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HIGH COURT OF ALLAHABAD
D.K.Seth
MATTHAN SINGH
Versus
ADDL D J MEERUT
Decided On : 30 November 1995
Civil Misc. W. P. No. 28463 of 1995
CIVIL PROCEDURE - SECTION 115 - WRIT JURISDICTION - SCOPE AND EXTENT - WRIT JURISDICTION OF HIGH COURT UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA - WHETHER MAINTAINABLE AGAINST AN APPELLATE OR REVISIONAL ORDER PASSED BY THE DISTRICT COURT - WHETHER WRIT JURISDICTION CAN BE INVOKED IN CASES WHERE THE HIGH COURT DOES NOT HAVE ANY POWER OF REVISION IN RESPECT OF AN ORDER PASSED BY THE CIVIL COURT - WHETHER A CIVIL COURT, WHO ARE NOT PARTIES TO THE SUIT OR DISPUTE BETWEEN TWO PRIVATE INDIVIDUALS IN A CIVIL SUIT, WHILE EXERCISING JUDICIAL FUNCTION, CAN BE CALLED STATE WITHIN THE MEANING OF ARTICLE 12 OF THE CONSTITUTION IN ORDER TO RENDER IT AMENABLE TO WRITS APART FROM THE PRINCIPLE OF EXISTENCE OF ALTERNATIVE REMEDY IN THE FORM OF ARTICLE 227 OF THE CONSTITUTION OF INDIA.
Fact of the Case:
The petitioner filed a writ petition under Articles 226/227 of the Constitution of India challenging an order passed by the Additional District Judge, Meerut, dismissing his application to recall an earlier order allowing an appeal filed by the respondent. The petitioner's counsel had sought an adjournment, which was dismissed, and then filed an application to withdraw from the appeal, which was also not acted upon by the court. The petitioner was not given an opportunity to engage another counsel and was unable to participate in the proceedings.
Finding of the Court:
The court held that the writ petition was not maintainable under Article 226 of the Constitution of India as the order impugned was not an ex parte order and the petitioner had an alternative remedy under Article 227 of the Constitution of India. However, the court treated the petition as an application under Article 227 and allowed it, setting aside the ex parte decree and restoring the appeal to the file.
Issues: 1. Whether a writ petition under Article 226 of the Constitution of India is maintainable against an appellate or revisional order passed by the District Court? 2. Whether writ jurisdiction can be invoked in cases where the High Court does not have any power of revision in respect of an order passed by the Civil Court? 3. Whether a Civil Court, who are not parties to the suit or dispute between two private individuals in a civil suit, while exercising judicial function, can be called state within the meaning of Article 12 of the Constitution in order to render it amenable to writs apart from the principle of existence of alternative remedy in the form of Article 227 of the Constitution of India?
Ratio Decidendi: 1. A writ petition under Article 226 of the Constitution of India is not maintainable against an appellate or revisional order passed by the District Court, as the High Court does not have revisional jurisdiction over such orders. (See paragraphs 6, 7, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24) 2. Writ jurisdiction cannot be invoked in cases where the High Court does not have any power of revision in respect of an order passed by the Civil Court, as there is an alternative remedy available under Article 227 of the Constitution of India. (See paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24) 3. A Civil Court, who are not parties to the suit or dispute between two private individuals in a civil suit, while exercising judicial function, cannot be called state within the meaning of Article 12 of the Constitution in order to render it amenable to writs apart from the principle of existence of alternative remedy in the form of Article 227 of the Constitution of India. (See paragraphs 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24)
Final Decision: The court allowed the application under Article 227 of the Constitution of India, set aside the ex parte decree, and restored the appeal to the file.
The present petition has been sought to be moved under Article 226/227 of the Constitution of India against the order dated 2nd September 1995 passed by the learned IInd Additional District Judge, Meerut in Misc. Appeal No. 78 of 1992 arising out of the order dated 14th February 1992 passed by the learned Civil Judge, Meerut in Original Suit No. 1225 of 1991.
2. Original Suit No. 1225 of 1991 was initiated by one Raghubir against Matthan Singh and others for permanent injunction restraining the defendants from interferring in the possession of the plaintiff over the suit property. On the application for grant of temporary injunction filed by the plaintiff, the learned Civil Judge passed an interim order on 28th November, 1991. After the defendant had contested the said application, the interim order of injunction was vacated by order dated 14th February 1992 passed by the learned Civil Judge in the said suit. Aggrieved, the plaintiff preferred an appeal being Misc. Appeal No. 78 of 1992 in the Court of the District Judge, Meerut against the said order dated 14th February 1992. The said appeal was ultimately transferred to the Second Court of Additional District Judge, Meerut. The said Misc. Appeal No. 78 of 1992 was taken up for hearing on 29th May, 1995 when the defendant-respondent, petitioner herein, was present in the Court Room. The counsel for the petitioner, on account of his personal difficulty, had moved an application for adjournment which was dismissed, whereupon the counsel for the petitioner had moved another application immediately for permission to withdraw from the appeal since he was unable to attend the Court so that the interest of his client may not suffer. The learned Additional District Judge did not pass any order on the said application and proceeded to hear the appeal in the presence of the petitioners counsel without giving opportunity to the petitioner to engage any other counsel and the petitioner, being an illiterate rustic person, was unable to participate in the proceeding. He was neither heard nor argued the matter. By order dated 29th May, 1995, the appeal was allowed. In the order, it was recorded incorrectly that the petitioner was also heard though he could not participate in the proceedings. In the circumstances, on 31st May 1995, the petitioner filed an application for recalling the order dated 29th May 1995 to which the plaintiff-appellant, respondent herein, filed his written objection on 25th August, 1995. Out of the said application for recalling, Misc. Case No. 20 of 1995 was registered. The said Miscellaneous case was dismissed by order dated 2nd September, 1995 on the ground that the order dated 29th May, 1995 was not an ex parte order. It is this order which is under challenge in the present petition.
3. When asked, the learned counsel for the petitioner could not specify as to under which provision, he proposed to maintain this petition. However, he contended that the petition under Article 226 is maintainable in the State of U. P. against the order passed by the Civil Court in civil proceedings in view of the U. P. Amendment made in Section 115 of the Code of Civil Procedure. It has been held that such a petition would be maintainable under Article 226 in case there is no appeal or revision provided in the Code of Civil Procedure in the case of Mis Jupiter Chit Fund (Pvt.) Ltd. v. Dwarika Diesh Dayal and others, 1979 ALJ 685 (FB ). In the said judgment, the Full Bench had followed the decision in the case of Har
Prasad Singh v. Ram Swarup, 1973 ALJ 343 while overruling the decision in the case of Phoolwati v. Gur Sahai, AIR 1975 All 262.
4. In order to appreciate the situation, it is necessary to refer to Section 115 as amended in 1972:
"the High Court in eases arising out of original suit of the value of twenty thousand rupees and above, and the District Court in any other case may call for the record of any case which has been decided by any court subordinate to s
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