Writ Petition Under Article 227 Challenging Judicial Orders Are Maintainable, But Not Under Article 226: SC [Read Judgment]
"The Writ Petition under Article 227 challenging the orders passed by Civil Courts refusing to grant interim injunction under Order XXXIX, Rules 1 and 2 of the CPC could very well be maintainable."
The Supreme Court has reiterated that a writ petition under Article 226 of the Constitution of India seeking writ of certiorari against judicial orders passed by civil courts is not maintainable.
The bench comprising Justice Ashok Bhushan and Justice Indu Malhotra observed in State of Jharkhand v. Surendra Kumar Srivastava that writ petition under Article 227 challenging the orders passed by Civil Courts refusing to grant interim injunction under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, will be maintainable.
The court was considering an appeal filed by the state against one such Jharkhand High Court order which had entertained a writ petition under Article 226. The court refused to set aside the high court order on this sole ground, because its maintainability was not challenged by the state before the high court.
"Had the Appellants raised the above objection regarding maintainability of the Writ Petition, the course open for Plaintiffs/Respondent Nos. 1 to 3 was to amend the cause title of the writ petition under Article 227 of the Constitution, and such a Writ Petition under Article 227 would have been clearly maintainable," the court said while referring to judgment by three-judge bench in Radhey Shyam v. Chhabi Nath & Ors.
"The Writ Petition under Article 227 challenging the orders passed by Civil Courts refusing to grant interim injunction under Order XXXIX, Rules 1 and 2 of the CPC could very well be maintainable, and the opportunity to amend the cause title by Respondent Nos. 1 to 3 by raising any objection to that effect having been denied to them, we, instead of setting aside the judgment of the High Court on the above ground, proceed to examine the contentions on merits," it said while deciding to hear the case on merits.
The high court in this case had reversed the decision of the Civil Judge (Junior Division – I) and the District Judge refusing to grant a temporary injunction in title suit filed by the plaintiff against the state. Examining the matter on merits, the bench set aside the high court order and observed that it granted an order of status quo with respect to the construction of the Electricity Sub-station even though the plaintiffs had failed to produce any documentary evidence whatsoever to establish their title to the suit property.
Read the Judgment Here