Writ Petition Not Maintainable Against Judicial Order Passed By High Court: SC

In a well-reasoned, well-analysed, well-drafted and well-articulated judgment titled Neelam Manmohan Attavar vs Manmohan Attavar (D) Thr LRs Transferred Case (Criminal) No. 1 of 2020 delivered on September 3, 2020, the Supreme Court has held that a writ petition under Article 226 of the Constitution would not be maintainable in order to challenge an order which has been passed by the High Court in the exercise of its judicial powers. It held that, “Merely assailing the order as an order which is void would not enable a litigant to avoid the consequences which emanate from the order, by instituting a writ petition under Article 226.” Very rightly so!

To start with, a two Judge Bench of Apex Court comprising of Justice DY Chandrachud and Justice KM Joseph sets the ball rolling by first and foremost observing in para 1 wherein it is pointed out that, “The petitioner instituted a writ petition (Writ Petition 44237 of 2018) under Article 226 of the Constitution seeking to challenge a judgment dated 31 July 2018 delivered by a Single Judge of the High Court of Karnataka in the exercise of the criminal revisional jurisdiction. The relief which was sought in the writ petition was that the judgment of a Single Judge of the High Court dated 31 July 2018 in Criminal Revision Petition 282 of 2018 “may be declared void/disabled/recalled”. For convenience of reference, the prayers in the writ petition are extracted below:

“1. The Writ may be permitted.

2. Judgment dt 31.7.2018 passed in Crl RP 282/2018 may be declared void/disabled/recalled to protect rights and secure probity in public life.

3. De novo/Fresh – Free hearing may be recommended before a higher/full Bench”.”

To put things in perspective, it is then revealed in para 2 that, “The writ petition before the High Court has been transferred to this Court on 13 December 2019 under Article 139A of the Constitution in Transfer Petition (Criminal) No. 342 of 2019. The order of transfer reads thus:

“Having heard the petitioner-in-person and the learned counsel appearing for the respondents and gone through this transfer petition filed under Article 139A of the Constitution of India and considering the facts and circumstances of the case, we deem it fit and proper to transfer W.P. No. 44237/2018 titled as “Neelam Manmohan Attavar Vs. Manmohan Attavar (D) through LRs” from the High Court of Karnataka to this Court.

We order accordingly.

The Registry is directed to immediately transmit a copy of this order to the High Court forthwith.””

While elaborating in detail the sequence of events, it is then stated in para 3 that, “The proceedings which have culminated in the institution of a writ petition under Article 226 of the Constitution before the High Court need to be summarized briefly at this stage. The petitioner instituted proceedings (Criminal Misc – Petition No. 179 of 2013 renumbered as Criminal Misc Petition No. 139 of 2015) under Section 12 of the Protection of Women from Domestic Violence Act 2005 (Act). On 30 July 2015, the petition was dismissed by the Metropolitan Magistrate, Traffic Court-II, Bengaluru. On 5 November 2015, in an appeal (Criminal Appeal No. 1070 of 2015) arising out of the dismissal of the proceedings, the interim relief seeking residence and expenses was initially refused by the Additional Sessions Judge, Bengaluru. Subsequently, on 19 September 2016 in a petition (Writ Petition No. 49153 of 2016) under Article 226 filed by the petitioner, the Single Judge recognised a right of residence to the petitioner in a house situated at Bengaluru and, on 24 October 2016, directed the withdrawal of the appeal to the High Court. These orders of the High Court became the subject matter of proceedings before this Court in Civil Appeal Nos. 2500 and 2502 of 2017. On 14 July 2017, this Court set aside the orders passed by the High Court in regard to residence and for the withdrawal of the appeal to itself. On 17 August 2017, this Court also dismissed a petition seeking a review of its judgment dated 14 July 2017. As a consequence of the judgment rendered by this Court, the appeal filed by the petitioner before the Additional City Civil and Sessions Judge was heard on merits and was eventually dismissed by an order dated 17 February 2018. The petitioner carried the matter in revision (Criminal Revision Petition No. 282 of 2018) which was dismissed by the High Court on 31 July 2018. Challenging the order of the High Court, the petitioner filed a writ petition under Article 226 of the Constitution. The writ petition has been transferred to this Court under Article 139A by an order of this Court dated 13 December 2019.”

While narrating the petitioner’s version, it is then pointed out in para 4 that, “The petitioner who has appeared in person has submitted that the writ petition under Article 226 is maintainable on the ground that the order dated 31 July 2018 of the High Court is void ab initio. Elaborating her submissions, the petitioner has urged that the order has not been written by the Judge of the High Court. Moreover, the petitioner submits that the High Court, while disposing of the criminal revision, has not exercised its jurisdiction in a manner consistent with the provisions of Section 397 of the Code of Criminal Procedure 1973. On merits, the petitioner has assailed the correctness of the findings of the High Court, which affirmed the judgment of the appellate court and held that the original respondent with whom the petitioner claims to have entered into a relationship ‘in the nature of marriage’ had a subsisting marriage, and hence such an alleged relationship could not have been legitimately recognized in law. The petitioner has challenged this finding of the High Court, together with the other findings to the effect that (i) there was no shared household; and (ii) there was no proof of marriage. The petitioner challenges these findings on the ground that they are erroneous.”

Furthermore, while continuing in the same vein, it is then further pointed out in para 5 that, “The petitioner has further submitted that in order to put forth a claim based on a relationship in the nature of marriage, it is not necessary under the law that neither of the parties should have a subsisting marriage and that notwithstanding the fact that the respondent was in a subsisting marriage, a valid claim under the Act would be maintainable in a situation such as the one which has been set up by the petitioner as the foundation for the grant of relief. She urged that in a situation such as the present, if the respondent who had a subsisting marriage entered into a relationship with her, there is no reason why a woman in the relationship should be left without a remedy.”

Be it noted, it is then pointed out in para 8 that, “The original respondent has died on 12 December 2017. His Legal Representatives have been impleaded as parties to the writ petition.”

Most significantly, it is then held clearly and convincingly in para 9 that, “Having heard the petitioner who appears in person and Mr. Balaji Srinivasan, learned counsel appearing on behalf of the Legal Representatives of the original respondent, we are of the view that a writ petition under Article 226 of the Constitution would not be maintainable in order to challenge an order which has been passed by the High Court in the exercise of its judicial powers. In the present case, the High Court has exercised its revisional jurisdiction. Merely assailing the order as an order which is void would not enable a litigant to avoid the consequences which emanate from the order, by instituting a writ petition under Article 226. A litigant is not without her remedies. An order which has been passed by the High Court can either be assailed in a Letters Patent Appeal (in those cases where the remedy of a Letters Patent Appeal is available in law) or by way of a review (where the remedy of a review is available in a certain class of matters). A remedy is available to a litigant against a judicial order of the High Court passed in revisional proceedings, under Article 136 of the Constitution before this court.”

What’s more, it is then held in para 10 that, “In the present case, the order dated 31 July 2018 is amenable to the jurisdiction of this court under Article 136 of the Constitution. Though the petitioner has attempted to urge the merits of her grievances against the order of the High Court in these proceedings, we are not inclined to express any opinion on them, so as not to preclude the rights and remedies which are open to the petitioner in the form of a petition under Article 136 of the Constitution. Though the order of the High Court was passed on 31 July 2018, the petitioner who has appeared in person had initially instituted a writ petition under Article 226 which, as we have noted earlier, was transferred to this Court on 13 December 2019. Should the petitioner choose to espouse the remedy which is available under Article 136 of the Constitution, it would be open to her to explain the delay which has been occasioned on the ground that she was pursuing a remedy which has, by this order, been found to be not maintainable. We, thus, leave open specifically all the rights and contentions of the petitioner in a substantive challenge to the judgment of the High Court dated 31 July 2018 in proceedings under Article 136 of the Constitution.”

As it turned out, it is then made palpably clear in para 11 that, “Before concluding, it would be necessary for the Court to record that having regard to the fact that the petitioner appears in person, the Court had indicated to her that an amicus curiae may be appointed to assist her in preparing the case without obviously, any involvement of financial expenditure on her part. The petitioner has declined legal assistance stating that she is competent to pursue her own rights and remedies.”

Finally, it is then held in the last significant para 12 that, “For the above reasons, while we have come to the conclusion that the writ petition under Article 226 of the Constitution was not maintainable for assailing the judgment of the Single Judge of the High Court dated 31 July 2018, we expressly leave open the rights and remedies available to the petitioner, including by way of a Special Leave Petition under Article 136 of the Constitution to assail the judgment of the Single Judge of the High Court of Karnataka in proceedings before this Court. We, therefore, decline to entertain the substantive petition under Article 226 of the Constitution seeking a declaration of the invalidity of the order dated 31 July 2018 while expressly keeping open the rights and remedies available to the petitioner under Article 136 of the Constitution.”

The larger point that is made in this noteworthy judgment delivered just recently on September 3, 2020 is as stated in the beginning: A writ petition under Article 226 of the Constitution would not be maintainable in order to challenge an order which has been passed by the High Court in the exercise of its judicial powers. All the litigants must always keep this in mind. There can be no denying or disputing it!

Sanjeev Sirohi

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