Kerala HC: Wife Cannot File Writ Petition On Behalf Of Husband Without Valid Power Of Attorney

Thus, it is evident from the provisions of

Order III of the CPC that an appearance, application or

act in or to any Court which is required to be made or

done by a party in the Court, can be effectively made or

done by the party in person or by a recognised agent. A

recognised agent, for that purpose, includes a person

who holds the power of attorney. The provisions

contained in the Powers of Attorney Act 1882 indicate

that there is no prohibition for a litigant seeking a writ

under Article 226 or Article 227 of the Constitution

through a power of attorney holder. The donee of a

power of attorney is no more than an agent of the donor

and does not pursue the proceeding in his own

independent capacity. Instead, he acts for and on behalf

of the donor and is subject to the limitations which are

contained in the instrument. {Para 11}

12. The present writ petition is filed as though the

petitioner is the owner of the estate. Apart from a bald

assertion that the petitioner is managing the property on

account of her husband’s absence, there is no material

conferring authority on her.

13. The reliance placed on the decisions in

Narayanan Nair’s and Ashadevi N.P.’s cases are

misplaced. In Narayanan Nair’s case, this Court

recognised the right of a duly authorised agent to

institute a suit on behalf of the plaintiff in light of the

written authorisation produced along with the plaint.

Whereas, in Ashadevi N.P.’s case, this Court held that

the broader principles of the C.P.C. apply to writ

petitions. Neither the provisions in the Evidence Act,

CPC, the Rules, nor the precedents referred to above aid

the petitioner in filing the writ petition on behalf of her

husband without a power of attorney.

14.  The right that can be enforced under

Article 226 also shall ordinarily be the personal or

individual right of the petitioner himself, though in

the case of some of the writs like habeas corpus or

quo warranto this rule may have to be relaxed or

modified”.

(emphasis supplied)

Tested against the aforesaid principles, I hold that

the petitioner has no locus-standi to institute and

prosecute the writ petition on behalf of her husband.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) NO. 2862 OF 2025

SHAREEFA, W/O. ISMAIL K.P. Vs  THE SUB COLLECTOR, TIRUR,

PRESENT:  MR.JUSTICE C.S.DIAS

Dated:  25.08.2025

Citation: 2025:KER:65018

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Is the high court bound to issue notice in a writ petition if another high court bench has issued a notice in a similar writ petition?

Thus, I am not in a position to agree that merely issuance of a notice by a Coordinate Bench, under which provision of law, can be considered to be a binding precedent as it does not lay down any proposition of law to be followed in future. Question of judicial discipline will arise when a decision is rendered by a

forum of superior or concurrent jurisdiction while adjudicating the rights of the parties to a lis embodying a declaration of law. I do not see any declaration of law in the discretion of a Coordinate Bench to issue notice in the matter.

 IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

WRIT PETITION No. 21169 of 2022

M/S KESHAV KANSHKAR  Vs THE PRINCIPAL SECRETARY DEPARTMENT OF ENERGY MANTRALAYA VALLABH BHAWAN

BEFORE

HON'BLE SHRI JUSTICE VIVEK AGARWAL

Dated:  20th OF SEPTEMBER, 2022

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Supreme Court: Court should not grant an injunction in case of tender of infrastructure project; Instead, Relegate Party To Seek Damages

If the Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still the Court should refrain from interfer- ing in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work.

26. A word of caution ought to be mentioned herein that any contract of public service should not be interfered with lightly and in any case, there should not be any interim order derailing the entire process of the services meant for larger public good. The grant of interim injunction by the learned Single Bench of the High Court has helped no-one except a contractor who lost a contract bid and has only caused loss to the State with no corresponding gain to anyone.

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION 

CIVIL APPEAL NO. 1846 OF 2022 

 M/S. N.G. PROJECTS LIMITED VERSUS M/S. VINOD KUMAR JAIN & ORS.

Coram: HEMANT GUPTA; V. RAMASUBRAMANIAN, JJ.

HEMANT GUPTA, J.

Dated: MARCH 21, 2022

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Whether Party Claiming Private Right In Civil Suit is Entitled To File Writ Petition Requiring Municipal Corporation To Discharge Its Duty?

  Merely, because petitioner has filed a civil suit for partition and claimed the relief for injunction and no interim order has been granted does not in any manner condone the illegal action of a private entity of carrying out illegal unauthorised construction contrary to municipal bye-laws and the Master Plan or preclude a High Court from exercising powers under Article 226 of the Constitution to ensure compliance of the municipal bye-laws as well as the Master Plan. {Para 8}

9. Accordingly, I find no merit in the preliminary objection raised by respondents. 4 and 5. The same is rejected.

IN THE HIGH COURT OF DELHI AT NEW DELHI

 W.P.(C) 4090/2022

MOHD ARIF & ORS Vs SOUTH DELHI MUNICIPAL CORPORATION & ORS.

CORAM:

HON'BLE MR. JUSTICE SANJEEV SACHDEVA

Dated:  10.03.2022

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Whether high court Can Exercise Writ Jurisdiction Against a Private Party That Wrongly Benefits From Inaction Of Public Authorities In Discharge Of Public Duty?

 In Rustam Mehta v State of Maharashtra & Ors1, which arose out of similar set of facts, this Court held that in exercise of its inherent and wide powers under Article 226 of the Constitution of India, this Court has the jurisdiction to pass orders and/or directions against a private person if such reliefs are in aid of the final relief. Further, it was also held that it is within the extraordinary and inherent jurisdiction of this Court under Article 226 of the Constitution of India to protect the rights and interests of the Petitioners by granting interim reliefs even against a private party Respondent, that has wrongly benefitted from the inaction on the part of the public authorities in discharge of their public duty.{Para 9.1}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO. 444 OF 2022

 Sabhajit Ramyash Yadav, Vs State of Maharashtra,

Coram: ( PER S.J.KATHAWALLA & MILIND N. JADHAV, JJ.)

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Whether client can refuse to pay fees to an Advocate if he has filed joint vakalatnama along with his Junior?

 Any senior lawyer having briefs of various clients

cannot effectively prosecute or defend cases without the

assistance of junior or other lawyers. When a client

authorises an Advocate to conduct or prosecute a case, the

authority given is to conduct/prosecute the case effectively

and the Advocate is empowered to file joint Vakalat for and

on behalf of the client. There is no illegality in filing a joint

Vakalat and the petitioner in Ext.R1(b) has agreed that

everything lawfully done or made by the petitioner in the

conduct of the Suit shall be as valid and binding on him as if

done by the respondent. The respondent cannot deny fees if

any due to the petitioner on that ground. {Para 10}

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) NO. 24362 OF 2021

P.G.MATHEW Vs THE AIRPORT DIRECTOR

PRESENT

 MR.JUSTICE N.NAGARESH

 28TH DAY OF MARCH 2022 

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Whether State Government can invoke the writ jurisdiction against the action of the Wakf Board to declare the land as wakf property?

 Thus, the State Government, as a juristic entity, has a right to protect its property through the writ court, just as any individual could have invoked the jurisdiction of the High Court. Therefore, the State Government is competent to invoke the writ jurisdiction against the action of the Wakf Board to declare the land measuring 1654 acres and 32 guntas as wakf property.

{Para 125}

(3) Whether the State is estopped to challenge the notification inter-alia on the ground that Government Pleader was present before the Nazim Atiyat and before the High Court in proceedings against the order passed by Nazim Atiyat and that the notification was published in State Government Gazette?

129. It is to be noted that the presence of the Government Pleader before the Nazim Atiyat was for a limited purpose as the grants were to be paid by State Government. The State was not a party either before the Nazim Atiyat or before the High Court. The State would be bound by the orders, if it was impleaded as party as it is likely to be affected on account of the orders passed. The liability of State for payment of grant was not in dispute but the question was as to whom the grants would be payable. Thus, the presence of Government Pleader was for the limited purpose of facilitating the implementation of the orders passed.

Supreme Court

JUSTICE HEMANT GUPTA JUSTICE V. RAMASUBRAMANIAN

STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) Vs. A. P. STATE WAKF BOARD & ORS.

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Whether notification issued by wakf board in official gazette is binding on state government?

 Admittedly, the Government is reflected as the owner of the land in question since the year 1912-13. The Government has exercised its rights of ownership as a successor of the Sovereign. Consequent to Abolition Regulation and payment of commutation under the Commutation Regulation, the State Government had transferred land to the Corporation. A public notice was also issued to invite objections, if any, to the allotment of the land but since none were received, the Corporation made further allotment to various corporate entities. The Wakf Board is a statutory authority established under the Act and is a “State” within the meaning of Article 12 of the Constitution. A constitution Bench of this Court in a judgment reported as Rajasthan State Electricity Board, Jaipur v. Mohan Lal & Ors., AIR 1967 SC 1857 held “that the expression “other authorities” in Article 12 will include all constitutional or statutory authorities on whom powers are conferred by law. It is not at all material that some of the powers conferred may be for the purpose of carrying on commercial activities”.{Para 120}


122. Since, the Wakf Board is state, it has act to act fairly and reasonably. This Court in a judgment reported as Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay, (1989) 3 SCC 293 held that the action of a statutory authority must be reasonable and taken only upon lawful and relevant grounds of public interest. 

125. Thus, the State Government, as a juristic entity, has a right to protect its property through the writ court, just as any individual could have invoked the jurisdiction of the High Court. Therefore, the State Government is competent to invoke the writ jurisdiction against the action of the Wakf Board to declare the land measuring 1654 acres and 32 guntas as wakf property.



(3) Whether the State is estopped to challenge the notification inter-alia on the ground that Government Pleader was present before the Nazim Atiyat and before the High Court in proceedings against the order passed by Nazim Atiyat and that the notification was published in State Government Gazette?

129. It is to be noted that the presence of the Government Pleader before the Nazim Atiyat was for a limited purpose as the grants were to be paid by State Government. The State was not a party either before the Nazim Atiyat or before the High Court. The State would be bound by the orders, if it was impleaded as party as it is likely to be affected on account of the orders passed. The liability of State for payment of grant was not in dispute but the question was as to whom the grants would be payable. Thus, the presence of Government Pleader was for the limited purpose of facilitating the implementation of the orders passed.

130. A perusal of the record of the Wakf Board, as extracted above, shows that the Errata notification was published when the same was sent by the Chief Executive Officer of the Wakf Board to the Commissioner, Government Printing Press on 13.03.2006. This publication of notification was made under Section 5(2) of the 1995 Act under the authority of the Chief Executive Officer of the Wakf Board. Hence, the notification was not at the instance of the State Government but was an act of the Wakf Board alone.

131. The argument raised that since the Errata notification was published in State Government Gazette, therefore, the State cannot turn around to say that they had no knowledge or that they are not bound by the notification so published is not tenable. We find that the purpose, object and scope of the publications in the Official Gazette is not what is sought to be contended. The Court is to presume the genuineness of any documents published in any Official Gazette as contemplated by Section 81 and Section 114 (e) of the Evidence Act, 1872. The publication in the Official Gazette is not only for the affairs of the State but has multiple uses. In fact, this question has been examined by a Division Bench of Delhi High Court in a judgment reported as Universal Cans & Containers Ltd. v. Union of India, 1991 SCC On Line Del 784, wherein the Court has quoted various parts of the Gazette required to be published by the Central Government. Section 4, Part III of the Gazette is meant for Miscellaneous Notifications including Notifications, Orders, Advertisements and Notices issued by Statutory Bodies, whereas Part IV is meant for Advertisements and Notices issued by Private Individuals and Private Bodies. Similar scheme of the publication in the Gazette would be available in the States as well. The High Court held as under:-
“8. Under Section 3(39) of the General Clauses Act, 1897, “Official Gazette” or “Gazette” shall mean the Gazette of India or the Official Gazette of a State. What is Official Gazette and under what authority it is published? is yet another question. A Gazette is generally understood as an Official Government Journal containing public notices and other prescribed matters. Legal Glossary (1983 Edition) issued by the Legislative Department of the Ministry of Law, Justice and Company Affairs, Government of India, defines Gazette as “an official newspaper containing lists of Government appointments, legal notices, dispatches, etc
xxx xxx

20. Under Section 81 of the Indian Evidence Act, 1872, the Court shall presume the genuineness of every document purporting to be in Official Gazette, and read with Section 114 of the said Act and Illustration (e) there to, the court can presume that the Official Gazette was notified on the date as appearing in the Official Gazette. However, this is only a rebuttable presumption. It can be rebutted by the evidence to the contrary. As noted above, in the present case it has been shown that the Official Gazette was notified on a date after the date appearing on the Gazette. Section 5 of the General Clauses Act, 1897, provides that where any Central Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which it receives the assent of the President. This is not applicable in the present case. Here we are concerned with a notification in the Official Gazette”.

 132. The Wakf Board is a statutory authority under the 1954 Act as well as under the 1995 Act. Thus, the Official Gazette had to carry any notification at the instance of the Wakf Board. Therefore, the State Government is not bound by the publication of the notification in the Official Gazette at the instance of the Wakf Board only for the reason that it has been published in the Official Gazette. The publication of a notice in an Official Gazette has a presumption of knowledge to the general public as an advertisement published in a newspaper. Therefore, mere reason that the notification was published in the State Government gazette is not binding on the State Government.

Supreme Court

JUSTICE HEMANT GUPTA JUSTICE V. RAMASUBRAMANIAN

STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) Vs. A. P. STATE WAKF BOARD & ORS.

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Whether bar U/S 8 Of Commercial Courts Act On Revision Application is Applicable To Petitions Under Article 227?

  We are of the view that once the Commercial Courts Act has expressly barred the remedy of a revision application under Section 115 of the CPC, with respect to the suits within its ambit, the purpose thereof cannot be permitted to be defeated by opening up the gates of Article 227 of the Constitution of India. The scope and ambit of a petition under Article 227 is much wider than the scope and ambit of a revision application under Section 115 of the CPC; whatever can be done in exercise of powers under Section 115 of the CPC, can also be done in exercise of powers under Article 227 of the Constitution. Allowing petitions under Article 227 to be preferred even against orders against which a revision application under Section 115 CPC would have been maintainable but for the bar of Section 8 of the Commercial Courts Act, would nullify the legislative mandate of the Commercial Courts Act. Recently, in Deep Industries Limited Vs. Oil and Natural Gas Corporation Limited (2020) 15 SCC 706, in the context of petitions under Article 227 of the Constitution of India with respect to orders in an appeal against an order of the Arbitral Tribunal under Section 17 of the Arbitration & Conciliation Act, 1996, it was held that if petitions under Article 226 / 227 of the Constitution against orders passed in appeals under the Arbitration Act were entertained, the entire arbitral process would be derailed and would not come to fruition for many years. It was observed that though Article 227 is a constitutional provision which remains untouched by an non-obstante Clause 5 of the Arbitration Act but what is important to note is that though petitions can be filed under Article 227 against judgments allowing or dismissing First Appeals under the Arbitration Act, yet the High Court would be extremely circumspect in interfering with the same taking into account the statutory policy, so that interference is restricted to orders which are patently lacking in inherent jurisdiction. Thus, though we are of the view that gates of Article 227

ought not to be opened with respect to orders in commercial suits at the level of the District Judge against which a revision application under CPC was maintainable but which remedy has been taken away by the Commercial Courts Act, but abiding by the judgments aforesaid, hold that it cannot be said to be the law that jurisdiction under Article 227 is completely barred. However the said jurisdiction is to be exercised very sparingly and more sparingly with respect to orders in such suits which under the CPC were revisable and which remedy has been taken away by a subsequent legislation i.e. the Commercial Courts Act, and ensuring that such exercise of jurisdiction by the High Court does not negate the legislative intent and purpose behind the Commercial Courts Act and does not come in the way of expeditious disposal of commercial suits.{Para 30}

31. We thus hold the petition under Article 227 of the Constitution of India to be maintainable with respect to the order impugned in CM(M) No.132/2021. However the discretion, whether in the facts and circumstances such petition is to be entertained or not, having under the roster been vested in the Single Judge, we leave it to the Single Judge to exercise such discretion.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

  CM(M) 132/2021 & CM No.5689/2021 (FOR STAY) 

BLACK DIAMOND TRACKPARTS PVT. LTD. & ORS.  Vs BLACK DIAMOND MOTORS PVT. LTD. 

CORAM:  MR. JUSTICE RAJIV SAHAI ENDLAW HON'BLE MR. JUSTICE AMIT BANSAL

AUTHOR: RAJIV SAHAI ENDLAW, J. 

Dated : 10th August, 2021.

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Supreme Court: Tests to determine when writ petition is maintainable or not if there is a breach of contractual obligations by state authorities

 In the cases before us the contracts do not contain any statutory terms or obligations and no statutory power of obligation which could attract the application of Article 14 of the Constitution is involved here. Even in cases where the question is of choice or consideration of compet- ing claims before an entry into the field of contract facts have to be investigated and found before the question ,of a violation of Article 14 could arise. If those facts are disputed and require assessment of evidence the correctness of which can ,only be tested satisfactorily by taking de- tailed evidence, involving examination and cross-examina- tion of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article '226 of the Constitution. Such proceedings are summary proceedings reserved for extraordinary cases where the exceptional and what are described as, perhaps not quite accurately, "pre- rogative" powers of the Court are invoked. We are certain that the cases before us are not such in which powers under Article 226 of the Constitution could 'be invoked. The Patna High Court had, very rightly divided the types of cases 'in which breaches of alleged obligation by the State units agents can be set up into three types. These were stated as follows :--

"(i) Where a petitioner makes a grievance of breach of promise on the part of the State in cases where an assurance or promise made by the State he has acted to his prejudice and predicament, but the agree- ment is short of a contract within the meaning of article 299 of the Constitution;

(ii) Where the contract entered into between the person aggrieved and the State is in exercise of a statutory power under certain Act or Rules framed thereunder and the petitioner alleges a breach on the pan of State; and

(iii) Where the contract entered into between the State, and the person aggrieved is non-statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract, and the petitioner complains about breach of such contract by the State."

It rightly held that the cases such as Union of India v.

M/s. AngloAfghan Agencies,(1) and Century Spinning & Manu- facturing Co. Ltd. v. Ulhasnagar Municipal Council(2); and Robertson v. Minister of Pensions,(3) belong to the first category where it could be held that public bodies or the State are as much bound as private individual are to carry out obligations incurred by them because parties seeking to bind the authorities have altered their position to their disadvantage or have acted to their detriment on the strength of the representations made by these authorities. The High Court thought that in such cases the obligation could sometimes be appropriately enforced on a Writ Petition even though the obligation was equitable only. We do not propose to express an opinion here on the question whether such an obligation could be enforced in proceedings under Article 226 of the Constitution now. It. is enough to observe that the cases before us do not belong to this category.

The Patna High Court also distinguished cases which belong to the second category, such as K.N. Guruswami v. The State of Mysore;(4) ' D.F. South Kheri v. Ram Sanehi Singh;(5) and M/s. Shree Krishna Gyanoday Sugar Ltd. v. The State of Bihar,(6) where the breach complained of was of a statutory obligation. It correctly pointed out that the cases before us do not belong to this class either. It then, very rightly, held that the cases now before us should be placed in the third category where questions of pure alleged breaches of contract are involved. It held, upon the strength of Umakant Saran v. The State of Bihar;(7) and Lekhrai Sathram Das v.N.M. Shah;(8) and B.K. Sinha v. State of Bihar(9) that no writ order can issue under Article 226 of the Constitution in such cases "to compel the authorities to remedy are a breach of contract pure and simple".

Learned counsel for the appellants has, however, relied upon a passage from Lekhraj Sathram Das's case (supra) where this Court observed (at p. 231);

" .... until and unless in the breach is involved violation of certain legal and public duties or violation of statutory duties to the remedy of which the petitioner is entitled by issuance of a writ of mandamus, mere breach of contract cannot be remedied by the Court in exercise of its powers under Article 226 of the Constitution".

Learned counsel contends that in the cases before us breaches of public duty are involved. The submission made before us is that, whenever a State or its agents or offi- cers deal with the citizen, either when making a transaction or, after making it, acting in exercise of powers under the terms of contract between the parties, there is a dealing between the State and the citizen which involves performance of "certain legal and public duties." If we were to accept this very wide proposition every case of a breach of con- tract by the State or its agents or its officers would call for interference under Article 226 of the Constitution. We do. not consider this to be a sound proposition at all. 

 None of these cases lays down that, when the State or the officers purport to operate within the contractual field and the only grievance of the citizen could be that the contract between the parties is broken by the action complained of, the appropriate remedy is by way of a petition under Article 226 of the Constitu- tion and not an ordinary suit. There is a formidable array of authority against any such a proposition. In Lekhraj Sathramdas Lalwani v. M.M. Shah, Deputy Custodian-cum- Managing Officer, Bombay & Ors., (supra) this Court said (at p. 337);

"In our opinion, any duty or obligation falling upon a public servant out of a con- tract entered into by him as such public servant cannot be enforced by the machinery of a writ under Art. 226 of the Constitution".

In Banchhanidhi Rath v. The State of Orissa & Ors(1) this Court declared (at p. 845):

"If a right is claimed in terms of a contract such a right cannot be enforced in a writ petition."

In Har Shankar & Ors. etc. etc. v. The Dy. Excise & Taxation Commr. & Ors.,(2) a Constitution Bench of this Court ob- served (at p. 265): "The appellant have displayed ingenuity in their search for invalidating circumstances but a writ petition is not an appropriate remedy for impeaching con- tractual obligations".

Supreme Court of India

Radhakrishna Agarwal & Ors vs State Of Bihar & Ors on 17 March, 1977

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Bombay HC: Writ petition for issuance of writ of certiorari against order of Judicial/Civil Courtis not maintainable

 We are bound by the view taken by the Constitution Bench decision of the Apex Court in the case of Muhhamad Emanual and a three-Judge Bench decision in the case of Savitri Devi, cited supra. We, therefore, hold that in the proceedings under Article 227 of the Constitution of India, neither the Judicial/Civil Court nor the Presiding Officer over it, whose order is challenged, can be a necessary party and, therefore, in the absence of such party, a petition or an application cannot be dismissed as not maintainable. The question of law at Serial No. (3) is answered accordingly. We, however, clarify that there may be an exception where there are allegations of mala fides, partiality, bias, etc., where a Presiding Officer is required to be joined personally as party respondent so as to provide him an opportunity to meet the allegations, in such a case, a petition or an application under Article 227 of the Constitution of India will have to be dismissed as not maintainable, if the order is to be set aside on any such ground.

We summarize our conclusions as under:

(1) A writ petition under Article 226 of the Constitution of India for issuance of a writ of certiorari to quash and set aside the order passed by the Judicial/Civil Court, subordinate to the High Court, is not maintainable.

(2) In view of the aforesaid conclusion, the question as to whether the Judicial/Civil Court or its Presiding Officer becomes a necessary party and in its absence a writ petition under Article 226 is maintainable or not, does not survive.

(3) A petition or an application under Article 227 of the Constitution of India challenging the order passed by the Judicial/Civil Court, subordinate to the High Court, cannot be dismissed as not maintainable in the absence of such Court or its Presiding Officer being impleaded as a party respondent, subject to the exception carved out in the judgment.

(4) In view of the decision of the Apex Court in the case of Jogendrasinhji, the decision of the Full Bench of this Court in the case of Ramchandra Dagoji Rangari, holding that the petition for issuance of a writ of certiorari under Article 226 of the Constitution of India, would not be maintainable without impleading the tribunal or the authority, whose order is assailed before the High Court, as a party respondent, no longer remains a good law, subject to the exception carved out in the judgment.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Letters Patent Appeal No. 177 of 2012 in Writ Petition No. 1424 of 2012, 

Decided On: 21.11.2019

 Motilal  Vs.  Balkrushna Baliram Lokhande 

Hon'ble Judges/Coram:

R.K. Deshpande, A.S. Chandurkar and Milind Narendra Jadhav, JJ.

Citation: AIR 2020 Bombay 39(FB)

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What is distinction between pleading under CPC,Writ Petition and counter Affidavit?

It is necessary to make a mention at this juncture about the manner 

in which a petition for anticipatory bail has to be drafted.  In a leading 

case in  Bharat Singh and Ors. vs. State of Haryana and Ors (1988) 4SCC 534, 

the Honble Supreme Court drew a distinction between a pleading under the CPC 

and a writ petition or a counter affidavit.  While in a pleading, that is, a 

plaint or a written statement, the facts and not evidence are required to be 

pleaded, in a writ petition or in the counter affidavit not only the facts 

but also the evidence in proof of such facts have to be pleaded and annexed 

to it.   If an accused is to be granted anticipatory bail in a case arising 

under the Atrocities Act, he has to fulfil the test laid down in Dr.Subhash 

Kashinath Mahajan case.  It is true that there are no strict rules of 

pleading in Criminal Procedure Code as those in the Civil Procedure Code.  

Nevertheless, the principles of natural justice require that the victim is 

not taken by surprise. Hence, the petition to be filed by the accused along 

with the anexures should contain all the necessary and relevant materials. 

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT 

( Criminal Jurisdiction )

Date  : 26/11/2019

PRESENT

THE HONBLE MR.JUSTICE G.R.SWAMINATHAN

CRL OP(MD). No.17224 of 2019

Dr.S.Ariharan, Vs.  The Inspector of Police,

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Whether writ petition is maintainable against interlocutory order of arbitrator?

 In Patel Engineering Ltd. (supra), the Constitution Bench of the Hon'ble Supreme Court has observed that interlocutory orders made by the Arbitrator cannot be subjected to challenge under Article 226 or 227 of the Constitution of India. Such intervention by the High Courts was held to be not permissible as the object of minimizing judicial intervention when the process of arbitration was going on would be defeated by entertaining such challenge at an interlocutory stage. It was further observed that once arbitration proceedings had commenced, the parties would have to wait until the award was pronounced after which the remedy under Section 37 of the Arbitration and Conciliation Act, 1996 could be availed of.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 316/2019

Decided On: 25.03.2019

Space Wood Office Solution Pvt. Ltd. Vs. Anupam Rai Construction

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2019(5) MHLJ 356

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Whether Civil court can execute order passed in writ petition?

In my opinion, the present execution proceedings are misconceived and have been filed on concealment of facts, and are accordingly liable to be dismissed for the following reasons:

"(i) A final judgment in a writ petition is not a decree or order which is capable of execution proceedings under CPC. Such a judgment is enforced by invoking the contempt jurisdiction of this Court.

(ii) Execution proceedings under CPC are with respect to decrees or orders passed in proceedings governed by CPC i.e. suits.

(iii) Final judgments of writ petitions, if not complied with, cannot be treated as decrees for seeking the execution in execution proceedings by applying CPC. I may note that it is not as if that the present execution proceedings seek execution of costs which are imposed by the Court as per a final judgment, and which costs can be taken as money decree for the purpose of execution. Section 141, CPC is clear that CPC does not apply to writ petitions under Article 226 of the Constitution of India."

IN THE HIGH COURT OF DELHI

Ex. P. No. 85 of 2016

Decided On: 26.05.2016

 Shambhu Nath Das Vs. Director of Education and Ors.

Hon'ble Judges/Coram:

Valmiki J. Mehta, J.

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Whether any order passed by arbitral tribunal during arbitration can be challenged under Article 226 or 227 of Constitution?

 Having heard learned counsel for the parties
at length, we find that the judgment of the High
Court is liable to be set aside on one ground alone.
The High Court entertained a writ petition under
Article 227 of the Constitution of India against an
order of the learned District Judge, Gautam Budh
Nagar purportedly passed under Section 20 of the
Arbitration and Conciliation Act, 1996(for short,
"the Arbitration Act") read with Section 19 of the
Micro, Small & Medium Enterprises Development Act,
2006 (for short, "the MSME Act"). This application
was made to the District Judge by respondent No. 1-
Jayprakash Associates Ltd. against a partial award
made under Section 16 of the Arbitration Act. Such
an application was not tenable vide Section 16 (6) of
the Arbitration Act. Since such an application was
not tenable, we fail to understand how in a writ

petition filed against an order made by the District
Judge in an untenable application, the High Court
could have set aside the partial award. This is
clearly contrary to law. This court in the case of
SBP & Co. vs. Patel Engineering Ltd. & Anr., reported
in (2005) 8 SCC 618 in Paragraph No. 45 held as
follows.
"45.It is seen that some High Courts
have proceeded on the basis that any
order passed by an arbitral tribunal
during arbitration, would be capable
of being challenged under Article 226
or 227 of the Constitution of India.
We see no warrant for such an
approach. Section 37 makes certain
orders of the arbitral tribunal
appealable. Under Section 34, the
aggrieved party has an avenue for
ventilating his grievances against
the award including any in-between
orders that might have been passed by
the arbitral tribunal acting under
Section 16 of the Act. The party
aggrieved by any order of the
arbitral tribunal, unless has a right
of appeal under Section 37 of the
Act, has to wait until the award is
passed by the Tribunal. This appears
to be the scheme of the Act. The
arbitral tribunal is after all, the
creature of a contract between the
parties, the arbitration agreement,
even though if the occasion arises,
the Chief Justice may constitute it
based on the contract between the
parties. But that would not alter the
status of the arbitral tribunal. It
will still be a forum chosen by the
parties by agreement. We, therefore,
disapprove of the stand adopted by
some of the High Courts that any
order passed by the arbitral tribunal

is capable of being corrected by the
High Court under Article 226 or 227
of the Constitution of India. Such an
intervention by the High Courts is
not permissible."
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 7117-7118 OF 2017

M/S. STERLING INDUSTRIES Vs JAYPRAKASH ASSOCIATES LTD.

Dated:JULY 10,2019.

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Whether high court can revive injunction in writ petition which was rejected by trial court?

 In this view of the matter when the plaintiff's
injunction application stood dismissed by the Trial
Court and the same was not carried in appeal at his
instance, the same could not have been revived by the
High Court in a writ petition filed by the plaintiff.

NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 2013 OF 2019

Shri Revansiddeshwar Pattan Sahakari BankNiyamit  Vs  Taluka Tokrekoli
(Ambiga Samaji C Vikas Sangh
Indi) (Earlier Gangamath Sangha)

Abhay Manohar Sapre, J.
Dated:February 25, 2019

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Whether writ petition is maintainable against interlocutory order passed by arbitrator during course of proceeding?

 Keeping the object of the Act in view, the Supreme Court has stated the law in the case of Patel Engineering Ltd. (supra) in no uncertain terms that once the matter reaches the Arbitrator, the interlocutory orders made by him cannot be the subject matter of challenge in the writ proceedings. The following observations and dictum in Patel Engineering put it beyond the pale of doubt that the interlocutory orders passed during the course of arbitration proceedings are not to be interfered with under Articles 226 or 227 of the Constitution of India:-

 For what has been discussed hereinabove, we are clearly of the view that this Court in the writ jurisdiction will not interfere in an interlocutory order passed by the Arbitrator in the pending arbitral proceeding; and that the party aggrieved may reserve its right to lay a challenge to such an interlocutory order, if and when it suffers an adverse award.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Writ Petition Nos. 19822/2018 and 19834/2018 (GM-RES)

Decided On: 27.08.2018

Radiant Infosystems Limited Vs. The Karnataka State Road Transport Corporation Limited

Hon'ble Judges/Coram:

Dinesh Maheshwari, C.J. and Dixit Krishna Shripad, J.

Citation: AIR 2019 Karnat 6

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When party can challenge order passed by district court before high court by revision as well as by writ petition?

34. We, therefore, answer the reference as under:

(I) The view taken by the learned Single Judge in the Case of Dilip Bidesh & Ors. vs. Shivgopal Madangopal Chaurasia & Ors. that revision under Section 115 of the Code would not be tenable against the order under Section 26-A of the said Act does not lay down the correction position of law.

(II) The view taken by the learned Single Judge in the case of Dhuliabai Mana Praga and Ors. vs. Manikbai Vithalrao Bhusarath (Deceased), to the extent that revision under Section 115 of the Code is tenable against an order passed under the analogous provisions, is correct. However, the view that the writ petition would not be tenable under Article 227 of the Constitution of India against such an order, in our view, does not lay down correct position of law.

(III) In our considered view, a party aggrieved by the order passed under Section 26-A of the Provincial small cause courtsAct by the District Court would be at liberty to choose to file either Civil Revision Application under Section 115 of the Code or a petition under Article 227 of the Constitution of India.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition Nos. 5552 and 3431/2013

Decided On: 07.12.2016

 Gajanan and Ors. Vs.  Mohd. Jamil Mohd. Amad and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and V.M. Deshpande, JJ.

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Whether court should hear application U/S 340 of CRPC prior to writ petition?

Learned counsel for respondent has also relied upon the
order dated 15th December, 2017, passed by this Court [Coram : A.S.
Gadkari, J.], in Criminal Application No.728 of 2017; wherein also
this Court has recorded the submission of learned counsel for
respondent that his application preferred under Section 340 C.P.C, be
heard first in point of time and accordingly adjourned the matter to
2
nd February, 2018.
6] Learned counsel for respondent has then relied upon the
judgments of Hon'ble Apex Court, in the cases of i] Dalip Singh -vsState
of Uttar Pradesh [(2010} 2 SCC 114], ii] Rameshwari Devi-vs
Nirmala Devi [(2011) 8 SCC 249, and iii] Kishore Samrite -vs- State
of Uttar Pradesh[(2013) 2 SCC 398], holding that, “It is very well
settled that a person whose case is based on falsehood has no right to
approach the Court and he is not entitled to be heard on merits and he
can be thrown out at any stage of the litigation.

7] In my considered opinion, having regard to the above said
legal position spelt out by learned counsel for respondent, it would be
just and proper to hear C.A. No.2939 of 2017 filed by respondent
under Section 340 C.P.C. before deciding the Writ Petition.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO.2939 OF 2017
IN
WRIT PETITION NO.14039 OF 2017
Harish V. Milani … Applicant
IN THE MATTER OF WRIT PETITION BETWEEN

Union of India  V/s. Mr. Haresh V. Milani and anr 

CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.

ORDER PRONOUNCED ON : 26th APRIL, 2018.

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What will be effect if legal heirs of deceased tenant are not brought on record during pendency of writ petition?

 On the other hand, the learned Counsel for the Respondent has raised preliminary objection regarding the maintainability of the present writ petition. According to him, the tenant was the original Respondent No. 1 (deceased Biharilal) and after his demise no steps have been taken by the Petitioners for substitution or to bring the heirs and legal representatives of the said Respondent on record. On the other hand, the Petitioners chose to delete the said Respondent, as is recorded in the order passed by this Court dated 23-3-1990. It is, therefore, contended that since the tenant is not before this Court, the writ petition cannot be pursued further. And as a consequence of that the decree in favour of the tenant becomes final. 

It necessarily follows that, the writ petition as presented before this Court will have to be dismissed because the Petitioners have chosen not to pursue their remedy as against the original Respondent No. 1 - tenant or after his death against his heirs who were entitled to espouse his cause. Accordingly, decree passed in favour of the Respondent No. 1 - tenant has become final. In that case, the writ petition cannot proceed further against the Respondent No. 2 herein that too on the ground of default. In this view of the matter, this writ petition deserves to be dismissed on this limited count.

IN THE HIGH COURT OF BOMBAY

W.P. No. 6065 of 1987

Decided On: 24.10.2001

 Ramvilas Shivlal Navandar and Ors. Vs. Biharilal @ C.R. Ray and Anr.

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

Citation: 2002(2) MHLJ 467,2002 Bom RC 6 Bom

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