Surya Dev Rai v Ram Chander Rai

Facts

The appellant sued for a permanent injunction over agricultural land and sought ad interim injunction under Order 39 Rules 1 and 2 CPC; both the trial court and the appellate court refused it. As the 1999 amendment to Section 115 CPC had excluded revision against such interlocutory orders, the appellant moved the High Court under Article 226. The High Court dismissed the writ petition as not maintainable, holding that certiorari could not issue against an order refusing interim injunction in a dispute between private parties.

Issues

• Whether the amendment to Section 115 CPC by Act 46 of 1999 (effective 1 July 2002), restricting revisional jurisdiction over interlocutory orders, curtails the High Court's jurisdiction under Articles 226 and 227 of the Constitution.
• Whether a writ of certiorari under Article 226 can issue against interlocutory orders of subordinate civil courts, including in litigation between private parties.
• What the scope of, and the distinction between, certiorari jurisdiction (Article 226) and supervisory jurisdiction (Article 227) is.

Arguments

The respondent contended that certiorari could not issue against refusal of injunction in a dispute between private individuals, and that supervisory jurisdiction could not be used to fill the gap left by the amended Section 115 CPC. The appellant contended that a statutory amendment cannot curtail the constitutional jurisdiction under Articles 226 and 227, that even interlocutory orders are amenable to correction where they cause a grave failure of justice, and that private-party disputes are not excluded from certiorari.

Held

The Supreme Court allowed the appeal and set aside the High Court's order. It held that the amendment by Act 46 of 1999 does not and cannot affect the High Court's jurisdiction under Articles 226 and 227, since constitutional power cannot be taken away by an ordinary statute. Interlocutory orders against which revision stands excluded remain open to challenge by certiorari (for patent jurisdictional errors) and by supervisory jurisdiction, and certiorari can issue even where the lis is between private parties because it is directed against the act or order of the subordinate court. Certiorari corrects errors going to jurisdiction — where a court acts without or in excess of jurisdiction, or in flagrant disregard of law or procedure — confined to patent errors that are self-evident, not those requiring lengthy argument. These powers are discretionary and must be exercised sparingly, to keep subordinate courts within the bounds of their authority and only where there is a failure of justice; the petition was restored to the High Court for fresh consideration.

Ratio decidendi

The High Court's certiorari jurisdiction under Article 226 and supervisory jurisdiction under Article 227 are constitutional and cannot be excluded or curtailed by a statutory amendment such as the 1999 restriction of Section 115 CPC. Certiorari and supervision lie against jurisdictional or patent errors of subordinate courts, including interlocutory orders and disputes between private parties, but are to be exercised sparingly and only to prevent failure of justice.

Significance

A leading authority on the interplay between Section 115 CPC and the High Court's writ and supervisory powers after the 1999 amendment, and on when High Courts may interfere with interlocutory orders. Its holding that certiorari under Article 226 can issue against orders of subordinate civil courts was later doubted and overruled on that point by a three-judge Bench in Radhey Shyam v Chhabi Nath (2015) 5 SCC 423, which held that judicial orders of civil courts are amenable only to Article 227, not Article 226; the supervisory-jurisdiction principles in Surya Dev Rai otherwise continue to be followed.

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