THE HON’BLE SRI JUSTICE P. S. NARAYANA AND THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY WP No.21011 of 2009: %13.04.2010 #Guntur United Cricket Club, rep. by its Presdient Ambati Ramaiah & 2 others … Petitioners versus $ The III Additional District Court, Guntur & 4 others … Respondents WP No.21134 of 2009 # Guntur United Cricket Club, rep. by its Presdient Ambati Ramaiah & 2 others … Petitioners Vs. $ The III Additional District Court, Guntur & 4 others < GIST: > HEAD NOTE: !Counsel for Petitioners: Sri Dadi Radhakrishna ^Counsel for Respondents: Sri N. Ravi Prasad Sri S.Sasidhar Reddy for R.2 & R.5 ? Cases referred 1. AIR 2003 SC 3044 2. 2009(5) ALJ 244 IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD TUESDAY, THIRTEENTH [13TH] DAY OF APRIL, TWO THOUSAND AND TEN Present: HON’BLE SRI JUSTICE P.S.NARAYANA AND HON’BLE SRI JUSTICE G.V.SEETHAPATHY W.P.No.21011 of 2009 & W.P.No.21134 of 2009 WP No.21011 of 2009: Between: Guntur United Cricket Club, rep. by its Presdient Ambati Ramaiah & 2 others … Petitioners And: The III Additional District Court, Guntur & 4 others … Respondents WP No.21134 of 2009: Between: Guntur United Cricket Club, rep. by its Presdient Ambati Ramaiah & 2 others … Petitioners And: The III Additional District Court, Guntur & 4 others … Respondents HON’BLE SRI JUSTICE P.S.NARAYANA AND HON’BLE SRI JUSTICE G.V.SEETHAPATHY W.P.No.21011 of 2009 & W.P.No.21134 of 2009 COMMON ORDER: [Per GVS, J] i) W.P.No.21011 of 2009 is filed seeking writ of Certiorari calling for the records in IA No.935 of 2009 in S.O.P.No.153 of 2009 and for setting aside the order dated 27.08.2009 passed therein by the first respondent-III Additional District Court, Guntur, wherein, the said application filed by the petitioners for temporary injunction, was dismissed. ii) W.P.No.21134 of 2009 is filed by the same petitioners i.e., Guntur United Cricket Club, seeking writ of Certiorari calling for the records in IA No.936 of 2009 in S.O.P.No.153 of 2009 and for setting aside the order dated 27.08.2009 passed therein by the first respondent-III Additional District Court, Guntur, wherein, the said application filed by the petitioners for suspension of the letter/order dated 19.07.2009 in dis- affiliation/removal of the first petitioner from the 2nd respondent Cricket association, was dismissed. 2. Both the writ petitions are between the same parties and they arose out of a common order dated 27.08.2009 passed in IA Nos.935 and 936 of 2009 in S.O.P. No.153 of 2009 on the file of the III Additional District Court, Guntur. The writ petitioners, who are the same in both the writ petitions, filed IA No.935 of 2009 for temporary injunction to restrain the 5th respondent herein from acting as President of the 2nd respondent-Association pending disposal of the main SOP. IA No.936 of 2009 was filed seeking suspension of the resolution/disaffiliation order dated 19.07.2009 insofar as it relates to withdrawal of readmission of the first petitioner i.e., Guntur United Cricket Club from the 2nd respondent/Andhra Cricket Association, pending disposal of the main OP. 3. On a memo filed by both sides, both the petitions were clubbed and heard together and on 27.08.2009 a common order was passed by the learned III Additional District Judge, Guntur, dismissing both the applications and the said order is impugned in the present writ petitions. 4. The respondents filed counters inter-alia contending that the writ petitions filed under Article 226 of the Constitution of India, are not maintainable, in respect of the reliefs prayed for and the same are liable to be dismissed. 5 . It is not in dispute that previously, one Mr. V.Chamundeshwarinath, filed W.P.No.14682 of 2009 against Andhra Cricket Association and Gokaraju Gangaraju, President of the said association and also impleading the III Additional District Court, Guntur for declaring the order dated 10.07.2009 made in IA No.721 of 2009 in S.O.P No.122 of 2009 passed by the learned III Additional District Judge, Guntur, as illegal and arbitrary. In the said writ petition also, the respondents vehemently questioned the maintainability of the petition for issue of writ of Mandamus under Article 226 of the Constitution of India in respect of which an interlocutory order was passed by the trial Court. The said W.P.No.14682 of 2009 came up for hearing before one of us [Justice P.S.Narayana] and by order dated 26.08.2009, the matter was directed to be referred to an appropriate Division Bench after obtaining the orders of the Hon’ble the Chief Justice. Subsequently, when these two writ petitions i.e., WP Nos.21011 of 2009 and 21134 of 2009 also came before the same learned single Judge, by order dated 12.11.1009, they were also directed to be referred to appropriate Division Bench, as similar questions, which arose in WP No.14682 of 2009, were already referred to the Division Bench. Accordingly, all the three writ petitions came before this Bench. On 26.02.2010, learned counsel for the petitioner in WP No.14682 of 2009 sought permission to withdraw the writ petition in the light of the subsequent final order of expulsion made against the petitioner therein and the petition was permitted to be withdrawn without prejudice to the contentions of the petitioner therein relating to subsequent events. Accordingly, WP No.14682 of 2009 was dismissed, as withdrawn. 6. The present two writ petitions i.e., WP No.21011 of 2009 and 21134 of 2009 are heard together, as they are between the same parties and arise out of the same common order passed by the first respondent-III Additional District Court, Guntur and a common question relating to their maintainability is raised in both petitions. 7. As the respondents vehemently opposed the very maintainability of the writ petitions against the impugned interlocutory order passed in a civil proceeding by a subordinate Court, arguments of both sides were advanced on the question of maintainability of the writ petitions. Hence, without going into the factual matrix and without touching upon the merits or demerits of the case, the question of maintainability of the writ petitions alone falls for consideration at this stage. 8 . Learned counsel for the petitioners would submit that no distinction as such can be drawn under Article 226 and 227 of the Constitution of India and a judicial order, though interlocutory passed by a subordinate court is still amenable to the writ jurisdiction under Article 226 of the Constitution. He would further submit that writ of Certiorari would certainly lie to correct an error, that too a jurisdictional error committed by the subordinate Court. 9. Learned counsel for the respondents, on the other hand would contend that the remedy for the petitioners against the impugned interlocutory order passed by the first respondent, if at all, is only to invoke the supervisory jurisdiction of this Court under Article 227 of the Constitution, but certainly not to seek a writ of Certiorari under Article 226 of the Constitution as the two jurisdictions under Articles 226 and 227 are not identical but are distinct and separate. He would further contend that the impleadment of the Civil Court, which passed the impugned order, as a respondent in the writ petition, is also unsustainable. 10. Strong reliance is placed by the learned counsel for the petitioners on a decision in ‘Surya Dev Rai vs. Ram Chander Rai[1]’, wherein, the Apex Court after dealing with the scope of Articles 226 and 227 of the Constitution of India and the distinction between them, laid down the principles and working rules as under: “Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as here-under-:- (1) Amendment by Act No. 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, Certiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of Certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error, which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent. (7) The power to issue a writ of Certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking Certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of Certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of Certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of Certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.” 11. In the above case, a suit was filed for permanent injunction based on title and possession in respect of the suit property, which is a piece of agricultural land, in a Civil Court. The petitioner sought for relief by way of ad-interim injunction under Order 39 Rules 1 and 2 CPC. The prayer was rejected by the trial Court as also by the appellate Court. The appellant filed a petition [C.M.W.P.No.20038 of 2002] in the High Court under Article 226 of the Constitution. The High Court has summarily dismissed the said petition on the ground that it was not maintainable, as the appellant was seeking interim injunction against private respondents. The question, which arose for consideration in the appeal, was summarized in para 3 of the judgment by the apex Court which reads as follows: “This appeal raises a question of frequent occurrence before the High Courts as to what is the impact of the amendment in S. 115 of the C.P.C. brought in by Act 46 of 1999 w.e.f. 1-7-2002, on the power and jurisdiction of the High Court to entertain petitions seeking a writ of Certiorari under Art. 226 of the Constitution or invoking the power of superintendence under Art. 227 of the Constitution as against similar orders, acts or proceedings of the Court subordinate to the High Courts, against which earlier the remedy of filing civil revision under S. 115 of the C.P.C. was available to the person aggrieved. Is an aggrieved person completely deprived of the remedy of judicial review, if he has lost at the hands of the original Court and the appellate Court though a case of gross failure of justice having been occasioned, can be made out? 12. The Apex Court dealt with the principles relating to the constitutional jurisdiction conferred on the High Court under Articles 226 and 227 of the Constitution in the backdrop of amendment to Section 115 CPC. After referring to the case law, including ‘Naresh Shridhar Mirajkar vs. State of Maharashtra’ [AIR 1967 SC 1], ‘Umaji Keshao Meshram Vs. Smt. Radhikabai’ [AIR 1986 SC 1272], and ‘Rupa Ashok Hurra Vs. Ashok Hurra’ [AIR 2003 SC 1771], the Apex Court held as follows: “Thus, there is no manner of doubt that the orders and proceedings of a judicial Court subordinate to High Court are amenable to writ jurisdiction of High Court under Art. 226 of the Constitution.” 13. In a recent decision in ‘Radhey Shyam vs. Chhabi Nath[2]’, the Apex Court was dealing with the situation whereunder an order passed by the learned single Judge of the Allahabad High Court interfering in a writ petition with the proceedings pending before the Civil Court was challenged. The question, which arose for consideration before the Apex Court was, ‘whether the High Court in exercise of its extraordinary writ jurisdiction can interfere with a judicial order, passed by a Civil Court of competent jurisdiction’? Referring to the case of ‘Surya Dev Rai’ (first supra), the Apex Court observed as follows: “It is only in the case of Surya Dev Rai vs. Ram Chander Rai and others, 2003 (6) SCC 675, a two Judged Bench of this Court held, possibly for the first time the “orders and proceedings of a judicial Court subordinate to the High Court are amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution (para 19, page 688 of the report). The attention of the Court was not drawn to the earlier Constitution Bench judgment in Sohan Lal (supra) or the three-Judge Bench judgment in Hanif (supra). Both these judgments are still holding the field. Before coming to the aforesaid conclusion, the learned Judges in Surya Dev Rai (supra) noticed the contrary view expressed in a Nine- Judge Constitution Bench judgment of this Court in the case of Naresh Shridhar Mirajkar and others vs. State of Maharashtra, AIR 1967 SC 1 (V 54 C1). In Mirajkar (supra) a nine-Judge Constitution Bench considered the history of writ of Certiorari and after considering various English and Indian decisions came to the conclusion “Certiorari does not lie to quash the judgments of inferior Courts of civil jurisdiction” (See paragraph 63 page 18 of the Report). The learned Judges in saying so followed the law relating to Certiorari as prevalent in England and held that in England the judicial orders passed by civil Courts of plenary jurisdiction in relation to matters brought before them are not amenable to the jurisdiction of Certiorari. The learned Judges in Surya Dev Rai (supra), however, opined that the Judges never held in Mirajkar (supra) that the law relating to Certiorari in England was accepted by Supreme Court. But this observation in Surya Devi Rai (supra) appears to have been made without properly considering the concurring and a separate opinion given by Justice Sarkar in Mirajkar (supra) wherein his Lordship clearly held “As Certiorari is a technical word of English law and had its origin in that law, for determining its scope and contents we have necessarily to resort to English law” (See para 82 page 23). In our view the appreciation of the ratio in Mirajkar (supra) by learned Judges, in Surya Dev Rai(supra), with great respect, was possibly a little erroneous and with that we cannot agree.” 14. In the above decision, a reference was made to ‘Rupa Ashok Hur vs. Ashok Hurra and another’ [(2002) 4 SCC 388] case, where th Constitution Bench, did not take any view, which is contrary to the view expressed in Mirajkar’s case. On the other hand, ratio in Mirajkar’s cas was referred to with respect and was relied on in Rupa Ashok Hurra case. The Apex Court also noted that the question, which was referred the Constitution Bench in Rupa Ashok Hurra’s case, was totally different. Radhey Shyam’s case (2nd supra) the Apex Court ultimately held a follows: “Therefore, this Court unfortunately is in disagreement with the view which has been expressed in Surya Dev Rai (supra) insofar as correction of or any interference with judicial orders of Civil Court by a writ of Certiorari is concerned. Under Article 227 of the Constitution, the High Court does not issue a writ of Certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence, which is to be very sparingly exercised to keep tribunals and Courts within the bounds of their authority. Under Article 227, orders of both Civil and criminal Courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law. The essential distinctions in the exercise of power between Articles 226 and 227 are well known and pointed out in Surya Dev Rai (supra) and with that we have no disagreement. But we are unable to agree with the legal proposition laid down in Surya Dev Rai (supra) that judicial orders passed by a Civil Court can be examined and then corrected/reversed by the writ Court under Article 226 in exercise of its power under a writ of Certiorari. We are of the view that the aforesaid proposition laid down in Surya Dev Rai (supra), is contrary to the ratio in Mirajkar (supra) and the ratio in Mirajkar (supra) has not been overruled in Rupa Ashok Hurra (Supra). In view of our difference of opinion with the views expressed in Surya Dev Rai (supra), matter may be placed before his Lordship the Hon’ble the Chief Justice of India for constituting a Larger Bench, to consider the correctness or otherwise of the law laid down in Surya Dev Rai (supra) on the question discussed above.” 15. From the above, it is clear that the recent decision of the Apex Court in Radhey Shyam’s case (2nd supra) is in disagreement with Surya Dev Rai (first supra), which is relied upon by the learned counsel for the petitioners in support of his contention that judicial orders passed by the civil Court are amenable to writ jurisdiction under Article 226 of the Constitution and the matter is referred for consideration by a Larger Bench. The apex Court in Radhey Syam’s case (2nd supra), however, stated that there was no disagreement with the with the essential distinctions in exercise of power between Articles 226 and 227 of the Constitution, which were pointed out in Surya Dev Rai’s case referred to supra. 16. In Mirajkar’s case nine-judges of the Constitution Bench after considering the history of writ of Certiorari held that ‘Certiorari does not lie to quash judgment of inferior court at civil jurisdiction’. The ratio laid down in Mirajkar’s case is followed in Radhey Shyam’s case, wherein it was held as follows: “It is clear from the law laid down in Mirajkar (supra) in paragraph 63 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 para 63 in Mirajkar (supra). The passage in the subsequent edition of Halsbury (4th Edition) which has been quoted in Surya Dev Rai (supra) does not at all show that there has been any change in law on the points in issue pointed out above.” 17. In view of the principles laid down in nine-judges Constitution Bench of the apex Court in Mirajkar’s case which is referred to in the recent decision of the Apex Court in Radhey Shyam’s case, the contention of the learned counsel for the petitioners that a writ of Certiorari would lie for setting aside the judicial order passed by a civil Court, is untenable. 18. In the circumstances and for the reasons stated above, it is held that the two writ petitions seeking writ of Certiorari against the impugned common order are not maintainable. The petitioners are at liberty to pursue other legal remedies as are available to them under law. 19. In the result, both the writ petitions are dismissed. No order as to costs. _________________ P.S.NARAYANA, J _____________________ G.V.SEETHAPATHY, J Date:13.04.2010 Note: LR copy to be marked. (BO) bss [1] AIR 2003 SC 3044 [2] 2009(5) ALJ 244