Law Web: When high court should not entertain writ petition?

In Shalini Shyam Shetty v. Rajendran Shankar Patil

(2010 (8) SCC 329) in paras 64 to 67, the scope of Article 227

has been considered which read as follows:

"64.However, this Court unfortunately discerns that of late

there is a

growing trend amongst several High Courts to entertain writ petition in

cases of pure property disputes. Disputes relating to partition suits, matters

relating to execution of a decree, in cases of dispute between landlord and

tenant and also in a case of money decree and in various other cases where

disputed questions of property are involved, writ courts are entertaining such

disputes. In some cases the High Courts , in a routine manner, entertain

petitions under Article 227 over such disputes and such petitions are treated

as writ petitions.

65. We would like to make it clear that in view of the law referred to

above in cases of property rights and in disputes between private individuals

writ court should not interfere unless there is any infraction of statute or it an

be shown that a private individual is acting in collusion with a statutory

authority.

66. We may also observe that in some High Courts there is a

tendency of entertaining petition under Article 227 of the Constitution by

terming them as writ petitions. This is sought to be justified on an erroneous

appreciation of the ratio in Suraya Dev and in view of the recent amendment

to Section 115 of the Civil Procedure Code by the Civil Procedure Code

(Amendment) Act, 1999. It is urged that as a result of the amendment, scope

of Section 115 C.P.C has been curtailed. In our view , even if the scope of

Section 115 C.P.C is curtailed that has not resulted in expanding the High

Court's power of superintendence. It is too well know to be reiterated that in

exercising its jurisdiction, High Court must follow the regime of law.

67. As a result of frequent interference by the Hon'ble High Court

either under Article 226 or 227 of the Constitution with pending civil and at

times criminal cases, the disposal of cases by the civil and criminal courts

gets further impeded and thus causing serious problems in the administration

of justice. This Court hopes and trusts that in exercising its power either

under Article 226 or 227, the Hon'ble High Court will follow the time

honoured principles discussed above. Those principles have been formulated by

this Court for ends of justice and the High Courts as the highest courts of

justice within their jurisdiction will adhere to them strictly".

IN THE HIGH COURT OF KERALA AT ERNAKULAM

FRIDAY, THE 19TH DAY OF AUGUST 2016

OP(C).No. 1266 of 2016 (O)

REV. C.CHRISPUS,

REV. M.ROBINSON,

K. RAMAKRISHNAN, J.

The petitioner in the above case is challenging Ext.P14 order

passed by the Additional District Judge (Vacation Court)

Thiruvananthpuram in IA.No.2966/2016 in OS.No.700/2016 of

Munsiff Court, Thiruvananthapuram under Article 227 of the

Constitution of India.

2. It is alleged in the petition that the petitioner is the duly

elected President of the Thiruvananthapuram Synod of the India

Evangelical Lutheran Church (hereinafter referred to as 'IELC' for

short). The respondents are the members of the

Thiruvananthapuram Synod who are in enmical terms with the

petitioner and other elected members of the executive committee

of Thiruvananthapuram Synod. IELC is an ecclesiastical society

registered under the Society of Registration Act, 1860 governed by

its own constitution Ext.P1. It has at present three Synods namely

Ambur Synod, Nagarcoil Synod and Trivandrum Synod. The

appointment of office bearers of Synod and IELC (except Ambur

Synod for a period of 3 years) is for a period of two years and they

are being elected through an election procedure as per the

constitution. For the purpose of conducting the election an election

commissioner will be appointed as per Article VIIA.4 of the

Constitution and he shall duly notify and conduct election in the

manner prescribed under Ext.P1 constitution. He shall have

assistance of the Regional Officer concerned in carrying out his

task and he shall be the final judge of any election dispute over

elections and appeals are to be preferred within a week after the

election. For conducting election of current term ie., 2014-2016

in respect of Synods and IELC, Mr. Benjamin Franklin was appointed

as election commissioner as per letter dated 10.1.2014 by the

Church Council, IELC and then acting President Y. Sukumaran, IELC

and accordingly he notified for election as per notification dated

21.4.2014 and conducted election on 27.5.2014 in compliance with

the order dated 22.5.2014 in IA.No.7854/2014 in

OS.No.2666/2014 filed before City Civil Court, Chennai. The

election was conducted at IELC, Ambur and petitioner was elected

as President, Rev.B. Joy Madathikonam as Vice President, Mr.

Shanoj Thaloor as Secretary and Rev. C.S. Jayakumar Kaliyakavilai

as Treasurer of Trivandrum Synod respectively. Election results

were duly communicated to the Registrar of Societies as per

letter dated 1.7.2014 and they have assumed charge with effect

from 29.5.2014 and they were thereafter continuing as office

bearers of Trivandrum Synod.

3. The respondents and their men attempted to cause

hindrance to the election proceedings by unnecessarily filing

litigation to stop the election process and challenging the

appointment of Election Commissioner Mr. Benjamin Franklin and

for other allied mattes. They failed and City Civil Court in

IA.No.7854/2014 in OS.No.2666/2014 directed the conduct of

election to be conducted. Accordingly elections were conducted.

The petitioner and others mentioned above were elected as office

bearers of the Trivandrum Synod.

4.The election of the petitioner and others was challenged

before City Civil Court, Chennai in OS.No.2784/2015 one by Rev.

C. Ellappen Prasad and also filed an interim application seeking

injunction to restrain the newly elected office bearers from

assuming charge. But that was dismissed and the said Ellappen

Prasad filed an appeal CMA.No.64/2015 before Additional Judge

XVII, City Civil Court, Chennai challenging the order in

IA.No.7226/2015 in OS.No.2784/2015 and that was dismissed by

the Additional District Judge with a specific finding that the present

petitioner and others are the duly elected persons conducted in the

election on 27.5.2014. A copy of the judgment of the City Civil

Court, Chennai is marked as Ext.P2 and Additional District Judge is

marked as Ext.P3. The amendment to the constitution carried out

by the respondents was stayed as per order in MP.2/2014 by

Hon'ble High Court of Madras in WP(C).No.11272/2014 and copy

of the order is produced and marked as Ext.P4. A copy of the order

in MP.No.6212/2016 in W.P.(C).No.7004/2016 is produced as

Ext.P5. So, according to the petitioner, the contentions of the

respondents that they are elected as per the amended constitution

is unsustainable especially when the implementation of the

amendment to the constitution was stayed by the Madras High

Court as per an interim order. The term of elected office bearers

including the petitioner is to expire by 31.5.2016.

5. The respondents are illegally obstructing the functioning

of the Trivandrum Synod by the petitioner and their men. So the

petitioner filed OS.No.700/2016 seeking permanent prohibitory

injunction against the respondents and moved IA.No.2966/2016

in OS.No.700/2016 for interim injunction and as per Ext.P6 an ex

parte interim injunction order was granted. The respondents

entered appearance on 28.3.2016 and sought adjournment on

11.4.2016. They filed counter affidavit and interim application to

vacate the ex parte injunction granted. Since the petition to vacate

the interim injunction was filed just two days prior to the closing

of the courts for summer vacation, the case along with the

applications were posted to 19.5.2016. Ext.P7 is the copy of the

plaint. Ext.P8 is the copy of the interim application IA.No.2966/2016

in OS.No.700/2016. Ext.P9 is the application filed by the

respondents to vacate the interim order. Ext.P10 is the counter

affidavit filed by the first respondent and Ext.P11 is the counter

affidavit filed by the second respondent. Ext.P12 is the counter

affidavit filed by the third respondent. Thereafter the respondents

moved this court by filing OP(C).No.1181/2016 seeking a direction

to hear the interim application IA.No.2966/2016 in OS.No.700/2016

by the Vocation Judge and this court by Ext.P13 judgment directed

the Vacation Court to hear and dispose of the case. The Vacation

Court thereafter, according to the petitioner, without considering

the factual and legal aspects and materials produced on record in

the correct perspective, dismissed the petition IA.No.2966/2016

as per Ext.P14 order. According to the petitioner, since the order

passed by the court below is perverse and against legal principles,

the petitioner has no other efficacious remedy except to

approach this court under Article 227 of the Constitution of India

seeking the following relief:

To set aside the impugned order in IA.No.2966/2016 in

OS.No.700/2016 and further direct the Munsiff Court, Triivandrum to

consider the IA.No.2966/2016 afresh in accordance with law.

6. The respondents entered appearance through counsel

and filed counter to the petition. They have mainly challenged the

maintainability of the petition and according to them, the remedy

of the petitioner is to file an appeal under Order 43 Rule 1 of the

Code of Civil Procedure (hereinafter referred to as 'the Code'). They

have further contended that the court below had rightly considered

all the aspects and since there was no document produced by the

petitioner to prove that they were in an actual management of

Trivandrum Synod rightly dismissed the application.

7. Heard Sri. Liju v. Stephen, learned counsel appearing for

the petitioner and Sri. Babu Joseph Karuvathazha, counsel

appearing for the respondents.

8. Learned counsel for the petitioner vehemently argued that

a reading of the order of the court below, Ext.P14, would show

that the learned judge was haste in disposing the application on

the ground that the time fixed by this court for disposal of the

application to be expired on that day. Further the documents

produced were not considered by the court below as they are

photocopies and no opportunity was given to the petitioner to

produce the original documents. Thereby the court below had

committed illegality in denying opportunity to the petitioner to

produce original documents. He had further submitted that if the

order passed by the court below is perverse and against the

settled legal principles, then the power of this court under Article

227 of the Constitution is not taken away and using the

supervisory jurisdiction, this court can set aside the order and

direct the regular court to pass appropriate orders in the petition.

He had also argued that the document produced by the petitioner

before this court also would show that they are duly elected

persons and the amended constitution under which the

respondents claim to have been elected has not been implemented

in view of the interim orders passed by the Madras High Court in

which amendment to the Constitution was challenged and

implementation of the same was stayed. Further one of the counter

parts of the respondents herein challenged the election of the

petitioner and the interim application filed by the petitioner in that

case restraining the elected members from taking charge was

dismissed and that was confirmed by the Additional Sessions

Judge in the appeal filed by them. Further the respondents have

not produced any documents to show that they are in possession

and management of the Trivandrum Synod and there are lot of

education institutions under the Synod and on account of the

dismissal of the injunction application by the court, the

management of those institutions are in stand still. The court below

has not properly appreciated the principles laid down of granting

interim injunction in a pending matter under order 39 Rule 1 of the

Code. He had relied on the decisions reported in R.V.E.

Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P.

Temple (2003 (8) SCC 752), Mani Nariman Daruwala @

Bharucha (Deceased) through LRs (1991 (3) SCC 141),

Shamrao Ganpat Chintamani v. Kakasaheb Lakshman Gorde

(2008 AIHC 1798),Shiv Kumar Chadha v. Municipal

Corporation of Delhi (1993 (3) SCC 161), BALCO Employees

Union (Regd.) v. Union of India (AIR 2002 SC 350), Dalpat

Kumar v. Prahlad Sing (1992 (1) SCC 719) Kirloskar Diesel

Recon Pvt. Ltd v. Kirloskar Proprietary Ltd (AIR 1996 Bombay

149) and Sobhana Nair K.N v. Shaji S.G. Nair (2016 (1) KHC 1

(DB) in support of his case.

9. On the other hand, learned counsel for the respondents

submitted that the remedy of the petitioner is to file an appeal

under Order 43 Rule 1 the Code and the court below had correctly

appreciated the available evidence and come to the conclusion that

there is no prima facie case made out by the petitioner to prove

their case in order to get an order of interim injunction. They have

not produced any document to show that they were in actual

management of the Trivandrum Synod as claimed by them as on

the date of filing of the suit. Further, any misappreciation of

evidence or wrong assumption of facts resulting in a judgment

by the court below is amenable for appeal jurisdiction and this

court cannot invoke Article 227 of the Constitution of India under

supervisory jurisdiction to act as an appellate court to set aside

the judgment passed by the court below. He had relied on the

decisions reported in Radhery Shyam v. Chhabi Nath (2015 (1)

KLT 1032(SC), Shiv Kumar Chadha v. Municipal Corporation of

Delhi (1993 (3) SCC 161), Sadhana Lodh v. National Insurance

Co. Ltd (2003 KHC 373), United Commercial Bank v. Bank of

India & Others (1981 (2) SCC 766), Morgan Stanley Mutual

Fund v. Kartick Das (1994 (4) SCC 225), Gbots Software

Development Centre Pvt. Ltd. (PCS INDIA) v. LBS Software

Services Pvt. Ltd, Tvm (2015 (3) KHC 668), Kerala Badminton

Association v. Idukki Badminton Association (2001 (3) KLT

125) and Fr. Antony Jino George v. Malabar Ayurvedics (2009

(2) KLT 980) in support of his case.

10. It is an admitted fact that the petitioner filed

O.S.No.700/2016 before the Munsiff Court, Thiruvananthapuram

restraining the respondents herein from interfering in the

management of the Trivandrum Synod as they are the elected

representatives of the Synod. The status of the petitioner was

disputed by the respondents. It is also an admitted fact that the

petitioner filed Ext.P7 application as IA.No.2966/2016 for interim

injunction and interim ex parte injunction was granted as per

Ext.P6. Thereafter respondents 1 to 3 filed Exts.P10, P11 and

P12 counter affidavits challenging the maintainability of the suit

and the locus standi of the petitioner to file the suit and the

application. They also filed Ext.P9 petition to vacate the injunction

order as IA.No.4048/2016 and since the interim injunction

application was posted beyond summer vacation of that year, the

respondents moved this court by filing OP.No.1181/2016 and this

court by Ext.P13 judgment directed the Vocation Court to consider

the application and pass appropriate orders. In the judgment it

has been observed that the vacation judge shall consider as to

whether the ad interim order of injunction has to be vacated

modified or made absolute in the circumstances of the case. This

is particularly so since the order of injunction concerns the

governance of many educational institutions and churches.

The Vacation Judge shall also do so within a period of two weeks

from the date of receipt of the judgment. The question whether

the injunction order requires any modification is to be considered

forthwith even if IA.No.2966/2016 could not be disposed of

finally in the summer recess. It is on that basis that the interim

injunction application was taken up before the vacation court,

Thiruvananthapuram and by Ext.P4 impugned order, after hearing

both sides, elaborately the vacation judge dismissed the

application. The petitioner has no case that the court has not

heard him fully. The grievance of the petitioner was that since the

time fixed by this court in Ext.P13 was to expire on the date of

hearing, the court wanted disposal of the application on the same

day. They have no case that elaborate hearing was not done in

this case. The grievance was that certain documents produced by

the petitioner have not been considered by the court as they

were photostat copies and no opportunity was given to him to

produce either certified copies or original if any available with him.

11. Even if the interim injunction application was

considered by the vacation court as though it is the munsiff

court, it is an appelable order under Order 43 Rule 1 of the Code.

In the decision reported in Kerala Badminton Association v.

Idukki Badminton Association (2001 (3) KLT 125), it has been

held that it is clear from the section 19(2) of Civil Courts Act,

1957 (Kerala) that the provisional orders passed by the vacation

court shall except on matters to be presented to the district

count itself shall be an order passed by the court having

jurisdiction. Therefore, it is clear that the provisional orders

passed by the vacation court should be challenged before the

concerned appellate court to which appeal will lie from the court

having jurisdiction which has to try and dispose of the matter after

summer recess.

12. Further in the decision reported in Fr. Antony Jino

George v. Malabar Ayurvedics (2009 (2) KLT 980), the question

as to whether orders passed by the district judge during vacation

in respect of matters to be filed before the munsiff court is

appealable before the High Court or district court itself has been

considered in that decision and it has been held that even though by

virtue of section 19 of the Kerala Civil Courts Act, 1957, the

Vacation Judge cannot pass any final order in a case of this nature

and its order can only be a provisional order, his order must be

notionally considered as an order passed by the munsiff and such

order is appelable. But by virtue of section 13 of Kerala Civil Courts

Act, 1957 such appeals have to be filed not before High Court but

before the district court or before sub court (where sub court

concern is not located in a district center and has filing powers).

This court has in the decision relied on an earlier decision of the

same court in Viswambharan v. Damodaran Nair (1988 (2) KLT

32) and held that the order passed by the vacation judge is

amenable for appeal before the court in which normally the appeal

will lie from the court which ought to have passed order.

13. In the decision reported in Radhery Shyam v. Chhabi

Nath (2015 (1) KLT 1032) it has been held that judicial orders of

civil courts are not amenable to writ of certiorari under Article

226 and jurisdiction under Article 227 is distinct from jurisdiction

under Article 226. It has been observed that control of working of

subordinate courts in dealing with their judicial orders is exercised

by way of appellate or revisional powers or power of

superintendence under Article 227. Orders of civil court stand on

a different footing from the orders of authorities or Tribunals or

courts other than judicial civil court. While appellate or revisional

jurisdiction is regulated by statutes, power of superintendence

under Article 227 is constitutional. The expression 'inferior court'

is not referable to judicial courts. Judicial orders of civil court are

not amenable to writ jurisdiction under Article 226 of the

Constitution, Jurisdiction under Article 227 is distinct from

jurisdiction from jurisdiction under Article 226 and by this decision,

the decision in Surya Dev Rai v. Ram Chander Rai (2003 (3)

KLT 490 (SC) was overruled.

14. While discussing these matters, the Apex court had

relied on the decision of the Supreme Court in Sadhana Lodh

v. National Insurance Co.Ltd. (2003 (2) KLT 47), extracted para

6 of that judgment which reads as follows:

"6. The right of appeal is a statutory right and where the law

provides remedy by filing an appeal on limited grounds, the grounds of

challenge cannot be enlarged by filing a petition under Articles 226/227

of the Constitution on the premise that the insurer has limited grounds

available for challenging the award given by the Tribunal. Section 149

(2) of the Act limits the insurer to file an appeal on those enumerated

grounds and the appeal being a product of the statute it is not open to an

insurer to take any plea other than those provided under section 149(2) of

the Act (see National Insurance Co. Ltd v. Nicolletta Rohtagi (2003 (1) KLT

SN (C.No.44)SC= (2002) 7 SCC 456). This being the legal position, the

petition filed under Article 227 of the Constitution by the insurer was

wholly misconceived. Where a statutory right to file an appeal has been

provided for, it is not open to the High Court to entertain a petition under

Article 227 of the Constitution. Even if where a remedy by way of an

appeal has not been provided for against the order and judgment of a

District Judge, the remedy available to the aggrieved person is to file a

revision before the High Court under section 115 of the Code of Civil

Procedure. Where remedy for filing a revision before the High Court

under section 115 CPC has been expressly barred by a State enactment,

only in such case a petition under Article 227 of the Constitution would

lie and not under Article 226 of the Constitution. As a matter of

illustration, where a trial court in a civil suit refused to grant temporary

injunction and an appeal against refusal to grant injunction has been

rejected, and a State enactment has barred the remedy of filing revision

under section 115 CPC, in such a situation a writ petition under Article

227 would lie and not under Article 226 of the Constitution. Thus,

where the State Legislature has barred a remedy of filing a revision

petition before the High Court under section 115 CPC, no petition under

Article 226 of the Constitution would lie for the reason that a mere

wrong decision without anything more is not enough to tract jurisdiction

of the High Court under Article 226 of the Constitution."

15. It is clear from the above that where a statutory right

of appeal has been provided for, it is not open to the High Court to

entertain a petition under Article 227 of the Constitution. Even if

where remedy by way of appeal has not been provided as against

the order and the judgment of the district court, the remedy

available to the aggrieved person is to file a revision before the High

Court under section 115 of the Code where filing of revision

before the High Court under section 115 of the Code has been

expressly barred by a State amendment only in such cases the

petition under Article 227 would lie and not Article 226 of the

Constitution.

16. In Shalini Shyam Shetty v. Rajendran Shankar Patil

(2010 (8) SCC 329) in paras 64 to 67, the scope of Article 227

has been considered which read as follows:

"64.However, this Court unfortunately discerns that of late there is a