Gauhati High Court
Page No.# 1/5 vs Rumi Boro on 17 March, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/5
GAHC010034762025
2025:GAU-AS:2784
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1246/2025
UNION OF INDIA AND 2 ORS.
REPRESENTED BY THE SECRETARY IN THE MINISTRY OF DEFENCE ,
SOUTH BLOCK, NEW DELHI
2: THE STATION HQ.
MISAMARI
C/O 99 APO
3: THE COMMANDING OFFICER
571 ASC BN
C/O 99 APO
VERSUS
RUMI BORO
W/O- SRI BARMA BABU RAI ,SHOP NO.14 A, PROP OF APSARA BEAUTY
PARLOUR, CENTRAL SHOPPING CENTRE, MISAMARI DISTRICT
,SONITPUR, ASSAM- 784506, HOME ADDRESS- NABIL PATHAR, NEPALI
BASTI, MISSAMARI DIST- SONITPUR, ASSAM.
Advocate for the Petitioner : MRS. A GAYAN,
Advocate for the Respondent : ,
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BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 17-03-2025
Heard Ms. A. Gayan, learned CGC for the writ petitioners.
2. The instant writ petition, preferred under Article 226 of the Constitution of
India, is directed against an Order dated 09.01.2024 passed by the Court of the
learned Civil Judge [Junior Division] No. 1, Sonitpur, Tezpur ['the Trial Court', for
short] in Misc.[J] Case no. 15/2022. By the impugned Order dated 09.01.2024,
the Court of learned Civil Judge [Junior Division] No. 1, Sonitpur, Tezpur has
restrained and prohibited the opposite parties therein, that is, the writ
petitioners herein from evicting the applicant forcibly from her shop room no.
14A, that is, the suit premises and to allow her to run her business in peaceful
environment with uninterrupted supply of electricity till disposal of the
corresponding title suit, Title Suit no. 15/2022.
3. The applicant who is the plaintiff in Title Suit no. 15/2022, had preferred
an application under Order XXXIX, Rule 1 and 2 read with Section 151, Code of
Civil Procedure [CPC] for grant of temporary injunction and the said application
was registered and numbered as Misc.[J] Case no. 15/2022. The applicant as
the plaintiff has instituted the connected title suit, Title Suit no. 15/2022 seeking
inter-alia a declaration of confirmation of possession of the suit premises, that
is, shop room no. 14A located inside Central Shopping Center within the
Cantonment area of Missamari, District - Sonitpur; and for the permanent
injunction against the defendants therein, that is, the writ petitioners herein for
prohibiting them from evicting the plaintiff from the suit premises.
4. Ms. Gayan, learned CGC, by referring to the a number of orders passed in
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writ petitions, annexed to this writ petition, has submitted that the learned Trial
Court had failed to appreciate the case projected by the opposite
parties/defendants/writ petitioners in Misc.[J] Case no. 15/2022 in proper and
correct perspective.
5. A three-Judge Bench of the Hon'ble Supreme Court of India in Radhey
Shyam vs. Chhabi Nath, [2009] 5 SCC 616, has referred to the majority view
given in a nine-Judge Bench decision in Naresh Shridhar Mirajkar vs. State
of Maharashtra, AIR 1967 SC 1, wherein it is held that a judicial order of a
competent court could not violate a fundamental right and even if there is any
incidental violation, it could not be held to be violative of the fundamental right.
What the judicial decision purports to do is to decide the controversy between
the parties brought before the court and nothing more. After making reference
also to other judgments, the three-Judge Bench has observed that a challenge
to judicial orders could lie by way of appeal or revision or under Article 227 and
not by way of a writ petition under Article 226 or under Article 32. It has been
further observed in Radhey Shyam vs. Chhabi Nath [supra] that Article 227
of the Constitution vests the High Courts with a power of superintendence which
is to be very sparingly exercised to keep tribunals and courts within the bounds
of their authority. Under Article 227, orders of both civil and criminal courts can
be examined only in very exceptional cases when manifest miscarriage of justice
has been occasioned. After analyzing the provisions of Article 226 and Article
227 of the Constitution and the ratio laid down in the nine-Judge Bench in
Naresh Shridhar Mirajkar [supra] and other decisions, the reference has
been answered as follows :-
29.1. Judicial orders of civil court are not amenable to writ jurisdiction under
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Article 226 of the Constitution;
29.2. Jurisdiction under Article 227 is distinct from jurisdiction from jurisdiction
under Article 226.
6. It is further noticed that against an Order passed under Order XXXIX Rule
1 and 2, CPC, an appeal would lie before the appellate court under Order XLIII,
Rule [r], CPC.
7. Ms. Gayan, learned CGC appearing for the petitioners has fairly submitted
that the writ petitioners would like to prefer an appeal before the appropriate
appeal court after withdrawal of the instant writ petition and has prayed
accordingly.
8. Since the remedy of appeal against the Order dated 09.01.2024 is
available under Order XLIII Rule [r], CPC and the Order dated 09.01.2024 is
undoubtedly a judicial order of a civil court, a writ petition under Article 226 of
the Constitution against the Order dated 09.01.2024 is not to be entertained.
9. Having regard to the submission made by Ms. Gayan, learned CGC that
the writ petitioners would like to withdraw this writ petition and would prefer an
appeal against the impugned Order dated 09.01.2024 under Order XLIII Rule
[r], CPC before the appropriate appellate forum, this writ petition is not
entertained, reserving the liberty to the petitioner to take recourse to proper
remedy of appeal as available under the law.
10. Since the instant writ petition was filed on 19.02.2025, it is observed that
in the event the writ petitioners prefer an appeal before the appropriate
appellate forum, the appellate forum will duly consider the period spent by the
writ petitioners in pursuing the instant write petition from 19.02.2025 till today
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[17.03.2025] vis-à-vis Section 14 of the Limitation Act, 1963. It is further
observed that as the statutory period of limitation for an appeal has since
expired, if the petitioners prefer an appeal and an application under Section 5 of
the Limitation Act, 1963 showing cause as to why the appeal could not be
presented within the statutory period of limitation, the appellate shall consider
the same in accordance with law and on its own merits. It is further clarified
that as the writ petition itself has not been entertained, this Court has not made
any observations as regards the merits of the case of the petitioners.
JUDGE
Comparing Assistant
