Bench decision of this Court in Ganga Saran v. Civil Judge, : 1991 ALR 380, such a petition is not maintainable under Article 226 of the Constitution of India. With great respect to the aforesaid Full Bench decision in Ganga Saran's case. I am of the opinion that the said Full Bench decision is incorrect in law and needs to be reconsidered. To examine this matter it is necessary to closely scrutinise what the Full Bench has held. In para 11 of Ganga Saran's case it has been observed "where an aggrieved party approaches the High Court under Article 226 of the Constitution against an order passed in a Civil suit refusing to issue injunction to a private individual who is not under statutory duty to perform a public duly 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 would not be maintainable". The Full Bench relied on the decision of the Supreme Court in Qamruddin v. Rasul Baksh, : 1990 AWN 308 for its conclusion.
(2.) WITH great respect to the Full Bench decision I am oft he opinion that its conclusion in Para. 11 (quoted above) is incorrect and needs to be reconsidered by a Larger Bench. In this connection certain basic concepts must be kept in mind. A writ of certiorari lies when there is an error of law apparent on the face of the record. Although ordinarily the High Court does not interfere with interlocutory orders in its writ jurisdiction, there is no absolute prohibition in this regard. There may be certain interlecutory orders which may clearly call for interference in writ jurisdiction, e.g., an interlocutory order refusing to grant stay of demolition or eviction. Some interlocutory orders can do great injustice if not immediately stayed in writ jurisdiction.
(3.) IF an interlocutory order is illegal on the face of the record a writ of certiorari can be issued to quash it. It is another matter that the High Court under Article 226 of the Constitution may ordinarily choose not to interfere against an interlocutory order, but that is a matter of its discretion and not lack of power. Where the Full Bench appears to have erred is in holding that there is an absolute bar to exercise of writ jurisdiction in such cases. Thus, the Full Bench has wrongly elevated a rule of discretion to a rule of absolute prohibition.;