Patna High Court
Sunil Kumar Jha vs Laxmi Narayan Jha And Ors on 7 January, 2025
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.12121 of 2015
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1.1. Smt. Kumari Pushipi Wife of Late Sunil Kumar Jha Resident of Village -
Bardaha, P.S. - Ghailarh, District- Madhepura.
1.2. Shashank Shandilya Son of Late Sunil Kumar Jha Resident of Village -
Bardaha, P.S. - Ghailarh, District- Madhepura.
1.3. Neha Jha Daughter of Late Sunil Kumar Jha Resident of Village - Bardaha,
P.S. - Ghailarh, District- Madhepura.
1.4. Smriti Shandilya Daughter of Late Sunil Kumar Jha Resident of Village -
Bardaha, P.S. - Ghailarh, District- Madhepura.
1.5. Sushil Kumar Jha Brother of Late Sunil Kumar Jha Resident of Village -
Bardaha, P.S. - Ghailarh, District- Madhepura.
1.6. Sudhir Kumar Jha Brother of Late Sunil Kumar Jha Resident of Village -
Bardaha, P.S. - Ghailarh, District- Madhepura.
... ... Petitioner/s
Versus
1. Laxmi Narayan Jha, Son of Digambar Jha, resident at D.B. Road
(Gurdwara Marg), Ward Mp/21. Police Station-Saharsa, District-Saharsa.
2. Smt. Badehi Kumar, Wife of Navin Kumar Singh @Navin Nishant,
resident of New Colony, Ward No.09, Municipal Board, Police Station-
Saharsa, District-Saharsa.
...................1st Party.
3. Satish Chandra Mishra, Son of Late Gunjan Mishra, resident of Villate-
Nawhatta, P.O.& P.S. Nawhatta, District-Saharsa. At present residing at
Patuaha, District-Saharsa.
4. Tata Motors, Area Manager, Tota Motors Commercial, Adharshila (Ahilya)
Complex, West Gandhi Maidan, Near RBI, Plot No.03, Police Station-Gandhi
Maidan, District- Patna
...................2nd Party.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Kanti Jha, Adv.
For the Respondent/s : Mr.Dayanand Singh, Adv.
Mr.Nagdeo Choubey, Adv.
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CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
ORAL JUDGMENT
Date : 07-01-2025
1. The present writ petition has been filed seeking the
following relief(s) :-
Patna High Court CWJC No.12121 of 2015 dt.07-01-2025
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"1. That by this writ application the
petitioner crave indulgence of this Hon'ble
court for issuance of a writ in the nature of
Certiorari setting aside order dated
18.5.2015
passed in Title Suit No. 281 of
2013 by Sri R.R. Mishra, learned Sub Judge-
I, Saharsa whereby and where under the
learned Court below has been pleased to
reject the Intervener petition dated
12.11.2014 filed by the petitioner on
erroneous and misconceived notions of law
and facts and further for issuance of
direction to the learned Court below in the
nature of mandamus and/or any other
appropriate writ/writs direction or directions
allowing the said Intervener petition dated
12.11.2014.
The petitioner further prays that during the
pendency of the present writ application
further proceeding of Title Suit No.281 of
2013 pending in the court of learned Sub
Judge-1, Saharsa may remain stayed.”
2. The learned counsel for the parties have pointed
out, at the outset, that earlier writ petitions were being filed
against the interlocutory orders (such orders which have not
finally decided the suits or proceedings in favour of the parties
and the suits or such proceedings have not stood disposed off),
Patna High Court CWJC No.12121 of 2015 dt.07-01-2025
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in view of the law laid down by the learned Division Bench of
this Court in a judgment dated 13.05.2010, passed in C.R. no.
1067 of 2009 (Durga Devi v. Vijay Kumar Poddar & Ors.),
however, subsequently, the Hon’ble Apex Court, by a judgment
rendered in the case of Radhey Shyam and Another v. Chhabi
Nath and Others, reported in (2015) 5 SCC 423, has held that
judicial orders of the Civil Court are not amenable to writ
jurisdiction under Article 226 of the Constitution of India and
the jurisdiction under Article 227 of the Constitution of India is
distinct from the jurisdiction under Article 226 of the
Constitution of India. It would be relevant to reproduce
paragraphs no. 18 and 25 to 30 of the said judgment rendered in
the case of Radhey Shyam and Another (supra) hereinbelow :-
18. While the above judgments dealt with the
question whether judicial order could violate
a fundamental right, it was clearly laid down
that challenge to judicial orders could lie by
way of appeal or revision or under Article
227 and not by way of a writ under Articles
226 and 32.
25. It is true that this Court has laid down
that technicalities associated with the
prerogative writs in England have no role to
play under our constitutional scheme. There
is no parallel system of King’s Court in India
Patna High Court CWJC No.12121 of 2015 dt.07-01-2025
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jurisdiction subject to the supervision of the
King’s Court. Courts are set up under the
Constitution or the laws. All the courts in the
jurisdiction of a High Court are subordinate
to it and subject to its control and
supervision under Article 227. Writ
jurisdiction is constitutionally conferred on
all the High Courts. Broad principles of writ
jurisdiction followed in England are
applicable to India and a writ of certiorari
lies against patently erroneous or without
jurisdiction orders of tribunals or authorities
or courts other than judicial courts. There
are no precedents in India for the High
Courts to issue writs to the subordinate
courts. Control of working of the subordinate
courts in dealing with their judicial orders is
exercised by way of appellate or revisional
powers or power of superintendence under
Article 227. Orders of the civil court stand on
different footing from the orders of
authorities or tribunals or courts other than
judicial/civil courts. While appellate or
revisional jurisdiction is regulated by the
statutes, power of superintendence under
Article 227 is constitutional. The expression
“inferior court” is not referable to the
judicial courts, as rightly observed in the
referring order [Radhey Shyam v. Chhabi
Patna High Court CWJC No.12121 of 2015 dt.07-01-2025
5/11Nath, (2009) 5 SCC 616] in paras 26 and 27
quoted above.
26. The Bench in Surya Dev Rai [Surya Dev
Rai v. Ram Chander Rai, (2003) 6 SCC 675]
also observed in para 25 of its judgment that
distinction between Articles 226 and 227
stood almost obliterated. In para 24 of the
said judgment distinction in the two articles
has been noted. In view thereof, observation
that scope of Articles 226 and 227 was
obliterated was not correct as rightly
observed [Radhey Shyam v. Chhabi Nath,
(2009) 5 SCC 616] by the referring Bench in
para 32 quoted above. We make it clear that
though despite the curtailment of revisional
jurisdiction under Section 115 CPC by Act 46
of 1999, jurisdiction of the High Court under
Article 227 remains unaffected, it has been
wrongly assumed in certain quarters that the
said jurisdiction has been expanded. Scope of
Article 227 has been explained in several
decisions including Waryam Singh v.
Amarnath [AIR 1954 SC 215 : 1954 SCR
565] , Ouseph Mathai v. M. Abdul Khadir
[(2002) 1 SCC 319] , Shalini Shyam Shetty v.
Rajendra Shankar Patil [(2010) 8 SCC 329 :
(2010) 3 SCC (Civ) 338] and Sameer Suresh
Gupta v. Rahul Kumar Agarwal [(2013) 9
SCC 374 : (2013) 4 SCC (Civ) 345] . In
Shalini Shyam Shetty [(2010) 8 SCC 329 :
Patna High Court CWJC No.12121 of 2015 dt.07-01-2025
6/11(2010) 3 SCC (Civ) 338] this Court
observed: (SCC p. 352, paras 64-67)
“64. However, this Court unfortunately
discerns that of late there is a growing
trend amongst several High Courts to
entertain writ petition in cases of pure
property disputes. Disputes relating to
partition suits, matters relating to
execution of a decree, in cases of dispute
between landlord and tenant and also in a
case of money decree and in various other
cases where disputed questions of property
are involved, writ courts are entertaining
such disputes. In some cases the High
Courts, in a routine manner, entertain
petitions under Article 227 over such
disputes and such petitions are treated as
writ petitions.
65. We would like to make it clear that in
view of the law referred to above in cases
of property rights and in disputes between
private individuals writ court should not
interfere unless there is any infraction of
statute or it can be shown that a private
individual is acting in collusion with a
statutory authority.
66. We may also observe that in some High
Courts there is a tendency of entertaining
petitions under Article 227 of the
Patna High Court CWJC No.12121 of 2015 dt.07-01-2025
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petitions. This is sought to be justified on
an erroneous appreciation of the ratio in
Surya Dev [Surya Dev Rai v. Ram Chander
Rai, (2003) 6 SCC 675] and in view of the
recent amendment to Section 115 of the
Civil Procedure Code by the Civil
Procedure Code (Amendment) Act, 1999. It
is urged that as a result of the amendment,
scope of Section 115 CPC has been
curtailed. In our view, even if the scope of
Section 115 CPC is curtailed that has not
resulted in expanding the High Court’s
power of superintendence. It is too well
known to be reiterated that in exercising its
jurisdiction, High Court must follow the
regime of law.
67. As a result of frequent interference by
the Hon’ble High Court either under
Article 226 or 227 of the Constitution with
pending civil and at times criminal cases,
the disposal of cases by the civil and
criminal courts gets further impeded and
thus causing serious problems in the
administration of justice. This Court hopes
and trusts that in exercising its power
either under Article 226 or 227, the
Hon’ble High Court will follow the time-
honoured principles discussed above.
Those principles have been formulated by
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this Court for ends of justice and the High
Courts as the highest courts of justice
within their jurisdiction will adhere to them
strictly.”
(emphasis supplied)
27. Thus, we are of the view that judicial
orders of civil courts are not amenable to a
writ of certiorari under Article 226. We are
also in agreement with the view [Radhey
Shyam v. Chhabi Nath, (2009) 5 SCC 616] of
the referring Bench that a writ of mandamus
does not lie against a private person not
discharging any public duty. Scope of Article
227 is different from Article 226.
28. We may also deal with the submission
made on behalf of the respondent that the
view in Surya Dev Rai [Surya Dev Rai v.
Ram Chander Rai, (2003) 6 SCC 675] stands
approved by larger Benches in Shail [Shail v.
Manoj Kumar, (2004) 4 SCC 785 : 2004 SCC
(Cri) 1401] , Mahendra Saree Emporium (2)
[Mahendra Saree Emporium (2) v. G.V.
Srinivasa Murthy, (2005) 1 SCC 481] and
Salem Advocate Bar Assn. (2) [Salem
Advocate Bar Assn. (2) v. Union of India,
(2005) 6 SCC 344] and on that ground
correctness of the said view cannot be gone
into by this Bench. In Shail [Shail v. Manoj
Kumar, (2004) 4 SCC 785 : 2004 SCC (Cri)
Patna High Court CWJC No.12121 of 2015 dt.07-01-2025
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1401], though reference has been made to
Surya Dev Rai [Surya Dev Rai v. Ram
Chander Rai, (2003) 6 SCC 675] , the same
is only for the purpose of scope of power
under Article 227 as is clear from para 3 of
the said judgment. There is no discussion on
the issue of maintainability of a petition
under Article 226. In Mahendra Saree
Emporium (2) [Mahendra Saree Emporium
(2) v. G.V. Srinivasa Murthy, (2005) 1 SCC
481] , reference to Surya Dev Rai [Surya Dev
Rai v. Ram Chander Rai, (2003) 6 SCC 675]
is made in para 9 of the judgment only for
the proposition that no subordinate
legislation can whittle down the jurisdiction
conferred by the Constitution. Similarly, in
Salem Advocate Bar Assn. (2) [Salem
Advocate Bar Assn. (2) v. Union of India,
(2005) 6 SCC 344] in para 40, reference to
Surya Dev Rai [Surya Dev Rai v. Ram
Chander Rai, (2003) 6 SCC 675] is for the
same purpose. We are, thus, unable to accept
the submission of the learned counsel for the
respondent.
29. Accordingly, we answer the question
referred as follows:
29.1. Judicial orders of the civil court are not
amenable to writ jurisdiction under Article
226 of the Constitution.
29.2. Jurisdiction under Article 227 is
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29.3. Contrary view in Surya Dev Rai [Surya
Dev Rai v. Ram Chander Rai, (2003) 6 SCC
675] is overruled.
30. The matters may now be listed before the
appropriate Bench for further orders.”
3. It is further submitted that in view of the law laid
down by the Hon’ble Apex Court in the case of Radhey Shyam
and Another (supra), The Rules of The High Court at Patna
have also been amended and vide Rule 6 of Chapter IIIA, it has
been stipulated as follows :-
“(6) Petitions under Article-227 of the
Constitution of India in respect of any order
or any proceeding before any Civil Court,
would be filed in Civil Miscellaneous
Jurisdiction and would be numbered as Civil
Miscellaneous no. (C. Misc. No.).”
4. The learned counsel for the petitioners submits that
considering the aforesaid aspect of the matter, four weeks’ time
be granted for converting the present writ petition into a Civil
Miscellaneous Petition. Time so sought, is granted.
5. The registry is directed to extend its cooperation to
the learned counsel for the petitioners in order to ensure that the
present writ petition is converted into Civil Miscellaneous
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Petition at the earliest, whereafter, the registry shall list the
present case on priority basis, before the concerned Bench, in
seisin of the subject matter of the present case, in view of the
fact that the present case is pending since 10 years.
(Mohit Kumar Shah, J)
sonal/-
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