Point of Law : Court is well within its powers and jurisdiction to treat the instant petition as one under Article 227 of the Constitution and test the merits of the contentions raised by the parties.

JUDGMENT :

1) Petitioners have filed the instant petition under Section 103/104 of the Constitution of Jammu and Kashmir (corresponding to Article 226/227 of the Constitution of India) whereby they have challenged order dated 29.06.2015 passed by the Court of learned Munsiff, Baramulla, in the case titled “Brigadier Datar Singh & Ors. Vs. Union of India & Ors” whereby applications of the petitioners seeking permission to file written statement to the suit filed by the contesting respondents against them has been dismissed.

2) The primary ground which the petitioners have urged before this Court is that in a civil revision petition filed by them on an earlier occasion, orders of the trial court whereby two applications of the petitioners, one for setting aside exparte proceedings and another for seeking rejection of plaint in terms of Order VII Rule 11 of the Code of Civil Procedure, were dismissed, have been set aside. It is contended that in terms of the said order, petitioners were allowed to join the proceedings and to contest the suit on the grounds available to them and, as such, it was not open to the learned trial court to go behind the said order of this Court and reject the petitioners’ application for seeking permission to file written statement.

3) The contesting respondents, while defending the impugned order of the learned trial court, have taken a preliminary objection to the maintainability of the petition on the ground that a Writ of Certiorari cannot be issued against an order passed by a civil court. They have relied upon the judgment of the Supreme Court in the case of Radhey Shyam & Anr vs Chhabi Nath & Ors, (2015) 5 SCC 423.

4) Heard learned counsel for the parties and perused the record of the case.

5) A perusal of the record reveals that contesting respondents had filed a suit for declaration and injunction against the petitioners herein before the trial court. It appears that the petitioners, after being served, entered their appearance through counsel before the trial court but no written statement was filed by them before the trial court. Ultimately petitioners stopped appearing in the case and they were set exparte in terms of order dated 14.07.2012. Thereafter no effective proceedings took place in the suit before the trial court for quite some time and ultimately on 05.02.2013, petitioners made an application for setting aside exparte proceedings. The petitioners also filed an application seeking rejection of plaint in terms of Order VII Rule 11 of CPC. Both these applications came to be decided by the learned trial court vide order dated 01.12.2014. The learned trial court after observing that the petitioners have failed to make out a sufficient cause for their absence on the date when they were set exparte, dismissed both the applications of the petitioners. The aforesaid order came to be challenged by the petitioners before this Court by way of a revision petition bearing Civil Revision No.02/2015 titled Union of India & Ors. vs. Brigadier Datar Singh Cheema and others. The aforesaid petition came to be allowed by this Court in terms of order dated 05.03.2015, the operative portion whereof is reproduced as under:

“5. So viewed order whereby application under O9 R7 and O7 R11 CPC have been dismissed is set aside.

6. Mr. Makroo states that petitioners have yet to file their written statement and have also not responded to the application for grant of leave to amend the petition.

7. In the facts and circumstances of the case, petitioner would be free to join the proceedings, a right otherwise available to them and may contest the suit on the grounds available to them including one that plaint is liable to be rejected under Order 7 Rule 11 CPC.”

6) Pursuant to the passing of aforesaid order, petitioners made an application before the trial court seeking permission to file written statement. The said application came to be dismissed by the learned trial court in terms of its order dated 29.06.2015, which is