1. This is a rule obtained by G. S. Joshi against order passed by a Subordinate Judge of Delhi Mr. Banwari Lal dated 23rd February 1953 vacating an order of stay which he granted in favour of the present petitioner on the 21st of February 1953.
2. The facts of the case are that Shub Chand, one of the present opposite parties, had let the premises situate in Queensway Lane, New Delhi, to the Birla Cotton Spinning and Weaving Mills, limited who in turn had let it to the petitioner Joshi who was in possession when a suit was filed by the landlord on the 22nd January 1952 for ejectment. The only defendant in that case was the Birla Cotton Spinning and Weaving Mills, Limited. This suit was tried by Mr. Banwari Lal Subordinate Judge, and as there was no appearance by the defendant, the suit was decreed ex parte on the 20th June 1952.
3. On the 5th July 1952 the landlord took out execution and obtained a warrant of ejectment and sought to evict Josht, the present petitioner, who offered resistance, and an application was made under Order 21, Rule 97 of the Code of Civil procedure. This petition was allowed and an order for possession was issued on the 21st February 1953. Joshi then applied to the executing Court for time, so that he can file a suit under Rule 103 of Order 21 of the Code of Civil Procedure. This was on Saturday, and he was allowed time till Monday the 23rd February 1953.
4. It is alleged that soon after the making of this order the Subordinate judge left the Court which was about 12-30 p.m. Joshi then made a request to the Reader to give a copy of the order or some such document which would show that an order of stay had been passed which the Reader did. He went then to the Administrative Judge Mr. Glan Das Jain and requested him to stay the operation of the warrant for possession. He refused to give the stay but allowed time till 11 a.m. on the 23rd February 1953 to get the order signed by the subordinate Judge Mr. Banwari Lal.
5. On the 23rd February 1953 an application was filed tn the Court of Mr. Banwari Lalfor a copy of the stay order. The decree-holderapplied for vacating the order, and on the same day, i.e., the 23rd February 1953, the Judge passed an order saying that as the time had already expired it was not necessary to take any further action on the application.
6. On the same day i.e., the 23rd February 1953 a suit under Rule 103 of Order 21 was filed and was made over to Mr. Thukral, another Subordinate Judge, who, I am informed, was sitting in the same building as Mr. Banwari Lal. Learned Advocate for the petitioner asked the Judge to whom the case had been made over to grant an injunction for which an application had been made. It is alleged that the Judge after finishing the case that he was hearing left his Court room went up to the retiring room of Mr. Banwari Lal and came back after forty-five minutes. Ultimately, a stay order was granted at about 1-15 p.m.
7. Our attention has been drawn to the reports on the back of the warrant where it is stated that the decree-holder had asked the bailiff to break open the doors and that he (the decree-holder) would be responsible for that and then pos-session was taken of the house through the bailiff, and there is also a complaint on the back of that very warrant by Joshi saying that the possession was taken in his absence.
8. Learned counsel wants this Court to issue a writ under Article 226 on three grounds --, firstly, that the order which was made by Mr. Banwari Lal on the 23rd February 1953 vacating the order of stay was not made in good faith, secondly, that it was an arbitrary order as the exercise of discretion, if it was the exercise of discretion at all, was done in an arbitrary manner, and thirdly, that It is an erroneous order. He also submits that it is within the jurisdiction of this Court to interfere with such an order under the supervisory powers of this Court under Article 226.
Ho relied upon various judgments, the first being K. P. Mushran v. B. C. Patil, AIR 1952 Bom. 235 (A), where it is stated in the head note that ordinarily the Court issues a writ of certiorari to correct the decisions of Subordinate Courts and Tribunals when those decisions are given in excess of jurisdiction, or in the irregular exercise of jurisdiction, or, when in the exercise of jurisdiction, rules of natural justice are violated. The Court has the jurisdiction to issue a writ of certiorari even to correct an error of law provided that error is apparent on the face of the record. This was a ease under the Payment of Wages Act and not a case of a civil Court trying civil causes.
9. The next case relied upon is a Judgment of the Calcutta High Court in Ratan Chandra Nayak v. Adhar Biswas, AIR 1952 Cal. 72 (B), but that was a case which was directed against a per. son whose duty it was to issue licenses under the West Bengal Rice Mills Control Orders, 1949, and similarly the third case which has been relied upon is an earlier judgment of the Bombay High Court, P. N. Nayak v. Bejen Dadiba Bharucha, AIR 1951 Bom. 408 (O). in which case the authority exercising; jurisdiction was the Custodian.
10. Our attention has also been drawn to a passage from Halsbury'a Laws of England, Hail-sham Edition, Volume 9, page 744, Para 1269. where it is stated that a writ of mandamus can be issued by the High Court of Justice to any person or inferior Court requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. I express no opinion as to the powers of the Court issuing writs in cases ororders passed by Courts subordinate to the HighCourts, because in my opinion the three grounds on the basis of which the petitioner has come to this Court have not been established.
On these facts it cannot be said that the Judge who vacated the order of stay was acting mala fide or the exercise of his discretion was arbitrary, nor that it was an order which on the face of it was erroneous. In view of this I do not find that any case has been made out for the issuing of any writ and I would therefore dismiss this petition and discharge the rule. The opposite party will have their costs. Counsel fee Rs. 100/-.
11. I agree.