The availability of a remedy of appeal under the Civil Procedure Code may deter the High Court from exercising its power of superintendence under Article 227.

JUDGMENT :

1. Heard Sri Prashant Chandra, learned Senior Counsel assisted by Sri Nirmit Srivastava, and Ms. Radhika Singh, learned counsel for the petitioner and Sri Amrendra Nath Tripathi, learned counsel for the respondent no.2 alongwith Sri Anand Pratap Singh, Advocate.

2. This petition has been filed under Article 227 of the Constitution of India with the prayer to set aside the order dated 12.04.2022 passed on an application under Order 39 Rule 1 & 2 of the C.P.C. in Regular Suit No. 297 of 2022 and to direct the trial court to maintain the order dated 17.02.2022 by which an ex parte ad-interim injunction for maintenance of Status quo was passed by the trial court. An additional prayer has been made that the private respondents be directed not to make any transactions in respect of any part of the building known as Paradise Farm, situated at IIM Road, Lucknow without leave of the Court.

3. Sri Amrendra Nath Tripathi has raised a preliminary objection regarding the maintainability of this petition under Article 227 of the Constitution of India by referring to Order 43 Rule 1(r) of the C.P.C., wherein it has been provided that an appeal shall lie under Section 104 against an Order under Rule 1 and 2, 2A, 4 or Rule 10 of Order 39.

4. It has been submitted that the order passed on the application for temporary injunction moved by the plaintiff/petitioner has been passed under Order 39 Rule 1 and 2, and therefore, it is an order where the appeal from Order would lie not a petition under Article 227 of the Constitution of India.

5. Learned Senior Advocate, Sri Prashant Chandra has argued on the basis of the Judgment rendered by the Supreme Court in the Case of Radhey Shyam and Another vs. Chhabi Nath and Others (2015) 5 SCC 423 that against judicial orders of the Civil Court though Writ under Article 226 is not maintainable, judicial orders can be challenged under Article 227. He has described from paragraphs 2 and 3 of the judgment, the controversy which was referred to the Larger Bench with regard to the observations made by the Division Bench in Surya Dev Rai vs. Ram Chand Rai (2003) 6 SCC 675 and the question that was referred to was whether the Constitution Bench of a corum of nine Judges in Naresh Shridhan Mirajkar vs. State of Maharashtra AIR 1967 SC 1 could have been ignored by two learned Judges in Surya Deo Rai(supra). Learned counsel for the petitioner has read out the conclusion arrived at by the three Judges Larger Bench as mentioned in paragraph 21 and 22 of the judgment and also read out certain portions of paragraph 23 of Radhey Shyam (Supra) where reference was made to the judgment rendered in the case of Surya Deo Rai(Supra) referring to paragraph 19, 24 and 25 of judgement in the case of Surya Deo Rai(Supra). Learned Senior Counsel has also read out certain portions of paragraph 25 and 26 of Radhey Shyam (Supra) to argue that Article 227 confers the power of superintendence of Subordinate Court on the High Court and the control of working of Subordinate Courts including illegality or perversity in orders passed by such Subordinate Courts can be looked into under Article 227 of the Constitution of India.

6. It has also been argued that the orders of the Civil Court stand on a different footing from orders of other authorities or Tribunals or courts other then Judicial/Civil Courts, and while appellate or revisional jurisdiction is regulated by the statute, power of superintendence under Article 227 is constitutional.

7. It has been argued by Sri Prashant Chandra that the plaintiff/petitioner is before this Court invoking the power of superintendence under Article 227 of the Constitution of India only because the trial court has exceeded its jurisdiction and has made observations on the merits of the case by holding a mini trial. Reference has been made to Builders’ Agreement entered into between the parties and subsequent unregistered notarized agreements made thereafter between the owner of the land, respondent no.2