Can Article 226 be Used to Call Upon a Civil Court?: Clearing the Confusion around Articles 226, 227 and Section 115 of CPC

Introduction

A writ petition under Article 226 of the Constitution was designed as an instrument to invoke the original jurisdiction of the High Courts in case of violation of fundamental rights.[1] Under the Article, the High Courts can issue writs to “any person or authority” or even government[2] resulting in the High Courts exercising a wide amplitude of powers, akin to the powers that were vested in the King’s Court in England.[3]

Writs originated in England where the King’s Court would call upon the record of an inferior court before it for review.[4] The jurisprudence related to prerogative writs in England does not act as the binding authority for the interpretation of writ jurisdiction in India, but some basic principles governing them apply.[5] As a result, some key differences arise while analysing writs as thus far used in India.

Article 226 or the writ of certiorari is used to call upon records of a case from courts subordinate to the High Court. The Supreme Court has been called upon several times to determine the extent to which a High Court can exercise writ jurisdiction over subordinate courts, resulting in contradictory stands by the Court.[6]

The position of law in India was that Civil Courts with plenary powers are not amenable to the writ jurisdiction under Article 226.[7] It was based on the principle that Civil Courts in India cannot violate the fundamental rights of a citizen and are not inferior courts. However, there have been recent instances where High Courts have admitted writ petitions against the orders of Civil Courts.[8] This practice can be attributed to the interpretation of the Apex Court in Surya Dev Rai v. Ram Chander Rai & Ors where it held that a writ petition against the order of a civil court would be maintainable.[9] In doing so, the court seemingly went against the principle laid down in Naresh Shridhar Mirajkar and others v. State of Maharashtra.[10] To determine the correctness of Surya Dev, Articles 226 and 227 of the Constitution, as well as Section 115 of the Code of Civil Procedure (‘CPC‘), shall be analysed in this post.

Article 226 and 227

The Judicial treatment meted out to Articles 226 and 227 has been almost identical. Most cases in which a petition was moved against the order of a lower court, it was common practice that they were filed under both Article 226 and 227.[11] The Apex Court in the case of Ashok K Jha & Ors v. Garden Silk Mills observed that although the scope of powers that can be exercised by High Courts under Article 226 and Article 227 are similar, there are some material differences[12] set out below.

Through Article 226, High Court can call upon records from subordinate courts in the exercise of its original jurisdiction. Under Article 227, High Court can exercise similar powers, but under its supervisory jurisdiction, i.e., not original. While this distinction might seem cosmetic or artificial, it may affect a party’s right to appeal in some instances. For instance, Clause 15 of the Letters Patent of the Bombay High Court does not allow appeals against the judgment of a single judge bench if such judgement was made pursuant to the court’s jurisdiction under Article 227.[13] Petitions filed under Article 227 are supervisory, and no right to intra-court appeal may lie in pursuance of such petition.

Jurisdiction under Article 226 is only exercised on the prayer of an aggrieved party while under Article 227, a High Court may take up a case suo moto.

Lastly, the magnitude of powers that can be exercised by the court under each article is different. Under Article 226, the Court has to act within the technicalities associated with the writ of certiorari as opposed to the widely worded Article 227. Under Article 226, a court can only annul or quash an order if a subordinate court has exercised its jurisdiction illegally or in case of any other apparent defects. On the other hand, a Court can even substitute a subordinate court’s finding with its own under Article 227. In light of these differences, the court has condemned the widespread practice of labelling petitions under both the Articles.14

Writ Jurisdiction over a Civil Court

Using Article 226 and 227 inter-changeably has led to extensive confusion over the scope of each article. The issue was brought up in Surya Dev where the question was whether a Civil Court with plenary power was amenable to the writ jurisdiction of High Courts under Article 226.15

The Court, in this case, contradicted the ratio laid down by a 9-judge bench of Mirajkar. The court believed that the text quoted from Mirajkar was included incidentally, determining some other question of law.16 The Court concluded that Civil Courts were amenable to the writ jurisdiction of the High Courts under Article 226 because they were envisioned to be inferior courts under the Constitution.

Section 115 vis-à-vis Article 227

The incorrect decision in Surya Dev came after the 1999 amendment to Section 115 of the CPC. Section 115 allowed for revision of any order of a subordinate court by the High Court. However, the 1999 bill narrowed down the scope of this section. The amendment barred revision petitions under Section 115 except in cases where the order if passed in favour of the revision petitioner, would lead to the disposal of proceedings.17 The amendment, still, has not affected the jurisdiction of High Courts under Article 227.18 Section 115 is completely independent of the power of superintendence exercised under Article 227. The condition for a court exercising its jurisdiction under Article 227 has not changed; implying that a constitutional remedy is always available even though the statutory remedy may be effectively barred. The ability to approach the High Courts under Article 227 was still undiluted, but this could only be done in exceptional cases occasioning grave injustice or failure of justice when: (I) a court or tribunal assumes jurisdiction it does not have, (II) fails to exercise jurisdiction when it does have it, (III) the jurisdiction though available has been exercised in such a manner which tantamount to overstepping jurisdiction. Article 227 can be invoked to keep a subordinate court under the bounds of its authority and not for correcting mere errors.19

The amendment’s manifest object is speeding up the litigation process, albeit at a disadvantage to the litigants. The judgment in Surya Dev opened the doors to challenge Civil Court orders in the High Court under Article 226 despite the presence of Article 227. This bifurcation of powers under the respective articles is of considerable significance as it affects a party’s right to an appeal in some instances. As already discussed before, certain High Courts under their rules or Letter Patents disallow intra-court appeals in cases where the case before a High Court is not of original jurisdiction. The Supreme Court’s judgment in Surya Dev allowed litigants to ‘appeal’ against the orders of a Civil Court by a writ under Article 226, retaining the advantage of original jurisdiction, making any orders passed by the High Court subject to an intra-court appeal. Another practice noted by the Rajasthan High Court[14]20 was the use of certiorari only to get the High Court to quash an order of a Civil Court. Since certiorari cannot be used by the High Court to amend or substitute a judgment by a Civil Court, the dispute would again end up in a Civil Court. These techniques could be resorted to by mischievous litigants to deliberately delay proceedings and cause a multiplicity of proceedings, rendering ineffective the purpose of the 1999 CPC amendment. In addition to this, if a case arises where a writ petition is allowed by the High Court which leads to an appeal to the Supreme Court under Article 133, a party may be given the benefit of the Supreme Court reopening questions of facts since the Supreme Court acts as a Court of first instance in this case. However, the Supreme Court is effectively the court of second instance.

Correcting the Error

The Supreme Court then went back and corrected its error in Radhey Shyam v. Chhabi Nath & Ors.21 The Court analysed the same cases and authorities as it did in Surya Dev. The court observed that despite the bench in Surya Dev identifying the distinctions between Article 226 and 227 accurately, they wrongly concluded that the difference between the two Articles “stands obliterated” in practice. It was held that all courts subordinate to a High Court are subject to its control and supervision under Article 227. However, a writ of certiorari under Article 226 only lies against orders of Tribunals or authorities or courts other than “judicial courts”. The court held that Civil Courts with plenary powers were not “inferior courts” within the scheme of the constitution. The bench in Radhey Shyam thus reverts to the position of law that stood before Surya Dev.

Conclusion

Between Article 226 and 227, the inherent difference is that Article 226 cannot be used to call upon a Civil Court.22 As already pointed out, allowing a writ petition against the order of a Civil Court can consequentially lead to dawdling of litigation, whether intentionally or unintentionally. The Supreme Court while settling the position of law back where Civil Courts lie outside the purview of Article 226 has upheld the rationale behind the 1999 CPC amendment, in a system of Judiciary that is excessively over-burdened by a backlog of case files.

[1] Constitution of India 1950, art 226.

[2] Ibid.

[3]  Election Commission, India v. Saka Venkata Subba Rao [1953] AIR 210.

[4] Naresh Shridhar Mirajkar and others v. State of Maharashtra [1966 ] 1 SCR (3) 744; Edward Jenks, ‘The Prerogative Writs in English Law’ (1923) 32 Yale LJ, 527, 533.

[5] Rupa Ashok Hurra v. Ashok Hurra & Ors. [1999] AIR SC 2870.

[6] Radhey Shyam v. Chhabi Nath & Ors. [2015] 5 SCC 423; Surya Dev Rai v. Ram Chander Rai & Ors  [2003] AIR SC 3044.

[7] Mirajkar (n 4).

[8] State of Jharkhand v. Surendra Kumar Srivastava & Ors [2019] AIR SC 231.

[9] Surya Dev Rai v. Ram Chander Rai & Ors [2003] AIR SC 3044.

[10] Mirajkar (n 4).

[11] See Sushilabai Laxminarayan v. Nihalchand Waghajibhai Shah [1992] AIR SC 185; Sukh Dev v. Prakash Chandra [2010] AIR Raj 153.

[12] Ashok K Jha & Ors v. Garden Silk Mills & Anr.  [2009] 123 FLR 1094.

[13] Umaji Keshao Meshram And Ors. v. Radhikabai [1986] AIR SC 1272.

14 Surya Dev (n 9).

15 Ibid.

16 Ibid.

17 Code of Civil Procedure 1908, s 115.

18 Radhey Shyam v. Chhabi Nath & Ors. [2015] 5 SCC 423;

19 Umaji Keshao Meshram v. Radhikabai [1986] Supp. SCC 401.

20 Sukh Dev v. Prakash Chandra [2010] AIR Raj 153.

21 Radhey (n 18).

22 Ibid.


ABOUT THE AUTHOR

Gursimar Setia

0E1F8144-C0C7-4E99-BB15-BE34DEB183EB

Gursimar Setia is an LLB candidate at the West Bengal National University of Juridical Sciences, Kolkata. He is currently in his third year.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s