The main legal point established in the judgment is that proceedings under Art.226 of the Constitution are of a civil nature, and therefore, the provisions of the Civil Procedure Code, including O. XLVII, R.5 and S.141, must apply to such proceedings, subject to the Rules of the High Court governing writ jurisdiction.

1. A question of jurisdiction arises in this review and as Khalid, J., thought the question has to be decided by a Division Bench this has come up before us on an order of reference passed by the learned judge.

2. Writ Appeal 75 of 1973 was decided by a Division Bench composing of Raghavan C. J., and Khalid, J. Since then Raghavan C. J., retired from service and the application for review was, therefore, presented before Khalid, J. The O. P. from which the Writ Appeal arose was one under Art.226 of the Constitution to quash certain orders passed by the District Medical Officer of Health and the Director of Health Services against the petitioner one P. K. Abdul Kareem, a hospital attender. The learned Single Judge dismissed the O. P. Against it the Writ Appeal was filed before a Division Bench and that was dismissed in limine. It is against the order of the Division Bench that the review has been filed. Under O. XLVII, R.5 CPC., where one of the judges who passed the decree or order continues to attach himself to the court at the time the application for review is presented can bear the application; but the question here is whether the review itself is maintainable. S.141 CPC. lays down that the procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction.

Art.226 of the Constitution has conferred an extraordinary jurisdiction on the High Court and the mode of exercising the same is governed by Rules that the court has framed. A Division Bench of the Rajasthan High Court in Ramsingh v. State of Rajasthan (AIR. 1969 Raj. 41) has, in similar circumstances, held: "The provisions contained in the Civil P. C. will not be attracted to this special jurisdiction in terms, because S.4(1) of the Civil P. C. provides that in the absence of any specific provision to the contrary, nothing in this code shall be deemed to limit or otherwise affect any special or local law not in force or any special jurisdiction or power conferred or any special form of procedure prescribed by or under any other law for the time being in force. It is thus clear that special procedure has been provided in the Rules of the High Court for writ proceedings under Art.226 of the Constitution and, therefore, the provisions of the Civil P. C. cannot apply in terms to such proceedings. This, however, does not mean that the principles contained in the Code of Civil procedure would have no application at all to the writ proceedings. Those provisions of the Civil P. C. which do not come in conflict with the Rules made by the High Court of Rajasthan and which can be suitably made applicable to the writ proceedings will apply to writ proceedings. In other words, even though the provisions of the Civil P. C. may not apply with full rigour to writ proceedings, writ proceedings would nonetheless be governed by the principles analogous to those contained in the Code of Civil Procedure as far as they are not inconsistent with the Rules made by the High Court on the subject."

These observations were made by the learned judges In connection with the question whether the provisions of 0.9, R.9 can suitably be applied to writ proceedings.

3. A Division Bench of the Madras High Court in Chenchanna Naidu v. Praja Seva Transports Ltd. (AIR. 1953 Mad. 39) held that:

"If the application for the issue of a writ under Art.226 is made on the civil side, in dealing with such an application the High Court is governed by the provisions of the Civil Procedure Code and the High Court has jurisdiction to review its order under Art.226."

In coming to this conclusion the learned judges of the Division Bench examined the entire case-law and relied on an earlier decision of the Madras High Court in AIR. 1938 Mad. 722. The Andhra Pradesh High Court in Income-tax Officer v. Srinivasa Rao (AIR. 1969 A. P. 441) following the above decision of the Madras High Court has observed that the provisions of