Premchand S/O Phoolchand vs Suganchand S/O Phoolchand
2022 Latest Caselaw 4600 Raj/2

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

             D. B. Civil Special Appeal (Writ) No. 807/2022
                                         In
                 S. B. Civil Writ Petition No. 6990/2022
Premchand S/o Phoolchand, aged about 60 years, R/o Sawai
Madhopur, Tehsil Sawai Madhopur, District Sawai Madhopur.
                                                          ----Appellant-Petitioner
                                      Versus
Suganchand S/o Phoolchand, aged about 51 years, R/o Sawai
Madhopur, Tehsil Sawai Madhopur, District Sawai Madhopur.
                                                                        ----Respondent

For Appellant : Mr. Rakesh Chandel Advocate.

HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Judgment

07/07/2022

Heard.

Taking into consideration the authoritative

pronouncement of the Hon'ble Supreme Court in the case of

Radhey Shyam & Another Vs. Chhabi Nath & Others, (2015)

5 SCC 423 that only supervisory jurisdiction under Article 227 of

the Constitution of India is available in the matter of challenge to

an order passed by the Civil Court, this appeal is not maintainable

as the order has been passed by the learned Single Judge in

exercise of supervisory jurisdiction under Article 227 of the

Constitution of India and not under Article 226 of the Constitution

of India. In the aforesaid judgment, it has been held thus:

"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

(2 of 2) [SAW-807/2022]

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

29.3. Contrary view in Surya Dev Rai is overruled."

In view of above judgment of the Hon'ble Supreme

Court, present appeal is dismissed as not maintainable.

(ANOOP KUMAR DHAND),J (MANINDRA MOHAN SHRIVASTAVA),J

MANOJ NARWANI /7

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