Nirmal Tiwary and Others vs The State of Bihar and Others

Shiva Kirti Singh, J.—Heard learned counsel for the appellants in respect of office objection regarding maintainability of this Letters Patent Appeal filed under Clause 10 of Letters Patent of this court. The order under appeal dated 18.7.2012 passed in CWJC No. 9222/2011 discloses that the appellants had filed an application under Article 227 of Constitution of India for quashing the orders dated 23.2.2011 and 16.3.2011 passed in Title Suit No. 5/2005 whereby learned Munsif 4th, Rohtas at Sasaram rejected the application filed by the writ petitioners seeking transposition of names of two plaintiffs to the category of defendants.

The issue of maintainability of Letters Patent Appeal in relation to an application under Article 227 of Constitution of India which may lie on account of curtailment of scope of revision under CPC is no longer res Integra. Recently a Division Bench of this court in the case of Suresh Prasad Gupta vs. Shyam Sunder Tibrewal & Ors. (LPA No. 1166/2012) disposed of on 31.8.2012 to which one of us (Shiva Kirti Singh, J.) was a party examined the issue and relying upon Division Bench judgment of this court in the case of Durga Devi and Others Vs. Vijay Kumar Poddar and Others and judgment of the Supreme Court in the case of Sadhana Lodh Vs. National Insurance Company Ltd. and Another, held that in the given facts where remedy u/s 151 of CPC has been restricted by enactment, only a petition under Article 227 of Constitution of India would lie and not under Article 226 of Constitution of India. The labeling of the petition is not material. The law is well settled that orders passed under Article 227 of Constitution of India by a single Judge are not appealable under Clause 10 of Letters Patent of this court.

Learned counsel for the appellants has placed reliance on a Division Bench judgment of this court in the case of Smt. Savitri Sharma Vs. The State of Bihar and Others . Similar reliance was placed upon that judgment in the case of Suresh Prasad Gupta (supra) and the Division Bench held that in that case on account of peculiar facts the writ petition had been held as one under Article 226 of Constitution of India and that case cannot be treated as having laid down any proposition of law to the contrary. It may be noted here that in the case of Savitri Sharma (supra) the earlier Division Bench judgment in the case of Durga Devi (supra) was neither cited nor considered and hence the judgment was per in curium.

It may be useful to refer to judgment of the Apex Court in the case of Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, wherein the Apex Court has considered the scope of Article 226 vis-a-vis Article 227 of Constitution of India in paragraphs 47 and 48. Paragraph 51 of the said judgment notices the law that a writ petition, i.e., a petition seeking exercise of power under Article 226 of Constitution of India is a remedy in public law. It may be useful to extract the said paragraph to appreciate the full import of the law which warrants that ordinarily matters between private individuals arising out of civil suits cannot be entertained under Article 226 of Constitution of India:--

It is well settled that a writ petition is a remedy in public law which may be filed by any person but the main respondent should be either the Government, governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with the State can be respondents in a writ petition. Under the Phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform.

Hence, the petition before teamed single Judge was required to be labeled under Article 227 of the Constitution of India. As per settled law reiterated in the case of Shalini Shyam Shetty (supra) no Letters Patent Appeal will lie against judgment or order in such a matter. Following the consistent view of this court as reiterated by a Division Bench of this court in the case of Suresh Prasad Gupta (supra), this appeal is held to be not maintainable. It is, accordingly, dismissed.