IMPORTANT POINT
Amendment by Act No. 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India.

Headnote:(i) Civil Procedure Code, 1908-Section 115 as amended by Act No. 46 of 1999 w.e.f. 1-7-2002-Revision -Impact of amendment in Section 115 on power and jurisdiction of High Court under Articles 226 and 227 of the Constitution-Interlocutory orders, passed by Courts subordinate to the High Court-Remedy of revision against such orders excluded by CPC Amendment Act No. 46 of 1999-However, such orders are open to challenge in certiorari and supervisory jurisdiction of the High Court-Curtailment of revisional jurisdiction of the High Court does not take away constitutional jurisdiction of High Court to issue writ of certiorari nor its power of superintendence-Constitution of India-Articles 226 and 227.
       Held : Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:-
        (1) Amendment by Act No. 46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
        (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
        (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e, when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
        (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
        (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.
        (6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.
        (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and, the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
        (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
        (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.
       Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self-restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where a stitch in time would save nine . At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge. (Paras 37 and 38)
       (ii) Constitution of India-Article 226-Writ of certiorari-Nature and scope-An error apparent on face of record can be corrected by certiorari-However, certiorari jurisdiction is not to be exercised as a matter of course.
       Held : In the exercise of certiorari jurisdiction the High Court proceeds on an assumption that a Court which has jurisdiction over a subject- matter has the jurisdiction to decide wrongly as well as rightly. The High Court would not, therefore, for the purpose of certiorari assign to itself the role of an Appellate Court and step into re-appreciating or evaluating the evidence and substitute its own findings in place of those arrived at by the inferior court. (Para 11)
       Any authority or body of persons constituted by law or having legal authority to adjudicate upon questions affecting the rights of a subject and enjoined with a duty to act judicially or quasi-judicially is amenable to the certiorari jurisdiction of the High Court. The proceedings of judicial courts subordinate to High Court can be subjected to certiorari. (Para 14)
       Certiorari jurisdiction though available is not to be exercised as a matter of course. The High Court would be justified in refusing the writ of certiorari if no failure of justice has been occasioned. In exercising the certiorari jurisdiction the procedure ordinarily followed by the High Court is to command the inferior court or tribunal to certify its record or proceedings to the High Court for its inspection so as to enable the High Court to determine whether on the face of the record the inferior court has committed any of the preceding errors occasioning failure of justice. (Para 20)
       (iii) Constitution of India-Article 227-Supervisory jurisdiction of High Court-Scope-Difference between writ of certiorari and supervisory jurisdiction-Power under Article 227 is wider than the one conferred on High Court by Article 226-However, distinction between the two jurisdictions stands obliterated in practice.
       Held : Article 227 of the Constitution confers on every High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction excepting any court or tribunal constituted by or under any law relating to the armed forces. Without prejudice to the generality of such power the High Court has been conferred with certain specific powers by sub-Articles (2) and (3) of Article 227 with which we are not concerned hereat. It is well-settled that the power of superintendence so conferred on the High Court is administrative as well as judicial, and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The paramount consideration behind vesting such wide power of superintendence in the High Court is paving the path of justice and removing any obstacles therein. The power under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. Else the parameters invoking the exercise of power are almost similar. (Para 21)

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points summarized:

The amendment to Section 115 of the Civil Procedure Code (CPC) by Act No. 46 of 1999, effective from July 1, 2002, does not affect the jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India. The constitutional powers to issue writs and exercise superintendence remain intact (!) (!) .
Orders passed by subordinate courts that are now outside the scope of revision under Section 115 CPC are still challengeable through the High Court’s writ jurisdiction (certiorari) and supervisory powers. These remedies are available to correct gross errors of jurisdiction or grave injustices (!) (!) .
The writ of certiorari is primarily used to correct errors of jurisdiction, such as acting without jurisdiction, exceeding jurisdiction, or violating principles of natural justice, leading to failure of justice. It is not an appellate remedy and cannot be used to re-evaluate or re-appreciate evidence or substitute the decision of the lower court (!) (!) (!) .
The supervisory jurisdiction under Article 227 of the Constitution is broader and aims to ensure subordinate courts act within their legal bounds. It can be invoked to prevent a subordinate court from assuming jurisdiction it does not have, or to correct its failure to exercise jurisdiction, or to prevent abuse of jurisdiction that causes grave injustice (!) .
Both certiorari and supervisory jurisdiction should be exercised sparingly and only in appropriate cases, especially where errors are patent or manifest, and where correction cannot be deferred until the conclusion of proceedings or appeal. The courts are cautious to avoid unnecessary interference that could delay justice (!) (!) .
The High Court’s power under Articles 226 and 227 is not limited by the CPC amendments. The scope of these powers remains wide, allowing the courts to issue writs or exercise superintendence to prevent miscarriage of justice, even during ongoing proceedings (!) (!) .
The distinction between the two jurisdictions (certiorari and supervisory) has practically blurred, with both being exercised in similar manners. However, the key difference lies in their nature: certiorari is an original, supervisory remedy to quash illegal acts or orders, while supervisory jurisdiction can include giving directions or even substituting orders in exceptional cases (!) (!) .
The courts emphasize that the exercise of these extraordinary jurisdictional powers must be guided by judicial conscience, practical wisdom, and the facts of each case. They are discretionary and should be invoked only to prevent grave injustice or gross jurisdictional errors (!) (!) .
The amendments to Section 115 CPC do not deprive the High Court of its constitutional powers under Articles 226 and 227. These constitutional remedies remain a vital part of the judicial review process and are available to ensure justice (!) (!) .
In summary, despite legislative changes, the constitutional powers of the High Court to issue writs and exercise superintendence are preserved and continue to serve as essential tools for safeguarding the rule of law and preventing injustice in judicial proceedings (!) (!) .

Please let me know if you need further clarification or specific legal advice based on these points.

JUDGMENT

R.C. Lahoti, J.-Leave granted.

2. The appellant filed a suit, for issuance of permanent preventive injunction based on his title and possession over the suit property which is a piece of agricultural land, in the Court of Civil Judge. He also sought for relief, by way of ad interim injunction under Order XXXIX Rules 1 and 2 of the C.P.C. The prayer was rejected by the trial court as also by the appellate court. Feeling aggrieved thereby the appellant filed a petition (C.M.W.P. No. 20038 of 2002) in the High Court labeling it as one under Article 226 of the Constitution. The High Court has summarily dismissed the petition forming an opinion that the petition was not maintainable as the appellant was seeking interim injunction against private respondents. Reference is made in the impugned order to a Full Bench decision of Allahabad High Court in Ganga Saran vs. Civil Judge, Hapur, Ghaziabad & Ors. (1991) Allahabad Law Journal 159. Earlier the remedy of final civil revision under Section 115 of the C.P.C. could have been availed of by the appellant herein but that remedy is not available to the appellant because of the amendment made in Section 115 of the C.P.C. by Amendment Act 46 of 1999 w.e.f. 01.07.2002.

3. This appeal raises a question of frequent occurrence before the High Courts as to what is the impact of the amendment in Section 115 of the C.P.C. brought in by Act 46 of 1999 w.e.f. 01.07.2002, on the power and jurisdiction of the High Court to entertain petitions seeking a writ of certiorari under Article 226 of the Constitution or invoking the power of superintendence under Article 227 of the Constitution as against similar orders, acts or proceedings of the courts subordinate to the High Courts, against which earlier the remedy of filing civil revision under Section 115 of the C.P.C. was available to the person aggrieved. Is an aggrieved person completely deprived of the remedy of judicial review, if he has lost at the hands of the original court and the appellate court though a case of gross failure of justice having been occasioned, can be made out?

4. Section 115 of the Code of Civil Procedure as amended does not now permit a revision petition being filed against an order disposing of an appeal against the order of the trial court whether confirming, reversing or modifying the order of injunction granted by the trial court. The reason is that the order of the High Court passed either way would not have the effect of finally disposing of the suit or other proceedings. The exercise of revisional jurisdiction in such a case is taken away by the proviso inserted under sub-section (1) of Section 115 of the CPC. The amendment is based on the Malimath Committee s recommendations. The Committee was of the opinion that the expression employed in Section 115 CPC, which enables interference in revision on the ground that the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made, left open wide scope for the exercise of the revisional power with all types of interlocutory orders and this was substantially contributing towards delay in the disposal of cases. The Committee did not favour denuding the High Court of the power of revision but strongly felt that the power should be suitably curtailed. The effect of the erstwhile clause (b) of the proviso, being deleted and a new proviso having been inserted, is that the revisional jurisdiction, in respect of an interlocutory order passed in a trial or other proceedings, is substantially curtailed. A revisional jurisdiction cannot be exercised unless the requirement of the proviso is satisfied.

5. As a preclude to search for answer to the question posed it becomes necessary to recollect and restate a few well-established principles relating to the Constitutional jurisdiction conferred on the High Court under Articles 226 and 227 of the Constitution in the backdrop of the amended Section 115 of the C.P.C,

Click Here to Read the rest of this document

2003 Supreme(SC) 731

IMPORTANT POINTAmendment by Act No. 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India.

Cases Referred (16)

IMPORTANT POINT
Amendment by Act No. 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India.