Orissa High Court
Susant Kumar Roy vs Mira Roy And Ors. on 27 July, 2006
Equivalent citations: AIR2007ORI26, 2006(II)OLR354, AIR 2007 ORISSA 26, 2007 (1) AKAR (NOC) 94 (ORI), (2006) 2 CLR 371 (ORI), (2007) 1 CURCC 569, (2006) 2 ORISSA LR 354
Author: I. Mahanty
Bench: I. Mahanty
JUDGMENT A.K. Ganguly, J.
1. The appellant herein was the sole opposite party in a writ petition filed by Mira Roy, Mita Roy and Rita Roy (the respondents herein). No statutory authority was impleaded as opposite party in the writ petition. The entire dispute is over rights of property between private parties. The order dated 21.11.2003 passed by the District Judge, Cuttack in Misc. Appeal No.91 of 2003 is the subject matter of challenge.
2. The material facts are:
The writ petitioners filed Civil Suit No.142 of 2003 in the Court of Civil Judge (Jr. Divn.), 1st Court, Cuttack, against the appellant praying for the following reliefs:
3.a. For an order of permanent injunction restraining the defendant/opp.party to change the nature and character of the suit property and not to make any construction over the vacant space.
3.b. Restraining the defendant/opp.party from clearing the main entrance adjoining to the main road.
3.c. For a direction to make all facilities available to the plaintiffs/petitioners to stay in the building conveniently as per their requirement and to maintain them.
3.d. Cost of the suit.
3.e. Any other reliefs deemed fit and proper.
3. Along with the said suit, an injunction petition under Order 39, Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as the 'C.P.C.') read with Section 151, C.P.C. was filed praying for an injunction restraining the appellant (the defendant in the suit) from changing the nature and character of the suit land and the building and also from interfering in the peaceful possession of the writ petitioners in the suit land. On the said injunction petition the trial Judge by an order dated 2nd August, 2003 directed the parties to maintain status quo in respect of the suit land, as well as the building standing on the same without changing its nature and character. Against the said order, the present appellant, the defendant in the suit, filed an appeal before the District Judge, Cuttack. The District Judge after hearing the parties and considering the facts and circumstances of the case held that the present appellant, who was also the appellant before the District Judge, had prima facie right and title to the land which he had purchased. The District Judge further held that in that view of the matter, the appellant cannot be prohibited from constructing a house thereon, but while doing so, he cannot interfere with the possession of the adjoining house occupied by the writ petitioners. The concluding part of the order which was passed by the learned District Judge in the said Misc. Appeal is set out:
In the result, the appeal is allowed in part. So far as the order restraining the appellant from interfering with the peaceful possession of the house by the respondents is concerned the impugned order is upheld. As regards the order of maintenance of status quo in respect of the suit land, it is set aside and the appellant may proceed with construction of the house over the land he purchased according to the plan approved by the Cuttack Development Authority, without affecting the structure of the existing building over the remaining portion of the suit plot and he shall not claim equity over the land and house if he fails to succeed in the suit.
4. The suit is pending.
5. During the pendency of the suit, the writ petition, out of which this appeal arises, was filed challenging the said order of the District Judge and a learned Judge of this Court entertained the writ petition, The writ petition was disposed of by the learned Judge on 22.6.2004 by passing the following order-
An affidavit of Mita Roy-petitioner No. 2 is filed along with a hand drawn sketch map of the area in which the opp.party is proposing to construct the building and showing location of the area belonging to the petitioners behind that patch. The opp.party has also filed his affidavit and has annexed a Xerox copy of the approved plan Annexure-A relating to the house and also a sketch map of location of the proposed building of the opp.party besides the passage which is provided. That sketch map is Annexure-B. Learned Counsel for the petitioners states that if the passage provided in Annexure-8 is maintained and no construction is made on that then petitioner has no objection to the impugned order passed by the Courts below inasmuch as the petitioners shall get the ingress and egress from their residential premises.
Both the parties agree that the said sketch map filed by the parties do form part of the record and the petitioners undertake not to make any construction to abolish or obstruct that passage and that status quo shall continue until further order by the Civil Court. As stated by the parties, such arrangement is without prejudice to the rights and contentions of the parties which shall be adjudicated in the civil suit. That is so observed.
In view of the above order, petitioners do not press this writ petition as against the impugned order passed by the District Judge, Cuttack in Misc. Appeal No.91 of 2003 on 21.11.2003.
The writ petition is disposed of accordingly.
6. After disposal of the writ petition, a Misc. Case bearing No. 7352 of 2004 was filed by the writ petitioner. Initially the said Misc. Case was placed before a Division Bench of this Court on 30.8.2004 and 15.10.2004. Then the matter was listed before the learned Judge who disposed of the writ petition. In the Misc. Case which was filed after the disposal of the writ petition, several orders were passed by the learned Single Judge, including an order for appointment of a Commissioner and the learned Judge gave other directions in the pending suit on the Civil Judge. Ultimately, an order was passed on 23rd July, 2005 by the learned Single Judge in that Misc. Case directing the present appellant to remove the construction which according to the learned Judge was made beyond the area of the appellant and the appellant was directed to report compliance within two weeks, and in the event of non-compliance, appropriate legal action was threatened to be taken against the appellant including initiation of action for Contempt of Court.
Now the question that arises for consideration is whether in the facts and circumstances of this case, a writ petition can be filed challenging an order passed by the District Judge, Cuttack, in a civil suit between the parties. The prayer in the said writ petition was as follows:
The petitioners therefore pray that your lordships would be graciously pleased to admit this writ petition, call for the records from Courts below and after hearing the parties issue as writ/writs in the nature or certiorari/mandamus by quashing Annexure-1 and thereby affirming the order passed by the learned trial Court Under Annexure-2 wherein both the parties have been directed to maintain status quo till disposal of the suit.
7. This Court asked the learned Counsel for the writ petitioner as to how such a writ petition is maintainable in which a clear case of property dispute between two private parties has been agitated and specially when over the same dispute a civil suit has been filed and the suit is pending and in that suit the writ petitioner has participated in hearing of the injunction petition, both at the first stage and also at the appellate stage and it is not the case of the writ petitioner that the Civil Court has no jurisdiction to entertain the suit. When the learned Counsel for the writ petitioner was confronted with the question about the maintainability of the writ petition, the learned Counsel submitted that the writ petition is maintainable in view of the decision of the Apex Court in the case of Surya Dev Raj v. Ram Chander Rai and Ors. .
7A. In the said judgment several aspects of the writ of certiorari have been elaborately discussed by the Apex Court. In paragraph-38 of the judgment, at page 3056 of the report, principles have been summed up. And in Sub-para (3) of paragraph-38 it has been stated that certiorari under Article 226 of the Constitution, is issued only for correcting gross errors of jurisdiction, namely when a subordinate Court is found to have acted without jurisdiction or in excess of its jurisdiction or has acted in flagrant disregard of law and procedure or acted in violation of principles of natural justice. In Sub-para-4 it was pointed out that supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction namely, 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 has been exercised in a manner which is not permissible by law and a grave failure of justice has occasioned. In sub-para 5 it was made clear that neither a writ of certiorari nor the supervisory jurisdiction of the High Court is available to correct mere errors of fact or of law unless the error appears to be manifest and apparent on the face of the proceedings and when such error is based on clear ignorance or utter disregard of the provisions of law as a result whereof gross injustice has taken place.
It was also made clear in Sub-para-7 that such power namely issuance of a writ of certiorari or the exercise of a supervisory jurisdiction by the High Court is to be exercised sparingly and only in those cases where the 'judicial conscience of the High Court dictates it to act' lest a gross failure of justice takes place. The exact language of the Apex Court be better quoted and the relevant excerpts from paragraph 38 (7), page 3052 of the report are:
Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and 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 certiorarioi supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings.
The Apex Court also made it clear that High Court may intervene only when the error is such that if it is not corrected at the very moment it would become incapable for correction at a later stage and would result in a travesty of justice.
Following the aforesaid guidelines, this Court cannot hold that in the instant case, interference of the writ Court with the order of the District Judge in the civil suit is at all warranted inasmuch as none of the principles pointed out by the Apex Court has been followed.
8. In this case it has not been alleged that the order of the District Judge is without jurisdiction or that it suffers from any patent error of law. It has not even been averred in the writ petition that the order of the District Judge occasions a gross failure of justice and no such case has been made out.
As such the care, caution and circumspection with which the jurisdiction of High Court in such matter is to be exercised when the dispute in a suit is pending before a competent Civil Court was possibly not followed by the learned Judge of the writ Court.
This care, caution and circumspection on the part of a High Court before interfering in certiorari jurisdiction or in exercise of its supervisory jurisdiction under Article 227 with civil disputes pending before competent Civil Courts is necessary in view of the well demarcated parameters of writ Court's power to interfere with disputed factual issues which fall in the domain of a Civil Court for its decision on appreciation of evidence. A civil dispute on property is a typical lis interpartes' and is not normally to be decided by a writ Court in its certiorari jurisdiction, except in cases of patent and manifest failure of justice. This jurisprudence has been developed by the Apex Court in a series of decisions and references to some of them may be made.
9. In the case of Mohammed Hanif v. the State of Assam , the question whether a Court should interfere in a dispute relating to property of private persons came up for consideration by the Apex Court. In the case of Mohammed Hanif, the facts were that one Captain S.N. Manley with whom the disputed land was settled by the British Crown sold his right and title in the land to Messrs. Jamatullah and Sons. It constructed three house on the land out of which in one Mohammed Hanif who was the successor of Messrs. Mamatullah and Sons was living and the other two houses were given on rent to the Assam Government. The Government made an order of resumption which was challenged by Mohammed Hanif by filing a writ petition in Assam High Court. The High Court dismissed the writ petition but the Supreme Court on appeal reversed the finding of the High Court in view of the fact that several important issues of Public laws were raised on behalf of Mohammed Hanif. The Court made it clear that unless such questions are raised, in a pure question of property dispute, the writ Court should be very slow to interfere. Justice Ramaswami, speaking for a three Judge Bench, made the position clear in paragraph-5 and the relevant portions whereof are quoted-
the jurisdiction of the High Court under Article 226 is an extraordinary jurisdiction vested in the High Court not for the purpose of declaring the private rights of the parties but for the purpose of ensuring that the law of the land is implicitly obeyed and that the various tribunals and public authorities are kept within the limits of their jurisdiction. In other words, the jurisdiction of the High Court under Article 226 is as supervisory jurisdiction, a jurisdiction meant to supervise the work of the tribunals and public authorities and to see that they act within the limits of their respective jurisdiction. In a proceeding under Article 226 the High Court is not concerned merely with the determination of the private rights of the parties; the only object to such a proceeding under Article 226 is to ensure that the law of the land implicitly obeyed and that various authorities and tribunals act within the limits of their respective jurisdiction It has been again made clear in the same paragraph as follows:
It is obvious that the remedy provided under Article 226 is a remedy against the violation of the rights of a citizen by the State or statutory authority.
10. In the case of Hindustan Steel Limited Rourkela v. Smt. Kalyani Banerjee and Ors. , the ratio in the case of Mohammed Hanif was affirmed. The learned Judges also relied on the judgment of the Supreme Court in the case of Sohan Lal v. Union of India and held that where a serious dispute on questions of fact between the parties were raised and in particular the question arose whether one of the parties acquired any title to the property in dispute, proceeding by way of a writ to decide such questions is not appropriate. As otherwise the order passed by the writ Court would amount to a decree declaring a party's title. It was further pointed out that the proper remedy in such a case is by way of a title suit in a civil Court and the alternative remedy of obtaining relief by a writ of mandamus or an order in the nature of mandamus could only be had if the facts were not in dispute and the title of the property in dispute was clear. See paragraph 16, page-414 of the report.
In State of Rajasthan v. Bhawani Singh , the Apex Court held that a writ petition is misconceived in so far as it asked for, in effect, a declaration of the writ petitioner's title to a property. It was held that disputed questions of title cannot be satisfactorily adjudicated in a writ petition Para-7, Page 1020 of the report.
Again in the case of Mohan Pandey v. Usha Rani Rajgaria , the Apex Court pointed out:
It has repeatedly been held by this Court as also by various High Courts that a regular suit is the appropriate remedy for settlement of disputes relating to property rights between private persons and that the remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of a statutory authority is alleged.
The Court further observed that:
The High Court cannot allow the constitutional jurisdiction to be used for deciding disputes, for which remedies, under the general law, civil or criminal, are available. It is not intended to replace the ordinary remedies by way of a suit or application available to a litigant. The jurisdiction is special and extraordinary and should not be exercised casually or lightly.
In Prasanna Kumar Roy Karmakar v. State of W.B. and Ors. , the Supreme Court relying on the ratio in the case of Mohan Pandey v. Usha Rani Rajgaria (supra) reiterated the same principle in a dispute between the landlord and tenant. The Court disapproved the order passed by the High Court whereby the tenant was evicted from the premises by a writ Court as the writ Court acted on the basis of an order under Section 144 Cr.P.C. The Court recorded the contention of the learned Counsel for the appellant that by passing such an order the writ Court exceeded its jurisdiction by 'intervening' in a private dispute. Very recently, the Hon'ble Supreme Court in the case of P.R. Murlidharan and Ors. v. Swami Dharmananda Theertha Padar and Ors. reported in (2006) 4 S.C.501 held:
It would be an abuse of process for a writ petitioner to approach the High Court under Article 226 of the Constitution seeking a writ of mandamus directing the police authorities to protect his claimed possession of a property without first establishing his possession in an appropriate civil Court. The temptation to grant relief in case of this nature should be resisted by the High Court. The wide jurisdiction under Article 226 of the Constitution would remain effective and meaningful only when it is exercised prudently and in appropriate situations.
11. Following this consistent view of the Supreme Court right from 1957 till date, this Court is unable to sustain the order of the learned Single Judge of the writ Court by which the order passed by the District Judge has been interfered with without following the guidelines indicated in Surya Devi Rai (supra).
12. Learned Counsel for the respondent submits that this appeal is not maintainable since the order of the learned Judge was passed in a proceeding under Article 227 of the Constitution and in support of that the learned Counsel relied on a Division Bench judgment of this Court in the case of Rasamani Dei v. Naba Kishore Acharya and Anr. reported in 2005 (II) OLR 779. On perusal of the facts of the case in Rasamani Dei, it appears that in that case Original Jurisdiction Case No.17341 of 2001 was filed against an order passed by the subordinate Court in a civil revision under Section 115, C.P.C. Against such an order the only proceeding which can be initiated before the High Court is a proceeding under Article 227 of the Constitution. But in the instant case no revisional order has been challenged by filing a writ petition. What has been challenged was an order passed by the District Judge in a Miscellaneous Appeal. In the writ petition there was a prayer for issuing a writ in the nature of certiorari/mandamus. It is clear from the said prayer portion that what was filed before the Court was a writ petition and the case was marked as Writ Petition (C) No. 2002/2004. There is no averment in the writ petition that supervisory jurisdiction of the Court has been invoked. On the other hand in paragraph-6 the grounds of challenge are made in a writ petition. Just mentioning of Article 227 of the Constitution in the cause title does not render the petition as one filed under Article 227 of the Constitution. Specific case for invoking the supervisory jurisdiction of this Court must be made out. That has not been done here. So in this case a substantive writ petition has been filed and an appeal against an order in such proceeding is always maintainable.
13. Apart from that the challenge in the appeal was not to any order passed in the writ petition per se but to an order which was passed after the disposal of the writ petition namely, the order dated 23rd July, 2005 whereas the writ petition was disposed of by an order dated 22nd June, 2004.
This very procedure of reopening of a writ petition which has been disposed of by filing an M.J.C. has been condemned by the Supreme Court in the case of State of Uttar Pradesh v. Shri Brahm Datt Sharma and Anr. reported in AIR 1987 S.C.943. In paragraph 10 at page 948 of the report, the Supreme Court held that once a writ petition has been disposed of by the High Court, the same cannot be reopened by means of a miscellaneous application and the Apex Court went to the extent of saying that the High Court has no jurisdiction to entertain such application and the Court made it clear that the High Court committed an error by entertaining the Miscellaneous application which was founded on a separate cause of action after the writ petition was terminated by final disposal. The Apex Court pointed out that if such a course is adopted by the High Court, there will be confusion and chaos and the finality of the proceeding would not have any meaning (See page 948 of the report).
14. In the instant case exactly what has been prohibited by the Supreme Court has taken place. The writ petition stood disposed of by an order dated 22nd-June, 2004. Thereafter, Misc. Case No. 7352 of 2004 was filed on 14th July, 2004 by the writ petitioner alleging that the present appellant was obstructing his passage and was forcibly constructing pillars in main gate by stacking chips and other building materials. Thus, a prayer was made in the Misc. Case, arising out of a disposed of writ petition, for a direction upon the appellant to remove the obstruction on the passage and the learned Judge of this Court entertained the writ petition and passed several orders, one of which is the subject matter of the present appeal. This cannot be done in view of the principles of finality of the litigation as has been pointed out by the Supreme Court in the case of Shri Brahm Datt Sharma (supra).
15. For the reasons discussed above, this appeal succeeds and the order dated 23rd July, 2005 passed in Misc. Case is set aside and the writ petition is also dismissed as this Court holds that the same is misconceived in the facts of this case.
There will be no order as to costs.
I. Mahanty, J.
16. I agree.