WA 201/2011 BEFORE THE HON’BLE MR JUSTICE A. K. GOEL THE HON’BLE MR. JUSTICE AMITAVA ROY JUDGMENT AND ORDER (oral) (A. K. Goel, J.) 1. This appeal has been preferred against the order of learned Single Judge dismissing the writ petition i.e. WP(C) No.1941 of 2001, which was preferred ag ainst the order of civil Court holding the same as not maintainable. 2. The appellant is a tenant under the respondent who filed a suit for evic tion of the appellant under the provisions of Section 5 of the Assam Urban Areas Rent Control Act, 1972. This aspect was considered under issue No.2 and the lea rned Civil Court held that the appellant was a defaulter on account of non-payme nt of rent. Accordingly, the decree for eviction was granted in favour of the re spondent. The said decree was affirmed in appeal by the learned Civil Judge exer cising powers of appellate Court under Section 8 of the Act. Aggrieved thereby, the appellant filed the writ petition in this Court under Article 226 of the Con stitution of India. 3. The learned Single Judge held that the State or its instrumentalities or other authorities were not party and the judgment was of Civil Court and on tha t ground the writ petition was dismissed. Hence, this appeal. 4. We have heard Mr. N. N. Karmakar, learned counsel for the appellant, and Mr. R. Dubey, learned counsel for the respondent. 5. Learned counsel for the appellant submits that the writ petition was mai ntainable as the Court exercising jurisdiction under the provisions of the Act w as not acting as Civil Court but as revenue Court as defined under Section 5 of the Code of Civil Procedure. He also submits that the Hon’ble Supreme Court in its order dated 18.03.2002 (Subodh Chandra Dev vs., State of Assam and others) w hile considering a similar matter held that a writ petition was maintainable aga inst the final order under the Act. He, however, fairly submits that even after considering the said order of the Hon’ble Supreme Court, a Division Bench of thi s Court in Ranjit Kr. Dey & others vs. Krishna Gopal Agarwala & others, reported in 2004(2)GLT 435, held that a revision petition under Section 115 of the Code of Civil Procedure will lie against a final order under the Act. He also relies upon the judgment of the Supreme Court in Surya Dev Rai v. Ram Chander Rai, repo rted in (2003) 6 SCC 675. 6. On the other hand, learned counsel for the respondent-landlord supports the view taken in the impugned order and submits that a writ petition does not l ie against order of a civil Court and only a revision petition will lie. The obs ervation in the order of the Supreme Court in Subodh Chandra Dev vs., State of A ssam and others relied upon by the learned counsel for the landlord is in confli ct with the settled law on the point and the said observation could not be treat ed as binding precedent under Article 141 of the Constitution of India. 7. The question, which arises for consideration, is whether a writ petition will lie against a final order passed by the civil court under the provisions o f the Act or only remedy will be by way of a revision petition? 8. In our view, the answer has to be against the appellant and in favour of the respondent. It is well settled that order of a civil Court is not amenable to writ jurisdiction. Such order has to be challenged by way of an appeal or re vision and if is allowed to be final, the writ petition may be barred by res jud icata. Reference may be made to Naresh Shridhar Mirajkar and others vs. State o f Maharashtra and another, reported in AIR 1967 SC 1, to this effect. Therein, i t was observed : certiorari does not lie to quash the judgments of inferior courts of civil juri sdiction. 9. Reference may also be made to observation in Poonam vs. Sumit Tanwar, re ported in (2010)4 SCC 460 : 13. It is a settled legal proposition that the remedy of a person aggrieved by the decision of the competent judicial tribunal is to approach for redress a sup erior tribunal, if there is any, and that order cannot be circumvented by resort ing to an application for a writ under Article 32 of the Constitution. Relief un der Article 32 can be for enforcing a right conferred by Part III of the Constit ution and only on the proof of infringement thereof. If by adjudication by a cou rt of competent jurisdiction the right claimed has been negatived, a petition un der Article 32 of the Constitution is not maintainable. It is not generally assu med that a judicial decision pronounced by a court may violate the fundamental r ight of a party. Judicial orders passed by the court in or in relation to procee ding pending before it are not amenable to be corrected by issuing a writ under Article 32 of the Constitution. (Vide Sahibzada Saiyed Muhammed Amirabbas Abbasi v. State of Madhya Bharat [AIR 1960 SC 786]; Ujjam Bai v. State of U.P.[AIR 196 2 SC 1621] and Naresh Shridhar Mirajkar v. State of Maharashtra [AIR 1967 SC 1]. 10. Again in Mosaraf Hossain Khan vs. Bhagheerat Engg. Ltd. and others, rep orted in (2006)3 SCC 658, it was observed : A writ of certiorari ordinarily would not be issued by a writ court under Artic le 226 of the Constitution against a judicial officer. (See Naresh Shridhar Mira jkar v. State of Maharashtra [(1966)3 SCR 744 : AIR 1967 SC 1]. However, we are not oblivious of a decision of this Court in Surya Dev Rai v. Ram Chander Rai [( 2003) 6 SCC 675] wherein this Court upon noticing Naresh Shridhar Mirajkar [(196 6)3 SCR 744 : AIR 1967 SC 1] and also relying on a Constitution Bench of this Co urt in Rupa Ashok Hurra v. Ashok Hurra [(2002)4 SCC 388] opined that a Judicial Court would also be subject to exercise of writ jurisdiction of the High Court. The said decision has again been followed in Ranjeet Singh v. Ravi Prakash [(200 4) 3 SCC 682]. It is, however, not necessary to dilate on the matter any further . 11. The observations in Surya Dev Rai (supra) have been made in the context of remedy of revision under Article 227 in absence of any other provision. In th e present cast, undisputedly, remedy of revision is available to the appellant. If the said remedy is not taken, the writ petition will be barred by res judicat a. 12. As regards the order in Subodh Chandra Dev(supra) there is no discussion on the issue except noting that notice was issued confined to the question whet her the matter be remanded back to the High Court for deciding the writ petition treating the same as revision. Further observation therein to the effect that a writ petition will be maintainable against final order of the authority under t he Act cannot be read as reversing the law settled by a larger Bench to the effe ct that an order of civil Court is not amenable to writ jurisdiction as the same can be challenged as per hierarchy of Courts and if the said order is to be rea d otherwise, the same may be per incurium or sub silentio having not referred to settled law and having not discussed the principle involved. In this regard, it was observed in State of U.P. and others vs. Jeet S. Bisht and another, reporte d in (2007)6 SCC 586 : 18. No doubt in the aforesaid decision various directions have been given by this Court but in our opinion that was done without any discussion as to whethe r such directions can validly be given by the Court at all. The decision therefo re passed sub silentio. The meaning of a judgment sub silentio has been explaine d by this Court in Municipal Corpn. of Delhi v. Gurnam Kaur (vide paras 11 and 1 2) as follows : &.. ’A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decis ion is not perceived by the Court or present to its mind. The court may consciou sly decide in favour of one party because of Point A, which it considers and pro nounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided Point B in his favour; but Point B was not argued or considered by the court. In such circumst ances, although Point B was logically involved in the facts and although the cas e had a specific outcome, the decision is not an authority on Point B. Point B i s said to pass sub silentiio.’ In Gerard v. Worth of Paris Ltd. the only point argued was on the question of pr iority of the claimant’s debt, and, on this argument being heard; the court gran ted the order. No consideration was given to the whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, th erefore, this very point was argued in a subsequent case before the Court of App eal in Lancaster Motor C. (London) Ltd. v. Bremith Ltd. the court held itself no t bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could n ot help thinking that the point now raised had been deliberately passed sub sile ntio by counsel in order that the point of substance might be decided. He went o n to say that the point had to be decided by the earlier court before it could m ade the order which it did, nevertheless, since it was decided ’without argument , without reference to the crucial words of the rule, and without any citation o f authority’, it was not binding and would not be followed. Precedents sub silen tiio and without argument are of no moment. This rule has ever since been follow ed. 13. Relevant statutory provisions of the Act are as follows : 4. Procedure of determination of fair rent : (1) If any dispute arises regarding the rent payable in respect of any house , it shall be determined by the Court. (2) The Court shall on application made by either the landlord or the tenant issue notice on both the parties, and after making such enquiry as it thinks fi t determine the monthly rent for the house in accordance with the provisions of Section 3 and the rent so determined shall be binding on both parties. (3) Where the Court determines the monthly rent for any house under this Sec tion, it shall do so for the house in the unfurnished state, but it may allow th e landlord to charge an additional amount per month on account of the furniture supplied by him : Provided that such additional amount shall not exceed one-twelfth of seven and h alf per cent of the cost of such furniture on the date on which the Court determ ines the monthly rent for the house. 5. Bar against passing and execution of decree and orders for ejection :-- (1) No order or decree for the recovery of possession of any house shall be made or executed by any Court so long as the tenant pays rent to the full extent allowable under this Act and performs the conditions of the tenancy: Provided that nothing in the sub-section shall apply in a suit or proceedings fo r eviction of the tenant from the house :- (a) Where the tenant has done anything contrary to the provisions of clause (m), clause (o) or clause (p) of Section 108 of the Transfer of Property Act, 18 82 (Central Act 4 of 1882) or to the spirit of the aforesaid clause in areas whe re the said Act does not apply, or (b) where the tenant has been guilty of conduct which is a nuisance or an an noyance to the occupiers of the adjoining or neighbouring houses, or (c) where the house is bonafide require by the landlord either for purposes of repairs or re-building, or for his own occupation or for the occupation of an y person for whose benefit the house is held, or where the landlord can show any other cause which may be deemed satisfactory by the Court, or (d) where the tenant sublets the house or any part thereof or otherwise tran sfers his interest in the house or any part thereof without permission in writin g from the landlord, or (e) where the tenant has not paid the rent lawfully due from him in respect of the house within a fortnight of its falling due, or (f) where the tenant has built acquired or been allotted a suitable residenc e. (2) The transfer of the interest of the landlord in the house shall not affe ct the right of the tenant provided the tenant pays rent allowable under this Ac t to the transferee. (3) Where the landlord recovers possession of a house from a tenant on the g round that the house is bonafide required by him for purpose of repairs or rebui lding or for his own occupation or for the occupation of any person for whose be nefit the house is held, and the repairs or the rebuilding of the house is not c ommenced or the house is not occupied by the landlord or such person within fift een days of the date of vacation of the house by such tenant or the house having been so occupied is within six months of the said date re-let to or allowed to be possessed by any other person, the Court may, on the application of the evict ed tenant made within seven months of his vacating the house, direct the landlor d to put the evicted tenant in possession of the house within such period as the Court may fix and to pay him such compensation as appears to the Court to be re asonable and proper. Such a direction shall be deemed to be a decree under the C ode of Civil Procedure, 1908 (Central Act 5 of 1908) and to be capable of execut ion of such under the provisions of that Code. (4) Where the landlord refuses to accept the lawful rent offered by his tena nt, the tenant may, within a fortnight of its becoming due, deposit in Court the amount of such rent together with process fees for service of notice upon the l andlord, and on receiving such deposit, the Court shall cause a notice of the re ceipt of such deposit to be served on the landlord, and the amount of the deposi t may thereafter be withdrawn by the landlord on application made by him to the Court in that behalf. A tenant who has made such deposit shall not be treated as a defaulter under clause (e) of the proviso to sub-section (1) of this Section. 8. Appeals :- A landlord or a tenant aggrieved by any decision or orde r of the Court under the provisions of Sections 4, 5 and 7(2) of this Act shall have a right of appeal against the same as if such decision or order were a decr ee in a suit for ejectment of the tenant from the house and such appellate Court ’s decision shall be final. 14. Thus, under the scheme of the Act the authority dealing with the matter is civil Court. 15. As regards Section 5 of the CPC, relied upon by learned counsel for the appellant, for submitting that a civil Court exercising jurisdiction under a loc al law has to be treated as Revenue Court and not the Civil Court, we are of the view that this contention is misconceived. Section 5 deals with the issue of ap plication of the Code of Civil Procedure to revenue court and in that context re venue court has been defined. It cannot be held that civil Court exercising juri sdiction with reference to any local law ceases to be civil Court. 16. Learned counsel for the appellant also stated that if a writ petition is otherwise maintainable against the order of tribunal, the omission to make the State as a party would not affect maintainability. This question loses significa nce in view of our finding that the writ petition itself is not maintainable aga inst the order of the civil Court. 17. In view of the above, we do not find any merit in this appeal. The appea l stands dismissed.