Tafzul Ahmad Son Of Md. Israil Resident Of Mohalla - Old Income Taxbuilding, Balua Chowk, Post Office - Motihari District - East Champaranbuilding, Balua Chowk, v. Md. Jamilur Rahman Son Of Late Sk. Asgar Ali Resident Of Mohalla -Gopalpur Old Income Tax Building Post Office - Motihari, District - Eastchamparangopalpur Old

IN THE HIGH COURT OF JUDICATURE AT PATNACivil Writ Jurisdiction Case No.17161 of 2013 ====================================================== 1.Dr. Reyazul Mustafa Son Of Md. Israil Resident Of Mohalla - Patharpatti,Motihari Town, Police Station Post Office - Motihari, District - EastChamparanMotihari Town, Police Station Post Office - Motihari, District - EastChamparan 2.Bibi Salma Jabin Khanam Son Of Late Md, Israil Resident Of Mohalla -Paithan Patti, Motihari Town, Post Office And Police Station - Motihari ,District East Champaran Through Power Of Attorney Holder Tafzul AhmadGopalpurPaithan Patti, Motihari Town, Post Office And Police Station - Motihari ,District East Champaran Through Power Of Attorney Holder Tafzul AhmadGopalpur 3.Akhtarul Islam Son Of Late Md. Israil Resident Of Mohalla - Paithan Patti,Motihari Town, Post Office And Police Station - Motihari , District EastChamparan Through Power Of Attorney Holder Tafzul Ahmad GopalpurMotihari Town, Post Office And Police Station - Motihari , District EastChamparan Through Power Of Attorney Holder Tafzul Ahmad Gopalpur 4.Bibi Nilofar Nasim Son Of Late Md. Israil Resident Of Mohalla - PaithanPatti, Motihari Town, Post Office And Police Station - Motihari , DistrictEast Champaran Through Power Of Attorney Holder Tafzul AhmadGopalpurPatti, Motihari Town, Post Office And Police Station - Motihari , DistrictEast Champaran Through Power Of Attorney Holder Tafzul AhmadGopalpur 5.Bibi Kausar Imam Son Of Late Md. Israil Resident Of Mohalla - PaithanPatti, Motihari Town, Post Office And Police Station - Motihari , DistrictEast Champaran Through Power Of Attorney Holder Tafzul AhmadGopalpurPatti, Motihari Town, Post Office And Police Station - Motihari , DistrictEast Champaran Through Power Of Attorney Holder Tafzul AhmadGopalpur 6.Khurshid Anwar Son Of Late Md. Israil Resident Of Mohalla - Paithan Patti,Motihari Town, Post Office And Police Station - Motihari , District EastChamparan Through Power Of Attorney Holder Tafzul Ahmad GopalpurMotihari Town, Post Office And Police Station - Motihari , District EastChamparan Through Power Of Attorney Holder Tafzul Ahmad Gopalpur 7.Tafzul Ahmad Son Of Md. Israil Resident Of Mohalla - Old Income TaxBuilding, Balua Chowk, Post Office - Motihari District - East ChamparanBuilding, Balua Chowk, Post Office - Motihari District - East Champaran ... ... Petitioner/s Versus 1.Md. Jamilur Rahman Son Of Late Sk. Asgar Ali Resident Of Mohalla -Gopalpur Old Income Tax Building Post Office - Motihari, District - EastChamparanGopalpur Old Income Tax Building Post Office - Motihari, District - EastChamparan 2.Abul Kalam Son Of Late Md. Laxman Resident Of Mohalla - Agarwa, PostOffice - Motihari , District - East ChamparanOffice - Motihari , District - East Champaran 3.Raja Son Of Abul Kalam Resident Of Mohalla - Agarwa, Post Office -Motihari , District - East ChamparanMotihari , District - East Champaran 4.Rana Son Of Abul Kalam Resident Of Mohalla - Agarwa, Post Office -Motihari , District - East ChamparanMotihari , District - East Champaran 5.Tara Son Of Abul Kalam Resident Of Mohalla - Agarwa, Post Office -Motihari , District - East ChamparanMotihari , District - East Champaran 6.Bibi Fatima Khatoon Wife Of Late Anwarul Islam Resident Of Mohalla -Ganj No. 2, Bettia Town, Post Office Police Station - Bettia, District - WestChamparanGanj No. 2, Bettia Town, Post Office Police Station - Bettia, District - WestChamparan 7.Firozul Islam Son Of Anwarul Islam Resident Of Mohalla - Ganj No. 2,Bettia Town, Post Office Police Station - Bettia, District - West ChamparanBettia Town, Post Office Police Station - Bettia, District - West Champaran 8.Afuorul Islam Son Of Anwarul Islam Resident Of Mohalla - Ganj No. 2, Bettia Town, Post Office Police Station - Bettia, District - West Champaran 5.Tara Son Of Abul Kalam Resident Of Mohalla - Agarwa, Post Office -Motihari , District - East ChamparanMotihari , District - East Champaran 6.Bibi Fatima Khatoon Wife Of Late Anwarul Islam Resident Of Mohalla -Ganj No. 2, Bettia Town, Post Office Police Station - Bettia, District - WestChamparanGanj No. 2, Bettia Town, Post Office Police Station - Bettia, District - WestChamparan 7.Firozul Islam Son Of Anwarul Islam Resident Of Mohalla - Ganj No. 2,Bettia Town, Post Office Police Station - Bettia, District - West ChamparanBettia Town, Post Office Police Station - Bettia, District - West Champaran 8.Afuorul Islam Son Of Anwarul Islam Resident Of Mohalla - Ganj No. 2, Bettia Town, Post Office Police Station - Bettia, District - West Champaran 9.Baboo Son Of Anwarul Islam Resident Of Mohalla - Ganj No. 2, BettiaTown, Post Office Police Station - Bettia, District - West ChamparanTown, Post Office Police Station - Bettia, District - West Champaran 10.Bibi Yasmin Wife Of Sahid Ahmad Resident Of Mohalla - Ganj No. 2,Bettia Town, Post Office Police Station - Bettia, District - West ChamparanBettia Town, Post Office Police Station - Bettia, District - West Champaran 11.Mini Daughter Of Late Anwarul Islam Resident Of Mohalla - Ganj No. 2,Bettia Town, Post Office Police Station - Bettia, District - West ChamparanBettia Town, Post Office Police Station - Bettia, District - West Champaran 12.Ginni Daughter Of Late Anwarul Islam Resident Of Mohalla - Ganj No. 2,Bettia Town, Post Office Police Station - Bettia, District - West ChamparanBettia Town, Post Office Police Station - Bettia, District - West Champaran 13.Simmi Daughter Of Late Anwarul Islam Resident Of Mohalla - Ganj No. 2,Bettia Town, Post Office Police Station - Bettia, District - West ChamparanBettia Town, Post Office Police Station - Bettia, District - West Champaran 14.Akhtar Jamaluddin Son Of Late Anwarul Islam Resident Of Mohalla - GanjNo. 2, Bettia Town, Post Office Police Station - Bettia, District - WestChamparanNo. 2, Bettia Town, Post Office Police Station - Bettia, District - WestChamparan 15.Majhar Ekbal Son Of Late Anwarul Islam Resident Of Mohalla - Ganj No.2, Bettia Town, Post Office Police Station - Bettia, District - WestChamparan2, Bettia Town, Post Office Police Station - Bettia, District - WestChamparan 16.Bibi Akhtari Sultana Daughter Of Late Anwarul Islam Resident Of Mohalla- Ganj No. 2, Bettia Town, Post Office Police Station - Bettia, District - WestChamparan- Ganj No. 2, Bettia Town, Post Office Police Station - Bettia, District - WestChamparan 17.Md. Hussain Son Of Ramjan Ali Resident Of Village - Police Station -District - West ChamparanDistrict - West Champaran 18.Jinat Kausar Wife Of Maksud Alam Daughter Of Md. Hussain Resident OfVillage - Police Station - Distirct - West ChamparanVillage - Police Station - Distirct - West Champaran 19.Rafik Ahmad Son Of Md. Hussain Resident Of Village - Police Station -District - West ChamparanDistrict - West Champaran 20.Firoj Sikandar Son Of Md. Hussain Resident Of Village - Police Station -District - West ChamparanDistrict - West Champaran 21.Sahanaj Praveen Son Of Md. Hussain Resident Of Village - Police Station -District - West ChamparanDistrict - West Champaran 22.Nasrin Prabin Son Of Md.Hussain Resident Of Village - Police Station -District - West ChamparanDistrict - West Champaran ====================================================== CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAHORAL JUDGMENTDate : 08-08-2023 The present writ petition has been filed seeking the following relief :- “1.That this application is being filed forissuance of writ in the nature of certiorari forquashing the order dated 20.6.2013 passedby Subordinate Judge VIII, Motihari inExecution Case No.17 of 2004/6 of 2000arising out of P.S.No.103 of 1975 by whichthe petition of petitioners under Section 4 ofPartition Act has been rejected.” 22.Nasrin Prabin Son Of Md.Hussain Resident Of Village - Police Station -District - West ChamparanDistrict - West Champaran ====================================================== CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAHORAL JUDGMENTDate : 08-08-2023 The present writ petition has been filed seeking the following relief :- “1.That this application is being filed forissuance of writ in the nature of certiorari forquashing the order dated 20.6.2013 passedby Subordinate Judge VIII, Motihari inExecution Case No.17 of 2004/6 of 2000arising out of P.S.No.103 of 1975 by whichthe petition of petitioners under Section 4 ofPartition Act has been rejected.” 2.The learned counsel for the parties have pointedout, at the outset, that earlier writ petitions were being filedagainst the interlocutory orders (such orders which have notfinally decided the suits or proceedings in favour of the partiesand the suits or such proceedings have not stood disposed off),in view of the law laid down by the learned Division Bench ofthis Court in a judgment dated 13.05.2010, passed in C.R. no.1067 of 2009 (Durga Devi v. Vijay Kumar Poddar & Ors.),however, subsequently, the Hon’ble Apex Court, by a judgmentrendered in the case of Radhey Shyam and Another v. ChhabiNath and Others, reported in (2015) 5 SCC 423, has held thatjudicial orders of the Civil Court are not amenable to writjurisdiction under Article 226 of the Constitution of India andthe jurisdiction under Article 227 of the Constitution of India isdistinct from the jurisdiction under Article 226 of the Constitution of India. It would be relevant to reproduceparagraphs no. 18 and 25 to 30 of the said judgment rendered in the case of Radhey Shyam and Another (supra) hereinbelow :- 18. While the above judgments dealt with thequestion whether judicial order could violatea fundamental right, it was clearly laid downthat challenge to judicial orders could lie byway of appeal or revision or under Article227 and not by way of a writ under Articles226 and 32. 25. It is true that this Court has laid downthat technicalities associated with theprerogative writs in England have no role toplay under our constitutional scheme. Thereis no parallel system of King's Court in Indiaand of all the other courts having limitedjurisdiction subject to the supervision of theKing's Court. Courts are set up under theConstitution or the laws. All the courts in thejurisdiction of a High Court are subordinateto it and subject to its control andsupervision under Article 227. Writjurisdiction is constitutionally conferred onall the High Courts. Broad principles of writjurisdiction followed in England areapplicable to India and a writ of certiorarilies against patently erroneous or withoutjurisdiction orders of tribunals or authoritiesor courts other than judicial courts. There are no precedents in India for the HighCourts to issue writs to the subordinatecourts. Control of working of the subordinatecourts in dealing with their judicial orders isexercised by way of appellate or revisionalpowers or power of superintendence underArticle 227. Orders of the civil court stand ondifferent footing from the orders ofauthorities or tribunals or courts other thanjudicial/civil courts. While appellate orrevisional jurisdiction is regulated by thestatutes, power of superintendence underArticle 227 is constitutional. The expression“inferior court” is not referable to thejudicial courts, as rightly observed in thereferring order [Radhey Shyam v. ChhabiNath, (2009) 5 SCC 616] in paras 26 and 27quoted above. are no precedents in India for the HighCourts to issue writs to the subordinatecourts. Control of working of the subordinatecourts in dealing with their judicial orders isexercised by way of appellate or revisionalpowers or power of superintendence underArticle 227. Orders of the civil court stand ondifferent footing from the orders ofauthorities or tribunals or courts other thanjudicial/civil courts. While appellate orrevisional jurisdiction is regulated by thestatutes, power of superintendence underArticle 227 is constitutional. The expression“inferior court” is not referable to thejudicial courts, as rightly observed in thereferring order [Radhey Shyam v. ChhabiNath, (2009) 5 SCC 616] in paras 26 and 27quoted above. 26. The Bench in Surya Dev Rai [Surya DevRai v. Ram Chander Rai, (2003) 6 SCC 675]also observed in para 25 of its judgment thatdistinction between Articles 226 and 227stood almost obliterated. In para 24 of thesaid judgment distinction in the two articleshas been noted. In view thereof, observationthat scope of Articles 226 and 227 wasobliterated was not correct as rightlyobserved [Radhey Shyam v. Chhabi Nath,(2009) 5 SCC 616] by the referring Bench inpara 32 quoted above. We make it clear that though despite the curtailment of revisionaljurisdiction under Section 115 CPC by Act 46of 1999, jurisdiction of the High Court underArticle 227 remains unaffected, it has beenwrongly assumed in certain quarters that thesaid jurisdiction has been expanded. Scope ofArticle 227 has been explained in severaldecisions including Waryam Singh v.Amarnath [AIR 1954 SC 215 : 1954 SCR565] , Ouseph Mathai v. M. Abdul Khadir[(2002) 1 SCC 319] , Shalini Shyam Shetty v.Rajendra Shankar Patil [(2010) 8 SCC 329 :(2010) 3 SCC (Civ) 338] and Sameer SureshGupta v. Rahul Kumar Agarwal [(2013) 9SCC 374 : (2013) 4 SCC (Civ) 345] . InShalini Shyam Shetty [(2010) 8 SCC 329 :(2010) 3 SCC (Civ) 338] this Courtobserved: (SCC p. 352, paras 64-67) “64. However, this Court unfortunatelydiscerns that of late there is a growingtrend amongst several High Courts toentertain writ petition in cases of pureproperty disputes. Disputes relating topartition suits, matters relating toexecution of a decree, in cases of disputebetween landlord and tenant and also in acase of money decree and in various othercases where disputed questions of propertyare involved, writ courts are entertainingsuch disputes. In some cases the High Courts, in a routine manner, entertainpetitions under Article 227 over suchdisputes and such petitionsare treated aswrit petitions. 65. We would like to make it clear that inview of the law referred to above in casesof property rights and in disputes betweenprivate individuals writ court should notinterfere unless there is any infraction ofstatute or it can be shown that a privateindividual is acting in collusion with astatutory authority. 66. We may also observe that in some HighCourts there is a tendency of entertainingpetitions under Article 227 of theConstitution by terming them as writpetitions. This is sought to be justified onan erroneous appreciation of the ratio inSurya Dev [Surya Dev Rai v. Ram ChanderRai, (2003) 6 SCC 675] and in view of therecent amendment to Section 115 of theCivil Procedure Code by the CivilProcedure Code (Amendment) Act, 1999. Itis urged that as a result of the amendment,scope of Section 115 CPC has beencurtailed. In our view, even if the scope ofSection 115 CPC is curtailed that has notresulted in expanding the High Court'spower of superintendence. It is too well known to be reiterated that in exercising itsjurisdiction, High Court must follow theregime of law. 66. We may also observe that in some HighCourts there is a tendency of entertainingpetitions under Article 227 of theConstitution by terming them as writpetitions. This is sought to be justified onan erroneous appreciation of the ratio inSurya Dev [Surya Dev Rai v. Ram ChanderRai, (2003) 6 SCC 675] and in view of therecent amendment to Section 115 of theCivil Procedure Code by the CivilProcedure Code (Amendment) Act, 1999. Itis urged that as a result of the amendment,scope of Section 115 CPC has beencurtailed. In our view, even if the scope ofSection 115 CPC is curtailed that has notresulted in expanding the High Court'spower of superintendence. It is too well known to be reiterated that in exercising itsjurisdiction, High Court must follow theregime of law. 67. As a result of frequent interference bythe Hon'ble High Court either underArticle 226 or 227 of the Constitution withpending civil and at times criminal cases,the disposal of cases by the civil andcriminal courts gets further impeded andthus causing serious problems in theadministration of justice. This Court hopesand trusts that in exercising its powereither under Article 226 or 227, theHon'ble High Court will follow the time-honoured principles discussed above.Those principles have been formulated bythis Court for ends of justice and the HighCourts as the highest courts of justicewithin their jurisdiction will adhere to themstrictly.” (emphasis supplied) 27. Thus, we are of the view that judicialorders of civil courts are not amenable to awrit of certiorari under Article 226. We arealso in agreement with the view [RadheyShyam v. Chhabi Nath, (2009) 5 SCC 616] ofthe referring Bench that a writ of mandamusdoes not lie against a private person notdischarging any public duty. Scope of Article 227 is different from Article 226. 28. We may also deal with the submissionmade on behalf of the respondent that theview in Surya Dev Rai [Surya Dev Rai v.Ram Chander Rai, (2003) 6 SCC 675] standsapproved by larger Benches in Shail [Shail v.Manoj Kumar, (2004) 4 SCC 785 : 2004 SCC(Cri) 1401] , Mahendra Saree Emporium (2)[Mahendra Saree Emporium (2) v. G.V.Srinivasa Murthy, (2005) 1 SCC 481] andSalem Advocate Bar Assn. (2) [SalemAdvocate Bar Assn. (2) v. Union of India,(2005) 6 SCC 344] and on that groundcorrectness of the said view cannot be goneinto by this Bench. In Shail [Shail v. ManojKumar, (2004) 4 SCC 785 : 2004 SCC (Cri)1401], though reference has been made toSurya Dev Rai [Surya Dev Rai v. RamChander Rai, (2003) 6 SCC 675] , the sameis only for the purpose of scope of powerunder Article 227 as is clear from para 3 ofthe said judgment. There is no discussion onthe issue of maintainability of a petitionunder Article 226. In Mahendra SareeEmporium (2) [Mahendra Saree Emporium(2) v. G.V. Srinivasa Murthy, (2005) 1 SCC481] , reference to Surya Dev Rai [Surya DevRai v. Ram Chander Rai, (2003) 6 SCC 675]is made in para 9 of the judgment only forthe proposition that no subordinate legislation can whittle down the jurisdictionconferred by the Constitution. Similarly, inSalem Advocate Bar Assn. (2) [SalemAdvocate Bar Assn. (2) v. Union of India,(2005) 6 SCC 344] in para 40, reference toSurya Dev Rai [Surya Dev Rai v. RamChander Rai, (2003) 6 SCC 675] is for thesame purpose. We are, thus, unable to acceptthe submission of the learned counsel for therespondent. 29. Accordingly, we answer the questionreferred as follows: 29.1. Judicial orders of the civil court are notamenable to writ jurisdiction under Article226 of the Constitution. 29.2. Jurisdiction under Article 227 isdistinct from jurisdiction under Article 226. 29.3. Contrary view in Surya Dev Rai [SuryaDev Rai v. Ram Chander Rai, (2003) 6 SCC675] is overruled. 30. The matters may now be listed before theappropriate Bench for further orders.”appropriate Bench for further orders.” 29. Accordingly, we answer the questionreferred as follows: 29.1. Judicial orders of the civil court are notamenable to writ jurisdiction under Article226 of the Constitution. 29.2. Jurisdiction under Article 227 isdistinct from jurisdiction under Article 226. 29.3. Contrary view in Surya Dev Rai [SuryaDev Rai v. Ram Chander Rai, (2003) 6 SCC675] is overruled. 30. The matters may now be listed before theappropriate Bench for further orders.”appropriate Bench for further orders.” 3.It is further submitted that in view of the law laiddown by the Hon’ble Apex Court in the case of Radhey Shyam and Another (supra), TheRules of The High Court at Patnahave also been amended and vide Rule 6 of Chapter IIIA, it hasbeen stipulated as follows :- “(6) Petitions under Article-227 of theConstitution of India in respect of any orderor any proceeding before any Civil Court,would be filed in Civil MiscellaneousJurisdiction and would be numbered as CivilMiscellaneous no. (C. Misc. No.).” 4.The learned counsel for the petitioner submits thatconsidering the aforesaid aspect of the matter, two weeks’ timebe granted for converting the present writ petition into a CivilMiscellaneous Petition. Time so sought, is granted. 5.The registry is directed to extend its cooperation tothe learned counsel for the petitioner in order to ensure that thepresent writ petition is converted into Civil MiscellaneousPetition at the earliest, whereafter, the registry shall list thepresent case on priority basis, before the concerned Bench, inseisin of the subject matter of the present case, in view of thefact that the present case is pending since 10 years. (Mohit Kumar Shah, J) sonal/- AFR/NAFRNAFRCAV DATENAUploading Date16.08.2023Transmission DateNA