A careful reading of Article 227 of the Patna High Court
Constitution of India clearly shows that Article 227 vests, in
the High Courts, the power of superintendence. However, while
Section 107 of the Government of India Act vested, in the High
Courts, the power of superintendence over all the “Courts‟
subject to its appellate jurisdiction, Article 227 of the
Constitution of India has vested, in the High Courts, the power
of superintendence not only over the „Courts’, which are
subject to its territorial jurisdiction, but also over all the
„Tribunals’ in relation to which the High Court exercises
territorial jurisdiction.
A single Bench of High Court does not fall
within the expressions „courts’ and „tribunals throughout the
territories interrelation to which a High Court exercises its
jurisdiction‟. This apart, Clause (2) of Article 227 of the
Constitution of India empowers a High Court to (a) call for
returns from such courts; (b) make and issue general rules
and prescribe forms for regulating the practice and
proceedings of such courts; and (c) prescribe forms in which
books, entries and accounts shall be kept by the officers of any
such courts.
Obviously, all the powers, which are given to
the High Court under sub-Clauses (a), (b) and (c) of Clause 2
of Article 227, are in respect of courts and tribunals, which are
subordinate to the territorial jurisdiction of a High Court. A Patna High Court
single Judge or a single Bench of a High Court is not a court
subordinate to the Division Bench of the High Court and,
therefore, the power of superintendence, which is vested in a
High Court by Article 227, is not exercisable against order or
decision of its own single Bench.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.718 of 2016
ANIL KUMAR SHRIVASTAVA,
VERSUS
SHAURYA SUNIL,
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
AND
HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
Date: 20-01-2016
Whether a Division Bench of a High Court can
exercise its power of superintendence, under Article 227 of the
Constitution of India, against an order made, in a suit, by a
Single Bench? This is the moot question, which this application,
under Article 227 of the Constitution of India, has raised.
2. The factual background and stages, leading to
the making of the present application, under Article 227 of the
Constitution of India, may, now, be noticed as follows:
(i) In the Testamentary Suit No. 03 of 2010
instituted by the respondents herein, as plaintiffs, the present
petitioner, who was defendant in the suit, filed an application
contending that the said Testamentary Suit is not maintainable
inasmuch as the property, covered by the said suit, is not
stridhan of Nirmala Sahay, the testatrix, and she had,
therefore, no title or right to execute a Will in respect of the
suit property.
(ii) By order, dated 29.10.2015, a learned single
Judge of this Court has held the said application as not
maintainable on the ground that the only fact, which is
required to be determined in the testamentary suit, is whether
the testatrix had executed the Will in sound state of body and
mind without any undue influence and the question as to
whether the testatrix had right and title to the property,
covered by the Will, is a question, which can be looked into,
and decided, in a separate proceeding. On the basis of the
reasons so assigned, the learned single Judge of this Court
has, as indicated above, dismissed the said application filed by
the present petitioner as defendant in the suit.Patna High Court
3. Aggrieved by the order, dated 29.10.2015, this
application, under Article 227 of the Constitution of India, has
been preferred by the present petitioner.
4. The question, therefore, which confronts us, is:
Whether the order, dated 29.10.2015, aforementioned, passed
by a learned single Judge of this Court, can be interfered with
by a Division Bench of this Court in exercise of power under
Article 227 of the Constitution of India?
5. The historical ancestry of Article 227 of the
Constitution of India can be traced to Section 107 of the
Government of India Act, 1915, which reads as follows:
“107. Powers of High Courts
with respect to subordinate courts.— Each
of the High Courts has superintendence over
all courts for the time being subject to its
appellate jurisdiction, and may do any of the
following things, that is to say,—
(a) call for returns;
(b) direct the transfer of any suit
or appeal from any such court to any other
court of equal or superior jurisdiction;
(c) make and issue general rules
and prescribe forms for regulating the practice
and proceedings of such courts;
(d) prescribe forms in which
books, entries and accounts shall be kept by
the officers of any such courts; and
(e) settle tables of fees to be
allowed to the sheriff, attorneys, and all clerks Patna High Court
and officers of courts: Provided that such
rules, forms and tables shall not be
inconsistent with the provisions of any law for
the time being in force, and shall require the
previous approval, in the case of the High
Court at Calcutta, of the Governor-General-inCouncil,
and in other cases of the local
government.
6. From a minute reading of the provisions
embodied in Section 107 of the Government of India Act,
1915, what becomes transparent is that the High Court was
given the power of superintendence over all the Courts subject
to its appellate jurisdiction.
7. While considering Section 107 of the
Government of India Act, 1915, it needs to be borne in mind
that prior to coming into force of the Government of India Act,
Section 15 of the Indian High Courts Act, 1861, conferred,
upon each of the Chartered High Courts only, the power of
superintendence over all courts subject to its appellate
jurisdiction. The High Courts, other than the Chartered High
Court, did not enjoy the power of superintendence over all THE
Courts subject to its appellate jurisdiction.
8. As the High Courts, other than the three
Chartered High Courts, did not have the power of
superintendence over all the Courts subject to its respective
appellate jurisdiction, Section 107 of the Government of India
Act, 1915, conferred on every High Court similar power of
superintendence, which had been conferred on the Chartered
High Courts by Section 15 of the Indian High Courts Act, 1861.
9. We may, however, hasten to point out that
Government of India Act, 1915, underwent an amendment by
the Government of India (Amendment) Act, 1916, and, then,
by the Government of India Act, 1919, which, eventually,
came to be replaced by the Government of India Act, 1935,
and Section 224 of the Government of India Act, 1935, vested
limited power of superintendence on the subordinate Courts by
the High Court.
10. It is of immense importance to note that it was
Section 224 of the Government of India Act, 1935, which
incorporated, in substance, the provisions of Section 107 of the
Government of India Act, 1915. Section 224 of the
Government of India Act, 1935, being relevant, is reproduced
below:
“224. (1) Every High Court shall
have superintendence over all courts in India
for the time being subject to its appellate
jurisdiction, and may do any of the following
things, that is to say. –
(a) call for returns;
(b) make and issue general rules
and prescribe forms for regulating the practice
and proceedings of such courts;
(c) prescribe forms in which Patna High Court
books, entries and accounts shall be kept by
the officers of any such courts; and
(d) settle tables of fees to be
allowed to the sheriff attorneys, and all clerks
and officers of courts :
Provided that such rules, forms
and tables shall not be inconsistent with the
provisions of any law for the time being in
force, and shall require the previous approval
of the Governor.
(2) Nothing in this section shall be
construed as giving to a High Court any
jurisdiction to question any judgment of any
inferior court which is not otherwise subject to
appeal or revision.”
11. From a careful reading of Section 224 of the
Government of India Act, 1935, vis-a-vis Section 107 of the
Government of India Act, 1915, what can be safely gathered is
that the High Court„s power of superintendence, subject to the
appellate jurisdiction of the High Court, was continued under
the Government of India Act, 1935. By sub-Section (2) of
Section 224 of the Government of India Act, 1935, the High
Court„s power of superintendence was restricted inasmuch as
this power of superintendence did not exceed to the extent of
questioning any judgment of any inferior Court, which was not
otherwise subject to appeal or revision. This restriction ▬
imposed on the High Court that it cannot have power of Patna High Court
superintendence on the judgment of any inferior Court, which
is not otherwise subject to appeal or revision of the High Court
▬ has been done away with, while making Article 227 of the
Constitution of India.
12. In substance, the power of superintendence,
introduced by the Government of India Act, 1915, was
continued till the Government of India Act, 1935, remained in
force and it was thereafter that Article 227 of the Constitution
of India confers on the High Court the power of
superintendence over all the Courts and Tribunals subject to
the territorial jurisdiction of the High Court. This constitutional
aspect would become clearer as we proceed further.
13. Under Section 113 of the Government of India
Act, 1915, the Crown, by Letters Patent, could establish a High
Court of Judicature in any territory in British India and it was
pursuant to the power conferred by Section 113 of the
Government of India Act, 1915, that the Crown established
High Court of Judicature, at Patna, by Letters Patent, on
February 9, 1916.
14. We may, at this stage, pause and take note of
what Article 227 of the Constitution of India conveys. For this
purpose, Article 227 is reproduced below :
“227. Power of
superintendence over all courts by the
High Court Patna High Court
(1) Every High Court shall have
superintendence over all courts and tribunals
throughout the territories interrelation to
which it exercises jurisdiction;
(2) Without prejudice to the
generality of the foregoing provisions, the
High Court may
(a) call for returns from such
courts;
(b) make and issue general rules
and prescribe forms for regulating the practice
and proceedings of such courts; and
(c) prescribe forms in which
books, entries and accounts shall be kept by
the officers of any such courts;
(3) The High Court may also
settle tables of fees to be allowed to the
sheriff and all clerks and officers of such
courts and to attorneys, advocates and
pleaders practising therein: Provided that any
rules made, forms prescribed or tables settled
under clause ( 2 ) or clause ( 3 ) shall not be
inconsistent with the provision of any law for
the time being in force, and shall require the
previous approval of the Governor
(4) Nothing in this article shall be
deemed to confer on a High Court powers of
superintendence over any court or tribunal
constituted by or under any law relating to the
Armed Forces”
15. A careful reading of Article 227 of the Patna High Court
Constitution of India clearly shows that Article 227 vests, in
the High Courts, the power of superintendence. However, while
Section 107 of the Government of India Act vested, in the High
Courts, the power of superintendence over all the “Courts‟
subject to its appellate jurisdiction, Article 227 of the
Constitution of India has vested, in the High Courts, the power
of superintendence not only over the „Courts’, which are
subject to its territorial jurisdiction, but also over all the
„Tribunals’ in relation to which the High Court exercises
territorial jurisdiction.
16. A single Bench of High Court does not fall
within the expressions „courts’ and „tribunals throughout the
territories interrelation to which a High Court exercises its
jurisdiction‟. This apart, Clause (2) of Article 227 of the
Constitution of India empowers a High Court to (a) call for
returns from such courts; (b) make and issue general rules
and prescribe forms for regulating the practice and
proceedings of such courts; and (c) prescribe forms in which
books, entries and accounts shall be kept by the officers of any
such courts.
17. Obviously, all the powers, which are given to
the High Court under sub-Clauses (a), (b) and (c) of Clause 2
of Article 227, are in respect of courts and tribunals, which are
subordinate to the territorial jurisdiction of a High Court. A Patna High Court CWJC No.718 of 2016 dt.20-01-2016
10/10
single Judge or a single Bench of a High Court is not a court
subordinate to the Division Bench of the High Court and,
therefore, the power of superintendence, which is vested in a
High Court by Article 227, is not exercisable against order or
decision of its own single Bench.
18. Logically extended, it would mean that as
against the order passed in a suit, such as the present one, by
a single Judge of this Court, no application/petition under
Article 227 of the Constitution of India is maintainable.
19. We are, therefore, clearly of the view that the
present petition, made under Article 227 of the Constitution of
India, is wholly misconceived and cannot be admitted.
20. In the result and for the reasons discussed
above, this petition stands dismissed.
21. There shall be no order as to costs.
(I. A. Ansari, ACJ.)
Chakradhari Sharan Singh, J.:
Prabhakar Anand/AFR
I agree.
(Chakradhari Sharan Singh, J.)
U √ T X
Print Page
Constitution of India clearly shows that Article 227 vests, in
the High Courts, the power of superintendence. However, while
Section 107 of the Government of India Act vested, in the High
Courts, the power of superintendence over all the “Courts‟
subject to its appellate jurisdiction, Article 227 of the
Constitution of India has vested, in the High Courts, the power
of superintendence not only over the „Courts’, which are
subject to its territorial jurisdiction, but also over all the
„Tribunals’ in relation to which the High Court exercises
territorial jurisdiction.
A single Bench of High Court does not fall
within the expressions „courts’ and „tribunals throughout the
territories interrelation to which a High Court exercises its
jurisdiction‟. This apart, Clause (2) of Article 227 of the
Constitution of India empowers a High Court to (a) call for
returns from such courts; (b) make and issue general rules
and prescribe forms for regulating the practice and
proceedings of such courts; and (c) prescribe forms in which
books, entries and accounts shall be kept by the officers of any
such courts.
Obviously, all the powers, which are given to
the High Court under sub-Clauses (a), (b) and (c) of Clause 2
of Article 227, are in respect of courts and tribunals, which are
subordinate to the territorial jurisdiction of a High Court. A Patna High Court
single Judge or a single Bench of a High Court is not a court
subordinate to the Division Bench of the High Court and,
therefore, the power of superintendence, which is vested in a
High Court by Article 227, is not exercisable against order or
decision of its own single Bench.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.718 of 2016
ANIL KUMAR SHRIVASTAVA,
VERSUS
SHAURYA SUNIL,
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
AND
HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
Date: 20-01-2016
Whether a Division Bench of a High Court can
exercise its power of superintendence, under Article 227 of the
Constitution of India, against an order made, in a suit, by a
Single Bench? This is the moot question, which this application,
under Article 227 of the Constitution of India, has raised.
2. The factual background and stages, leading to
the making of the present application, under Article 227 of the
Constitution of India, may, now, be noticed as follows:
(i) In the Testamentary Suit No. 03 of 2010
instituted by the respondents herein, as plaintiffs, the present
petitioner, who was defendant in the suit, filed an application
contending that the said Testamentary Suit is not maintainable
inasmuch as the property, covered by the said suit, is not
stridhan of Nirmala Sahay, the testatrix, and she had,
therefore, no title or right to execute a Will in respect of the
suit property.
(ii) By order, dated 29.10.2015, a learned single
Judge of this Court has held the said application as not
maintainable on the ground that the only fact, which is
required to be determined in the testamentary suit, is whether
the testatrix had executed the Will in sound state of body and
mind without any undue influence and the question as to
whether the testatrix had right and title to the property,
covered by the Will, is a question, which can be looked into,
and decided, in a separate proceeding. On the basis of the
reasons so assigned, the learned single Judge of this Court
has, as indicated above, dismissed the said application filed by
the present petitioner as defendant in the suit.Patna High Court
3. Aggrieved by the order, dated 29.10.2015, this
application, under Article 227 of the Constitution of India, has
been preferred by the present petitioner.
4. The question, therefore, which confronts us, is:
Whether the order, dated 29.10.2015, aforementioned, passed
by a learned single Judge of this Court, can be interfered with
by a Division Bench of this Court in exercise of power under
Article 227 of the Constitution of India?
5. The historical ancestry of Article 227 of the
Constitution of India can be traced to Section 107 of the
Government of India Act, 1915, which reads as follows:
“107. Powers of High Courts
with respect to subordinate courts.— Each
of the High Courts has superintendence over
all courts for the time being subject to its
appellate jurisdiction, and may do any of the
following things, that is to say,—
(a) call for returns;
(b) direct the transfer of any suit
or appeal from any such court to any other
court of equal or superior jurisdiction;
(c) make and issue general rules
and prescribe forms for regulating the practice
and proceedings of such courts;
(d) prescribe forms in which
books, entries and accounts shall be kept by
the officers of any such courts; and
(e) settle tables of fees to be
allowed to the sheriff, attorneys, and all clerks Patna High Court
and officers of courts: Provided that such
rules, forms and tables shall not be
inconsistent with the provisions of any law for
the time being in force, and shall require the
previous approval, in the case of the High
Court at Calcutta, of the Governor-General-inCouncil,
and in other cases of the local
government.
6. From a minute reading of the provisions
embodied in Section 107 of the Government of India Act,
1915, what becomes transparent is that the High Court was
given the power of superintendence over all the Courts subject
to its appellate jurisdiction.
7. While considering Section 107 of the
Government of India Act, 1915, it needs to be borne in mind
that prior to coming into force of the Government of India Act,
Section 15 of the Indian High Courts Act, 1861, conferred,
upon each of the Chartered High Courts only, the power of
superintendence over all courts subject to its appellate
jurisdiction. The High Courts, other than the Chartered High
Court, did not enjoy the power of superintendence over all THE
Courts subject to its appellate jurisdiction.
8. As the High Courts, other than the three
Chartered High Courts, did not have the power of
superintendence over all the Courts subject to its respective
appellate jurisdiction, Section 107 of the Government of India
Act, 1915, conferred on every High Court similar power of
superintendence, which had been conferred on the Chartered
High Courts by Section 15 of the Indian High Courts Act, 1861.
9. We may, however, hasten to point out that
Government of India Act, 1915, underwent an amendment by
the Government of India (Amendment) Act, 1916, and, then,
by the Government of India Act, 1919, which, eventually,
came to be replaced by the Government of India Act, 1935,
and Section 224 of the Government of India Act, 1935, vested
limited power of superintendence on the subordinate Courts by
the High Court.
10. It is of immense importance to note that it was
Section 224 of the Government of India Act, 1935, which
incorporated, in substance, the provisions of Section 107 of the
Government of India Act, 1915. Section 224 of the
Government of India Act, 1935, being relevant, is reproduced
below:
“224. (1) Every High Court shall
have superintendence over all courts in India
for the time being subject to its appellate
jurisdiction, and may do any of the following
things, that is to say. –
(a) call for returns;
(b) make and issue general rules
and prescribe forms for regulating the practice
and proceedings of such courts;
(c) prescribe forms in which Patna High Court
books, entries and accounts shall be kept by
the officers of any such courts; and
(d) settle tables of fees to be
allowed to the sheriff attorneys, and all clerks
and officers of courts :
Provided that such rules, forms
and tables shall not be inconsistent with the
provisions of any law for the time being in
force, and shall require the previous approval
of the Governor.
(2) Nothing in this section shall be
construed as giving to a High Court any
jurisdiction to question any judgment of any
inferior court which is not otherwise subject to
appeal or revision.”
11. From a careful reading of Section 224 of the
Government of India Act, 1935, vis-a-vis Section 107 of the
Government of India Act, 1915, what can be safely gathered is
that the High Court„s power of superintendence, subject to the
appellate jurisdiction of the High Court, was continued under
the Government of India Act, 1935. By sub-Section (2) of
Section 224 of the Government of India Act, 1935, the High
Court„s power of superintendence was restricted inasmuch as
this power of superintendence did not exceed to the extent of
questioning any judgment of any inferior Court, which was not
otherwise subject to appeal or revision. This restriction ▬
imposed on the High Court that it cannot have power of Patna High Court
superintendence on the judgment of any inferior Court, which
is not otherwise subject to appeal or revision of the High Court
▬ has been done away with, while making Article 227 of the
Constitution of India.
12. In substance, the power of superintendence,
introduced by the Government of India Act, 1915, was
continued till the Government of India Act, 1935, remained in
force and it was thereafter that Article 227 of the Constitution
of India confers on the High Court the power of
superintendence over all the Courts and Tribunals subject to
the territorial jurisdiction of the High Court. This constitutional
aspect would become clearer as we proceed further.
13. Under Section 113 of the Government of India
Act, 1915, the Crown, by Letters Patent, could establish a High
Court of Judicature in any territory in British India and it was
pursuant to the power conferred by Section 113 of the
Government of India Act, 1915, that the Crown established
High Court of Judicature, at Patna, by Letters Patent, on
February 9, 1916.
14. We may, at this stage, pause and take note of
what Article 227 of the Constitution of India conveys. For this
purpose, Article 227 is reproduced below :
“227. Power of
superintendence over all courts by the
High Court Patna High Court
(1) Every High Court shall have
superintendence over all courts and tribunals
throughout the territories interrelation to
which it exercises jurisdiction;
(2) Without prejudice to the
generality of the foregoing provisions, the
High Court may
(a) call for returns from such
courts;
(b) make and issue general rules
and prescribe forms for regulating the practice
and proceedings of such courts; and
(c) prescribe forms in which
books, entries and accounts shall be kept by
the officers of any such courts;
(3) The High Court may also
settle tables of fees to be allowed to the
sheriff and all clerks and officers of such
courts and to attorneys, advocates and
pleaders practising therein: Provided that any
rules made, forms prescribed or tables settled
under clause ( 2 ) or clause ( 3 ) shall not be
inconsistent with the provision of any law for
the time being in force, and shall require the
previous approval of the Governor
(4) Nothing in this article shall be
deemed to confer on a High Court powers of
superintendence over any court or tribunal
constituted by or under any law relating to the
Armed Forces”
15. A careful reading of Article 227 of the Patna High Court
Constitution of India clearly shows that Article 227 vests, in
the High Courts, the power of superintendence. However, while
Section 107 of the Government of India Act vested, in the High
Courts, the power of superintendence over all the “Courts‟
subject to its appellate jurisdiction, Article 227 of the
Constitution of India has vested, in the High Courts, the power
of superintendence not only over the „Courts’, which are
subject to its territorial jurisdiction, but also over all the
„Tribunals’ in relation to which the High Court exercises
territorial jurisdiction.
16. A single Bench of High Court does not fall
within the expressions „courts’ and „tribunals throughout the
territories interrelation to which a High Court exercises its
jurisdiction‟. This apart, Clause (2) of Article 227 of the
Constitution of India empowers a High Court to (a) call for
returns from such courts; (b) make and issue general rules
and prescribe forms for regulating the practice and
proceedings of such courts; and (c) prescribe forms in which
books, entries and accounts shall be kept by the officers of any
such courts.
17. Obviously, all the powers, which are given to
the High Court under sub-Clauses (a), (b) and (c) of Clause 2
of Article 227, are in respect of courts and tribunals, which are
subordinate to the territorial jurisdiction of a High Court. A Patna High Court CWJC No.718 of 2016 dt.20-01-2016
10/10
single Judge or a single Bench of a High Court is not a court
subordinate to the Division Bench of the High Court and,
therefore, the power of superintendence, which is vested in a
High Court by Article 227, is not exercisable against order or
decision of its own single Bench.
18. Logically extended, it would mean that as
against the order passed in a suit, such as the present one, by
a single Judge of this Court, no application/petition under
Article 227 of the Constitution of India is maintainable.
19. We are, therefore, clearly of the view that the
present petition, made under Article 227 of the Constitution of
India, is wholly misconceived and cannot be admitted.
20. In the result and for the reasons discussed
above, this petition stands dismissed.
21. There shall be no order as to costs.
(I. A. Ansari, ACJ.)
Chakradhari Sharan Singh, J.:
Prabhakar Anand/AFR
I agree.
(Chakradhari Sharan Singh, J.)
U √ T X
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