RADHEY SHYAM AND ORS. Vs. CHHABI NATH AND ORS.

JUDGEMENT

(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:-

(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: