2008 (4) TMI 808 - HC - Indian Laws

Summary

Issues Involved:
1. Maintainability of the writ petition in a proceeding arising out of a Partition suit filed in a Civil Court.
2. Distinction between Articles 226 and 227 of the Constitution of India.
3. Whether the writ Court should have interfered with the order passed by the learned Civil Judge (Senior Division).

Summary:

1. Maintainability of the Writ Petition:
The primary issue was whether a writ petition is maintainable in a proceeding arising out of a Partition suit filed in a Civil Court of competent jurisdiction. The petition filed before the writ Court was under Articles 226 and 227 of the Constitution, but it was argued that it should be treated as a petition under Article 227. The Court clarified that the petition was indeed a writ petition, as evidenced by the cause title and the declarations within the petition itself.

2. Distinction between Articles 226 and 227:
The Court elaborated on the fundamental differences between Articles 226 and 227. Article 226 confers power on High Courts to issue prerogative writs for enforcing fundamental rights and for any other purpose, while Article 227 vests the High Courts with judicial and administrative power of superintendence over all Courts and tribunals within its jurisdiction. The Court emphasized that these two Articles are distinct and intended for different situations. The power under Article 226 is one of extraordinary original jurisdiction, whereas Article 227 is supervisory and not an exercise of original jurisdiction. The Court also noted that the power under Article 227 can be exercised suo motu, unlike Article 226, which requires an application by an aggrieved party.

3. Interference by the Writ Court:
The Court referred to the guidelines provided by the Supreme Court in Surya Dev Rai v. Ram Chander Rai, which indicate that an ex parte decree is appealable under the Civil Procedure Code (CPC). The writ petitioner's conduct showed carelessness and negligence, and the orders of the Civil Court indicated repeated dismissals of applications under Order 9, Rule 13 CPC. The Court held that filing an application under Articles 226/227 to bypass the remedy available under Order 43, Rule 1, Clause (d) CPC is impermissible. Consequently, the writ petition was deemed misconceived.

Conclusion:
The writ appeal was allowed, the writ petition was dismissed, and the order of the learned Judge of the writ Court was set aside. The Court clarified that it did not examine the merits of the order passed by the Civil Judge (Senior Division) and that the writ petitioner's remedy against the Civil Court's order remained unaffected by this judgment. There was no order as to costs.

Separate Judgment:
B.N. Mahapatra, J. concurred with the judgment.