Issardas and S. Lulla vs Hair and Others

Jagadisan. J.

(1) These are two writ petitions in the first of which, W. P. No. 913 of 1961, the petitioner prays for the issue of a writ, of prohibition or other

appropriate writ, direction or order restraining the Court of IV Assistant Judge, City Civil Court, Madras from taking possession of the business of

the petitioner running in the name and style of ""Oceanic Agencies"" and in the second of which W. P. No. 914 of 1961, the petitioner, the same as

in W. P. No. 913 of 1961, prays for the issue of a writ of certiorari or other appropriate writ, direction or order calling for the records of the

Court of the IV Assistant Judge, City Civil Court, in I. A. Nos. 604 and 606 of 1961 in O. S. No. 1603 of 1961 and to quash the orders therein

dated 21-7-1961.

(2) At the very outset we have to deal with the question of the jurisdiction of this Court under Article 226 of the Constitution to issue prerogative

writs in the nature of prohibition and certiorari, in respect of the jurisdiction of and the orders passed by, the subordinate civil courts, as the

respondents in these writ petitions urge that the petitions are not maintainable. We shall set out the facts of the case later in the judgment as they are

not necessary to be considered in determining the scope and power of this Court under Article 226 of the Constitution in relation to the

proceedings of the subordinate courts.

(3) These applications are quite unique and novel, and we do not, wish to disguise our surprise that such applications should have been considered

necessary and proper. So far as we are aware and so far as the industry and research of the eminent counsel who appeared in the case could go

there has been no like instance in the annals of any High Court in India. Indeed, the applications look so exotic and the question involved for

decision is of such great importance and of such wide public interest, that we heard the learned Advocate General in the matter. We are deeply

indebted to him for his very able and learned arguments shedding considerable light on the obstruse legal problem that has been presented to us for

solution.

(4) The scope of Article 226 of the Constitution of India to issue a writ of certiorari to quash the order of the subordinate civil court susceptible of

an appeal or revision or to issue a writ of prohibition to restrain or forbear a subordinate civil judicial officer from proceeding to exercise

jurisdiction in any matter before him is what requires to be determined in this case. Prior to 26-1-1950, the date of our Constitution the three High

Courts in India, at Fort William, Bombay and Madras, had the right and privilege to is-sue the high prerogative writs of certiorari, prohibition,

mandamus, quo warranto and habeas curpus as the successors of the respective Supreme Courts of Bengal, Bombay and Madras, which

Supreme Courts had acquired those rights under the charters granted by the Crown in England. The judicial Committee decided in AIR 1943 164

(Privy Council) that these three High Courts had no power to issue prerogative writs beyond the local limits of their respective original civil

jurisdiction and the power to issue such writs within those limits was derived as successors of the Supreme Courts which had been exercising

jurisdiction in the three Presidency Towns, till they were replaced by the High Courts established under the Charter Act of 1861. The other High

Courts in India had no power to issue such writs at all. As this writ jurisdiction at its inception was imported and transplanted in India on the model

of the King''s Bench Division in England exercising such jurisdiction in English territory, a brief reference to the history of prerogative writs, in the

country of their origin may not be out of place.

(5) Under the English system of Constitution of Courts the fountain head of all lawful jurisdiction invested in courts was the King himself. The basic

principle of English law is that Judges presiding in courts stand in the place of the sovereign in whose name they administer justice. Professor

Holdsworth in his History of English law, Vol. I, at page 34, states,

The ''curia regis'' was the King''s court; and of it the king was both an essential and an active member.

That court was an itinerant court which followed the King in his progresses over England, and in his journeyings over his continental dominions. It

seems that the King heard suits in person. The curia regis disintegrated and broke up into three bodies; the King''s Bench had the business to

correct crimes and misdemeanours that amounted to a breach of peace; the court of Exchequer attended to the revenue and the court of the

Common Pleas or the Common Bench decided controversies between subject and subject. Du-ring the reign of Edward I, the Court of the King''s

Bench travelled about the country. A. T. Carter in his history of the English Courts observes at page 24 that the title of King''s court or of Royal

Court of justice was no more courtesy title, and that the personal connexion between the sovereign and his Courts of law lasted till very late. But

Edward I and Edward II sat in Court and decided cases and the claim of James I to be the same was only one example of his efforts, to revive

obsolete prerogative. Till the Act of Settlement provided otherwise the Judges of the King''s Bench and Common Pleas held office during the royal

pleasure and were dismissed if they decided against the King''s wishes. Wrottesley, L. J., points out in R. v. St. Edmundsbury 1947 2 All ER 170,

that the true view is that the King''s Bench was charged with the general duty of seeing that all Courts of limited jurisdiction kept within those limits

because it was the court in which the King sat originally. In fact and always in theory, the King being thus the paramount judicial authority and the

Judges being only the King''s deputies, any exercise of unauthorised jurisdiction by the Judges was considered as an usurpation of the royal

prerogative. The August royal personage could not of course tolerate transgression of jurisdictional limits to the incumbents of the office of

Judgeship had therefore to exercise his controlling power over them to keep them within the bounds of their authority. This is really the origin of the

prerogative writs.

Prohibition is a process for preventing inferior courts from intermeddling with or executing anything beyond their jurisdiction. When an inferior

Court exceeds its jurisdiction by maintaining an action or matter of which it has not cognizance by law, the Queen''s Bench Division has power to

issue an order of prohibition to restrain the inferior court......... If the judgment of the inferior court has been given, the Queen''s Bench Division

may exercise its discretionary power of having the record brought up by certiorari in order that it may be quashed.

(Halsbury''s Laws of England. Vol. 9, 3rd Edn. 351-352)

(6) Short and Meller, Crown Side Practice at page 14, describes the writ of certiorari in this manner:

The Writ of certiorari is the process by which the King''s Bench Division, in the exercise of its superintending power over inferior jurisdictions,

requires the Judges or officers of such jurisdictions to certify or send proceedings before them into the King''s Bench Division, whether for the

purpose of examining into the legality of such proceedings, or for giving fuller or more satisfactory effect to them than could be done by the court

below.

At page 252,

The writ of Prohibition is a judicial writ, issuing out of a Court of superior jurisdiction and directed to an inferior court from usurping a jurisdiction

with which it is not legally vested or, in other words, to compel courts instructed with judicial duties to keep within the limits of their jurisdiction.

The writ is of very ancient origin and was generally issued by the court of King''s Bench (al-though not exclusively so), being a prerogative writ to

prevent the encroachment of the ecclesiastical upon the Civil Courts. It is a preventive rather than a corrective remedy, and is issued only to

prevent the commission of future act and not to undo an act already performed.

The prerogative writs were abolished on 1-1-1939 in England and ""Orders"" were substituted, Administration of justice (Miscellaneous Provisions)

Act 1938. The procedure for all applications for orders of mandamus, prohibition and certiorari is now governed in England by the Rules of the

Supreme Court. But despite these changes the scope and operation of the preexisting prerogative its have not in any way been enlarged or

restricted as the new ""orders"" are really substitutes for the old writs subject only to the procedural alteration.

(7) The two writs of prohibition and certiorari have very many common features though each has got its peculiar or characteristic features. They

must relate to or take cognizance of only judicial or quasi-judicial proceedings. The two writs are issued at different stages of the proceedings.

Prohibition being a preventive remedy can go only before the inferior court or tribunal exercises its jurisdiction, and not after the termination of the

proceedings culminating in an order or decision. After the decision is rendered or order is passed the appropriate remedy of an aggrieved suitor

can only be to ask for the issue of a writ of certiorari. A writ of prohibition can relate only to jurisdiction, to avert a threatened exercise of unlawful

or excessive jurisdiction and cannot take in its fold a prayer to correct non-jurisdictional illegalities that may appear from the proceedings. A writ of

certiorari can very properly be maintained to correct an error of law apparent on the face of the record quite apart from any jurisdictional error.

The criteria of Atkin, L. J., in R. v. Electricity Commrs., 1924 1 KB 171, laying down the requisites for the issuance of a writ of certiorari are

equally applicable to the writ of prohibition.

Whenever any body of persons having legal authority to determine questions affecting the right of subjects and having the duty to act judicially, act

in excess of their legal authority they are subject to the controlling jurisdiction of the King''s Bench Division exercised in these writs.

Certiorari will lie to remove for trial a pending action from an inferior court of common law jurisdiction into the High Court. At common law this

was an absolute right subject to statutory restrictions. Certiorari can issue to quash proceedings of inferior courts of civil jurisdiction into the High

Court for execution and for the purpose of removing any conviction, order or other determination to justice in relation to which a case has been

granted by justice of Peace or by Quarter Session. Prohibition can no doubt be availed of as long as there is something left for it to operate.

Prohibition goes as soon as the inferior tribunal proceeds to apply a wrong principle of law without deciding a fact on which the jurisdiction

depends. If the inferior court in which proceedings are pending is clothed with jurisdiction in regard to part of the subject-matter of the proceedings

and is without jurisdiction in respect of another part, prohibition does not lie until the Court has actually travelled beyond its competent jurisdiction.

(8) One important feature which must be present before a prerogative writ of certiorari or prohibition can go regarding proceedings in court is that

the Court from which the records are called for, or the Court from which is sought to be restrained must be an inferior court. Even in England the

term ""inferior court"" has not been understood or interpreted in any uniform manner. In Halsbury''s Laws of England Vol. 9, 3rd Edn. page 348,

para 817 there is reference to superior and inferior courts in the following way:

........ the terms ''superior'' and ''inferior'' have on. different occasions been used in different senses. The Court of appeal, the High Court, the

Court of Criminal Appeal and the Courts Martial appeal court are superior courts in all senses of the term. The Courts of Chancery of the counties

Palatine of Lancaster and Durham and, it seems, the ecclesiastical courts and superior courts in the sense that it need not appear in any

proceedings or judgments of these courts that the court was acting within its jurisdiction but they are inferior courts in the sense that they can be

stopped from exceeding their jurisdiction by an order of prohibition.

The origin of these so called inferior courts in England seems to be that in ancient days anxious attempts were made that justice should be taken to

every man''s door by constituting as many courts as there were manners in the Kingdom. Giving a list of the inferior courts Halsbury states thus at

page 348 in his Laws of England, Vol. 9:

They were primarily the court baron, which was incident to every manor, the hundred court, and the common law country courts, now practically

extinct. To these were added numerous borough and other local courts, a variety of courts held for special purposes and the modem county

courts. They derived their general title of inferior Courts because they were and are, in the great majority of cases, subject to the control and

supervision of the court of King''s Bench or Queen''s Bench Division as a superior court. A part of the original inherent jurisdiction of the court of

King''s Bench was to examine and correct all errors committed by the inferior courts, whether in matter of law or in exceeding the jurisdiction that

had been conferred upon them.

The jurisdiction of the inferior court has been the. creation either by Charter from the Sovereign or Act of Parliament or prescription or under the

provisions of the Supreme Court of judicature Act of 1873, 1884 and the Supreme Court of judicature (Consolidation) Act, 1925. Such

jurisdiction is limited to matters, between residents in a certain locality or to causes of action arising within prescribed metes and bounds or to

actions where the claim is under a certain specified limit.

(9) There is a discussion as to the meaning ot inferior Courts in 1947 2 All ER 176, which may be usefully referred to:

...... the word ""inferior"" as applied in Courts of law in England had been used with at least two very different meanings. If, as some assert, the

question of inferiority is determined by ascertaining whether the court in question can be stopped from exceeding its jurisdiction by writ of

prohibition issuing from the King''s Bench then not only the ecclesiastical courts, but also palatine courts and admiralty courts, are inferior courts

but there is another test, well recognised by lawyers, by which to distinguish a superior from an inferior Court, viz., whether in its proceedings, and

in particular, in its judgments, it must appear that the Court was acting within its jurisdiction. This is the characteristic of an inferior court, whereas in

the proceedings of a superior court it will be presumed that it acted within its jurisdiction unless the contrary should appear either on the face of the

proceedings or aliunde.

Elaborating this matter further Wrottesley, L. J., observes thus at page 173.

Some of these jurisdictions were limited only by local boundaries, such as palatinates where the King abandoned the regalia, including the

administration of justice, to the head of the palatinate. Sometimes the limits were extremely wide as in the case of the cinque ports, whose

inhabitants could be sued at home. At the other end of the scale were the Courts of pie poudre attached to fairs, for the settlement of disputes

during the currency of the fair. There were the various courts which administered the law merchant. There was court of the admiral in the time of

Edward ill followed by the Court of admiralty in the 15th century. There was the court of the constable and the, marshal, administering martial law

which in 1384, had to be controlled by statute There was the Court of heraldry which, in addition to its jurisdiction over coat-of-arms, exercised at

one time a jurisdiction as to slander upon men of noble blood. These are only some of the many courts of limited jurisdiction which existed and

sometimes flourished side by side with King''s Bench Common Pleas Exchequer and, later the Chancery courts (See Holdsworth''s History of

English Law, Vol. I, passim;...........

An inferior court is described in these terms in Haisbury''s Laws of England Vol. II, page 122,

A Court is an inferior court for the purpose of prohibition whenever its jurisdiction is limited.

The test of susceptibility of proceedings to the issue of a writ of prohibition or certiorari to determine the nature of the status of the Court, whether

inferior or not, can hardly be satisfactory when the very question is whether such a writ can issue as against a court of particular description or

jurisdiction. In a general and the most accepted sense every court of limited jurisdiction, circumscribed by statutory limitations regarding territory,

pecuniary valuation of claims and the subject matter, is a court of inferior jurisdiction.

(10) The rule of practice regarding the issue of certiorari to quash proceedings in Civil Courts is thus set out by Halsbury in Vol. II, at page 128,

Certiorari lies at common law to remove, for the purpose of quashing such proceedings, the proceedings of inferior courts of record or other

persons or bodies exercising judicial or quasi-judicial functions. The criterion was that certiorari would lie only where the writ of error did not lie;

the writ of error has now been abolished, but the distinction remains. For instance, certiorari will not lie to remove a judgment of quarter session on

indictment: since error would have lain. Certiorari does not lie to quash the judgments of inferior courts of civil jurisdiction.

Under Foot-note (d) at page 128, we find the following extracts:

Although certiorari does not lie where error formerly lay these remedies were not co-extensive; for, whereas the writ of error lay only for error on

the face of the proceedings, certiorari to quash lies not only for error on the face of the proceedings, but also for defect of jurisdiction not apparent

on the face of the proceedings, but shown by evidence; see Page 142...... Where error lay, however, certiorari will not be granted, although the

defect is one in respect of which error was not available and certiorari would be. Thus where an indictment has been tried and judgment

pronounced, certiorari to quash will not be granted, although what is complained of is defect of jurisdiction not appearing upon the face of the

proceedings...... Similarly in the case of judgments of inferior courts of civil jurisdiction, it has been suggested that certiorari might be granted to

quash them for want of jurisdiction (Kemp v. Balne, (1844) 1 D&L 885 inasmuch as 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. Applications to quash determinations of county courts were however entertained in the cases of Skinner v. Northallerton County

Court Judge, 1899 AC 439, and R. v. Lloyd, 1906 1 KB 552, without objection being taken on this ground. In both cases, however, the writ was

refused on other grounds.

(11) The English system of Constitution, of Courts, civil and criminal, is, altogether of a different pattern from the constitution of Courts in India,

where we have a hierarchy or tiers of courts commencing from the Panchayat Court to the Supreme Court of India, with rights of appeal and

revision from one court to the other. The nearest approach in England to a subordinate Civil Court of the type of such court existing in India is the

county Court. The county Court is a creature of statute, established by County Courts Act of 1346. Its jurisdiction was enlarged and its practice

was amended by a series of subsequent County Courts Acts, now consolidated by the County Courts Acts of 1934 which came into operation on

1-1-1937. The previous enactments were repealed. No judgment or order of any Judge of county court, nor any proceedings brought before him

or pending in his court can be removed by appeal, motion or otherwise into any other court except in accordance with the provisions of the County

Courts Act of 1934. An aggrieved suitor in regard to any proceedings in a county court has a right of appeal to the court of appeal and not to the

court of the King''s Bench. The right of appeal is restricted in certain matters, and cannot be had without the leave of the Judge. The Act contains

special provisions for the issue of certiorari, prohibition and mandamus. The procedure regarding certiorari is as follows:

The High Court or a Judge thereof may by order at certiorari or otherwise remove into the High Court any proceedings commenced in a county

court if the High Court or Judge thereof thinks, it desirable that the proceedings should be heard and determined in the High Court. The removal is

to be upon such terms as to payment of costs giving security or otherwise as the High Court or a Judge thereof thinks fit to impose."" (Halsbury''s

Laws of England, Vol. 9 p. 331)

Regarding ""prohibitions"" the following is the procedure:

An order of prohibition will be granted by the High Court or a Judge thereof where a county court acts either without jurisdiction or in excess of

its jurisdiction, and, although the High Court exercises a discretion in determining whether the county court has so acted, where the case for

prohibition is made out the applicant is entitled to an order as of right. In deciding whether or not to grant an order of prohibition, the High Court is

not fettered by the fact that in alternative remedy exists to correct the absence of or excess of jurisdiction."" (Halsbury''s Vol. 9, page 332-333)

Regarding ""Mandamus"" we find the following:

Any party requiring an act to be done by Judge or officer of a county court relating to the duties of his office may apply to the High Court for an

order of mandamus, and the Judge or officer, on being served with the order, must obey it on pain of attachment. The granting or refusing of such

an order is in the discretion of the High Court and an application will be refused where no useful purpose would be served in granting it, or where

the effect of the order would be substantially to give the applicant an alternative remedy of appealing or it seems, where prohibition is available

(Halsbury Vol. 9, page 334)

(12) It is not without significance that the county courts Act should contain special provisions for the issue of certiorari, prohibition and mandamus.

The natural inference from the necessity of Parliament to enact these special provisions is that but for the provisions no prerogative writs in respect

of the proceedings of that court would have lain. The right of appeal from the proceedings of the county courts, though limited in some respects, is

mostly general and absolute. Parliament might have thought that there was no scope for the operation of the Royal prerogative writs. It seems to us

that the special provisions in the County Courts Act governing, certiorari, prohibition and mandamus carry with them the necessary implication of

the abatement if not abrogation of, high royal prerogative writs so long as the statute subsists. It is now well settled that where Parliament enacts a

measure in regard to a particular matter the King''s prerogative can no longer have authority in the same field. A learned author in Constitutional

Law has described the prerogative as ""The residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the

Crown. In Attorney General v. De Keyser''s Royal Hotel, 1920 AC 508 the question that arose for consideration was whether the Crown was

entitled as of right by virtue of its prerogative to take possession of land or buildings of a subject for administrative purposes in connection with the

defence of the realm without paying compensation, for their use and occupation. The Crown acting under the Defence of the Realm Regulation

teak possession of a hotel for the purpose of housing. the headquarters personnel of the Royal Flying Corps and denied the legal right of the

owners to. compensation. The owners yielded up possession under protest and filed a petition of right for a, declaration that they were entitled to

rent for use and occupation of the premises or in the alternative to compensation under the Defence Act, 1842. The House of Lords held that the

suppliants were entitled to compensation in the manner provided by the Act of 1842. Considering the scope of royal prerogative Lord Dunedin

observed thus at page 526:

Inasmuch as the Crown is a party to every Act of Parliament it is logical enough to consider that when the Act deals with something which before

the Act could be effected by the, prerogative and specially empowers the Crown to do the same thing but subject to conditions, the Crown assents

to that, and by that Act, to the prerogative being curtailed.

(13) Lord Atkin referred to it in these words at page 539:

It is quite obvious that it would be useless and meaningless for the Legislature to impose restrictions and limitations upon, and to attach conditions

to the exercise by the Crown of the powers conferred by a statute, if the Crown were free at its pleasure to disregard these provisions, and by

virtue of its prerogative do the very thing the statutes empowered it to do. One cannot in the construction of a statute attribute to the Legislature (in

the absence of compelling words) an intention, so absurd. It was suggested that when a statute is passed empowering the Crown to do a certain

thing which it might therefore to have done by virtue of its prerogative, the prerogative As merged in the statute. I confess do not think that the

word ""merged"" is happily chosen. I should prefer to say that when such a statute, expressing the will and intention of the King and of the three

estates of the realm is passed, it abridges the Royal Prerogative while it is in force to this extent; that the Crown can only do the particular thing

under and in accordance with the statutory provisions, and that its prerogative power to do that thing is in abeyance.

Lord Sumner observed thus at page 561,

The Legislature by appropriate enactment can deal with such a subject-matter as that now in question in such a way as to abate such portions of

the prerogative as apply to it. It seems also to be obvious that enactments may have-this effect, provided-they directly deal with the-subject-

matter, even though they enact a modus operandi for securing the desired result, which is not the same as that of the prerogative.

(14) In In re Azoff Don Commercial Bank 1954 1 Ch 315, it was held that the royal prerogative in respect of bona vacantia was cut down by the

provisions of the Companies Act, 1948. Wynn-party, J., quoted the observations of Lord Atkinson in 1920 AC 508 and observed that it was

clear that a statutory provision can cut down the prerogative of the Crown either expressly or by necessary implication.

(15) It is not the mere existence of a right of appeal from the orders of an inferior court to superior court that can determine the question whether

prerogative writs can go against such orders. So far as the writ of prohibition is concerned, the Court is in no way hampered from issuing the writ

by reason of the availability of an alternative remedy by way of an appeal to the aggrieved suitor. Goddard, L. J., pointed out in R. v. Comptroller

General of Patents 1953 1 All ER. 862, that there is no technical obstacle to the coexistence of a right to appeal and to prohibition. Prohibition will

not be granted where a specific remedy is given by a statute which in effect substitute the statutory remedy for the remedy by prohibition (Halsbury

Vol. II, 3rd Edn. pp. 115-116). In R. v. Dublin Town Clerk, (1909) 43 ILT 169, a writ of prohibition was refused on the ground that an election

petition under the ''Municipal. Corporation Act was the proper remedy. In Turner v. Kingsbury Collieries, 1921 3 KB 169, it was held that a writ

of prohibition will not lie to a county court Judge sitting as an arbitrator under the Workmen''s Compensation Acts as all appeals from the decisions

of county court Judges as arbitrators thereunder went direct to the court of appeal and to that tribunal alone. But the immunity of proceedings in

civil courts though of limited jurisdiction from prerogative writ can be inferred from the constitution of such courts, the multiple remedies of a suitor

aggrieved by prejudicial decisions against him by way of appeals and revisions, the nature of the enquiry or trial of proceedings in, such courts and

other circumstances like the narrow scope of a writ procedure compared with more comprehensive scope of the other available remedies. The

structure of a Civil Court with a scheme of appeals provided for against decisions of that court can be destructive of the operation of writs against

such a court.

(16) A consideration of the history of the prerogative writs in England, though brief, reveals that the court of the King''s Bench in England had at no

time considered it competent or proper to issue prerogative writs of prohibition and certiorari to restrain or quash proceedings in civil courts of

limited jurisdiction. A judgment or order of a civil court of an inferior, or limited Jurisdiction wag never treated as susceptible of a writ of certiorari

as the remedy of a person adversely affected by the decision was either a writ of error so long as that was available, or a right of appeal which

came in subsequently.

(17) WC shall now attempt to trace the origin of prerogative writs administered in India very briefly. The historical development of the writ

jurisdiction with special reference to the High Court of Madras has been very fully considered and dealt with by the judicial Committee in the

Parlakimedi case, in AIR 1943 164 (Privy Council) and it would be mere pedantry for us to cover the whole ground again. The beginning, growth

and development of the writs in this country is closely associated with the history and constitution of courts and judicial administration. In the words

of Herbert Cowell (History and Constitution of the Courts and Legislative authorities in India),

It (Constitutional history) is a record of experiments made by foreign rulers to govern alien races in a strange land, to adopt European institutions

to Oriental habits of life, making definite laws supreme amongst people who had been accustomed to associate government with the exercise of

arbitrary and uncontrolled authority.

During the subsistence of the East India Company, a dual system of judicial control prevailed. Within the Presidency towns of Calcutta, Madras

and Bombay, Crown Courts, or King''s Courts administered justice and these courts were creatures of Charters issued by the Crown, and they

had jurisdiction to issue prerogative writs. Outside the Presidency Towns the East India Company manned and maintained courts familiarly known

as Company courts. These courts had no powers to issue any prerogative writs. It was only in 1861 when the company courts and the Crown

courts were merged that this dual administration of justice disappeared. The Supreme Court at Fort William was established by Charter in the year

1774. The East India Company bad obtained in I765 the grant of the Diwani of Bengal, Bihar and Orissa. In 1772 the Company set up a system

of civil courts and these were not courts of His Majesty, the King of England; nor did they administer law of England though they were manned by

European servants of the Company. After I790 the company took up criminal administration of jurisdiction into its hands and administered the

Muhammadan Criminal Law. Appeals from the civil courts went to the Sadar Diwani adalath and the appeals from the Criminal Courts went to the

Sadar Nizamath Adalath. The establishment of the Supreme Court at Fort William in Bengal resulted in clash of jurisdiction between the company

servants outside the presidency town and the Supreme Court and why any student of history is familiar with the famous ""Patna"" and ""Cossijurrah

cases. The Supreme Court entertained proceedings against the officers of the Company''s Courts in respect of their official acts and the company''s

Government promptly employed military force to prevent the orders of the court from being carried out. This caused widespread tumult and uproar

which reach-.6d the shores of England. Lord Macaulay in his Essays Vol. III at page 368 describes the rule of the Supreme Court as reign of

terror heightened by mystery. He observed,

No man knew what was next to be anticipated from this strange tribunal; it came from beyond the black water, as the people of India with

mysterious harrow called the sea; it consisted of Judges not one of whom was familiar with the usage of the millions over whom they claimed

boundless authority. Its records were kept in unknown characters; its sentences were pronounced in unknown sounds. No Mahratta invasion had

ever spread through the province such dismay as this inroad of English lawyers; all the Injustice of former oppressors, Asiastic and Europeans

appeared as a blessing compared with the justice of the Supreme Court.

The English Parliament remedied the situation quite promptly and efficaciously by amending the Charter in 1781. By the amendment the jurisdiction

of the Supreme Court was confined to the Presidency Town of Calcutta. Sadar Diwani Adalath and Sadar Nizamath adalath were recognised

statutorily and put on the same legal basis as the Supreme Court itself.

(18) The Charter Act of 1800 which established the Supreme Court in Madras was practically the same charter which renovated the Supreme

Court of Calcutta by the Act of 1781. Prior to the Charter of 1800 in Madras there was the Mayor''s Court under the Charter of 1753 till it gave

place in 1798 to the Recorder''s court authorised by the Statute, 1797. The Recorder, Sir Thomas Strange became in 1800 the First Chief justice

of the new Supreme Court of Madras. Clause 47 of the Letters Patent of 1800 is in these terms:

And to the End that the court of Requests,-and the Court of Quarter Sessions erected and established at Madras aforesaid, and the justices and

other Magistrates appointed, for Fort St. George and the Town of Madras, and the Facto, Pies subordinate thereto, may better answer the Ends

of their respective institutions, and act conformably to law and justice. It is our further will and pleasure, and do hereby further grant. ordain and

establish, that all and every the said courts and magistrates shall be subjected to the order and control of the said Supreme Court of judicature at

Madras, in such sort, manner and form, a-q the inferior courts and magistrates ot and in that part of Great Britain called England are, by law,

subject to the order and control of our Court of King''s Bench; to which End the raid Supreme Court of judicature at Madras is hereby

empowered and authorised to award and issue a writ or writs of mandamus, certiorari, procedendo. or error, to be prepared in Manner above-

mentioned, and directed to such courts or magistrates as the case may require and to punish any contempt thereof, or wilful disobedience

thereunto, by fine and imprisonment.

There was an amended Letters Patent in 1853 and then the Letters Patent of 1862 constituting the High Court of judicature for the Presidency of

Madras. Clause 11 of this Letters Patent prescribes the local limits of the ordinary original jurisdiction of the High Court. Clause 12 provides that

the said High Court of judicature at Madras shall in the exercise of its ordinary original civil jurisdiction be empowered to receive and try and

determine suits of every description if in the case of suits for land or other Immovable property such land or property is situated within the local

limits of the ordinary original jurisdiction and in other cases if the cause of action shall have arisen or the defendant at the time of the

commencement of the suit shall dwell or carry on business or personally work for gains within the local limits of such jurisdiction. Clauses 19 and

20 are important and they are in these terms:

Clause 19, And we do further ordain that, with respect to the law or equity to be applied to each case coming before the said High Court of

judicature at Madras, in the exercise of its ordinary original civil jurisdiction, such law or equity shall be the law or equity which would have been

applied by the said High Court to such case if these Letters Patent had not issued.

Clause 20 is as follows:

And we do further ordain that, with respect to the law or equity and rule of good conscience to be applied to each case coming before the said

High Court of judicature at Madras, in the exercise of its extraordinary original civil jurisdiction, such law or equity and rule of good con-science

shall be the law or equity and rule of good conscience which would have been applied to such case by any local court having jurisdiction therein.

The Letters Patent of 1862 has omitted any special reference to the prerogative writs and there is no provision in that Letters Patent corresponding

to clause 47 of the Charter of 1800.

(19) In the Parlakimedi case, the judicial Committee held that the High Court of Madras had no jurisdiction to issue a writ of certiorari to quash the

order of the Revenue Board relating to the settlement of rents in the Parlakimedi estate in the district of Ganjam in the Northern Circars. This

conclusion was arrived at by the Board on a construction of the Charter of 1800 establishing the Supreme Court at Madras and the subsequent

legislation establishing the High Court, the successor to the said Supreme Court. At page 166 Viscount Simon delivering the judgment of the Board

observes thus:

They find nothing in the Act of 1858 to supersede the general scheme of the charter of 1800, or to produce a conflux or confusion of the separate

jurisdictions previously obtaining through-out British India. They are not of opinion that it brought Indians generally within the meaning of those

clauses of the charter of 1800, which distinguished certain persons as British subjects in contrast with natives in India, or that it gave to the

Supreme Court any extended jurisdiction. The change effected by the Act of 1858 was certainly profound. It rendered obsolete the old distinct on

between company''s courts and King''s Courts, and made it eminently desirable that by way of reform a greater unity should be established in

respect of judicial administration. These reforms, however, did not follow operatively of themselves by virtue of anything in the Act of 1858, but

were introduced by the Indian High Courts Act of 1861. By the terms of that Act and the statutes which have continued it, in effect the High Court

inherited the power of the Supreme Court,. but if it be shown, as their Lordships think it is shown, that the Supreme Court had not the power now

in question under the Charter of 1800, there is nothing. else in the Act of 1861 to confer the power.

Their Lordships make a significant reference to the terms of the Letters Patent of 1861 which do not refer to the prerogative writs. Viscount

Simons observes at page 164-:

On the other hand, the parties are not subject to the original jurisdiction of the High Court, and the estate of Parlakimedi lies in the north of the

province. On the present question their Lord-ships lay no stress on any negative implication derivable from clause 47 of the Charter which

authorised the Supreme Court to issue writs of mandamus, certiorari etc., to the justices and other magistrates of the town and to the two Courts

therein mentioned, the Court of request and the Court of quarter sessions. The terms of this clause make it difficult to think that courts other than

these mentioned were intended to be regarded as inferior courts for this purpose. The case of Annie Besant v. Advocate General of Madras, 46

Ind App 176, AIR 1919 PC 31 is an authority of this Board that the power to issue certiorari still remains in the High Courts of Calcutta, Madras

and Bombay in the exercise of their local jurisdiction.

It must be conceded that the High Courts constituted by the Letters Patent of 1862 were inheritors of the jurisdiction of the Pre-existing Supreme

Courts, in the respective territories and they come to be invested with powers and jurisdiction, exercisable by the Court of the King''s Bench

division In England, to issue prerogative writs, and absence of any specific provision by way of conferment of such power cannot be of any

significance. But this jurisdiction was confined only to the local limits of the ordinary original civil jurisdiction of these High Courts. The passage

referred to above in the judgment in the Parlakimedi case however seems to indicate that courts other than the court of Request and the court of

Quarter Session need not be regarded as inferior courts. for the purpose of issuance of writs.

(20) It will be convenient at this stage to. refer to another decision of the judicial Committee in 46 Ind App 176: AIR 1919 PC 31. The appellant

before the Board, Mrs. Annie Besant was. the printer and publisher of a newspaper called ""New India"". She made the necessary statutory

declaration as such printer and publisher in accordance with the requirements of Act XXV of 1867. The Magistrate acting under the proviso to,

section 3(1) of the Indian Press Act, Act I of 1910, dispensed with the deposit which otherwise she woul4 have had to make under that Act. In

May 1916 the, Magistrate acting under the power contained in the proviso to cancel or vary an order made under the sub-section cancelled the

order dispensing with deposit without giving the. appellant an opportunity of being heard and di-directed the appellant to deposit Rs. 2000/-. The

appellant complied with this later order. In August 1915 the appellant was served with a notice u/s 4(1) of Act I of 1910, that the Governor in

Council was of opinion that specified passages published in New India wore of the nature described in that sub-section and thereby declared the

deposit to be forfeited. Thereupon the appellant presented to the High Court of Madras a petition u/s 17 of the Act to set aside the forfeiture and

also a petition u/s 107 of the Government of India Act and section 435 Criminal Procedure Code, 1898, for a revision of the Magistrate''s order of

May 1916. A Special Bench dismissed both the petitions. Upon the petition u/s 17 the Special Bench held unanimously that three of the specific

Passages were also within section 4(1)(c) of the Act and a majority held that a further four passages were also within that clause. Them petition for

revision was treated also as an application for a writ of certiorari. The Judicial Committee held that under the Proviso to section 3(1) of Act 1 of

1910 the magistrate had power to, order that the dispensation be cancelled and the deposit be made, and that he was not bound to hear the

appellant since the order was an administrative and not a judicial act. It was further held that the petition for revision was not competent as the

order sought to be revised was not within the Criminal Procedure Code. The Committee also held that even if the making of the order was an act

of quasi-judicial nature, certiorari was excluded by section 22 of the Act. Lord Phillimore delivering the judgment of the Board dealing with the

question of the power to issue a writ of certiorari observed thus at page 190.

Supposing that this power once existed, has it been taken away by the two codes of procedure? No doubt these Codes provide for most cases a

much more convenient remedy. But their Lordships are not disposed to think that the provisions of section 345 Criminal Procedure Code and

section 115 CPC of 1908 are exhaustive. Their Lordships can imagine cases, though rare ones, which may not fall under either of these sections.

For such cases their Lordships do not think that the powers of the High Courts which have inherited the ordinary or extraordinary jurisdiction of

the Supreme Court to issue writs of certiorari can be said to have been taken away.

Again at page 191,

However that might be according to English law, where there is no such revision procedure as in India, their Lordships see no reason for

narrowing the express words of the Indian Act. Certiorari according to English rule is only to be granted where no other suitable remedy exists. If

the order of the magistrate were a judicial order, it would have been made in the exercise either of his civil or of his criminal jurisdiction, and

procedure by way of revision would have been open.

Even were it be said that the order was of that quasi-judicial kind to which certiorari has sometimes been applied in England or in India, the Press

Act may quite reasonably have intended to take it away and there is no reason why full effect should not be given to its language.

We must confess our difficulty to understand the precise logic of the reasoning of the learned Law Lords. Holding that the provisions of C.P.C.

and the Criminal Procedure Code are not exhaustive, their Lordships yet say that the power of the High Court to issue writs may relate only to

cases which may not fall under the provisions of these Codes. If the operation of the writs are to be confined only to cases which according to their

Lordships are rare ones, and which do not fall within the provisions of the two Codes, it seems to us to follow quite plainly that cases within the

Codes are not susceptible of writs. In the particular case before the Judicial Committee, the subject matter of the writ petition was not one which

fell within the ambit of the Criminal or CPC and conceding or assuming that a writ lay in respect of that matter, the view taken was that the

provisions of the Press Act on a reasonable interpretation thereof took away that right. We are inclined to infer from the pronouncement of the

Judicial Committee in this case that a writ cannot and does not lie in respect of matters for which proper and adequate remedies are provided for

under the CPC or Criminal Procedure Code or under the relevant statutory enactments.

(21) We have now to consider the provisions of the Articles of the Constitution to ascertain the present scope of writ jurisdiction in India. We need

refer only to three provisions of the Constitution, namely Arts. 225, 226 and 227. They are in these terms:

Article 225:

Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred

on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the

Judges thereof in relation to the administration of justice in the court, including any power to make rules of court and to regulate the sittings of the

Court and of members thereof sitting alone or in Division Courts, shall be the came as immediately before the commencement of the Constitution.

Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the

revenue or concerning any act ordered or done in the collection thereof was subject immediately be-fore the commencement of this Constitution

shall no longer apply to the exercise of such jurisdiction.

Article 226: (1)

Notwithstanding anything, in. Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction

to issue to any person or authority, including in appropriate cases any Government, within these territories, directions, orders or writs, including

writs in the nature of habeas corpus, mandamus, prohibition quo warranto and certiorari, or any of them, for the enforcement of any of the rights

conferred by Part III and for any other purpose.

(2) The power conferred on a High Court by clause (1) shall be not be in derogation of the power conferred on the Supreme Court by clause of

Article 32.

Article 227:

(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation ''to which it exercises jurisdiction.

(2) Without Prejudice to the generality of the foregoing provision, the High Court may, (a) call for returns from such courts; (b) make and issue

general rules and prescribe forms for regulating the practice and proceedings of such courts; and (c) prescribe forms in which books, entries and

accounts shall be kept by the officers of any such courts.

(3) The High Court may also settle tables ot fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates

and pleaders practising therein;

Provided that any rules made, forms prescribed or tables settled under clause (2) or (3) shall hot be inconsistent with the provision of any law for

the time being in force, and shall require the Previous. approval of the Governor.

(4) Nothing in this Article shall be deemed to confer on a High Court powers of superintendence over any Court or tribunal constituted by or

under any law relating to the Armed forces.

Article 225 merely maintains the jurisdiction of the High Courts existing prior to the advent of the Constitution. The language of Article 226

specifically mentions that a writ can issue to any person or authority"" within the limits of the jurisdiction of each High Court of the State. Article 227

provides that every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises

jurisdiction. e words used in this articles are ""courts and tribunals"".

(22) Before the commencement of the Constitution only the three High Courts of Madras, Bombay and Calcutta had power to issue high

prerogative writs within the respective limits of their original jurisdiction. The other High Court had no power to issue writs of any kind. The change

effected by the Constitution in the matter of administration of writs is thus described by Patanjali Sastri, C. J., in Election Commission, India Vs.

Saka Venkata Subba Rao and, :

In that situation the makers of the Constitution, having decided to provide for certain basic safeguards for the people in the new set up which they

called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and

finding that the prerogative writs which the courts in England had developed and used whenever urgent necessity demanded immediate and

decisive interpretation, were peculiarly salted for the purpose, they conferred, in the States'' sphere, new and wide powers on the High Courts of

issuing directions, orders, or writs primarily for the enforcement of fundamental rights, the power to issue such directions etc., ""for any other

purpose"" being also included with a view apparently to place all the High Courts in this country in some-what the same position as the Court of

King''s Bench in England. But wide as were the powers that conferred a two-fold limitation was placed upon their exercise. In the first place, the

power is to he exercised ""throughout the territories in relation to which it exercises jurisdiction"" that is to say, the writs issued by the court cannot

ran beyond the territories subject to its jurisdiction. Secondly the person or authority to whom the High Court is empowered to issue such writs

must be ''within those territories'' which clearly implies that they must be amenable to its jurisdiction either by residence location within those

territories.

In construing these provisions of the Constitution at least three views are possible. The first is that the framers of the Constitution merely continued

the preexisting power to issue writs by enacting Article 225 and extended the privilege of issuing writs to all the High Courts in India and at the

same time limited their operation to their respective territorial state limits. The second view is that Article 226 must be taken to have conferred a

specific power In the matter of the issue of writs, and the scope and ambit of that power should be construed strictly in terms of that provision

without in any way influenced by the historic back-ground of prerogative writs. The third view, which can be described as the via media between

the first and the second, is that the provisions have brought into effect, a continuance of the pre-Constitution writs and a new order of writs with an

enlarged and wider application than before.

(23) It seems to us that the first view proceeds on a narrow interpretation if not on a misconception of the provisions of the Constitution, The

words of Article 226 ""shall have power"" indicate not a mere declaration of the power to issue writs on the date of the commencement of the

Constitution but point out something in the nature of a grant of power. In regard to the High Courts other than the three High Courts of Calcutta,

Bombay and Madras, there is a grant of Power to issue writs for the first time by the Constitution, a power which they did not possess previously.

The second view interpreting Article 226 as the sole and exclusive provision, clothing every High Court with jurisdiction to issue prerogative writs

fails to give due effect to Article 225, which continues the preexisting jurisdiction of High Courts involving the continuance of the jurisdiction of the

three High Courts to issue writs. It is perhaps the third view, which harmonises the two provisions, Arts. 225 and 226, that can be maintained quite

in consonance with the proper rules of interpretation of the provisions of the Constitution.

(24) There is nothing in the Constitution regarding the scope and nature of the prerogative writs named in Article 226. We have still to understand

the concept of these writs only in the manner in which they have been issued by the Court of the King''s Bench in England. But the Supreme Court

in the decision in T.C. Basappa Vs. T. Nagappa and Another, has uttered the following caution,

In view of the express provisions in our we to Constitution need not now look back the early history or the procedural technicalities of these writs

in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order

or issue a writ in the nature of certiorari, in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental

principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law.

This language was quoted with approval by a subsequent decision of the Supreme Court iii Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and

Others, , wherein Venkatarama Aiyar, J., observed as follows:

It will be in consonance with these principles to hold that the High Courts have power under Article 226 to issue writs of certiorari for quashing

the decision of Election Tribunals, not-withstanding that they become functus officio after pronouncing the decisions.

We have already pointed out that in England certiorari did not lie to quash judgments of Civil Courts. In the view that the Supreme C6urts at Fort

William, Bombay and Madras established as in the years 1774 and 1800 imbibed the jurisdiction of the Court of King''s Bench in the matter of

issuing prerogative writs they did not acquire the power to quash judgments of subordinate Civil Courts for the plain reason that the Court of

King''s Bench in England never pretended to have any such power. On the other view that the power of the Court of King''s Bench in England to

issue writs was wide and comprehensive enough to quash judgments of Civil Courts and on the further assumption that the Supreme Courts

established in India also had such power, it can yet be held, that the establishment of a hierarchy of Civil Courts with grades of pecuniary

jurisdiction commencing from the Munsiff''s Court at the base and the High Court at the apex, and the provision of first appeals, second appeals

and revision petitions from one Court to another, tended to deprivation of the right to issue prerogative writs in regard to subject-matters which

came, within the cognizance of such Courts. Certiorari can no doubt be taken away only by express negative words. But where statutes are

enacted making specific provisions regarding the remedies of an aggrieved suitor in civil proceeding before a duly constituted court, the residuary

power of the Crown to exercise Its prerogative must he deemed to be in abatement or acquiescence. This is the principle laid down by the House

of Lords in 192o AC 508.

(25) Our attention has been drawn to the decision of the Supreme Court in M. M. B. Catholicos v. Paul Avira AIR 1959 SC 31, in support of the

plea that a petition under Article 32 of the Constitution is maintainable to quash the judgment of a Civil Court. In that case an application was filed

under Article 32 of the Constitution by persons belonging to a party called ""Catholics"" party playing for a writ of certiorari for quashing the

judgment and decree passed by the High Court of Nerala. Referring to this application at page 37 Das, C. J., observed as follows:

That application has also come up for hearing along with the appeal. Sri T. N. Subramania Aiyar took a preliminary objection as to the

maintainability of the appeal on the ground that al-though the final judgment of the Kerala High Court was passed on 13-12-1956, it only restored

the decree of the majority of the Travancore High Court pronounced on 8-8-1946, and accordingly that being a decree passed before the

commencement of the Constitution no appeal would lie under Art. 133 of the Constitution. This objection however was not seriously pressed by

learned counsel and would, at any rate, not affect the maintainability of Article 32 Petition. In the circumstance nothing further need be said on this

preliminary objection, except it is rejected as untenable.

It is difficult to understand the above observations as laying down the principle of law that a judgment of a Civil Court is amenable to the

jurisdiction of the Supreme Court under Article 32 or to an application under Article 226 in a State High Court.

(26) In Daryao and Others Vs. The State of U.P. and Others, Daryao v. State of U. P. the Supreme Court dealt with a batch of six petitions under

Art. 32 of the Constitution. These petitions were resisted by the respondents therein, who raised the preliminary objection against the

maintainability of the petitions on the ground that in each case the petitioners had moved the High Court for a similar writ under Article 226, and

the High Court had rejected the said petitions. The argument on behalf of the respondents was the dismissal of a writ petition filed by a party for

obtaining an appropriate writ in the High Court creates the bar of res judicata against a similar petition filed in the Supreme Court under Article 32.

The Supreme Court held that the decision of the High Court pronounced on the merits of the petitions under Article 226 is a bar to the making of a

subsequent petition on the same grounds under Article 32. In the course of his judgment Gajendragadkar, J., observed as follows:

In other words an original petition for a writ under Article 32 cannot take the place of an appeal against the order passed by the High Court in the

petition filed before it under Article 226. There can be little doubt that the jurisdiction of this Court to entertain applications under Article 32 which

are original cannot be confused or mistaken or used for the appellate jurisdiction of this court which alone can be invoked for correcting errors in

the decisions of High Courts pronounced in writ petitions under Article 226. Thus on general considerations of public policy there seems to be no

reason why the rule of res judicata should be treated as inadmissible or irrelevant in dealing with petitions filed under Article 32 of the Constitution.

This pronouncement of the Supreme Court clearly emphasises two things, namely, that the jurisdiction to issue writ, it does not matter whether it is

the Supreme Court exercising its powers under Article 32 or whether it is the State High Court exercising its powers under Article 226 is not the

cloak of an appeal in disguise and that the exercise of jurisdiction is only an original jurisdiction quite distinct and separate from the exercise of

appellate jurisdiction. Though the present question did not arise for consideration before the Supreme Court, we are of opinion that there is a clear

indication in the judgment of the Supreme Court that no attempt should be made to use the instrumentality of writ to correct or quash judgments

and orders of Civil Courts which are cap-able of being dealt with, in the exercise of appellate or revisional powers of the Court, competent to issue

writs.

(27) In In Re: Gangalakurthi Pattisam and Others, , a Division Bench of this Court, Rajamannar, C. J. and Venkatarama Aiyar, J., considered the

scope of Article 227 of the Constitution and held that the power of superintendence of the High Court includes judicial interference in proper

cases. At page 15 the learned Chief Justice observed as follows:

According to him (the learned Advocate-General) Article 227 must be confined to administrative superintendence. The fallacy in this argument is

that it completely overlooks the fact that Article 226 does not contemplate interference by the High Court with orders of the subordinate courts,

whereas Article 227 expressly mentions courts as well as ""tribunals"". Moreover, the argument that Article 226 is wide enough to confer a sort of

revisional jurisdiction on the High Court in respect of the orders of judicial and quasi-judicial tribunals and therefore Article 227 should not be

understood as conferring more or less similar powers is without force having regard to the consensus of judicial opinion of the effect and scope of

section 107 of the Government of India Act and section 15 of the Charter Act which existed alongside of the express provisions in the CPC

conferring revisional jurisdiction in the High Court.

(28) This is a clear dictum, though obiter, that Article 226 does not clothe the High Court with jurisdiction to quash the orders of subordinate

courts and we respectfully agree with it.

(29) The sharp distinction in language between the two Articles, Article 226 and Article 227, Article 226 using the words ""person or authority"" and

Article. 227 using the words ""courts and tribunals"" cannot be overlooked or brushed aside. A court is certainly not a judicial person; Raghubar

Singh v. Jai Indra Bahadur Singh, 46 Ind App 228: AIR 1919 PC 55, and it is doubtful whether the word ""authority"" occurring in Article 226,

wide as it is in its concept, can be deemed to connote a court. If these words used in Article 226 are strictly construed it would be very difficult to

bring within its area duly established courts, civil or criminal. But the writ jurisdiction was nothing new which was created for the first tune by the

Constitution and is really a continuation of the preexisting jurisdiction with a new adaptation under Article 226. We do not with to rest our decision

merely on the language of Article 226 as compared with the language of Article 227, in holding that orders of subordinate Civil Courts are not

susceptible of prerogative writ of prohibition and certiorari.

(30) The position may now be summed up as follows. The Court of King''s Bench in England had not the jurisdiction to issue prerogative writs

against judgments and orders of Civil Courts where a writ of error or a procedure by way of appeal lay. The Supreme Court of Madras

established under the Charter Act of 1800 which had the same jurisdiction in respect of prerogative writs as the court of King''s Bench in England

could not exercise jurisdiction in respect of orders of subordinate Civil Courts. The High Court of Madras, formed under the Letters Patent of

1862, which took the place of the Supreme Court in respect of the writ jurisdiction, has no further or greater Powers than that of the Supreme

Court conferred under the Letters Patent. The authoritative pronouncement of the Judicial Committee in the AIR 1943 164 (Privy Council) was

that the writ jurisdiction of the Madras High Court was confined to its ordinary original limits and did not extend to the mofussil, outside the City of

Madras. It was never claimed that judgments and orders of subordinate Civil Courts even within the City limits of Madras were. amenable to

prerogative writs of prohibition and certiorari. A writ of mandamus is however the subject-matter of a specific provision u/s 45 of the Indian

Specific Relief Act. The Constitution has extended the jurisdiction of the Madras High Court to issue writs even-outside the City limits but limited

to the confines of the State territory. The Constitution has not in any way enlarged the scope and content and nature and operation of the

prerogative writs. The phraseology adopted in Articles 226 and 227 of the Constitution would seem. to indicate that judgments of subordinate

courts should not form the subject-matter of writs under Article 226 presumably be-cause the suitor or party aggrieved by such judgments and

orders has got remedies by way of appeal and revision as efficacious as the remedy by way of writs.

(31) We are of opinion that the order of the Assistant city civil Judge, Madras, cannot be quashed by the issue of a writ of certiorari and this court

cannot issue a writ of prohibition to forbear-the Assistant City Civil Judge from proceeding, further in the matters before him. W. P. No. 913 and

914 of 1961 are therefore not maintainable.

(32) It will now be convenient to refer to the facts which led to the filing of the writ petitions. Tarachand, Naraindas and Sunderdas were three

brothers. Sunderdas, the youngest brother died in a motor accident on 23-11-1959 leaving behind him his widow, Vimala, and two children,

Mohini and Tricumdas alias Ashok. The mother of these three brothers is one Hiral Bai. Vimala has a brother by name Issardas Lulla. The wife of

Tarachand is one Hari and the wife of Naraindas is one Saraswathi. These three brothers were refugees from Pakistan. Sunderdas acquired the

goodwill of an evacuee firm of Messrs. Ahmed Abdul Karim and Brothers from the Custodian of Evacuee Property. This evacuee firm had import

and export licenses and by reason of the allotment Sunderdas acquired the right to exploit those licenses. A firm of partnership was constituted

under the name and style of Mathani and Co., in which the partners were the late Sunderdas, the wife of Tarachand and the wife of Naraindas.

This firm carried on business of export and import in art silk, yarn, piecegoods, foodgrains and had the head-quarters of the business at No. 1/9

Murugappan Asari Street, Triplicane. Mathani and Co., also carried on business in textiles, liquors, Stationery, watches etc., at No. 40 Easwaran

Koil St., and at No. 38 Duplex St., Pondicherry. Issardas Lulla, the brother of Vimala and the brother-in-law of the late Sunderdas who also

claimed to be a refugee from Pakistan obtained from the Custodian of Evacuee Property the good-will of an evacuee named Hussain-Kassim

Dadha who had an import and export licence from the Government. A firm named ""Oceanic Agencies"" came to be constituted in which Lulla and

his sister Vimala were partners. The said business was carried on at Premises No. 75 Triplcane High Road, Madras. The import, export licence

acquired in the name of Lulla from the Custodian of Evacuee property was the foundation of the constitution of this partnership firm, Oceanic

Agencies. Vimala had a 7/8th share in this firm and her brother Lulla had a one-eighty share.

(33) Hiral Bai, the mother of the three brothers, filed a suit in the City Civil Court, Madras, O. S. No. 928 of 1960 impleading Vimala as the first

defendant, her two children as defendants 2 and 3, for partition and separate possession of the assets of the late Sunderdas inclusive of the

business of Mathani and Co. The suit was filed by Tarachand, one of the sons of Hiral Bai as the power of attorney agent of his mother. As the

mother of late Sunderdas, the plaintiff in that suit claimed a one fourth share in the assets of the deceased conceding the balance of 314 share to the

defendants in that suit. The business of Mathani and Co., was treated as the sole and exclusive asset of Sunderdas. In that suit an application for

the appointment of a Receiver was moved and ultimately the parties agreed that Vimala and an advocate named Mr. M. L. Hanumantha Rao can

function as joint Receivers, in respect of the business of Mathani and Co. The business of ""Oceanic agencies"" does not form part of the subject-

matter of that suit.

(34) Hari, the wife of Tarachand, instituted the suit O. S. No. 1603 of 1961 on the file of the City Civil Court at Madras, impleading Vimala, the

wife of Sunderdas as the first defendant, her-children as defendants 2 and 3, her mother-in-law Hiral Bai as the 4th defendant, Issardas Lulla

(Vimala''s brother) as the filth defendant, Saraswathi, the wife of Naraindas as the sixth defendant, and Hanumantha Rao, the Receiver in the other

suit, as the 7th defendant. The relief asked for in this suit is for a declaration that the business of Messrs. Oceanic Agencies forms part of Mathani

and Co., that the plaintiff is entitled to a 71/2 annas share therein, that defendants 1 and 5 should render true and proper accounts of all assets

outstandings, profits, earned from the business of Mathani and Co., and Oceanic Agencies, and that the plaintiff should be paid such moneys as

may be found due and payable to her after the taking of such accounts. The claim of-the plaintiff to have the business of Oceanic Agencies being

treated as part of the business of Mathani and Co., rests on the allegation that Issardas Lulla, the 5th defendant, in whose name-the business of

Oceanic Agencies is being carried on is only a benamidar of the late Sunderdas. The plaintiff has also averred in the plaint that the business of

Oceanic Agencies must be deemed in law as the property of the firm of Mathani and Co., under the provisions of section 16 of the Indian

Partnership Act. Both the first defendant and the filth defendant claimed that the business of Oceanic Agencies is the sole and exclusive business of

the fifth defendant, and that the plaintiff has no right to claim a share of the assets and profits of that firm. Defendants 4 and 6 support the plaintiff

and assert that the fifth defendant is only a ""namelender"" to the business of Oceanic Agencies. Pending the suit, the plaintiff applied for the

appointment of a Receiver in I. A. No. 604 of 1961 to take over the business of Mathani and Co., and Oceanic Agencies and to administer the

said business for the benefit of the claimants interested therein. This application was stoutly resisted by the defendants 1 and 5. But the learned City

Civil Judge by his order dated 21-7-1961 appointed the fifth defendant, Issardas Lulla and Sri W. S. Venkataramanujulu Advocate as joint

receivers for carrying on the business of Oceanic Agencies. As the business of Mathani and Co., was already in charge of two receivers,

defendants 1 and 7 in this suit, no further appointment was made in respect of that business.

(35) This order was canvassed in appeal by the 5th defendant, by preferring C. M. A. No. 24 of 1961 on the file of the Principal City Civil

Madras. An application was moved before the Principal City Civil Judge for suspension of the order of appointment of receiver by the trial Court

but that application was ultimately dismissed. Thereupon the fifth defendant preferred the two writ petitions W. P. Nos. 913 and 914 of 1961,

seeking to quash the order of the trial Court appointing a receiver by the issue of a writ of Certiorari and seeking a writ of prohibition restraining

the trial court from proceeding further in the matter. An application was moved in this court for transfer of the Appeal, C. M. A. 24 of 1961 from

the file of the City Civil Court to this court to be heard and disposed of along with the two writ petitions. The C. M. A. was transferred to this

court and taken on as C. M. A. No. 218 of 1961 as the parties eventually agreed to the appeal being disposed of along with the writ petitions.

(36) Rule nisi was issued by a learned Judge of this court in W. P. Nos. 913 and 914 of 1961 and the order of appointment of the receiver passed

by the learned City Civil Judge was also suspended from operation. Thereupon an application was filed by Sarsawathi, the 6th defendant in the suit

for a declaration that the rule nisi issued by this court is null and void as this Court had no jurisdiction to entertain prerogative writs against

judgments and orders of Civil Courts. The fifth defendant in the suit objected to the maintainability of the application and contended that a rule nisi

was properly issued.

(37) It is unnecessary for us to go into the question whether an application will lie under the inherent powers of this court to a Division Bench for a

declaration that an order of a single Judge issuing rule nisi is null and void. On behalf of the petitioner who moved this application considerable

reliance was placed upon the decision of this Court in District Magistrate Vs. K.C. Mammen Mapillai and Others, . The following observation at

p. 154 (of Mad LJ): (at p. 127 of AIR) was quoted in support of the contention that void orders can be declared to be so under the inherent

powers of this court:

In substance we can see no difference between a declaration that a certain order is void, and direction that it should be quashed we do not

consider that we are being moved to exercise any appellate or revisional jurisdiction but we do consider that if the order of our learned brother

was passed without jurisdiction, this High Court has inherent powers to set aside his order. This court''s inherent powers to make such orders may

be necessary to prevent abuse of process of any court or otherwise to secure the ends of justice are saved by section 561-A of the Criminal

Procedure Code.

In the present instance the provision of law invoked is section 151 Civil Procedure Code. We feel considerable difficulty in holding that a rule nisi

issued by a learned Judge of this Court can be quashed or declared to be void in the exercise of the inherent power. The issuance of a rule nisi is

not a judgment appealable under cl. 15 of the Letters Patent. A non-appealable order of a single Judge cannot form the subject-matter of a

decision before a Division Bench. We however express no final opinion on this point; but we have to observe that should occasion arise in future

the correctness of the observations contained in the judgment in District Magistrate Vs. K.C. Mammen Mapillai and Others, may have to be

considered. We cannot say that the rule nisi issued in the two petitions is void and totally lacking in jurisdiction, so as to call for a declaration that it

is non est. This application has therefore to be dismissed as not being maintainable.

(38) In the view we have taken that writs of certiorari or prohibition do not lie against orders, judgments and proceedings of Civil Courts the two

Writ Petitions, W. P. Nos. 913 and 914 of 1961 have to be and are hereby dismissed.

(39) We have now to deal with C. M. A. No. 218 of 1961. The learned trial Judge has taken the view that the case is a fit one for the appointment

of a Receiver as there is a scramble between the parties to share the profits arising from the quotas issued from time to time to Mathani and Co.,

and to Messrs. Oceanic Agencies. The import licence which is the foundation for the business of Mathani and Co., was issued in the name of

Sunderdas. The import licence which is the life of the business of Oceanic Agencies stand issued in the name of Issardas Lulla, the fifth defendant.

There are two deeds of partnership filed in the case. The first is Ex. A. 1 dated 2-1-1956. This document embodies the partnership arrangement

between Sunderdas, Hari (Plaintiff) and Saraswathi (the 6th defendant). The plaintiff is entitled to a share of 71/2 annas, while Sunderdas and the

6th defendant are each entitled to a 41 annas share under the terms of this document. The preamble to the document recites, that Sunderdas has

been allotted by the Government of Madras the goodwill of Messrs. Ahmed Abdul Karim and Bros., an evacuee con-ducting business in

Anderson Street, Madras. The other partnership deed is Ex. A. 2 dated 29-4-1957 and this constitutes a firm between the two partners, the first

and the fifth defendants. The first defendant is entitled to a 7/8th share and the fifth defendant to a 1/8th share. The subject-matter of this

partnership is the business of ""Oceanic Agencies"". This document recites as follows:

The business of Messrs. Oceanic Agencies now carried on at 75 Triplicane High Road Madras is our property and the goodwill of ""Sri

Hoosen Kasam Dadha obtained from the Custodian of Evacuee Property, Madras.

The second party (5th defendant) doth hereby declare that such acquisition of the good-will was through the efforts and the moneys invested by

the husband of the first party.

The business of the said concern has been established by the husband of the first party.

Clause 7 of the, document provides that in addition to the said share of 1/8 of profit the second party will also be paid from that business a sum of

Rs. 75 per month towards his expenses. The contention of the fifth defendant is that the partnership arrangement embodied in Ex. A. 1 was never

acted upon. anon that the recitals in the partnership deed Ex. A. 2 are not correct. Despite terms of Ex. A. 2 the fifth defendant would contend that

he is the sole and exclusive proprietor of the business of Oceanic Agencies. The plaintiff avers that Ex. A. 1 partnership was implemented and

acted upon by the parties thereto, and that Ex. A. 2 partnership does not confer the status of a partner to the fifth defendant, as he was only a

benamidar and as he came to be included in the partnership business because of the fact that the import licence was obtained in his name.

(40) Mr. M. K. Nambiar, learned counsel for the appellant in the C. M. A. urged that even the plaint averments do not establish any prima facie

case to warrant the appointment of a receiver. The only averment in the plaint is that the fifth defendant is a benamidar for Sunderdas, and not that

he is a benamidar for the partners of the firm of Mathani and Co. Learned counsel contended that even on the footing that the fifth defendant was a

benamidar for Sunderdas only the heirs of Sunderdas, namely, the first defendant, her children and the fourth defendant can claim any interest in the

business of Oceanic Agencies, and the plaintiff who is only the wife of Sunderdas''s brother can have no claim. The allegation in the plaint that the

business of Oceanic Agencies must be deemed to be part of the business of Mathani and Co., under the provisions of section 16 of the Indian

Partnership Act is devoid of particulars necessary to attract that provision. The contention of the fifth defendant is that there is no, proof that the

business of Oceanic Agencies was a rival and a competing business set up by Sunderdas so as to enable the plaintiff to invoke the provision,

section 16 of the Act. The fifth defendant has also raised a plea that the alleged partnership in regard to the business of Oceanic Agencies is illegal

being in contravention of the provisions of the Import Trade Control Act and rules.

(41) Learned counsel on both sides have very elaborately argued the question whether the. business of Oceanic Agencies is the sole business of

the fifth defendant, whether the partnership of Mathani and Co., was given effect to and acted upon and whether the constitution of the two firms

of Mathani and Co., and Oceanic Agencies into partnership concerns on the foundation of individual import licenses granted to Sunderdas and the

fifth defendant was legal. Everyone of these questions is a material issue arising in the suit. It is obviously undesirable that we should say anything at

this stage, which could be quoted hereafter so as to prejudice either side at the trial in any way. At this stage when only an interlocutory application

for the appointment of a Receiver has been made and the evidence germane and relevant to the vital issues arising in the case may not have been

let in we should guard our-selves against expressing any opinion, however tentative it may be on any of the questions arising for decision in the suit

as it would tend to embarrass the learned trial Judge who has in any event to dispose of the matter sooner or later.

(42) The only question that arises for determination is whether on the pleadings in the suit and in the interlocutory application, a receiver can be

appointed to be in charge of the business of Messrs. Oceanic Agencies. The provisions of Order XL Rule 1 CPC by using the words ""just and

convenient"" confer a wide and elastic power on the court to appoint a receiver. The court need not be uneasy in appointing a receiver in an

appropriate case as no narrow words confine or restrict its discretion. But a free hand in the matter should not lead to arbitrariness and a large

discretion does not mean an unregulated or capricious exercise of discretion. ""Just and convenient"" in Order XL CPC have reference not to one

party or the other, but to what the court feels to be proper in the circumstances of the case. It is not a proper exercise of judicial discretion to

appoint a receiver on the ground that no party will be harmed by such appointment. The court should avoid such a cavalier approach to the

question, as a receiver disturbs the person in possession of the subject-matter of the suit.

(43) In Benoy Krishna Mukherjee v. Satishchandra Giri, 55 Ind 131: AIR 1928 PC 49, Viscount Sumner laid down the following criterion in

regard to application for the appointment of a receiver at p. 133 (of Ind App): (at p. 50 of AIR).

On an interim application for a receivership such as this, the court has to consider whether special interference with the possession of a defendant

is required, there being a well founded fear that the property in question will be dissipated or that other irreparable mischief may be done unless the

Court gives its protection. Such an order is discretionary and the discretion is in the first instance that of the Court in which the suit itself is

pending.

(44) The object and purpose of the appointment of a receiver is to protect and preserve the subject-matter of the lis for the benefit of the parties

who may ultimately be found entitled to it in part or in whole.

(45) The claim of the fifth defendant in O. S. No. 1603 of 1961 that he is the sole and exclusive owner of the business of Oceanic Agencies is

prima facie opposed to the specific terms of Ex. A. 2 to which he was a party. The plaintiff has charged Sunderdas with having started the business

of Oceanic Agencies in the name of his brother-in-law Issardas Lulla. As the plaintiff is invoking the benefit of section 16 of the Indian Partnership

Act, it is implicit that she is claiming the business of Oceanic Agencies as being a rival and competing business started by Sunderdas, one of the

partners under Ex. A. 1 whether any fund of the business of Mathani and Co., was diverted and made use of in the business of Oceanic Agencies

is a fact which has not so far been established, possibly because of the disinclination on the part of the fifth defendant to produce the books of

accounts of Oceanic Agencies for the scrutiny and inspection of his opponents. The fourth defendant in the suit who is supporting the plaintiff is

certainly an heir of her son Sunderdas and she will be entitled to a share in such interest as Sunderdas had in the business of Oceanic Agencies. Ex.

A. 2 reveals that it was out of the efforts of Sunderdas that the business of Oceanic Agencies came to be constituted. It is not unlikely that

Sunderdas made his wife a partner in the business of Oceanic Agencies instead of himself for reasons of his own. A receiver can be appointed in

proper cases even suo motu by the court in. proper cases to prevent an apprehended dissipation and waste of the subject-matter of the suit.

(46) The plaintiffs has a prima facie case to be tried in the action as there is documentary evidence to show that she is a partner of Mathani and

Co., and as there is reason to believe that the business of Oceanic Agencies, which is of the same nature as the business of Mathani and Co., is a

competing business carried. on by the late Sunderdas himself being a partner of Mathani and Co. The claim of the 5th defendant that he is the sole

owner of the business of Oceanic Agencies, is in the very teeth of the terms of the partnership embodied in Ex. A. 2, a document to which he

himself was a party. The plaintiff and defendants 4 and 6 are adversely affected by the assertion of a hostile title against them by the fifth defendant.

It is obvious that the persons who claim a share in the business of Oceanic Agencies or who claim to have the accounts of the said business taken

can no longer trust the fifth defendant. If a partner has so misconducted himself as to forfeit the confidence and trust of the other partners or if a

surviving partner insists on carrying on the business employing therein the assets of his deceased partner there is a good ground fox the Court to

interfere with the business by appointing a receiver. The defence of the fifth defendant based upon the alleged illegality of the partnership agreement

embodied in Ex. A. 2 is not a serious hindrance or impediment in the matter of appointing a receiver. The contract of partnership formed under Ex.

A. 2 is not ex facie in contravention of the provisions of the Import. Trade Control Act and the regulations therein. The rule of appointment of

receiver in cases in which the defendant in a partnership action belies on illegality as a defence is thus set out by Lindley on Partnership, 11th Edn.

at page 661:

If the illegality is established, the court cannot, it is conceived, interfere. But if a receiver is applied for before the trial of the action, and the court is

not satisfied that relief can ultimately be given, it will appoint a receiver to protect the property pendente lite, and the character of the defence will

go far to remove any scruples the Court might otherwise have in interfering. Thus, in Hale and Hale 4 Beav. 369 the plaintiff and the defendant had

carried on the business of brewers for many years in partnership. together. The plaintiff filed a bill for a dissolution, and the defendant then denied

the plaintiff''s right to any account or relief whatever, on the ground that the partnership was illegal. Having. thus set the plaintiff at defiance. and

claimed the whole property himself, Lord Langdale, on that ground alone, appointed a receiver and manager, although the plaintiff was only a

dormant partner, and the defendant''s management of the business was in no way complained of.

We are of opinion that there are sufficient grounds for the appointment or a receiver, but there is no necessity to appoint a third party receiver

singly or in conjunction with the fifth defendant, as such a-course is likely to affect the efficient and smooth running of the business. The rights of the

plaintiffs and persons who are'' supporting her will be-amply safeguarded if the fifth defendant alone is appointed as receiver on his furnishing

security in a sum of Rs. 50,000/- to the satisfaction of the trial court within one month from today.

(47) The order of the trial court will accordingly be modified by cancelling the appointment of Sri W. S. Venkataramanujulu as joint receiver and

maintaining the appointment of the fifth defendant as receiver subject to the condition of his furnishing security in the manner aforesaid. C. M. A.

No. 218 of 1961 is therefore partly allowed.

(48) The trial of the suit is expedited and the learned City Civil Judge will try and dispose of the suit by fixing a date convenient to the parties in

December 1961 or in January, 1962.

(49) The parties will bear the respective costs in the civil miscellaneous appeal as well as in the writ petitions.

(50) Appeal partly allowed.