Subhash Chand Gupta and Others vs Commissioner of Police and Others

Gita Mittal, J.—By way of the present writ petitions, the petitioners seek the following prayers:

(i) a writ of certiorari quashing the order dated 22.2.2005 passed by Ms. Samita Garg, Civil Judge, Delhi in suit No. 315/2002, Annexure-E, the extent she has ordered that Local Police to seal the whole of the property bearing No. 1220, Gali Kashmirian, Kucha Pati Ram, Bazar Sita Ram, including the residential portion in occupation of the petitioners and their family members and shown and demarcated in Yellow in the site plan annexure-F.

(ii) a direction to the local police and the SHO Police Station Hauz Qazi, to immediately remove the seal and the locks from the residential premises in occupation of the petitioners and their family members and shown and demarcated Yellow in the site plan annexure-F

(iii) issue a further direction to the local police not to obstruct the petitioners and their family members from entering and occupying their respective residential portion as mentioned above;

(iv) and pass any other order or direction as may be deeded fit and proper in the interest of justice.

Briefly stated the facts giving rise to the present petition are to the effect that the respondent No. 4 Ms. Gita filed a suit for permanent injunction against the petitioner No. 5 Sanjay Gupta seeking permanent injunction alongwith an application under Order 39 Rule 1 and 2 CPC being civil suit No. 315/2002. The suit was filed on 18th June, 2002 seeking the following prayers against petitioner No. 5:

i) pass a decree of injunction thereby restraining the defendant, his agents, employees, servants, attorneys, relatives/family members, including his father and brothers, representatives, or any one else claiming for him and on his behalf from visiting/coming the Shop No. 3080, Bazar site Ram, Delhi-110006, as well as Workshop of the said S uprex Drycleaners situated at 1220, Gali Kashmirian, Delhi-6 and further from taking money from the said business under threats as also from interfering in the smooth conduct of the aforesaid business by the plaintiff and her agents;

ii) award the costs of this suit to the plaintiff and against the defendant;

iii) pass such other and further orders as are deemed fit and proper in the facts and circumstances of the case.

The prayers made in the interim application under Order 39 Rule 2 were to the following effect:

I) Pass an ex-parte ad-interim order in favour of plaintiff and against the defendant thereby restraining the defendant, his agents, employees, servants, attorneys, relatives/family members, or any one else claiming for him and on his behalf from visiting/coming the Shop No. 3080, Bazar Sita Ram,Delhi-110006, as well as Workshop of the said Suprex Drycleaners situated at 1220, Gali Kashmierian, Delhi-6 and further from extorting money from the said business under threats as also from interfering in the smooth conduct of the aforesaid business by the plaintiff and her agents;

II) pass such other and further orders as are deemed fit and proper in the facts and circumstances of the case and to meet the ends of justice.

This application of the respondent No. 4 was dismissed vide an order dated 4th June, 2003 passed by the Learned Civil Judge. The respondent No. 4 carried this order in an appeal which was allowed by the Senior Civil Judge on 8th April, 2004 making the following directions:

Accordingly, application of respondent/plaintiff Late Sh. Shyam Lal Gupta in suit No. 316/02/99 is dismissed and application of appellant Smt. Gita Gupta is allowed. It is directed under the peculiar circumstances of the cases that unless all legal heirs decides to run shop in question, the suit property that is shop and workshop be locked and the keys be deposited in the Ld. Trial Court as there is perennial, multi furious even criminal litigation between the parties increasing day by day. With this order appeal of appellant stands disposed.

It appears that the petitioner No. 5 Sh. Sanjay Gupta filed a civil (Miscellaneous) No. 395/2004 in this Court which was dismissed vide an order dated 1st December, 2004.

The matter was thereafter listed before the Learned Trial Judges on the 9th December, 2004 when the following order directing the SHO to implement the order of the Appellate Court was made:

09.12.04

Present: Sh. N.K. Gupta, Advt. For pltff. Sh. Shad Anwar, Adv. For deft. SI Somvir Singh & SI Sanjeev Kumar, P.S. Hauz Kazi, Delhi.

Report submitted by Shri Somvir Singh, SI, PS Hauz Kazi, Delhi. It is reported that the defendant himself locked the workshop and shop which is the subject matter of the present suit and handed over the keys to him. The keys of the suit property have been brought in the Court.

An application is also filed on behalf of Smt. Kum Kum Gupta and Smt. Seema Gupta stating that their jewellery, cash and other items are lying in the suit property and necessary directions be issued to the police or plaintiff to enable them to repossess the said belongings.

Heard.

SHO, PS Hauz Kazi is directed to allow Smt. Kum Kum Gupta, Smt. Seema Gupta and any other person, whose belongings, jewellery, cash and any other items are kept in the suit property and, thereafter, the keys of the suit property be deposited.

Keys of the suit property have been given to SI Somvir to compliance of the order. The application is disposed of accordingly.

Copy of the order be given dasti.

To come up for further proceedings on 10.12.04.

It is pertinent to mention that the police official thereafter proceeded to seal the workshop situated at property No. 1220 Gali Kashmirian, Kucha Pati Ram, Bazar Sita Ram, Delhi and deposited the keys with the court. In the proceedings held on 10th December, 2004, the respondent No. 4 Gita Gupta informed the court that only one room had been locked by the police and that the entire premises were lying open. A prayer was made for appointment of a local commissioner. The order dated 10th December, 2004 records as follows:

10.12.04

Present: Sh. N.K. Gupta, Cl. For pltff. Sh. Somvir, SI, PS Hauz Qazi,Delhi is also present Action taken report filed. Report perused. It is reported that workshop situated at property No. 1220, Gali Kashmirian, Kucha Pati Ram, Bazar Sita Ram, Delhi has been locked and keys thereof are being deposited with the court.

Counsel for the plaintiff submitted that only one room has been locked by the police and the entire premises is lying open and he submitted that Local Commissioner be appointed for ascertaining factual position. However, keeping in view the fact that the file has been transferred by the orders of Hon''ble District Judge for the purpose of disposal of application under Order 39 Rule 1 & 2 CPC, therefore, counsel for the plaintiff is at liberty to make the said request before the concerned court.

SI Somvir Singh has deposited six(6) keys of the shop and workshop which is the subject matter of the suit. Be taken on record.

File be sent to the concerned Court immediately.

Learned Counsel for the petitioners has stated that the suit related to such portion of the premises No. 1220, Gali Kashmirian, Kucha Pati Ram, Bazar Sita Ram which was being utilised earlier for drycleaning business and its workshop. The plaint nowhere disclosed the exact portion which was being so used and vague averemnts to this effect were made in this plaint. It is also submitted that the plaintiff/respondent No. 4 herein had not filed any site plan alongwith the plaint.

On 3rd January, 2005 the following order was recorded by the trial Judge:

03.01.05

Present : Counsel for the parties.

It is submitted by the counsel for the plaintiff that despite the orders of the Court dated 08.03.04, the premises bearing No. 1220, Gali Kashmerian, Delhi-110006 (except one room) is lying open and accordingly, a local commissioner be appointed for ascertaining the factual position.

A perusal of the record shows that the police had submitted its compliance report dated 1012.2004 wherein it has been stated that the entire premises has been sealed and the keys of the same were also deposited in the Court alongwith report.

On Shri Subhash Gupta has appeared on behalf of the defendant, who has submitted that the premises bearing No. 1220, Gali Kashmerian, Delhi-110006 has some residential portion as well in which the defendant is residing till date. Counsel for the plaintiff has stated that the defendants is residing therein but the perusal of the record shows that he has neither mentioned in the plaint nor has filed any site plan showing that the suit premises has some residential portion as well.

Counsel for the plaintiff is directed to file comprehensive site plan of the suit property on or before next date of hearing. Put up for further proceedings on 24.01.05.

The present petitioner No. 1 had appeared before the court on behalf of the defendant and had informed the court that the premises No. 1220 also included a residential portion and that the petitioner No. 5, defendant in the suit w as also residing therein. The court also observed that there is no such mention in the plaint nor any site plan had been filed. Accordingly, the court directed the plaintiff to file a comprehensive site plan of the suit property before the next date of hearing. It appears that thereafter the plaintiff filed a plan shows several rooms, kitchen etc. One tin shed is shown as a workshop while other rooms have been shown against which the names as Sandeep, Manish etc have been mentioned. This plan bears a date of 24th January, 2005.

The case was listed before the learned trial Judge on the 3rd February, 2005 when the court recorded the statement of the SI Somvir Singh who had sealed the workshop and had visited the premises in dispute. The order made on 3rd February, 2005 is as follows:

3.2.05

Present: None for pltff. Sh. B.B. Gupta, Cl. For def. Called against Present: Counsel for the plaintiff. SI Somvir Singh in person Shri B.B. Gupta, counsel for the defendant It is stated by the SI Somvir Singh that in compliance of the order dated 10.12.2004, the tin room shed of Shri Subhash Gupta has been sealed by him. He has also placed on record the site plan. He further states that the remaining portions are residential and hence, the same was not sealed. The counsel for the defendant has submitted that the site plan filed by the counsel for the plaintiff on record is not the correct site plan and seeks time to file his own site plan showing the correct factual position.

A perusal of the order dated 08.03.2004, shows that the Appellant Court had directed for the sealing of the workshop only and at that time the question whether the workshop includes the residential area or not was not raised before Appellant Court.

Keeping in view the controversy which has arisen, I deem it appropriate that the present matter be taken alongwith the contempt application on 22.02.2004. In the meantime, the counsel for the defendant is directed to file his site plan and the counsel for the plaintiff is directed to furnish the affidavit stating therein that the property bearing No. 1220, Gali Kashmirian is only a commercial premises and no residential portion is situated therein.

At this stage, the counsel for the plaintiff has supplied the copy of the site plan filed by him to the counsel for the defendant.

Put up on the date fixed that is 22.02.2005.

SI Somvir also filed a report before the court dated 10th December, 2004 stating that Sh. Sanjay Gupta and his father Sh. Subhash Chand Gupta had locked the premises and handed over six keys to SI Somvir Singh who had taken he same into possession pursuant to a seizure memo and deposited them in the police station malkhana.

Sh. Sanjay Gupta, petitioner No. 5 herein who was defendant in the suit filed objections dated 22nd February, 2005 wherein it was, inter alia, stated as follows:

That the plaintiff has however filed a site plan for the first time before this Hon''ble Court in respect of property No. 1220, Gali Kashmerian, Bazar Sita Ram, Delhi showing the workshop of M/s Suprex Drycleaners and on perusal of the said site plan it is evident that the dimension of the workshop has not been shown therein and in fact the said site plan is absolutely wrong and incorrect besides the same is also not in accordance with the existing situation of the property.

That in property No. 1220, Gali Kashimirian, Bazar Sita Ram, Delhi the workshop which was being run by Shri Shyam Lal Goel is shown in the site plan annexed with this application in dark red colour although the police officials have wrongly sealed one room which is also shown in red colour which room has been the residential room. IT is equally important to mention that in property No. 1220, Gali Kashmerian, Bazar Sita Ram, Delhi a portion shown in blue colour is in possession of Shri Gopal Krishan who is using the same for workshop purposes and there has not been any dispute with regard to said workshop in the present suit. Similarly the portion shown in green colour in the site plan is the residential portion in possession of Smt. Subhdara Devi and her sons namely Ashok Kumar, Mukesh etc. which is also the residential premises and the yellow portions also residential which is in possession of Shri Subhash Gupta and his son Sandeep Gupta etc. It is once again submitted that the plaintiff has not created any dispute in the present case with regard to any residential premises therefore, the plaintiff cannot take any relief in respect of portion shown in blue, green, yellow as well as light red colour portions shown in the site plan.

That in fact the plaintiff herself is not aware about the factual position of the said premise as she was neither in possession of the same nor was ever running any shop or workshop there and for the said reasons the site plan filed by her is totally wrong and incorrect and intention of the plaintiff is to get the residential portion or property No. 1220, Gali Kashmirian, Bazar Site Ram, Delhi sealed on the basis of the orders passed by the Hon''ble Senior Civil Judge, Delhi by wrongly claiming the said portion to be the workshop.

These objections were placed before the court on the 22nd February, 2005. An application dated 22nd February, 2005 for impleadment under the provisions of Order 1 Rule 10 CPC was also filed by Sh. Gopal Krishan Kotwalwala on the pleas that the plaintiff/respondent No. 4 herein had wrongfully filed a plan showing portion of the property No. 1220, Gali Kashmirian which is owned and is in possession of the applicant. It was stated that the applicant was carrying on the business in the property and that his property was not connected with M/s Superex Dry Cleaning and its workshop. A prayer was made for impleadment in the suit inasmuch as the applicant''s rights were being affected without notice and hearing.

Several documents in support of occupation and residence of other persons in the nature of bills of authorities, election identity cards etc are forthcoming on the trial court record.

The learned trial judge issued notice on this application for impleadment. On the 22nd February, 2005 without examining the pleas raised on behalf of the petitioner No. 5 or the applicant Sh. Gopal Krishan Kotwalwala who was not even impleaded as a party to the proceedings, the court observed that only one room had been sealed by SI Somvir Singh and that a controversy has been raised to the effect that in addition to the workshop, there were residential portions occupied by different persons in the property No. 1220. It was observed that such controversy was not raised by any of these parties before the Appellate Court or before this Court and therefore keeping in view the orders passed in those proceedings, it would lead to multiplicity of litigations if the property No. 1220, Gali Kashmirian is not sealed. Accordingly, the SHO was directed to seal the entire property and to give his compliance report before the next date of hearing.

Pursuant to the directions made on the 22nd February, 2005, it has been stated that the entire premises including the portions occupied by different persons as residences was sealed by the Additional SHO of police station Hauzqazi namely Inspector Darban Singh alongwith SI Somvir on Wednesday the 9th March, 2005.

The petitioners are all stated to be residents of the house No. 1220, Gali Kashmirian, Kucha Pati Ram, Bazar Sita Ram, Delhi-110006. The residents included several ladies and minor children who have been residing in the premises. The petitioners and their family members were not permitted to take out anything from their houses and were turned out on to the road. The premises were sealed without the children being permitted to take any woollen clothes or books even which are all lying inside the premises. Since such time, the petitioners and their family members are on the road without any shelter and protection.

This order passed by the learned Civil Judge on the 22nd February, 2005 has been impugned before this Court inter alia on the ground that the same is perverse, without jurisdiction and arbitrary and passed in violation of the procedural requirements and rules of natural justice. The order was passed against the petitioner Nos. 1 to 5 who are stated to be in occupation of the different portions of the property for long periods if even 25 years.

The respondent Nos. 4 and 5 have appeared before this Court and has vehemently objected to the maintainability of the writ petition. Replies were filed and also written submissions and synopsis were filed. The respondents have placed reliance on the judgment of the Apex Court reported at 2005 (4) Scale 116 entitled Swami Atmananda v. Swami Bodhananda and Ors. to contend that no writ petition would lie impugning a decree of a civil court. These respondents have also placed reliance on the judgment of the Apex Court reported at The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway, and State of Uttar Pradesh and Others Vs. Maharaja Dharmander Prasad Singh and Others, in support of his submissions that this Court has no jurisdiction to interfere with the order of the first Appellate Court and the learned Trial Judge. Several other submissions have been made to contend that the petitioners have never resided at the suit property. The respondent No. 4 has a grievance principally against the petitioner No. 5. However, perusal of the written submissions before the court shows that the respondent Nos. 4 and 5 have admitted and accept that the ration cards of petitioner Nos. 1, 2 and 5 continues to be at the premises No. 1220, Gali Kashmirian, Delhi.

In order to deal with the principal objections of the petitioner with regard to the maintainability of the present writ petition, the issue stands answered by a judgment of the Apex Court reported at Surya Dev Rai Vs. Ram Chander Rai and Others, wherein it was held as under:

Upon a review of decided cases and a survey of the occasions, wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, maybe, by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo moto as well.

xxxxx

The above quoted sentence from Ganga Saran case cannot be read torn out of the context. All that the Full Bench has said is that while exercising certiorari jurisdiction over a decision of the court below refusing to issue an order of injunction, the High Court would not, while issuing a writ of certiorari, also issue a mandamus against a private party. Article 227 of the Constitution has not been referred to by the Full Bench. Earlier in this judgment we have already pointed out the distinction between Article 226 and Article 227 of the Constitution and we need not reiterate the same. In this context, we may quote the Constitution Bench decision in T.C. Basappa v. T. Nagarappa and Province of Bombay v. Khushaldas S. Advani as also a three-Judge Bench decision in Dwarka Nath v. ITO which have held in no uncertain terms, as the law has always been, that a writ of certiorari is issued against the acts or proceedings of a judicial body conferred with power to determine questions affecting the rights of subjects and obliged to act judicially. We are therefore of the opinion that the writ of certiorari is directed against the act, order or proceedings of the subordinate court, it can issue even if the lis is between two private parties.

Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:

(1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115 of the CPC cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or coursing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise by the court in a manner not permitted by law and failure of justice or grave injustices has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justices or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correcting is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in re appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only gives suitable directions so as to guide the subordinate court as to the manner in which it would act or proceeds thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.

This Court in a judgment rendered on the 26th May, 2004 in Civil Writ Petition No. 3677/2003 entitled S.N. Aggarwal v. State NCT of Delhi and Ors. delivered by my learned brother Mukul Mudgal, J also considered this issue. The petitioner in that writ petition had challenged the directions made by the learned Additional District & Sessions Judge dated 23rd October, 1999 in a suit for recovery of money. The court deleniated the scope of a writ of certiorari which could be by a superior court to an inferior court commanding the latter to send the record of a particular case. I may appropriately set out the references recorded by my learned brother in this judgment:

Mr. Subramanium, the learned amicus curiae has delineated the scope of certiorari to be a writ issued by a Superior Court to an inferior court or Tribunal commanding the latter to send up the record of a particular case. He further referred to the definition of certiorari by H.W.R. Wade'' and C.F. Foresyth as follows:

Certiorati is used to bring upto into the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed that is to say, it is declared completely invalid, so that one need respect it.

The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration of justice, but it is a private complaint which sets the crown in motion. (Administrative Law, 8th Edn., page 591)

He has also referred to De Smith, Woolf and Jowell who defined the certiorari and its scope in the following words:

For a century or more it was generally assumed that certiorari and prohibition would issue only in respect f "judicial acts" or administrative acts in the performance of which the competent authority was under an express or implied duty to "act judicially" (or fairly). Because certiorari and prohibition were the main judicial remedies in administrates law it used to be very important to be able to identify "judicial acts" and situations where the courts could be expected to hold that here was a duty to act judicially. However, a judicial recognition, that the rules of natural justice do not import an inflexible procedural code of uniform applicability and the increasing frequency with which judges fall back upon the vaguer duty to act fairly have shifted the focus of the argument from whether there are any implied procedural obligations to be complied with before a power may lawfully be exercised in determining their content in the particular context. It is now beyond doubt that certiorari and prohibition are not confined to reviewing decisions of a judicial nature. (Judicial Review of Administrative Act, 5th Edn, page 702).

In T.C. Basappa Vs. T. Nagappa and Another, , it was laid down that a writ of certiorari is granted when the court has acted without jurisdiction or in excess of its jurisdiction. It was also held that a writ of certiorari may also be issued if the court or tribunal acted in flagrant disregard of the rules or procedure or in violation of principles of natural justice where no particular procedure is prescribed. It has also been held that an error in the decision or determination may also be amenable to a writ of certiorari subject to the fact that the error is manifest and apparent on the face of the proceedings i.e. when its based on clear ignorance or disregard of the provisions of law but a mere wrong decision is not amenable to a writ of certiorari.

I find that in the aforestated judgment, the court had noticed the principles laid down in The Custodian of Evacuee Property, Bangalore Vs. Khan Saheb Abdul Shukoor, etc., which were to the following effect.

(1) Certiorari will be issued for correcting errors of jurisdiction.

(2) Certiorari will also be issued when the court or tribunal acts illegally in the exercise of its undoubted jurisdiction as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice.

(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of the fact reached by the inferior court or tribunal, even if they be erroneous.

(4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard o the provisions of law. In other words, it is patent error, which can be corrected by certiorari but not a mere wrong decisions.

After referring to several other authoritative pronouncements of the Apex Court, this Court in W.P.(C) 3677/2003 interalia laid down the following guidelines:

In Syed Yakoob Vs. K.S. Radhakrishnan and Others, it was held that when a question is decided without giving opportunity of hearing to a party affected, a writ of certiorari can be granted. Similarly in Harbans Lal Vs. Jagmohan Saran, it was held that certiorari shall issue if there is any breach of principles of natural justice.

12.(a). The Corpus Juris Secundum has laid down that a writ of certiorari is a writ from a superior court to an inferior court seeking a record of a particular case and as per Wade and Forsyth (supra) a writ of certiorari is meant to question the decision of the inferior Tribunal or Authority to test its validity and the limits of jurisdiction within which the power has been exercised. The ADJ is a court inferior in hierarchy to this Court and the writ of certiorari can issue, questioning the validity of its decision.

(b) Similarly De Smith, Woolf and Jowell has also noted that a certiorari will issue where there is a duty to act judicially in functioning while performing a judicial act. It is not in dispute that learned ADJ was performing a judicial act when he passed the impugned judgment. In fact De Smith, Woolf and Jowell have gone further and held that certiorari is not confined to reviewing orders of judicial nature.

(c) The position of law laid down by Hon''ble Supreme Court in T.C. Basappa (supra) clearly is to the effect that a writ of certiorari can issue if the Tribunal or court has acted in violation of principles of natural justices. Similarly in Syed Yakoob (supra) the Supreme Court held that writ of certiorari can issue when a party affected by the order has not been given opportunity to be heard.

(d) In Ram & Shyam Co. (supra) it has been held that existence of an alternate remedy even if its is assumed that seeking of leave to appeal is an effective adequate remedy, is not a bar to the exercise of writ jurisdictions.

Concluding thus, the court issued a writ of certiorari quashing and setting aside certain directions made in a judgment arising out of a suit by an Additional District Judge.

In view of such legal position, the objection of the respondent Nos. 4 and 5 as to the maintainability of a writ petition against orders of a trial judge is without legal basis.

Learned Counsel appearing for the respondent Nos. 4 and 5 has vehemently contended that the petitioner No. 5 is not a resident of the property and has placed reliance on averments made by this petitioner in other proceedings. Having regard to the parties as arrayed by the respondent No. 4 before the trial court, I find that the plaintiff/respondent No. 4 has itself admitted that the suit property was the address and resident of the petitioner No. 5.

It has further been contended that the petitioners did not make any such objections either before the trial court or before the Appellate Court. I find that the plaintiff-respondent No. 4 never took a stand that the entire property was housing the business and workshop in its pleadings no such stand as has been taken in the present proceedings was taken before this Court in the earlier proceedings.

In this behalf, I find force in the submissions made on behalf of the petitioner to the effect that the order which had been passed by the Appellate Court which was sustained by this Court was to the effect of sealing only the drycleaning business and the workshop. The residential portion was not part of the suit claim nor any order had been passed for sealing in respect thereof.

The respondent Nos. 4 and 5 have vehemently objected to the maintainability of the present writ petition also on the ground that other than the petitioner No. 5, the other petitioners were not a party to the suit.

It is settled law that any person aggrieved by an order passed by any court or authority would be a person aggrieved and would have the right to invoke judicial remedy seeking setting aside of such order.

Perusal of the record of the trial court also shows that the plaintiff-respondent No. 4 failed to file the affidavit as directed vide the order dated 3.2.05 to the effect that the property in dispute No. 1220 was only a commercial premises and that no residential portion is situated therein.

In the instant case, the trial court also stood informed about the rights of the petitioners. An application for impleadment had also been filed by one person. However, no consideration was given to any of these factors nor was their any adjudication upon the application for impleadment permitted to passing of the impugned order.

As a result, valuable rights of the petitioners have been jeopardised. The petitioners have been put out of residence and are stated to be on the road without their clothes or any other belongings including books of children. In these circumstances, the petitioners are persons aggrieved by the order and have every right to maintain the present writ petition.

So far as the judgments cited by the respondents are concerned, I find that the pronouncement of the Apex Court in 2005 (5) Scale 116 related to a challenge to a final decree for which an appeal is statutorily provided. In the instant case, the petitioners have no remedy inasmuch as the order passed has not been passed on any specific application based on a specific statutory provision. The same is not appealable under the CPC and as such the petitioners have no other option or remedy other than by way of the present writ petition.

In State of Uttar Pradesh and Others Vs. Maharaja Dharmander Prasad Singh and Others, etc. the Apex Court had held that judicial review under Article 226 cannot be converted into an appeal and that the same is directed not against the decision but is confined to the examination of the decision making process. It was further held that scope of judicial review would be confined to examination of whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account of relevant factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision. The scope of judicial review of the decision making process includes examination, as a matter of law, of the relevance of the factors considered.

In the instant case, I have held that the learned trial Judge has failed to take into account all relevant factors and has proceeded to pass an order which was wholly beyond the scope of the suit before it. In taking such a decision, the learned trial judge has erred in failing to hear the effected parties and has violated the provisions of the Code of Civil Procedure. The issues raised before me are fully within the parameters of the scope of judicial review as laid by the Apex Court in the aforestated judgment.

In The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway, the court was concerned with examination of the exercise of powers by the High Court in revisional jurisdiction. The ratio laid down into his court has no application to the case before me

In order to effectively adjudicated upon the subject matter of this writ petition, I deemed it necessary to call for the record of the lower court which has been made available to me. Both parties have relied on different portions of the record in support of their contentions. On the 4th April, 2005, keeping in view the controversy raised in the present matter, I had recorded the following order:

Learned Counsel for the parties have been heard for some time. The main controversy in this matter arises out of the impugned order dated 22.2.2005 whereby the Trial Court directed sealing of the entire premises bearing No. 1220, Gali Kashmirian, Kucha Patiram, Bazar Sitaram, Delhi by the concerned SHO and directed submission of the compliance report on or before the next date of hearing. Learned Counsel appearing for the petitioner has pointed out that only a small portion of the first floor of the said premises bearing No. 1220, Gali Kashmirian, Kucha Patiram, Bazar Sitaram, Delhi was housing the workshop of M/s. Superex Dry Cleaners and that the remaining portion was residential. It is also submitted that the plaint dated 18.6.2002 filed by the present respondent No. 4 nowhere disclosed the location and extent of the premises which was being actually used for the purpose of dry cleaning and the workshop. The plaint filed by the respondent No. 4 has also arrayed the petitioner No. 5 as residing at the premises No. 1220, Gali Kashmirian, Kucha Patiram, Bazar Sitaram, Delhi. It has also been pointed out that there were other tenants/occupants in the ground and first floor of the premises. One of the tenants Sh. Gopal Krishan Kotwala had filed an application before the Court for impleadment in the suit which application was placed before the learned Trial Judge on the 22.2.2005. In complete disregard of the aforestated position the order dated 22.2.2005 was passed varying the earlier order made on 4.6.2003 and directions for sealing the entire premises beyond the workshop were made by the Trial Judge without going through any pleadings or the documents before it and without hearing parties effected.

On a query being put by the learned Counsel for respondent No. 4, he is unable to submit the plan which was placed before the Trial Judge on the basis of which the order dated 22.2.2005 was passed. There is no explanation forthcoming for arraying petitioner No. 5 as a resident of the premises No. 1220, Gali Kashmirian, Kucha Patiram, Bazar Sitaram, Delhi if he was not actually residing there. It is not disputed that the extent and portion wherefrom the business and workshop were being carried out in the premises No. 1220, Gali Kashmirian, Kucha Patiram, Bazar Sitaram, Delhi was not mentioned in the plaint or the application under Order 39 Rule 1 & 2 CPC by the plaintiff. It is an admitted position that no site plan was filed before the Trial Judge on 4.6.2003 when the order on the injunction application was made.

The date of filing of the plan relied upon in the order dated 22nd February, 2005 is also not available.

The admitted position today is that the premises have been sealed and the keys are lying with the Trial Judge. It is also vehemently contended that several families Constituting of more than 11 members who were occupying different portions of the premises of the property bearing No. 1220, Gali Kashmirian, Kucha Patiram, Bazar Sitaram, Delhi are out of residence and on the streets in view of the sealing effected by the concerned SHO pursuant to the order dated 22.2.2005. Learned Counsel for the petitioner has requested that in view of the aforestated position, the petitioners are being handicapped in as much as the belongings etc of the petitioners are stated to be lying in different portions of the premises No. 1220, Gali Kashmirian, Kucha Patiram, Bazar Sitaram, Delhi. An oral request has been made for appointment of the local commissioner for verifying the extent of the premises which was put to use for the workshop and for the residence of the petitioners and the tenants.

Learned Counsel for the respondents has raised strong objections to the grant of such a prayer and has contended that the writ petition itself is not maintainable and ought not to be entertained.

The respondent No. 4 is not in a position to place the correct position of the facts placed before the Trial Court. The petitioner has contended that there was no application before the court for variation of the order dated 4.6.2004 that the learned Trial Judge has acted completely without jurisdiction and in flagrant disregard of the rules and procedure and also in violation of principles of natural justice. I am, therefore, of the prima facie view that this petition is maintainable. In this behalf, my views are fortified by the judgment of this Court dated 24.5.2004 rendered in W.P(C) No. 3677/2003 entitled S.N. Aggarwal v. State (NCT of Delhi) and Ors.

Having regard to the rival contentions, I am also of the view that the present case is a fit case for appointment of local commissioner to inspect the ground and first floor of the premises No. 1220, Gali Kashmirian, Kucha Patiram, Bazar Sitaram, Delhi and to submit a report with regard to the users of the different portions. The petitioner and the respondent shall furnish the plans respectively filed by them on the court records to the learned local commissioner. I appoint, Mr. Rajiv Kumar, Advocate who is present in court as the local commissioner to conduct the inspection in terms of the above and place a report before this Court within three days. He shall prepare a sketch and may take photographs.

The Local Commissioner shall be entitled to a fee of Rs. 15,000/- and expenses to be paid by the petitioners and shall be at liberty to engage a draftsman and photographer.

It is submitted that the keys are deposited with the learned trial judge. The learned Trial Judge shall release the keys to the local commissioner for undertaking the inspection. The keys shall be deposited by the local commissioner before the Trial Judge immediately after completion of the inspection. It is also directed that the concerned SHO shall depute the concerned police official to assist the local commissioner in securing release of the keys and undertaking the inspection. Parties shall cooperate in the inspection to be conducted by the local commissioner. The learned local commissioner shall notify the parties through their counsel of the date and time of the inspection.

The matter shall be taken up for hearing on 14.4.2005.

The record of the Trial Court shall also be summoned through a special messenger for the next date of hearing.

Copy of this order be given dasti under the signature of the court master of this Court.

Subsequently, time for execution of the commission was extended vide an order recorded on 11th April, 2005.

The learned local commissioner has placed before this Court a detailed report dated 15th April, 2005 which interalia makes the following observations:

xxxxx The main gate of the property was sealed with SS Seal as informed by Sub Inspector, Mr. Sanjiv Kumar. Thereafter the seal was opened and the undersigned alongwith SI Sanjiv Kumar, Mr. S.C. Pandey, Mr. Manish Gupta, Mr. S.C. Gupta, Mrs. Manju Gupta, Mr. Siri Chand, Mr. Ajay Saxena (Draftsman) and Mr. Aryan (Photographer), entered the suit premises. After entering the property the undersigned alongwith aforesaid persons visited different portions of the property and took photographs and Mr. Ajay Saxena (Draftsman) with the help of the site plan provided by the counsel for the petitioners Sh. R.K. Saini identified the different portions of the property and also made necessary changes as exited at the suit property in the site plan.

The different portions inspected by undersigned have been shown clearly in the site plan prepared by Mr. Ajay Saxena (Draftsman) and wherein the portions in possession of the petitioners have been shown in yellow colour and areas in possession of other persons are residential in character. The areas marked blue in the plan is in possession of Mr. Gopal Kishan and the same are used as workshop for manufacturing electric switches, therefore the user is commercial in nature. The site plan also shows the possession of the different persons of the different portions of the suit property. The portion marked red in the site plan is a sealed work shop for drycleaning purposes which as informed was sealed pursuant to the orders of Hon''ble Supreme Court. The site plan furnished by the counsel for petitioners containing necessary changes and the site plan prepared by draftsman are annexed hereto and marked as annexure-P3 (colly).

That from the inspection carried out and the articles lying in various portions of the property it is very much apparent that the user of the property is residential except the tin shed in possession of Mr. Gopal Krishan which is being used for manufacturing electric switches. Apart from this Mr. Mukesh Dubey who is in possession of part of the first floor, also carries out screen printing work at a small scale from his portion but from inspecting the property it can be concluded that the dominant user is residential only.

Therefore based upon the visit to the suit property it can be concluded that the major portion of the suit property is being used for residential purposes except the tin shed and the store in possession of Mr. Gopal Kishan, which are being used for manufacturing electric switches and storage purposes.

Thus, the local commissioner has physically verified the existence of residential portions, availability of the residential goods of the petitioners and also the exact portions which were in their possession prior to its sealing. The report of the local commissioner also supports the existence of these residential portions even on date.

I find that the plaint and application of the respondent No. 4 gave no details. No plea accompanied the plaint. The appellate order also was concerned with the business only. There was never any issue raised nor prayer for sealing the residential portion. The plan filed by the respondent No. 4 itself showed the workshop in only one portion. Names of several other persons were mentioned on the plaint of the petitioner which appears at page 481 of the trial court record. The respondent Nos. 4 and 5 failed to file the affidavit directed to be filed vide order dated 3.2.05. Despite of this material being before the learned trial Judge, the same was not considered and the impugned order was made on the 22nd February, 2005.

In the instant case, the petitioner Sh. Gopal Krishan had also filed an application for impleadment of the under Order 1 Rule 10 of the CPC. The applicant before the trial Judge and the persons effected had a legal right to be heard in the matter.

The learned trial Judge therefore gravely erred in not following the settled principles of law to the effect that no order ought to be made against a person who is not a party before the suit or in respect of property which is not the subject matter of the litigation. In any case, no order effecting rights of parties can be made without hearing them. It has been contended and I find that the same has resulted in apparent travesty of justice inasmuch as the petitioners have been dispossessed from their residential property.

It has been authoritatively held that an appropriate writ issue even against an order of the civil court in the aforestated circumstances. Failure to follow the legal provisions, violation of principles of natural justice and failure of justice resulting to parties have been held as sufficient cause for issuance of a writ. The order impugned before me suffers from such infirmities. I therefore hold that in the facts of instant case, the present writ petition is maintainable.

So far as the merits of the petition are concerned, perusal of the plaint shows that the prayer was based on the following assertions:

Mrs. Geeta Gupta wife of Shri N.K. Gupta r/o 3148, Lal Darwaza, Bazar Sita Ram, Delhi-110006 plaintiff Mr. Sanjay Gupta S/o Mr. Subhash Chand Gupta Resident of 1220, Gali Kashmerian, Delhi-110006 Defendant xxxxxx

That the plaintiff is the sole beneficiary of entire the estate left behind by the deceased Shri Shyam Lal Goel (hereinafter referred to as the said deceased) by virtue of Will dated 25th day of April, 1995, which, interalia, included the property and premise bearing No. 3080, Bazar Sita Ram, Delhi, and the business conducted therein under the name and style of M/s Suprex Dry Cleaners. A Succession case is also pending adjudication with regard to the said Will of late Shri Shyam Lal.

xxxx

That the cause of action first accrued to the plaintiff, on various dates when defendant and his accomplices/henchmen have started acting illegally, criminally and against the interest of the plaintiff who is the sole beneficiary of the deceased and the plaintiff has filed various police reports and complaints. The cause of action further arose on 18.4.2002 when the plaintiff has terminated the services of the defendant and he was called upon to stop coming to the aforesaid business shop premises and desist from extorting money from the said business under threats as also stop interfering in the smooth conduct of the aforesaid business. It further arose when the defendant and his accomplices, despite having received the said letter has started coming to the shop and extorting the money from the Cash box lying in the said shop premises. Therefore the cause of action is a continuing one.

xxxx

i) pass a decree of injunction thereby restraining the defendant, his agents, employees, servants, attorneys, relatives/family members, including his father and brothers, representatives, or any one else claiming for him and on his behalf from visiting/coming the Shop No. 3080, Bazar site Ram, Delhi-110006, as well as Workshop of the said Suprex Drycleaners situated at 1220,Gali Kashmirian, Delhi-6 and further from taking money from the said business under threats as also from interfering in the smooth conduct of the aforesaid business by the plaintiff and her agents;

ii) award the costs of this suit to the plaintiff and against the defendant;

iii) pass such other and further orders as are deemed fit and proper in the facts and circumstances of the case.

Perusal of the averments on behalf in the plaint shows that there was no description of the property in terms of the number of rooms, floors etc. The respondent No. 4/plaintiff did not show where the business of drycleaning was located or which portion housed the workshop. Even in terms of area and measurement, nothing was stated and no site plan was filed with the suit. Same was the position in the application under Order 39 Rule 1 & 2 CPC.

The plaintiff had arrayed the petitioner No. 5 as a defendant and shown the property No. 1220 as the defendant''s residence and address.

The senior Civil Judge in his judgment dated 8th March, 2004 had held that the suit property i.e. the shop and workshop be locked and the keys be deposited before the trial court. There was no direction whatsoever to lock any portion other than the shop and the workshop. The residential portion were not the subject matter of the plaint and therefore no interim order could have been passed in respect thereof. The sub-inspector Somvir Singh who went to the suit property had made a statement on 3rd February, 2005 to the effect that he had sealed the workshop and the remaining portion of the property was residential. Objections to the plaintiff''s contentions were filed before the learned trial court and defendant had also so stated in the order recorded on 3rd January, 2005. An application for impleadment was pending before the learned trial court by one of the residents on the 22nd February, 2005.

Perusal of the order sheet shows that on an oral objection of the plaintiff to the effect that only one room had been sealed, the court passed the order of 22nd February, 2005 after refusing to examine the objections of the defendant and the applicant under Order 1 Rule 10 of the Code of Civil Procedure. Despite having it been brought to its specific notice that the plaint had been filed only in respect of the business and workshop and there was no lis whatsoever with regard to the residential portions or with regard to the entire property 1220, the learned trial Judge directed the entire property to be sealed. This was wholly beyond the plaint.

It is to be noticed that even the plaintiff/respondent No. 4 had made a request that a local commissioner be appointed on the 3rd January, 2005. If this prayer had been granted, the correct position would have been brought before the court.

In any case in view of the bald averments in the plaint, the present case, no local commissioner was necessary. The suit related only to the drycleaning business and workshop. The plan filed by the plaintiff pursuant to the order dated 24th January, 2005 showed only one tin shed as a workshop. No other portions of the property could have been sealed.

It is settled law that no order can be passed which would effect rights of third parties or of persons who are not a party to the suit. Such persons having approached the court, no order could have been passed without hearing them and adjudicating upon their claim. There was no direction by the Appellate Court on 8th March, 2004 to effect sealing of residential portions or the entire property No. 1220. There was no averment by the plaintiff nor any material on record to the effect that the entire property was a workshop. Despite specific orders no affidavit was filed by the plaintiff. In these circumstances, the order dated 26th February, 2005 is without jurisdiction and contrary to settled principles of law. In directing its implementation, the learned trial Judge has caused displacement of several families who are admittedly residents in the property.

On the other hand, the local commissioner appointed by this Court has conclusively established that the property sealed under the impugned orders includes large areas which are residential. The learned local commissioner has also set out the names of the persons who were occupying and residing therein.

For all the foregoing reasons, the order dated 22nd February, 2005 cannot be permitted to stand. Accordingly, I hereby issue a writ of certiorari quashing and setting aside the order dated 22nd February, 2005 whereby the learned trial Judge directed the sealing of the entire property No. 1220, Gali Kashmirian, Sita Ram Bazar, Delhi.

It is made clear that the seal of the portion marked in red colour in the plan filed by the local commissioner with his report dated 15th April, 2005 being the sealed workshop for drycleaning purposes in the site plan shall be so maintained. The remaining residential portions shall be desealed and possession thereof handed over forthwith to the occupants who have been noticed in the same report.

The concerned SHO shall depute the police officials to seek release of the keys from the trial court in order to forthwith comply with the directions made today. The keys of the sealed portion shall be deposited by the police with the learned trial Judge after compliance of the order has been made.

This writ petition is allowed in the above terms.