"Certiorari does not lie to quash the judgments of inferior Courts of civil jurisdiction". These observations would indicate that in England the judicial orders passed by civil Courts of plenary jurisdiction in or in relation to matters brought before them are not held to be amenable to the jurisdiction to issue writs of certiorari."

THE HON'BLE THE ACTING CHIEF JUSTICE N.V. RAMANA AND THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR              

Writ Petition No.7837 of 2013 and another

18.04.2013

M/s. Aasra Archiventures Pvt., Ltd., Hyderabad rep., by its Partner A.
Raghunath and another.

The State of A.P., rep., by its Law Secretary,Law Department, Hyderabad and
others.

Writ Petition No.7837 of 2013 & Writ Appeal No.411 of 2013

COMMON ORDER: (Per The Hon'ble the Acting Chief Justice N.V. Ramana)    

        The writ appeal is filed by the 2nd respondent in W.P.No.7837 of 2013
against the interim orders, dated 18.03.2013, passed by the learned Single Judge
in W.P.No.7837 of 2013 suspending all further proceedings in I.A.Nos.269 and 270
of 2012 in O.S.No.33 of 2012 on the file of the III Additional Chief Judge, City
Civil Court, Hyderabad.

2.      When the appeal was initially heard by us both the learned counsel
represented that W.P.No.7837 of 2013 itself may be heard and disposed of.
Accordingly, we called for the writ petition and heard the learned counsel on
either side in the writ petition itself.

3.      Brief facts of the case are that the petitioners in the writ petition are
defendant Nos.1 and 2 in O.S.No.33 of 2012.  The said suit was filed by the 2nd
respondent herein against the defendants as well as against the company
described as M/s. Salarpuria Properties Private Limited.
The said suit was
filed under Order XXXVII C.P.C. for recovery of a sum of Rs.61,52,767/- arising
out of a contract entered into by the parties for development of the property.
On receipt of the summons, the writ petitioners filed application for grant of
leave to defend and after considering the said application on merits, the trial
Court by its order, dated 09.07.2012, in I.A.No.1592 of 2012 granted conditional
leave to defend by directing the petitioners to deposit a sum of Rs.20 lakhs to
the credit of the suit within one month.
The said order was questioned by the
petitioners in C.R.P.No.3530 of 2012 before this Court.
The said revision was
heard and disposed of by an order, dated 08.08.2012, wherein the learned Single
Judge came to the conclusion that the order of the trial Court granting
conditional leave does not give sufficient reasons as to how Order XXXVII C.P.C.
can be invoked and accordingly, set aside the order of the trial Court and
remitted the matter for fresh consideration.  The operative paragraph of the
order may be appropriate to be extracted hereunder:
        "With the above observations, the order of the Court below is set aside,
the Court below is directed to consider afresh the plea of the revision
petitioners for granting of leave if entitled in the summary suit, and to decide
as to whether the suit has to be treated as a regular suit for money and dispose
of the application for attachment also, within one month from the date of
receipt of this order.  The Civil Revision Petition is accordingly disposed of.
No order as to costs."

4.      Thereafter, it appears that the Court below considered the applications,
as directed by this Court, but could not dispose of the same for various
reasons.  The writ petitioners have thereupon filed the present writ petition on
14.03.2013 seeking a Writ of Prohibition, as extracted below:
        "... Hon'ble Court may be pleased to issue an appropriate writ, order or
direction more particularly one in the nature of writ of Prohibition,
prohibiting the Subordinate Tribunal i.e., III Additional Chief Judge, City
Civil Court at Hyderabad proceed with I.A.No.269 of 2012 and I.A.No.270 of 2012
in O.S.No.33 of 2012, as illegal, without any jurisdiction with material
irregularity."

5.      After hearing the said writ petition, the learned Single Judge on
18.03.2013 while issuing notice before admission granted interim direction as
prayed for, which is the subject matter of W.A.No.411 of 2013, reads as follows:

        "Post after three weeks.  In the meanwhile, there shall be interim
direction to the Hon'ble III Additional Chief Judge, City Civil Court at
Hyderabad not to proceed further suspend with the I.A.No.269 of 2012 and
I.A.no.270 of 2012 in O.S.No.33 of 2012."

6.      Learned counsel for the petitioners contended that the suit filed by the
2nd respondent itself being under Order XXXVII, no interlocutory applications
could have been filed therein.  He submits that I.A.No.269 of 2012 seeking
injunction against the petitioners from alienating/encumbering the schedule
immovable property as well as I.A.No.270 of 2012 for attachment before judgment
over the schedule property could not have been moved.  According to the learned
counsel, when the suit itself is one under Order XXXVII, the procedure as
available in ordinary suits cannot be resorted to and the very filing of
interlocutory applications and entertaining the same by the Court below is
without jurisdiction and consequently justified the relief of Writ of
Prohibition as sought for in the writ petition.  Learned counsel has drawn our
attention to Order XXXVII C.P.C. and also relied upon the decision of the
Hon'ble Supreme Court in S. Govinda Menon vs. Union of India and another1,
wherein principles relating to grant of Writ of Prohibition are laid down and
submits that as held by the Hon'ble Supreme Court a Writ of Prohibition is
required to be issued to keep the inferior Court within the limits of its
jurisdiction and there being no other remedy, the prayer of the writ petitioner
is clearly sustainable.
       
7.      Learned counsel for the respondents, on the other hand, contends that a
reading of Order XXXVII and its sub-rules do not show any prohibition for making
any applications as such and he submits that the said suit remains at the stage
of consideration of the petitioners' application for leave to defend.  He also
submits that this Court in C.R.P.No.3530 of 2012 earlier directed that the
application for leave to defend as also the interlocutory application for
attachment etc., be heard and disposed of by the trial Court within a specified
time.  However, in spite of the best efforts, the trial Court could not dispose
of the applications and at the request of the 2nd respondent/plaintiff an ad
interim order of status quo was passed, which was in operation till 11.03.2013.
Learned counsel submits that thereafter the petitioners have filed the present
writ petition and consequently further proceedings were suspended. It is
contended that this is not a case of inherent lack of jurisdiction on the part
of the trial Court and as per the directions of this Court in C.R.P.No.3530 of
2012, the trial Court is required to dispose of the applications on merits.
Learned counsel placed reliance upon the decisions of this Court in Ushodaya
Enterprises Limited vs. State of Andhra Pradesh2 and Saini Lakshmi and another
vs. Bolliepalli Janardhan and others3.
       
8.      We have considered the aforesaid contentions and perused the material
available on record.

9.      We may, at the out set, mention that we are not satisfied with the
bonafides of the petitioners and we are of the view that the petitioners cannot
be allowed to contend lack of jurisdiction on the part of the trial Court on the
principles of constructive res judicata also.  It is noteworthy that the
petitioners filed a counter affidavit before the trial Court so far as the
interlocutory applications seeking injunction and attachment respectively, are
concerned.  They also filed application seeking leave to defend.  The
jurisdiction of the Court below to entertain a suit under Order XXXVII C.P.C. is
not in dispute and the learned counsel for the petitioners fairly stated that
his objection is only with regard to maintainability of the interlocutory
applications.  We find that neither in the counter affidavit filed by the
petitioners nor in the grounds of revision preferred by them, before this Court
in C.R.P.No.3530 of 2012 any contention is advanced by them even remotely
questioning the maintainability of the interlocutory applications vis--vis the
jurisdiction of the trial Court.  Even in the said revision, referred to above,
no such ground was raised and on the contrary this Court gave direction, as
extracted in the opening paragraph above, that the application seeking leave to
defend as well as the interlocutory application for attachment was required to
be disposed of by the trial Court, had to be given effect to.  The said
direction of this Court, which has become final, is binding on the petitioners
and that they cannot be allowed to turn around and seek Writ of Prohibition
against the trial Court from entertaining the said applications and passing
orders thereon on merits.  In our view, the premise on which the writ petition
is filed questioning the jurisdiction of the trial Court to entertain the said
interlocutory applications is not only hit by principles of constructive res
judicata against the petitioners but also on the principle of estoppel.  The
petitioners cannot be allowed to turn around and question the maintainability of
the applications or jurisdiction of the trial Court.

10.     So far as the contention with regard to the jurisdiction of the trial
Court under Order XXXVII is concerned, the trial Court is yet to decide the
application for leave and also whether the suit is treated as a regular suit or
as a summary suit and also to consider the interlocutory applications as
directed by this Court in C.R.P.No.3530 of 2012.  As has already been noted, the
petitioners do not dispute the jurisdiction of the trial Court and as such the
attempt on the part of the petitioners amounts to defeating the orders of this
Court in the said civil revision petition.

11.     The circumstances under which a writ of prohibition can be sought for
against a civil Court, fell for consideration before the Hon'ble Supreme Court
in Thirumal Tirupati Devasthanams vs. Thallappaka Anantha Charyulu4 and para 14
of the said judgment, to the extent relevant for our purpose, is extracted
hereunder:
"14. On the basis of the authorities it is clear that the Supreme Court and the
High Courts have power to issue writs, including a writ of prohibition. A writ
of prohibition is normally issued only when the inferior Court or Tribunal (a)
proceeds to act without or in excess of jurisdiction, (b) proceeds to act in
violation of rules of natural justice,
(c) proceeds to act under law which is itself ultra vires or unconstitutional,
or (d) proceeds to act in contravention of fundamental rights.  The principles,
which govern exercise of such power, must be strictly observed.  A writ of
prohibition must be issued only in rarest of rare cases.  Judicial disciplines
of the highest order has to be exercised whilst issuing such writs. It must be
remembered that the writ jurisdiction is original jurisdiction distinct from
appellate jurisdiction.  An appeal cannot be allowed to be disguised in the form
of a writ.  In other words, this power cannot be allowed to be used "as a cloak
of an appeal in disguise". Lax use of such a power would impair the dignity and
integrity of the subordinate Court and could also lead to chaotic consequence.
It would undermine the confidence of the subordinate Court. It was not even
argued that there was total lack of jurisdiction in this civil Court. It could
not be denied that the civil Court, before which the suit was pending; had
powers to decide on the maintainability of the suit and to decide on the
questions of its jurisdiction.  The civil Court had jurisdiction to decide
whether the suit was barred by Section 14 of the said Act or on principles of
res judicata/estoppel.  Thus unless there was some very cogent or strong reason
the High Court should not have prevented the Court of competent jurisdiction
from deciding these questions.  In other words the High Court should not usurp
the jurisdiction of the civil Court to decide these questions..."

12.     A similar question was also decided by a Division Bench of this Court in
Chintapalli Atchaiah vs. P. Gopala Krishna Reddy5 and the following para thereof
would be relevant to be quoted:
"...Moreover, the 2nd respondent in the writ petition happens to be the civil
Court before whom the impugned I.A. filed under Order 20, Rule 12 of the Code of
Civil Procedure read with Section 151, is pending and as per the settled
proposed of law jurisdiction to decide maintainability of the suit in the I.A.
is vested in the Court before whom it is pending.
It may be stated here that the scope of a writ of prohibition is, by the very
nature of things, a limited one.  The law is well-settled on the point that if
the Court or an adjudicating authority is embarking upon a decision in a matter
in which apparently it lacks jurisdiction or when such a court or authority, as
the case may be, is exercising jurisdiction vested in it in a manifestly
improper manner, then a writ of prohibition can be issued to prevent such
judicial forums to decide the matters pending before them.  We are convinced
that in the matter before us there is no scope for the issue of a writ of
prohibition to the 2nd respondent - Additional Chief Judge, City Civil Court as
it has all the power under the Civil Procedure Code to decide the questions
arising in I.A.No.203/88 including the question of its own jurisdiction to
decide such matters.  From another point of view also this writ appeal is
rendered devoid of any merit because in the presence of an effective alternative
remedy available to the petitioner by way of having the matter decided by the
civil court before whom the matter is pending, the writ petition cannot be
entertained..."

        We, therefore, see no substance in the contention of the learned counsel
for the petitioners that a Writ of Prohibition can be sought by the petitioners.


13.     It is also well settled that a Writ of Prohibition and a Writ of
Certiorari are remedies primarily invoked to confine the Courts/Tribunals below
within their jurisdictional limits and the only difference being that a Writ of
Prohibition is issued before the lower Court or Tribunal adjudicates on the
matter whereas a Writ of Certiorari is issued when such adjudication by the
Court or the Tribunal is questioned on the ground of error of jurisdiction.
Thus, the principle being the same, it would be appropriate to notice a decision
of a Division Bench of this Court to which one of us (VVA,J) is a party in G.V.
Nishita vs. The Presiding Officer of the Court and 9 others6 wherein extracts
from the decision of the Supreme Court as well as Halsbury laws of England was
quoted.  For the sake of convenience, relevant paragraphs are reproduced
hereunder:
        "In Ghan Shyam Das Gupta vs. Anant Kumar Sinha (AIR 1991 SC 2251) it was  
held as under:

        7..........It was, therefore, necessary to adjudicate upon the dispute
between the parties and record a finding on the character of possession of the
writ petitioners, before proceeding to consider whether the decree is executable
or not against them; and having not done so, the High Court has seriously erred
in law in allowing the writ petition by the impugned judgment.  The decision on
the disputed issue was dependent on the consideration of the evidence to be led
by the parties, and while exercising the writ jurisdiction the High Court was
not expected to go into that question.  In the circumstances, the Court ought to
have refused to dispose of the writ petition on merits, leaving the writ
petitioners to avail of the remedy before the Civil Court.

        8.  The principle as to when the High Court should exercise its special
jurisdiction under Art. 226 and when to refuse to do so on the ground of
availability of an alternative remedy has been settled by a long line of cases.
The remedy provided under Art. 226 is not intended to supersede the modes of
obtaining relief before a Civil Court or to deny defences legitimately open in
such actions.  As was observed in State of Andhra Pradesh v. Chitra Venkata Rao,
(1976) I SCR 521: (AIR 1975 SC 2151) the jurisdiction to issue a writ of
certiorari is supervisory in nature and is not meant for correcting errors like
an appellate Court.

        63.  Whilst we are dealing with this aspect of the matter, we may
incidentally refer to the relevant observations made by Halsbury on this point.
"In case of judgments of inferior Courts of civil jurisdiction" says Halsbury in
the footnote,

        "It has been suggested that certiorari might be granted to quash them for
want of jurisdiction [Kemp v. Balne (1844), I Dow. & L. 885, at p. 887],
inasmuch as an error did not lie upon that ground.  But there appears to be no
reported case in which the judgment of an inferior Court of civil jurisdiction
has been quashed on certiorari, either for want of jurisdiction or on any other
ground."

The ultimate proposition is set out in the terms:

"Certiorari does not lie to quash the judgments of inferior Courts of civil
jurisdiction". These observations would indicate that in England the judicial
orders passed by civil Courts of plenary jurisdiction in or in relation to
matters brought before them are not held to be amenable to the jurisdiction to
issue writs of certiorari."


14.     The decisions cited by the learned counsel for the respondents, referred
to above, are hardly relevant, as they do not be deal with either of the
questions, which we have considered as above.  It is therefore not necessary to
deal with the said decision.
        In view of the above, we see no merit in the writ petition and the same is
accordingly dismissed and consequently, the interim order passed therein also
stands vacated.  Since the writ appeal is directed against the said interim
order passed in the writ petition and the same is vacated, nothing survives for
consideration in the writ appeal and the same is also dismissed.  The trial
Court shall now proceed with the hearing of the suit and the application
therein,
as directed in CRP.No.3530 of 2012 dated 08.08.2012 and pass orders thereon on
or before 30.04.2013. As a sequel, miscellaneous petitions, if any, shall stand
disposed of.  No costs.
___________________  
N.V. RAMANA, ACJ  
_________________________  
VILAS V. AFZULPURKAR    
Date:18.04.2013.

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