HIGH COURT OF CHATTISGARH AT BILASPUR
WRIT PETITION C No. 1987 of 2009
Smt. Rachna Rao
...Petitioners
VERSUS
1. Family Court
2. Prabhakar Rao
...Respondents
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
! Shri Rahul Birtharey, Advocate for the petitioner
^
Honble Shri Satish K. Agnihotri, J
Dated:24/07/2009
: Judgment
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ORDER (ORAL)
(Passed on 24th day of July, 2009)
1. By this petition, the petitioner seeks a direction
against the Family Court, Bilaspur, wherein the petitioner
is not happy with the conduct of the Family Court. This
petition is preferred under Article 226 of the
Constitution of India.
2. It is well settled that no writ can be issued against
any judicial authority. Article 227 has been incorporated
in the Constitution of India, which gives power of
superintendence to the High Court over all subordinate
Courts and tribunals to interfere with the order passed by
the Courts below in such cases where perversity,
illegality, irregularity or jurisdictional error is writ
large on the face of the record. It is not in dispute that
the petitioner seeks a direction to the Family Court, in
conduct of the proceedings, which is subordinate to the
High Court. Thus, the only remedy, which may be available
to the petitioner, is under Article 227 of the
Constitution of India, not under Article 226.
3. A Bench of nine Hon’ble Judges of Hon’ble Supreme
Court of India, in Naresh Shridhar Mirajkar v. State of
Maharashtra and another1, in respect of jurisdiction of
the High Court to issue writ against a civil court,
observed as under:
“63..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.”
4. Recently, in Radheshyam and another v. Chhabi Nath
and others2, the Hon’ble Supreme Court, after having
considered Surya Devi Rai, observed as under:
“31. Under Article 227 of the Constitution,
the High Court does not issue a writ of
certiorari. Article 227 of the Constitution
vests the High Courts with a power of
superintendence which is to be very
sparingly exercised to keep tribunals and
courts within the bounds of their authority.
Under Article 227, orders of both civil and
criminal courts can be examined only in very
exceptional case when manifest miscarriage
of justice has been occasioned. Such power,
however, is not to be exercised to correct a
mistake of fact and of law.
32. The essential distinctions in the
exercise of power between Articles 226 and
227 are well known and pointed out in Surya
Devi Rai and with that we have no
disagreement. But we are unable to agree
with the legal proposition laid down in
Surya Devi Rai that judicial orders passed
by a civil court can be examined and then
corrected/reversed by the writ court under
Article 226 in exercise of its power under a
writ of certiorari. We are of the view that
the aforesaid proposition laid down in Surya
Devi Rai, is contrary to the ratio in
Mirajkar and the ratio in Mirajkar has not
been overruled in Rupa Ashok Hurra.”
5. Accordingly, this petition under Article 226 is
dismissed as not maintainable. However, in the interest of
justice, liberty is reserved to the petitioner to take
recourse to the remedy, available under provisions of law,
if so advised.
JUDGE