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1992 DIGILAW 838 (ALL)

HAJI ABDUL RASHSEED v. IIIRD ADDITIONAL CIVIL JUDGE SAHARANPUR

1992-06-08

M.KATJU

body1992
JUDGMENT M. Katju, J. - This writ petition is filed by the plaintiff petitioner against refusal to grant temporary injunction in a civil suit. According to the Full Bench decision of this Court in Ganga Saran v. Civil Judge, 1991 ALR 380, such a petition is not maintainable under Article 226 of the Constitution of India. With great respect to the aforesaid Full Bench decision in Ganga Saran's case. I am of the opinion that the said Full Bench decision is incorrect in law and needs to be reconsidered. 2. To examine this matter it is necessary to closely scrutinise what the Full Bench has held. In para 11 of Ganga Saran's case it has been observed "where an aggrieved party approaches the High, Court under Article 226 of the Constitution against an order passed in a Civil suit refusing to issue injunction to a private individual who is not under statutory duty to perform a public duty or vacating an order of injunction, the main relief is for issue of a writ of mandanous us to a private individual, and such a writ petition under Article. 226 would not be maintainable". The Full Bench relied on the decision of the Supreme Court in Qamruddin v. Rasul Baksh, 1980 AWN 308 for its conclusion. 3. With great respect to the Full Bench decision I am oft he opinion that its conclusion in Para 11 (quoted above) is incorrect and needs to be reconsidered by a Larger Bench. 4. In this connection certain basic concepts must be kept in mind. A writ of certiorari lies when there is an error of law apparent on the face of the record. Although ordinarily the High Court does not interfere with interlocutory orders in its writ jurisdiction, there is no absolute prohibition in this regard. There may be certain interlocutory orders which may clearly call for interference in writ jurisdiction, e.g., an interlocutory order refusing to grant stay of demolition or eviction. Some interlocutory orders can do great injustice if not immediately stayed in writ jurisdiction. 5. If an interlocutory order is illegal on the face of the record a writ of certiorari can be issued to quash it. Some interlocutory orders can do great injustice if not immediately stayed in writ jurisdiction. 5. If an interlocutory order is illegal on the face of the record a writ of certiorari can be issued to quash it. It is another matter that the High Court under Article 226 of the Constitution may ordinarily choose not to interfere against an interlocutory order, but that is a matter of its discretion and not lack of power. Where the Full Bench appears to have erred is in holding that there is an absolute bar to exercise of writ jurisdiction in such cases. Thus, the Full Bench has wrongly elevated a rule of discretion to a rule of absolute prohibition. 6. In a civil suit if the court passes an order refusing temporary injunction the High Court can, in writ jurisdiction, quash such an order if it is erroneous in law on the face of the record. Such error of law can be due to several reasons, e.g., non-consideration, or non-application, of the settled principles of granting/refusing temporary injunction (prima facie case, balance of convenience and irreparable loss), over looking of some statutory provisions, etc. 7. When a writ petition is filed against an order of the Civil Court refusing temporary injunction the writ which the court issues (if it chooses to quash the order) is a writ of certiorari. Such a writ of certiorari is not issued to the private party. It is issued against the order of the sub-ordinate court. Hence, the observation of the Full Bench (quoted above), with due respect, proceeds on a misconception. The writ which is issued in such cases is a writ of certiorari and not of mandamus. 8. Now after issuing the writ of certiorari the High Court is not powerless. It can in addition to issuing a writ of certiorari also issue directions to the private parties before it. Here again a clarification is necessary. No doubt a mandamus does not ordinarily issue to a private party unless such party is under a statutory duty to perform a public duty. However, Article 226 of the Constitution is not limited to issuing of a writ. Here again a clarification is necessary. No doubt a mandamus does not ordinarily issue to a private party unless such party is under a statutory duty to perform a public duty. However, Article 226 of the Constitution is not limited to issuing of a writ. Under Article 226 of the Constitution the High Court, cannot only issue writs but also orders or directions vide Dwarika Nath v. I.T.C., AIR 1966 SC 91 , Article 226 of the Constitution reads "...........Every High Court shall have power to issue to any person or authority directions, orders, or writs, including writs in the nature of habeas corpus mandamus, prohibition quo warranto and certiorari " 9. As held by the Hon'ble Supreme Court in Dwarika Nath's case ( supra ), the powers of the High Court under Article 226 of the Constitution are much wider than these of the British Courts in the matter of writ jurisdiction. The wide wording of Article 226 of the Constitution makes that clear. 10. Moreover, as held in Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233 (para 20). "While in a certiorari under Article 226 of the Constitution the High Court can only annul the decision of the Tribunal, it can, under Article 227 do that and also issue further direction in the matter." 11. Comptroller and Auditor General v. K.S. Jagannathan, 1986 (2) SCC 679 it has been observed by the Hon'ble Supreme Court (in para 20. "In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226. issue a writ of mandamus or a writ in the nature of mandamus or pass ciders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and law fully exercised its discretion." 12. The above discussion makes my point evidently clear and hence I need not elaborate further. However, I may give ore example. Suppose the Labour Court in its award holds the dismissal of a workman to be valid. The above discussion makes my point evidently clear and hence I need not elaborate further. However, I may give ore example. Suppose the Labour Court in its award holds the dismissal of a workman to be valid. Now if in a writ petition against this award the High Court holds the dismissal to be illegal it cannot only quash the award but it can also direct reinstatement with back wages (in fact that is the normal rule vide Hindustan Tin Works v. Its Employees. AIR 1979 SC 75 . Here the High Court issues both a writ of certiorari (by quashing the award) as well as writ of mandamus us to the private employer directing it to reinstate the worker and give him back wages. 13. Unfortunately all the above mentioned decisions of the Supreme Court have been overlooked by the Full Bench while deciding Ganga Saran's case and its conclusion in Para 11 has been drawn only on the basis of a solitary decision of the Supreme Court in Qamruddin's case. In matter of such importance (e.g. the scope of Article 226) the legal position can test be understood by examining several Supreme Court decisions relevant to the question in issue, and not merely one decision. A solitary decision of the Supreme Court can have touched only one aspect, and hence may be one sided, whereas a string of Supreme Court decisions will clarify the position in a more balanced manner. 14. We may now consider Qamruddin's case ( supra ) which has been relied upon by the Supreme Court. It may be noted that in the passage quoted by the Full Bench the earlier observation is "Ordinarily an interlocutory order passed in a civil suit is not amenable to extraordinary jurisdiction of the High Court under Article 226", while a subsequent observation is, "if the order of injunction is passed by a competent court having jurisdiction it is not permissible for the High Court under Article 226 to quash the same." There seems to be a conflict here. While the former observation is not couched in absolute terms (as is evident from the use of the word 'ordinarily') the latter appears to be so couched. This conflict can be resolved by using the anusanga principle of Mimansa (see K.L. Sarkar's Mimansa 'Principles of Interpretation pp. While the former observation is not couched in absolute terms (as is evident from the use of the word 'ordinarily') the latter appears to be so couched. This conflict can be resolved by using the anusanga principle of Mimansa (see K.L. Sarkar's Mimansa 'Principles of Interpretation pp. 141, 142) by adding the word 'ordinarily' before the words 'not permissible', in the subsequent observation. This will make the decision in line with the other decisions of the Supreme Court which hold that ordinarily in writ jurisdiction the High Court should not interfere with interlocutory orders. 15. The anusanga principle (or elliptical extension) of, Mimansa has been utilised by Jimutvahana, authority of the Dayabhaga, Jimutvahana found that there is a text of Manu which states "of a woman married according to the Brahma, Daiva, Arsha, Gandharva ard Prajapatya form, the property shall go to her husband if she die without issue'. But her wealth, given to her on her marriage in the form called Asura, Raksliasa and Paishacha, on her death without issue shall become the property of her parents. "It can be seen that in the second sentence the words "wealth given to her" occur before the words "on her marriage in the form .....". Jimutvahana, using the anusanga principle, said that these words "wealth given to her on her marriage" should also be inserted in the first sentence after the words "the property". 16. The Mimansa principles of Interpretation, as laid down in Jaimini's Sutras, and as explained by Sabar, Kumarila Bhatt and Prabhakar (whose best exposition is contained in K.L. Sarkar's Tagore Law Lectures), can thus be usefully applied to resolve many difficulties in the legal sphere. In fact, these were the principles utilised by oar great commentators like Vijnaneshwara (author of Mitakshara), Jimutvahana (author of Dayabhag), Nand Pandit (authority of Dattak Mimansa), etc. whenever they were faced with any difficulty, e.g. conflict between two or more smritis, or some ambiguity in a legal text of Manu, Yajnavalkya, etc. (see also discussion on the anusanga principle in P.V. Khane's 'History of the Dharmashatra, Vol. V, Pt. II, pp. 1304-1305). 17. In view of the above discussions, I am of the opinion that the observation of the Full Bench in Ganga Saran's case ( supra ) in para 11 needs to be reconsidered by a Larger Bench. 18. (see also discussion on the anusanga principle in P.V. Khane's 'History of the Dharmashatra, Vol. V, Pt. II, pp. 1304-1305). 17. In view of the above discussions, I am of the opinion that the observation of the Full Bench in Ganga Saran's case ( supra ) in para 11 needs to be reconsidered by a Larger Bench. 18. Let the papers of this case be laid before Hon'ble the Chief Justice for constitution of a Larger Bench. 19. Meanwhile, parties are directed to maintain status quo. 20. Petitioner is directed to serve respondent No. 3 personally within two weeks. Respondent No. 3 will file counter-affidavit within three weeks of service.