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2010 DIGILAW 807 (KAR)

Jayasheela Stores v. State of Karnataka

2010-07-14

MOHAN M.SHANTANAGOUDAR

body2010
Judgment 1. The validity of the Circular dated 28.01.2010 issued by respondents 4 and 5 vide Annexure-F is questioned in these writ petitions. 2. Petitioners submit that they are the owners of private book deposits. Selling the books is the principle trade and that is the source of their livelihood. Upto the last academic year, the petitioners and similarly situated certain owners of the book depots were given a permission/licence to sell the textbooks, printed and published by the State Government for Standards I to X. Under the impugned circular, the petitioners and similarly placed persons are prohibited from distributing/selling the textbooks prescribed by the State Government for Standards I to X. According to the petitioners, imposition of such prohibition through the impugned circular issued by respondents 4 to 5 is without any source of power and without authority of law. They further contended that the decision as spelled out in the circular infringes Articles 19(1)(g) and 21 of the Constitution of India. 3. The State Government has opposed the writ petitions by filling the statement of objections. 4. It is necessary toextract Section 3(H)(4) of the Act, which is relevant for the purpose of this case. The same is as under: (4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil Court of original jurisdiction within the limits of whose jurisdiction the land is situated. 5. The Civil Court passed the impugned judgment on the reference made by the first respondent. The question therefore is, whether the judgment of the Civil Court on a reference under Section 3(H) (4) of the Act is a decree within the meaning of Section 2(2) of CPC. Subsection 2(2) of CPC reads as under: 2(2) “Decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to aid or any of the matters in controversy in the suit and may be either preliminary of final. Subsection 2(2) of CPC reads as under: 2(2) “Decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to aid or any of the matters in controversy in the suit and may be either preliminary of final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. 6. When a reference is made under Section 3(H)(4) of the Act it partakes the nature of a suit. The Civil Court in the course of adjudicating the legal rights of the parties in the dispute has to adjudicate by applying the ordinary civil jurisdiction and Rules of Civil Procedure. The decree means a formal expression of adjudication by which the Court conclusively and finally determines the rights of the parties with regard to all or any of the matters in controversy in the suit. The civil court in the impugned judgment finally adjudicated the rights of the parties. Therefore the impugned judgment is a decrees defined under Section 2(2) of the CPC. 7. The Act do not provide for an appeal against the judgment of civil Court passed in a reference under Section 3(H)(4) of the Act. Since the impugned judgment is a decree of the same is appellable under Section 96 of CPC. 8. The Supreme Court in the case of Shiv Kumar Sharma Vs. Santosh Kumari, 2007 (7) SCJ 353 held as under: “Scope and ambit of jurisdiction of High Court in determining an issue in an appeal filed in terms of Section 96 of the Code of Civil Procedure (which would be in continuation of the original suit) and exercising the power of judicial review under Articles 226 and 227 of the Constitution of India would be different while in the former, the Court subject to the procedural flexibility has laid down under the statue is bound to act within the four corners thereof, in adjudicating a lis in exercise of its power of judicial review, the High Court exercise a wider jurisdiction. No doubt, the Court in an appropriate case, even in a civil suit may mould a relief but its jurisdiction in this behalf would be confined to Order VII, Rule 7 of the Code of Civil Procedure. [See Bay Berry Apartments Pvt. Ltd., and another Vs. Shobha and others and U.P. State Brassware Copn. Ltd., and another Vs. Udai Narain Pandey]. 9. Under Articles 226 and 227 of the Constitution of India, the High Court does not issue a writ of certiorari to quash a decree passed by a civil Court. Article 227 of the Constitution of India vests the High Courts with power of Superintendence which is to be very sparingly exercised to keep the Tribunals and courts within the bounds of their authority. Such power, however, is not be exercised to correct a mistake of fact and of law. A writ Court, in ordinary course, cannot intervene in a dispute over property rights between private individuals. Writ Proceedings are not the appropriate proceedings to interfere with a decree declaring the title in an immovable property between the parties. 10. For the reasons stated above, I hold that the writ petition is not maintainable and the only remedy to the petitioner is to the an appeal. Reserving liberty to the petitioner to file an appropriate appeal against the impugned judgment, this writ petition is hereby rejected.