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Abdul Kareem Vs. D.M.O., Ernakulam - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberReview Petn. No. 80 of 1973
Judge
Reported inAIR1974Ker167
ActsConstitution of India - Article 226; Code of Civil Procedure (CPC) , 1908 - Order 47, Rule 5
AppellantAbdul Kareem
RespondentD.M.O., Ernakulam
Advocates: P.C. Chacko, Adv.
Cases ReferredBalan v. District Collector
Excerpt:
- .....it is thus clear that special procedure has been provided in the rules of the high court for writ proceedings under article 226 of the constitution and, therefore, the provisions of the civil p. c. cannot apply in terms to such proceedings. this, however, does not mean that the princinples contained in the code of civil procedure would have no application at all to the writ proceedings. those provisions of the civil p. c. which do not come in conflict with the rules made by the high court of rajasthan and which can be suitably made applicable to the writ proceedings will apply to writ proceedings. in other words, even though the provisions of the civil p. c. may not apply with full rigour to writ proceedings, writ proceedings would nonetheless be governed by the principles.....
Judgment:

Sadasivan, J.

1. A question of jurisdiction arises in this review and as Khalid, J., thought the question has to be decided by a Division Bench this has come up before us on an order of reference passed by the learned Judge.

2. Writ Appeal 75 of 1973 was decided by a Division Bench composing of Ragha-van C. J., and Khalid, J. Since then Ragha-van C. J., retired from service and the application for review was, therefore, presented before Khalid, J. The O. P. from which the Writ Appeal arose was one under Article 226 of the Constitution to quash certain orders passed by the District Medical Officer of Health and the Director of Health Services against the petitioner one P. K. Abdul Ka-reem, a hospital attender. The learned Single Judge dismissed the O. P. Against it the Writ Appeal was filed before a Division Bench and that was dismissed in limine. It is against the order of the Division Bench that the review has been filed. Under Order XLVII, Rule 5, Civil Procedure Code where one of the judges who passed the decree or order continues to be attached to the court at the time the application for review is presented can hear the application; but the question here is whether the review itself is maintainable. Section 141, Civil Procedure Code lays down that the procedure provided in the code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. Article 226 of the Constitution has conferred an extraordinary jurisdiction on the High Court and the mode of exercising the same is governed by Rules that the court has framed. A Division Bench of the Rajasthan High Court in Ramsingh v. State of Rajasthan, AIR 1969 Raj 41 has, in similar circumstances, held:

'The provisions contained in the Civil P. C. will not be attracted to this special jurisdiction in terms, because Section 4(1) of the Civil P. C. provides that in the absence of any specific provision to the contrary, nothing in this code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred or any special form of procedure prescribed by or under any other law for the time being in force. It is thus clear that special procedure has been provided in the Rules of the High Court for writ proceedings under Article 226 of the Constitution and, therefore, the provisions of the Civil P. C. cannot apply in terms to such proceedings. This, however, does not mean that the princinples contained in the Code of Civil Procedure would have no application at all to the writ proceedings. Those provisions of the Civil P. C. which do not come in conflict with the Rules made by the High Court of Rajasthan and which can be suitably made applicable to the writ proceedings will apply to writ proceedings. In other words, even though the provisions of the Civil P. C. may not apply with full rigour to writ proceedings, writ proceedings would nonetheless be governed by the principles analogous to those contained in the Code of Civil Procedure as far as they are not inconsistent with the Rules made by the High Court on the subject.'

These observations were made by the learned Judges in connection with the question whether the provisions of Order 9, Rule 9 can suitably be applied to writ proceedings.

3. A Division Bench of the Madras High Court in Chenchanna Naidu v. Praja Seva Transport Ltd., AIR 1953 Mad 39 held that:

'If the application for the issue of a writ under Article 226 is made on the civil side, in dealing with such an application the High Court is governed by the provisions of the Civil Procedure Code and the High Court has jurisdiction to review its order under Article 226.'

In coming to this conclusion the learned Judges of the Division Bench examined the entire case-law and relied on an earlier decision of the Madras High Court in AIR 1938 Mad 722. The Andhra Pradesh High Court in Income-tax Officer v. Srinivasa Rao, AIR 1969 Andh Pra 441 following the above decision of the Madras High Court has observed that the provisions of Order 47 of the Civil Procedure Code would apply to the proceedings under Article 226 of the Constitution.

4. The Supreme Court has observed in Narayan Row v. Ishwarlal Bhagwandas, AIR 1965 SC 1818 that:

'there is no ground for restricting the expression 'civil proceeding' only to those proceedings which arise out of civil suits or proceedings which are tried as civil suits nor is there any rational basis for excluding from its purview proceedings instituted and tried in the High Court in exercise of its jurisdiction under Article 226, where the aggrieved party seeks relief against infringement of civil rights by authorities purporting to act in exercise of the powers conferred upon them by revenue statutes.'

5. In Ramesh v. Gendalal, AIR 1966 SC 1445 the matter has further been clarified. On page 1447 the learned Judges would observe:

'The question is whether the proceedings in the High Court can be described as civil proceedings..... The term civilproceeding has been held in this court to include at least all proceedings affecting civil rights, which are not criminal. The dichotomy between civil and criminal proceedings made by the Civil Law Jurists is apparently followed in Articles 133 and 134 and any proceeding affecting civil i.e., in private rights, which is not criminal in nature, is civil. This view was expressed recently by thiscourt in HJarayana Row v. Ishwarlal Bhagwandas, AIR 1965 SC 1818, Shah, J., speaking for the majority, first summarises all the provisions in the Constitution bearing upon appeals to this court and after analysis, holds that the words 'civil proceeding' are used in me widest sense, that in contradistinction to criminal proceedings they cover all proceedings which affect directly civil rights. A proceeding under Article 226 for a writ to bring up a proceeding for consideration must be a civil proceeding, if the original proceeding concerned civil rights. Here the civil rights or the parties were directly involved and the proceeding before the High Court was thus a civil proceeding.'

A proceeding under Article 226 of the Constitution being civil proceeding, the procedure provided in the Civil Procedure Code must, therefore, apply to such proceedings.

6. Following the decision of the Supreme Court, the Calcutta High Court in Jay Engineering Works Ltd. v. State of West Bengal, AIR 1968 Cal 407 (SB) at p. 489 held that:

'there was no ground for restricting the expression 'civil proceeding' only to those proceedings which arose out of civil suits or proceedings and for excluding from the purview of civil proceedings the writ petitions tried by the High Court in exercise of its jurisdiction under Article 226 of the Constitution. Writ petitions must, therefore, be held to be a civil proceeding although it is heard by this court in its extraordinary original or civil revisional jurisdiction.'

The same view has been shared by various other High Courts also. The Allahabad High Court, for instance, has held in Asst. District Panchayat Officer Rae Bareli v. Jai Narain Pradhan, AIR 1967 All 334 that:--

'When the proceedings in a High Court on a petition under Article 226 of the Constitution relate to civil rights, they are civil proceedings. Being civil proceedings, the provisions of Civil Procedure Code apply to them under Section 141 of the Civil P. C., in so far as the provisions of the Code can be made applicable. The last qualifying clause means that the provisions of the Code would apply to the proceedings under Article 226, except to the extent to which their applicability may be affected by the Rules of Court or any special law or rule applicable to these proceedings.'

7. The Gujarat High Court in Ibrahimbhai Karimbhai v. State of Gujarat, AIR 1968 Guj 202 at p, 206 has observed:--

'An application under Article 226 praying for issuance of a writ, direction or order, is a proceeding in a court. The proceedings contemplated by Section 141, Civil Procedure Code include the original matters in the nature of the suit as has been laid down by the Privy Council in Thakur Prasad's case (1895) ILR 17 All 106 (PC). The jurisdiction which the High Court exercises under Article 226 is an original jurisdiction. Thereforethe writ proceedings are the proceedings of original nature, the jurisdiction which the court exercise in issuing the writs of certiorari is a civil jurisdiction. We, therefore hold that the proceedings under Article 226 are the proceedings in the court of civil jurisdiction.'

8. As against the above array of judicial pronouncements in favour of the view that the procedure laid down in the Civil Procedure Code is applicable to writ proceedings in so far as they are not inconsistent with the Rules of the High Court, the learned Government Pleader cited Hajee Suleman v. Custodian, Evacuee Property (AIR 1955 Madh B. 108), where it was held that:

'the power to review is not inherent in a court. As there is no provision for the review of orders under Article 226 in Indian law, it cannot be availed of as a remedy. The High Court therefore cannot review an order passed in a writ case.'

A stray observation is seen in Rain Bow Dyeing Factory, Salem v. Industrial Tribunal Madras (AIR 1959 Mad 137) also to the' effect that Order 1 of the C. P. C. cannot apply to writ proceedings inasmuch as a writ proceeding cannot be held to be in the nature of a civil suit. Our attention was drawn also to a Division Bench ruling of this court in Balan v. District Collector, Trichur, 1972 Ker LJ 798 = (AIR 1973 Ker 88) where the court had to consider the question whether Order 33, Civil Procedure Code would apply to writ proceedings under Article 226 and it was held that Order 33, Civil Procedure Code can apply only to suits and in so far as proceedings under Article 226 are not suits Order 33 can have no application; (in AIR 1961 SC 532 the Supreme Court has held that the proceedings under Article 226 are not suits). These decisions, therefore, are of no consequence in deciding the question whether the Code of Civil Procedure can have application to proceedings under Article 226 of the Constitution.

9. Our conclusion, therefore, is that proceedings under Article 226 are proceedings of a civil nature, even though writ jurisdiction is exercised by the High Court in its special original jurisdiction. The provisions of the Code of Civil Procedure including the provisions in Order 47 in so far as they are not inconsistent with the Rules of the High Court governing writ jurisdiction, must apply to proceedings under Article 226. The application for review is, therefore, en-tertainable by the learned Judge who continues to be attached to the High Court at the time the review was presented. With these observations, we remit the application for review to the learned Single Judge for disposal.


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