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2008 (II) OLR — 49
THE CHIEF JUSTICE AND B. N. MAHAPATRA, J.
Utkal Baptist Mandali Sammilani... Appellant
Versus
Smt. Janabhi Missal... Respondent
W.A. No. 19 of 2007
Decided on 29th February, 2008.
2. CONSTITUTION OF INDIA, 1950 - Arts. 226 and 227 - Writ jurisdiction of the High Court is not confined only to issuance of a writ but the High Court can issue direction/orders in the nature of a writ.
It is one thing to say that the High Court’s jurisdiction under Article 226 against civil Court order is not taken away by an amendment to the revisional jurisdiction of the High Court but it is quite another thing to contend that the writ petition would lie against a private body or individual in a property dispute between the parties where the said private party is not coming under any one of the categories discussed hereinabove. Therefore, the jurisprudence which has been developed by the Hon’ble Supreme Court in the case discussed hereinabove cannot lost sight of. So, the decision in Surya Dev Rai must be understood in that context. It may be that in a case before the civil Court the respondent/opposite party is either a State or its instrumentali¬ties or it may be a person falling in any one of the aforemen¬tioned categories. In such a situation, those person may be amenable to the writ jurisdiction of the High Court subject to the guidelines given in Surya Dev. But otherwise in all cases of private or property disputes between the private parties, the writ cannot go against a private person in the way the writ petition has been framed in this case.
Even after holding in Surya Dev Rai that a writ of certio¬rari is available against an order of the civil Court or that its order are subject to supervisory jurisdiction under Article 227 of the Constitution, learned Judges have laid down the restric¬tion which the Court should follow before issuing a writ of certiorari against civil Courts order or before exercising super¬visory jurisdiction under Article 227 of the Constitution.(Paras - 25 and 27)
3. WRIT - Writ petition against order of Civil Court - Maintainability stated.
Mere errors of law or fact if they do not cause gross injus¬tice cannot be corrected in exercise of jurisdiction under Arti¬cle 227 of the Constitution.
Extraordinary High Prerogative writ jurisdiction of High Court should not be invoked to decide property disputes among private parties keeping in view the guidelines laid down in Surya Dev Rai’s case.
(Paras - 29 and 30)
4. CONSTITUTION OF INDIA, 1950 - Arts. 226 and 227 - Suit - Disputes relating to property between private parties - Order of Civil Judge (Sr. Division) set aside by learned Judge of Writ Court - Writ appeal - Writ against private person - In the in¬stant case, the appellant is not discharging any public duty - It is a religious organization and is neither a public utility concern and is certainly not a statutory body - Such a private organization whom no public duty is imposed is not amenable to a Writ Court - Held, it cannot be said that any error has been committed by the Civil Court which cannot be corrected in an appeal to be filed against the same by the aggrieved party from the final judgment - Interference with the order of the Civil Court by the learned Judge of the Writ Court has not been made in proper exercise of discretion under Article 226 of the Constitu¬tion.
Going by the aforesaid tests, we hold that in this case the appellant does not come under any of the categories discussed above. As a private religious organization it was not discharging any public duty or statutory duty nor was it acting in collusion with a statutory authority and it is admittedly not a Habeas Corpus proceeding. So the appellant herein and the sole opposite party in the writ petition is not amenable to writ jurisdiction under the Constitution. (Paras - 18, 23 and 29)
JUDGMENT
A. K. GANGULY, C.J. — This writ appeal has been filed challenging the judgment dated 12.2.2007 passed by a learned Single Judge of the writ Court in W.P.(C) No. 13052 of 2006.
2. On a perusal of the said judgment, it appears that the writ petitioner was the defendant in Civil Suit No.62 of 2004. In this said suit, the writ petitioner-defendant filed her written statement. The appellant was the opposite party in the writ petition and the plaintiff in the said suit.
3. By the impugned judgment, learned Judge of the writ Court held that the order which was passed by the learned Civil Judge (Senior Division), Parlakhemundi in Civil Suit No.62 of 2004 cannot be sustained and His Lordship was pleased to set aside the said order dated 21.8.2006 passed by the Civil Judge (Senior Division), Parlakhemundi.
4. By the said order, learned Civil Judge (Senior Divi¬sion) inter alia held that there was delay in filing the counter claim and the counter claim was filed by the defendant in the suit without the leave of the Court and the Court also held that the defendant was not diligent in the proceeding relating to counter claim which was filed after the issues were settled and as a result whereof the suit got stalled. On the aforesaid grounds, the counter claim was rejected and the suit was fixed for hearing on 4.9.2006.
5. This Court is not going into the correctness or other¬wise of the said order on merits since the suit between the parties is pending.
6. Learned counsel for the appellant urged that the writ petition should not have been entertained as the disputes relate to property between private parties and the writ Court by inter¬fering with the order passed by the Civil Court stalled the suit which was fixed for hearing on 4.9.2006.
7. In the writ petition, the only opposite party was the appellant herein and the appellant is Utkal Baptist Mandali Sammilani which is certainly not an authority within the meaning of Article 12 of the Constitution. This Court does not understand how a writ petition can lie against the opposite party which is a private religious organization. This is very serious infirmity about the maintenance of the writ petition.
8. The language of Article 226 of the Constitution is very wide and it is provided that the High Courts shall have powers to issue, in relation to the area where it exercises jurisdiction various writs mentioned in the said Article or any directions or orders in the nature of writs to any person or authority. The said expression “person” has received judicial interpretation by Supreme Court and various High Courts on the question whether writ can be issued against any private person.
9. This question came up for consideration in the case of Shri Sohan Lal v. Union of India and another, a Constitution Bench judgment of the Supreme Court, reported in AIR 1957 SC 529. In that case Jagan Nath, a displaced person and a refugee from Pakistan, filed a writ petition in the High Court of Punjab under Article 226 of the Constitution of India against Union of India and one Sohan Lal and prayed for appropriate relief directing Union of India and also Sohan Lal to restore to him the possession of his house. High Court directed Sohan Lal to restore possession to Jagan Nath. Then, Sohan Lal appealed to the Supreme Court against the said High Court order and one of the conten¬tions was whether a writ of Mandamus can lie against any private individual. In that context Justice Imam, speaking for the unani¬mous Court, held that the eviction of the Jagan Nath was in contravention of express provisions of Section 3 of the Public Premises (Eviction) Act and was illegal. The property in dispute was in the possession of Sohan Lal, but there was no evidence and no finding by the High Court that Sohan Lal acted in collusion with Union of India or that he had any knowledge that the evic¬tion of Jagan Nath was illegal. In the context of those facts, the learned Judges of the Supreme Court held as follows :
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