THE HON’BLE SRI JUSTICE GHULAM MOHAMMED & THE HON’BLE SRI JUSTICE G.CHANDRAIAH WP NO.25073 OF 2008 Order :: ( per Hon’ble Sri Justice Ghulam Mohammed ) This writ petition is filed seeking to issue a writ more particularly writ of mandamus declaring the order dated 25-9-2008 passed in SAMP No.1173 of 2008 in SA No.1083 of 2005, in directing the Dy. Superintendent of Police, CBCID, Hyderabad, to register, investigate the case against the staff of the judiciary and other concerned persons as being illegal, arbitrary, without jurisdiction and against all cannons of fair play and natural justice and consequently set aside the same in the interest of justice. 2. Before going into the merits or otherwise of the matter, we place on record that the 2nd respondent in the writ petition filed a suit being OS No.8 of 2000 on the file of Junior Civil Judge, Madhira, Khammam District, for recovery of money based on a promissory note dated 16-1-2000 against the writ petitioner herein who was defendant in the said suit and a practicing advocate. It is stated that the trial Court after elaborate trial and hearing the arguments on both sides decreed the suit on 2-7-2003. The writ petitioner- defendant in the suit, carried the matter in appeal being AS No.5 of 2003 on the file of Senior Civil Judge, Sathupally. The lower appellate Court after considering the material on record and after hearing the parties, confirmed the judgment and decree of the trial Court passed in OS No.8 of 2000. The defendant-writ petitioner further carried the matter in appeal before this Court in second appeal being SA No.1083 of 2005 and at the time of hearing of the second appeal, it came to light that the suit promissory note dated 16-1-2000 marked as Ex.A-1 in the trial Court, and based on which both the Courts below decreed suit was allegedly replaced with another promissory note dated 19-3-1996. Immediately, when it came to the notice of the 2nd respondent herein, who is plaintiff in the suit, made a complaint dated 4-4- 2008 before the Hon’ble the Chief Justice for enquiry and taking necessary action in the matter. 3. The gist of the complaint given by the 2nd respondent is that the writ petitioner-defendant in the suit, who is now a practicing advocate in this High Court, colluded with the court staff and with the active help of his counsel, changed the suit promissory note dated 16-1-2000 from the Court file by replacing it with the promissory note dated 19-3-1996 which was with him by forging the signature of second witness by name A. Raghuramireddy, since originally there was only one witness by name Manchikanti Narsireddy and made some material alterations etc. The complaint dated 4-4-2008 was enquired into by the Registry by entrusting the same to an Asst. Registrar and he accordingly submitted his report. As per the preliminary report, it was found that immediately after the records from the lower Court were received, they were given for checking and the checking assistant failed to notice the non-mentioning of date of document in the index sheet or he did not check the date mentioned in the appendix of evidence in the judgment against Ex.A-1, tallied with the document received as Ex.A-1. Pursuant to the preliminary report, on a note put up before the Hon’ble Chief Justice, it was directed to be treated as miscellaneous petition and be listed along with the main second appeal. Thereafter, the said complaint dated 4-4-2008 came to be numbered as SAMP No.1173 of 2008 and by the impugned order, a learned single Judge of this Court passed orders therein. The relevant portion thereof reads thus:- “7.The Enquiry Report of the Assistant Registrar is not clear as to when this original promissory note was substituted by the duplicate promissory note. As per the report, the concerned staff of this Court failed to verify the document as to its correctness by tallying with the Index. Therefore, the report could not conclude at what time the original promissory note was substituted i.e. whether it was substituted before being transmitted by the trial Court or after received in the High Court. However, the fact remains that the original promissory note has been substituted. Xerox copy of the original promissory note has been sent along with the application by the respondent- plaintiff. 8. Substituting the original document with a fake document before the Court is an offence of very serious in nature. This Court has no other option than to order a thorough enquiry by a competent Police Officer as to who are the persons responsible for the substitution of the original promissory note with a fake one. 9. Therefore, the Deputy Superintendent of Police, CBCID, Hyderabad, is directed to register a case, investigate the same and file a final report according to law. He is also required to file a status report on 23-10-2008 before this Court. 10. The Deputy Superintendent of Police, CBCID, Hyderabad, is permitted to peruse the original records and take copy of the original records available before this Court.” 4. Learned counsel for the petitioner strenuously contended that when once the Hon’ble Chief Justice seized of the matter on administrative side by ordering enquiry and report submitted after conducting enquiry, the learned single Judge ought not to have ordered for CBCID enquiry in the matter. Learned counsel further contended that the issue of this nature can be diagnosed and truth can be found out by the vigilance cell of the High Court registry. Learned counsel also contended that in the absence of any prayer made from either side of the parties to order CBCIB enquiry, enquiry by CBCID ought not to have been ordered and the same will set a bad precedent and it will have its own repercussions in the long run on judiciary. Learned counsel further contended that copies of the petition as contemplated under Rule 59 of AP Civil Rules of Practice and Circular Orders, 1980 and Rule 42 of Appellate Side Rules have not been furnished to the petitioner. 5. Learned standing counsel appearing for the 1st respondent submitted that the writ petition is not maintainable as no mandamus can be issued for declaring an order passed by the High Court in a miscellaneous petition in second appeal in exercise of its civil appellate jurisdiction. Learned counsel has drawn our attention to Section 100-A CPC and contended that the petitioner has an officious remedy of filing appeal before the higher Court and the legality and validity of the said order cannot be called in question in a writ petition under Article 226 of the Constitution. Decision in SS JAIN SAMITI vs. MANAGEMENT COMMITTEE RJI COLLEGE, AGRA1 is relied on. 6. Learned counsel for the 2nd respondent also contended that the writ petition is liable to be dismissed on the ground of maintainability as the impugned order arose out of civil proceedings and there is no violation of any vested right to invoke the extra-ordinary jurisdiction under Article 226 of the Constitution. Learned counsel contended that enquiry that was directed to be conducted on the administrative side cannot be an impediment for ordering investigation by CBCID into the complaint which contains a very serious charge. Decision in RAJ KUMAR SHIVHARE vs. ASST. DIRECTOR, DIRECTORATE OF ENFORCEMENT2 is relied on. 7. When the writ petition was filed, the Registry sought to return the WP with the following objections:- 1. “Please clarify as to the entertainability of this writ petition filed against the order passed on civil side in SAMP No.1173 of 2008 in SA No.1083 of 2005 as there is efficacious remedy. 2. Please clarify as to how the first respondent is necessary party in this writ petition, when the petitioner is questioning he order passed by Hon’ble Single Judge of this Court.” The counsel for the petitioner represented the matter with the following endorsement:- Since the very order in MP registered at the instance of Hon’ble CJ, without issue of any notice or copy thereof to the petitioner, hence it is maintainable. The Judicial Registrar (1st respondent) is the authority, who conducted enquiry behind back of the petitioner without furnishing copies or report despite the CDs, therefore he is the necessary party. If you are not satisfied with the above compliance, kindly refer the matter to the Bench.” 8. This Court by order dated 13-11-2008 directed the office to number the case and list the matter. 9. Having heard the learned counsel for the parties, the issue that falls for our consideration is whether a writ of mandamus can be issued to declare an order passed a learned single Judge of this Court in a miscellaneous petition in second appeal in exercise of its civil appellate jurisdiction as being illegal or otherwise. The requirement to issue a Writ of Mandamus is that there should be a ‘demand’ by the person having a enforceable right and ‘refusal’ by the authority and under those circumstances if it is found that there is a violation of that enforceable right, a mandamus can be issued. Here in this case, the order impugned arise out of civil proceedings and the Court passed order in exercise of its civil appellate jurisdiction. Against the impugned order, the petitioner has an officious remedy of filing appeal before the higher Court and the legality and validity of the said order cannot be considered in a writ petition under Article 226 of the Constitution. This writ Court cannot convert itself into an appellate or revisional Court and interfere with interim/miscellaneous orders passed in exercise of civil appellate jurisdiction. The remedy under Article 226 of the Constitution being, in general, discretionary, the Court may refuse to grant it where there exists an alternative remedy, equally efficient and adequate, unless there are good grounds therefor, but where a party complaining of fraud had no other alternative remedy available, he could avail writ remedy. An application under Article 226 will not be entertained filed by a party for the purpose of avoiding the responsibilities or liabilities. The rights that can be enforced under Article 226 must ordinarily be the rights of the petitioner himself. In SS JAIN SAMITI’s case (1 supra) at paras 7 and 8, the Supreme Court held thus:- “7. It is not disputed that the remedy of appeal before the District Judge was available to the respondents against the order of the Additional Civil Judge by which the learned Judge granted interim injunction against the respondents. The order dated 5/04/1994 rejecting the applications of respondent No. 2 for impleadment could not also be challenged by way of revision. The High Court also noticed this aspect in the following words : "of course, he could have availed the jurisdiction of the District Judge, who has an authority to hear appeal as well as revision. But somehow or the other he has been advised to approach this Court." 8. We are of the view that the High Court not only fell into patent error but also exceeded its jurisdiction under Article 226 of the Constitution of India. Though the jurisdiction of the High Court under Article 226 of the Constitution is not confined to issuing the prerogative writs, there is a consensus of opinion that the High Court will not permit this extraordinary jurisdiction to be converted into a civil Court under the ordinary law. When a suit is pending between the two parties the interim and miscellaneous orders passed by the trial Court - against which the remedy of appeal or revision is available - cannot be challenged by way of a writ petition under Article 226 of the Constitution of India. Where the civil Court has the jurisdiction to try a suit, the High Court cannot convert itself into an appellate or revisional Court and interfere with the interim/miscellaneous orders of the Civil Court. The writ jurisdiction is meant for doing justice between the parties where it cannot be done in any other forum.” 10. To the same is the view of the Supreme Court in Raj Kumar’s case (2 supra). Para 34 reads thus:- “When a statutory forum is created by law for redressal of grievance and that too in a fiscal Statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go bye by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating the aspect of the matter.” 11. The order passed in the civil miscellaneous petition was based on a complaint letter dated 4-4-2008, the matter was considered in exercise of civil appellate jurisdiction. It is true that the complaint was received on administrative side and after enquiry by the officer of the Registry was directed the same to be treated as miscellaneous petition and merged with the matter pending in second appeal. Under Article 229 of the Constitution, the Hon’ble Chief Justice has been vested with wide powers and discretion to run the administration independently which include taking necessary decisions. The petitioner cannot complain of violation of any rights at this stage since the matter is at the stage of investigation. The enquiry directed to be made by the Hon’ble Chief Justice was in the nature to ascertain as to whether there was prima facie truth in the allegations contained in the complaint and that cannot constitute a bar for an investigation by the Court to verify the complaint of changing the original suit document which is of grave in nature requiring investigation. High Court is a court of record and if complaints of this nature are not enquired into, public faith in the institution fades. 12. With regard to the contention of the learned counsel for the petitioner that non-furnishing of the copy of the miscellaneous petition as mandated under Rule 59 of AP Civil Rules of Practice and Circular Orders, 1980 and Rule 42 of Appellate Side Rules violates the principles of natural justice lacks merit for the reason it is on record that both the parties were heard before passing the impugned order by the learned single Judge, and no prejudiced is caused to the petitioner. Even otherwise, the miscellaneous petition was registered on a complaint letter and on the order of the Hon’ble Chief Justice. As per the report of the Dy. Section Officer, Scrutiny Section, the scrutiny section bona-fidely believed that a copy of the petition can be given to the petitioner on the directions of the Court and non-serving of the petition copy is under a bona-fide belief but not an intentional one. 13. The writ petition is misconceived and therefore it is accordingly dismissed. No costs. ________________ GM, J _________________ GC,J Dated : June, 2010 Nrg THE HON’BLE SRI JUSTICE GHULAM MOHAMMED & THE HON’BLE SRI JUSTICE G.CHANDRAIAH Dated June, 2010 WP NO.25073 OF 2008 Ayanapurapu Venkata Ramana Rao ..Petitioner & 1. The High Court of AP rep. by Judicial Registrar High Court Buildings, Hyderabad & another ..Respondents 1 AIR 1996 SC 1209 2 2010 (4) SCJ 11