JUDGMENT
A.K. Ganguly, C.J.
1. This writ appeal arises out of an order dated 24.9.2007 passed by a learned Single Judge of the writ Court in W.P. (C) No. 15159 of 2006.
2. The material facts of the case are that on 7.11.1998 a partition suit being Title Suit No. 609 of 1998 was filed by one Pravasani Behera, the present appellant, against the writ petitioner Sankar Das and other opposite parties. The writ petitioner and other opposite parties after being served with notice appeared before the learned Civil Judge (Senior Division), Bhubaneswar on or about 24.11.1998. As thereafter no steps were taken by the writ petitioner along with other opposite parties, the defendants in the suit were set ex parte on 20.08.1999. Then, the suit was decreed ex parte on 17.08.2001. After about one year and three months a Misc. Case being Misc. Case No. 588 of 2002 (first Misc. Case) was filed by the writ petitioner/ defendant No. 1 in the suit, under Order 9, Rule 13 of the Civil Procedure Code to set aside the ex parte decree which was dismissed for default on 14.7.2003. Again almost after one year and six months another Misc. Case being Misc. Case No. 71 of 2005 (second Misc. Case) was filed by the writ petitioner/defendant No. 1 to restore the first Misc. Case. On 06.12.2005 the second Misc. Case No. 71 of 2005 was also dismissed for default. Thereupon, notices were received by the parties in connection with appointment of Commissioner. On 26.06.2006 a C.M.A. No. 293 of 2006 along with I.A. No. 304 of 2006 was filed by the writ petitioner/defendant No. 1 for setting aside the dismissal order dated 6.12.2005 and also to restore the first Misc. Case No. 588 of 2002. Both the matters were taken up for hearing by the learned Civil Judge (Senior Division) and were dismissed by a reasoned order dated 25.10.2006. Challenging that order, the writ petition, being W.P.(C) No. 15159 of 2006, was filed on 3.11.2006.
3. The learned Judge of the writ Court by an order dated 24.9.2007 was pleased to set aside the order dated 25.10.2006 passed by the learned Civil Judge (Senior Division) and directed that I.A. No. 71 of 2005 shall be restored subject to the condition for payment of costs.
4. One basic question which comes for consideration in this case is, whether such a writ petition is maintainable in a proceeding arising out of a Partition suit filed in a Civil Court of competent jurisdiction.
5. An argument is sought to be made by the writ petitioner that what was filed before the writ Court was a petition filed under Article 227 of the Constitution of India. But this is not borne out from the records. In the cause title of the petition filed before the writ Court, original writ jurisdiction of the High Court was invoked.
6. From a perusal of the petition, it is clear that which was filed before the Court was a writ petition. Immediately after the cause title, the petitioner has given a declaration that the said petition which was filed was a writ petition. In paragraph 5 of the said petition also the petitioner stated that he has filed a writ petition. In the prayer portion also the same has been described as a writ petition. Therefore, it is an admitted position that the petition which was filed before the Court was a writ petition. In the cause title it has been stated that it is an application under Articles 226 and 227 of the Constitution.
7. The attempt to treat the petition as one filed under Article 227 was made by the learned Counsel for the opposite party for the purpose of contending that from an order passed on a petition under Article 227, no appeal can be entertained by this High Court and the only remedy of an aggrieved party is to go to the Hon’ble Supreme Court.
8. It has been argued that a petition under Article 227 can be called a writ petition and it was submitted that a Division Bench of this High Court has held so in thecase of Rasamani Devi v. Naba Kishore Acharya and Anr. reported in 2005 (II) OLR 779 and also in the case of Paradeep Phosphates Ltd. v. State of Orissa and Ors. reported in 2006 (II) OLR 609.
9. The attention of this Court was drawn to the following portion of the aforesaid two judgments.
(a) In Rasamani Dei, in paragraph 5 at page 781 of the report, the relevant observation of the Division Bench of this Court is “… Thus, we are of the view that the writ application filed by the appellant was one under Article 227 of the Constitution of India and the learned Single Judge exercised the supervisory jurisdiction under the said Article….”
After saying so, the learned Judges held that no appeal shall lie against an order passed by a learned Single Judge in exercising of supervisory jurisdiction of this Court under Article 227 of the Constitution of India.
(b) In Paradeep Phosphates Ltd. the learned Division Bench held in paragraph 5 at page 611 of the report that”… we have held that the writ application filed against an order of a Civil Court is under Article 227 of the Constitution of India in which this Court either by the learned Single Judge or by a Division Bench only exercises the supervisory jurisdiction under the said Article 227 of the Constitution….
10. The learned Counsel urged that since the aforesaid view has been taken by a Division Bench of this Court, this Court cannot, without referring the matter to a Larger Bench, differ from the same view. In support of this contention, learned Counsel referred to three judgments of the Supreme Court.
(a) The first one was rendered in the case of Mahadeolal Kanodia v. The Administrator General of West Bengal . In paragraphs 19-20 of the said judgment at page 941 of the report, the aforesaid observations have been made by the Hon’ble Supreme Court.
(b) Reliance was also placed on the aforesaid proposition in a judgment of the Supreme Court in the case of Lala Shri Bhagwan and Anr. v. Ram Chand and Anr. . In paragraph 18 at page 1773 of the report the aforesaid observations have been made by the Hon’ble Supreme Court.
(c) The third Judgment cited on this point was rendered by the Hon’ble Supreme Court in the case of Union of India and Anr. v. Raghubir Singh reported in AIR 1984 SC 1933. Reference was made to paragraph 28 at page 1945 of the report.
11. As a principle of law it is far too a fundamental to be questioned that the power of the High Court to issue writ is conferred on it only under Article 227 of the Constitution and in so far as the Supreme Court is concerned the same power is conferred under Article 32 of the Constitution which Article is in Part III of the Constitution. So far as Article 227 of the Constitution is concerned, there is no whisper of a writ under the said Article. Therefore, the observations of the Division Bench in Rasamani Dei and Paradeep Phosphates that the writ application was filed under Article 227 of the Constitution of India against an order of a Civil Court are directly contrary to the constitutional provision.
12. Just because Article 227 comes after Article 226, there is no reason to confuse one with the other.
13. This Court considers here-in-below the fundamental difference in the way of exercise of jurisdiction between the aforesaid two Articles.
(a) Article 226 of the Constitution confers power on all High Courts to issue prerogative writs or orders or directions of the like nature for enforcing the fundamental rights of the parties and ‘for any other purpose’ Article 227 vests the High Courts with judicial and administrative power of superintendence over all Courts and tribunals throughout the territories in regard to which the High Court exercises its jurisdiction.
(b) It may be that both the powers are conferred on the High Court under the constitutional provisions and the powers so conferred by the Constitution cannot be taken away or curtailed or fettered by the State legislature or even by the Parliament. Exercise of such power can be only regulated.
Hon’ble Supreme Court has held that the powers of the High Court under Article 226 and Article 227 constitute basic structure of the Constitution. See L. Chandra Kumar : AIR 1997 SC 1125, paras 78 and 79 at page 1150.
(c) But the two Articles are different, distinct and independent of each other and are intended to be used in different situations.
(d) The High Court in exercise of its power under Article 226 of the Constitution can declare an act made either by the State Legislature or by the Union Parliament ultra vires the Constitution, as a result whereof the act which has been so declared shall cease to operate, but in exercise of supervisory power under Article 227 it is not possible for the High Court to declare any act ultra vires the Constitution.
(e) But in exercising the Supervisory jurisdiction under Article 226, the High Court, if feels inclined, may quash the proceedings or the order and do no more and the matter will not go back to the inferior tribunal or Court for a further consideration, may be, in the light of the High Court’s order.
14. But in exercise of supervisory jurisdiction under Article 227, the High Court can not only quash the proceeding or order but it may also make such direction as the facts of the case may call for, and may be by way of guiding the inferior tribunal or Court as to the manner in which it would proceed further to give further directions in the matter. In appropriate cases even the High Court, while exercising supervisory jurisdiction under Article 227, may substitute the decision of the inferior tribunal by its own which, the High Court thinks, the inferior tribunal should have made.
See Surya Dev Rai v. Ram Chander Rai .
In Surya Dev Rai’s case the Supreme Court has deprecated the practice of labelling the petitions as one common under Articles 226 and 227 of the Constitution and noted that same has been deprecated in some other judicial pronouncements. (See para. 25 at page 3052-3053 of the report).
(f) The very fact that the Constitution contains two separate provisions in respect of two separate powers and prescribed them differently indicate that the framers of the Constitution had contemplated two different and distinct powers to be exercised in different situations. Reference in this connection may be made to the Full Bench judgment of the Allahabad High Court in the case of Aidal Singh and Ors. v. Karan Singh and Ors. .
(g) The power conferred under Article 226 is a power of extraordinary original jurisdiction. (See Constitution Bench judgment of the Supreme Court in the case of State of U.P. v. Vijay Anand Maharaj See paragraph 9, at page 951 of the report. But the jurisdiction under Article 227 is one of superintendence and is certainly not an exercise of original jurisdiction. See. Waryam Singh and Anr. v. Amarnath and Anr. .
(h) In Umaji Keshao Meshram and Ors. v. Radhikabai reported in 1986 (Supp) SCC 401, the learned Judges of the Supreme Court while referring to these two Articles have made the distinction between the two clear by holding:
…These two articles stand on an entirely different footing. As made abundantly clear in the’ earlier part of this judgment, their source and origin are different and the modes upon which they are patterned are also different….
Saying so, the learned Judges have held:
…By no stretch of imagination can a writ in the nature of habeas corpus or mandamus or quo warranto or prohibition or certiorari be equated with the power of superintendence. These are writs which are directed against persons, authorities and the State. The power of superintendence conferred upon every High Court by Article 227 is a supervisory jurisdiction intended to ensure that subordinate Courts and tribunals act within the limits of their authority and according to law….
(i) The learned Judges in Umaji Keshao further held that the orders, directions and writs under Article 226 are not intended for exercise of power of superintendence by the High Court. The power of superintendence conferred upon the High Courts by Article 227 is in addition to the conferred upon the High Courts by Article 226. In Umaji Keshao Meshram (supra) it has been held that a proceeding under Article 226 is an original civil proceeding. (See paragraph 101 at page 469 and paragraph 103 at pages 469-470). It has been said that it is well settled in law that a proceeding under Article 227 is not an original proceeding.
(j) Except in cases of public interest litigation, the power under Article 226 can be exercised only when an aggrieved party moves the Court. But so far as Article 227 is concerned, the said power can be exercised suo motu by the High Court. In exercise of power under Article 226 the Court is concerned primarily with the enforcement of legal and fundamental rights of the parties whereas in exercise of power under Article 227 the primary duty of the Court is to itself and in order to discharge its obligation as the custodian of administration of justice. (See Aidal Singh (supra) at paragraph 76, page 426 of the report). The learned Judges further observed in the said paragraph that in the exercise of jurisdiction under these two articles the line of demarcation is no doubt a fine one but it is clear and is indicative of the intention of the Constitution makers. It is for this very reason that under Article 227 of the Constitution, the Court can act suo motu but under Article 226 the Court only acts on an application of the party.
(k) The exercise of power under Article 226 is confined only to High Court’s interference in exercise of judicial or quasi-judicial power by a Court or tribunal subordinate to High Court whereas under Article 227 of the Constitution, the High Court is empowered to exercise administrative superintendence over subordinate Courts and tribunals so that they function within the bounds of their authority.
(L) In cases of infringement of fundamental right relief under Article 226 can be claimed as a matter of right on the principle of ex debitio justitiae, but no party can claim relief under Article 227 as of right. The matter is left in the domain of the discretion of the Court.
(m) It is often said that power under Article 227 of the Constitution of India can be exercised as a substitute for the revisional power. But the Supreme Court has held in State v. Navjot Sandhu that the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. The learned Judges of the Supreme Court held:
…where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under article 227 could not be exercised ‘as cloak of an appeal in disguise.
15. So when the Division Bench of this Court in Rasmani Dei and Paradeep Phosphates Ltd. held that the writ petition filed against an order of a civil Court is under Article 227 of the Constitution of India, such an observation or finding is contrary to the provisions of the Constitution and is also contrary to several decisions of the Supreme Court referred to hereinabove. In those decisions it has been made very clear that no writ petition is maintainable under Article 227.
16. With great respect to the learned Judges rendering the judgment in Rasmani Dei and Paradeep Phosphates, this Court is constrained to hold that the aforesaid finding of the Division Bench in those two decisions were rendered ‘per incuriam’.
17. The expression ‘per incuriam’ has been defined in Black’s Law Dictionary as “through inadvertence”. (See Black’s Law Dictionary, 5th Edition at page 1025). The Supreme Court had also the occasion to deal with the said expression in various cases. In State of U.P. v. Synthetics and Chemicals Ltd. , the learned Judges dealt with the said expression in paragraph 40 at page 162. The learned Judges have said that “incuria” literally means “carelessness”. In practice ‘per incuriam’ appears to mean ‘per ignoratium’. The learned Judges further elaborated the principle as follows:
…English Courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it is rendered, ‘in ignoratium of a statute or other binding authority. (Young v. Bristol Aeroplane Co. Ltd. : (1944) 2 All ER 293. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law….
18. In Govt. of A.P. v. B. Salyanarayana Rao , the learned Judges held that the rule of ‘per incuriam’ can be applied where the Court omits to consider a binding precedent of the same Court or the superior Court rendered on the same issue or where a Court omits to consider any statute while deciding that issue.
19. The Division Bench of this Court while deciding the aforesaid two cases in Rasmani Dei and Paradeep Phosphates Ltd. obviously acted without referring to the provisions of Article 226 and 227 of the Constitution by holding that a writ petition can be filed under Article 227. Such a finding is contrary to the Constitution, apart from being inconsistent with the legal position settled by a plethora of precedent of the Apex Court. Therefore, those two judgments cannot constitute a binding precedents having been rendered ‘Per Incuriam’. So this Court holds that the present Letters Patent Appeal is maintainable. The practice indicated by the Apex Court in its decisions in Mahadeolal (supra), Lala Shri Bhagawan (supra) and in Raghubir Singh (supra) which requires that a Division Bench should not differ with another Division Bench, without referring it to a larger Bench, does not hold good in a case where the previous Division Bench judgment has been rendered ‘per curiam’. So the principles in those judgments are not attracted here.
20. This Court has already held that the petition out of which the present Letters Patent Appeal arises was a writ petition as has been discussed above. Even if the said petition is treated to be a petition filed under Articles 226 and 227 of the Constitution, as is sought to be contended in this case, in that situation also the Supreme Court held, where the party chooses to file his application under both the Articles, in fairness and justice to such party and in order not to deprive him of the valuable right of appeal, the Court ought to treat the application as having been made under Article 226 even if in deciding the matter in its final order the Court gives ancillary directions which may pertain to Article 227. (See : para 107, at page 473 of the report in SCC of Umaji Keshao Meshram)
21. Thus, going by the aforesaid ratio of the Supreme Court the appeal in this case is maintainable.
22. Now it is necessary to come to the question whether the writ Court should have interfered either under Article 226 or Article 227 of the Constitution of India with the order passed by the learned Civil Judge (Senior Division).
23. On this aspect, the Supreme Court has given clear indication and guidelines in Surya Dev Rai’s case (supra). Before considering those guidelines it may be kept in mind that an ex parte decree has been passed. Such a decree is always appealable under the CPC. It is clear from the conduct of the writ petitioner that such an ex parte decree has been passed in view of his sheer carelessness and negligence. Normally a writ Court should not come to the aid of one who is indolent and careless in pursuing the litigation. Apart from that, the orders of the Civil Court would show that there has been repeated dismissals of the application under Order 9, Rule 13, CPCI An order dismissing an application under Order, 9, Rule 13 CPC exparte can be appealed against under Order 43, Rule 1, Clause (d). The said remedy is sought to be bypassed by creating .the subterfuge of an interim application for approaching the Writ Court. Under these circumstances filing of application under Articles 226/227 of the Constitution is impermissible in view of the clear guidelines given in paragraph 38 at page 3056 of the report in Surya Dev Rai’s case. In this connection, sub-paras 3, 4, 5, 6 and 7 of para. 38 are very pertinent.
24. A Division Bench of this Court to which one of us (Hon’ble A.K. Ganguly, J. as his Lordship then was) was a party has already explained how those directions are to be considered and implemented while exercising jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India. See Susant Kumar Roy v. Mira Roy and Ors. .
So, in the facts of the case, the writ petition is misconceived.
25. For the reasons aforesaid, the writ appeal is allowed, the writ petition is dismissed and the order of the learned Judge of the writ Court is set aside.
26. We make it clear that we are not to, as we are not called upon to, in this jurisdiction, examine the order of the learned Civil Judge (Senior Division) on merits. Nothing said by us in this judgment shall be construed as an expression of opinion by us on the merits of the order passed by the Civil Court and the remedy of the writ petitioner against the order of the Civil Court has not been in any way impaired by this judgment. There shall be no order as to costs.
B. N, Mahapatra, J.
27. I agree.