THAKUR PRASAD Vs. BENI PRASAD

JUDGEMENT

(1.) Present writ petition, filed under Article 226 of the Constitution of India, arises out of a judicial order passed by civil court. At the very outset, attention of this court has been invited to a reference answered by the Hon'ble Supreme Court in Civil Appeal No.2548 of 2009, connected with Special Leave Petition (C) No.25828 of 2013, dated 26.2.2015, Radhey Shyam and another v. Chhabi Nath and others, wherein, it has been held as under in para 25:-

(2.) Since large number of writ petitions, in the nature of certiorari and prohibition, arising out of judicial orders passed by civil courts, have been entertained by this court, under Article 226 of the Constitution of India, many of which are pending, apart from the fact that such petitions are being regularly filed and entertained, as such, the issue assumes significance. Apart from learned counsel appearing for the petitioner, other learned members of Bar have advanced considerable arguments in support of their contention that being a superior court, the High Court has jurisdiction under Article 226 to issue a writ of certiorari and prohibition, to the inferior civil courts, situated within its territorial jurisdiction. Historical development of law of writs, particularly in the nature of certiorari, in England, and its application by the courts in India, especially, after coming into being of the Indian Constitution has been placed. Attention of this Court has been invited to Constitution Bench decisions of the Apex Court, which, according to them, have not been placed before their Lordships in Radhey Shyam , and on the strength of such decisions of Larger Benches, it is contended, that ratio laid down in Radhey Shyam is not binding.

(3.) The civil courts in State of Uttar Pradesh have been constituted, pursuant to Bengal, Agra and Assam Civil Courts Act, 1887, and its provisions were extended and made applicable upon courts constituted under Oudh Courts Act, 1925, vide amending Act No.II of 1956. Section 18 of the Act of 1887 defines original jurisdiction of District or Civil Judge, whereas Section 19 provides the extent of jurisdiction of a Munsif. The jurisdiction of civil court, thus, is limited and defined. By virtue of Section 9 of the Act of 1887 and subsequently by virtue of Article 227 of the Constitution of India, such courts function under the superintendence of High Court, which is a superior court of record. Whether a writ under Article 226 of the Constitution of India is maintainable, arising out of judicial orders/proceedings of civil courts, after the judgment in Radhey Shyam , is the question involved in this petition.