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Radhey Shyam & Anr. Vs. Chhabi Nath & Ors. on 15 April, 2009

Radhey Shyam & Anr. Vs. Chhabi Nath & Ors. on 15 April, 2009
Bench: Arijit Pasayat, Asok Kumar Ganguly

HELD: 1.1 In the case of Mirajkar*, a nine-Judge Constitution Bench of this Court held that certiorari does not lie to quash the judgments of inferior courts of civil jurisdiction. In view of the principle laid down by this Court, a writ court cannot intervene in a dispute over property rights between private individuals. Remedy provided under Article 226 of the Constitution of India is a remedy in public law. [Para 12 , 13 and 20] [245-B; 242-B; 242-G]

*Naresh Shridhar Mirajkar and Others v. State of Maharashtra 1966 SCR 744 = A.I.R. 1967 SC 1 (V 54 C 1), Shri Soha Lal v. Union of India and Another 1957 SCR 738 = AIR 1957 SC 529; Mohd. Ikram Hussain v. The State of Uttar Pradesh and others 1964 SCR 86 = AIR 1964 SC 1625; Mohd. Hanif v. The State of Assam 1969 (2) SCC 782; Basappa v. Nagappa 1955 (1) SCR 250; Hindustan Steel Limited, Rourkela v. Smt. Kalyani Banerjee and Others 1973 ( 3 ) SCR 1 = 1973 (1) SCC 273; State of Rajasthan v. Bhawani Singh AIR 1992 SC 1018; Mohan Pandey v. Usha Rani Rajgaria 1992 ( 3 ) SCR 904 = AIR 1993 SC 1225; Prasanna Kumar Roy Karmakar v. State of West Bengal and others 1 1996 ( 3 ) SCR 912 = 996 (3) SCC 403 and P.R.Murlidharan and others v. Swami Dharmanda Theertha Padar and others 2006 (2) SCR 1163 = 2006 (4) SCC 501, relied on.

1.2. In Rupa Ashok Hurra** the Constitution Bench did not take any view which is contrary to the views expressed in Mirajkar. On the other hand, the ratio in Mirajkar was referred to with respect and was relied on in Rupa Ashok Hurra. Nowhere even any whisper of a divergence from the ratio in Mirajkar was expressed. [Para 26]

**Rupa Ashok Hurra v. Ashok Hurra and another (2002) 4 SCC 388 and Naresh Shridhar Mirajkar and others v. State of Maharashtra – AIR 1967 SC 1 (V 54 C 1), relied on.

1.3. Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 vests the High Courts with the power of superintendence which is to be very sparingly exercised to keep tribunals and courts within the bounds of their authority. Under Article 227, orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage of justice has occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law. [Para 29] [248-E]

1.4. The legal proposition laid down in Surya Dev Rai* that judicial orders passed by a civil court can be examined and then corrected/reversed by the writ Court under Article 226 in exercise of its power under a writ of certiorari, is contrary to the ratio in Mirajkar which has not been overruled in Rupa Ashok Hurra. In the circumstances, the matter may be placed before the Hon’ble the Chief Justice of India for constituting a larger Bench, to consider the correctness or otherwise of the law laid down in Surya Dev Rai.

Surya Dev Rai v. Ram Chander Rai and Ors. 2003 (6) SCC 675, referred to.

Case Law Reference:

1957 SCR 738 relied on para 10

1964 SCR 86 relied on para 11

1969 (2) SCC 782 relied on para 12

1955 (1) SCR 250 relied on para 13

1973 ( 3 ) SCR 1 relied on para 14

AIR 1992 SC 1018 relied on para 15

1992 ( 3 ) SCR 904 relied on para 16

1996 ( 3 ) SCR 912 relied on para 17

2006 (2 ) SCR 1163 relied on para 18

1966 SCR 744 relied on para 20

(2002) 4 SCC 388 relied on para 25

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2548 of 2009.

From the Judgment & Order dated 12.10.2007 of the High Court of Judicature at Allahabad Civil Writ Petition No. 50636 of 2007.

Deba Prasad Mukherjee, for the Appellant.

Dr. Madan Sharma, Vijay Kumar Pandita, Asha Upadhyay and R.D. Upadhyay for the Respondents.

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