IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.21573 of 2011 Mrs.Musarrat Perveen Versus Husna Ara & Ors ---------------------------------- 03. 16.12.2011 Heard the learned senior counsel, Mr. Kamal Nayan Choubey on behalf of the petitioner. This application under Article 226 of the Constitution of India has been filed by the plaintiff- petitioner for issuance of a writ of mandamus directing the court of Sub Judge X, Patna to conclude the trial of Title Suit No.53 of 2008 and dispose it immediately which is pending before the aforesaid court. In (2009)5 SCC 616(Radhey Shyam and Another vs. Chhabi Nath and others), the Apex Court has held that it is clear from the law laid down in the case of Mirajkar, AIR 1967 Supreme Court 1 that a distinction has been made between judicial orders of inferior courts of civil jurisdiction and orders of inferior tribunals or court which are not civil courts and which cannot pass judicial orders. Therefore, judicial orders passed by civil courts of plenary jurisdiction stand on a different footing in view of the law pronounced in paragraph 63 of the said case. It appears that in the said decision, the Apex Court considered the various earlier decisions of the Apex Court and held that so far the civil rights of the parties in civil suits Article 226 of the Constitution of India is not applicable and doubted 2 the decision of the Apex Court reported in (2003) 6 SCC 675. It has been held in (2010)8 SCC 329 (Shalini Shyam Shetty and another vs. Rajendra Shankar Patil) that there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes like partition suits, execution of a decree, landlord-tenant dispute and also in a case of money decree. In some cases, the High Courts, in a routine manner, entertain petitions under Article 227 also. Under Article 226 of the Constitution of India i.e. a writ petition is a remedy in public law which may be filed by any person but the main respondent should be either the Government, governmental agencies or State or instrumentalities of the State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. In the present case, as stated above, neither the State can be made a party nor any collusion with the State has been alleged. In 2009 AIR SCW 677(M/s. M.M.T.C. 3 Limited v. Commissioner of Commercial Tax & Ors.), the Apex Court considering various earlier decisions has held that under Article 226 an order, direction or writ is to issue to a person, authority or the State. In a proceeding under that Article the person, authority or State against whom the direction, order or writ is sought is a necessary party. In view of the above settled decision of the Apex Court particularly when the earlier decisions laid down by the Apex Court in the case of Suyadev Rai, (2003)6 SCC 675 which has doubted by the subsequent decisions of the Apex Court as discussed above, in my opinion, the High Court cannot issue any writ under Article 226 of the Constitution of India in pure property dispute. So far Article 227 is concerned, in the case of M/s. M.M.T.C. Limited(supra), the Hon’ble Supreme Court has held that under Article 227 what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority and according to law. Therefore, no order passed by the civil court is before this court for the exercise of judicial supervision. In such view of the matter, application under Article 226 for directing the court below as prayed for is not maintainable. Since no order of court is before this 4 court, so this court cannot exercise judicial supervisory jurisdiction also nor Article 227 of the Constitution of India is meant for the relief claimed. Moreover, it appears that the title suit is of the year 2008. There is no statutory provision which requires the court to dispose it of within a particular period. The disposal of the case depends on various factors which cannot be foreseen by this court while exercising power either under Article 226 or 227. Considering the above facts and circumstances of the case, in my opinion, this writ application is not maintainable. Thus, this writ application is dismissed. However, the petitioner may approach the Court below if so advised and pray for early disposal. Saurabh (Mungeshwar Sahoo,J.)