Prem Chand vs Addl. District Judge And Others
2023 Latest Caselaw 1119 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 10
 

 
Case :- WRIT - C No. - 53899 of 2002
 

 
Petitioner :- Prem Chand
 
Respondent :- Addl. District Judge And Others
 
Counsel for Petitioner :- Shreeprakash Singh
 
Counsel for Respondent :- S.K. Jaiswal
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. This case is listed today under the heading "likely to be infructuous". Case called out. No one is present on behalf of petitioner to press the writ petition.

2. It seems that writ petition has become infructuous by efflux of time and the petitioner is not interested in pursuing the matter any more.

3. Moreover, the writ petition has been filed under Article 226 of the Constitution of India challenging the order passed by the courts below. The Apex Court in case of Radhey Shyam and another vs. Chhabi Nath and others, (2015) 5 SCC 423 has held that challenge to judicial order could lie by way of appeal or revision or under Article 227 of Constitution and not by way of writ under Article 226 and 32 of Constitution of India. Relevant paras 27, 28 and 29 are extracted hereasunder:-

"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 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 vs. Ram Chander Rai, (2003) 6 SCC 675 stands approved by larger Benches in Shail vs Manoj Kumar, (2004) 4 SCC 785, Mahendra Saree Emporium (2) vs. G.V. Srinivasa Murthy, (2005) 1 SCC 481 and Salem Advocate Bar Association (2) vs. 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 (supra), though reference has been made to Surya Dev Rai (supra), 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) (supra), reference to Surya Dev Rai (supra) 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 Association (2) in para 40, reference to Surya Dev Rai (supra) 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 distinct from jurisdiction under Article 226.

29.3. Contrary view in Surya Dev Rai (supra) is overruled."

4. As no application in the present case has been made on behalf of petitioner for converting the petition from under Article 226 to 227 of Constitution, the Writ petition is dismissed in view of decision of Apex Court in case of Radhey Shyam (supra).

Order Date :- 11.1.2023

V.S.Singh