Overruling its earlier view in Surya Dev Rai vs. Ram Chander Rai, the Supreme Court (three judges bench) in Radhey Shyam vs. Chhabbi Nath, AIR 2015 SC 3269 :: (2015) 5 SCC 423., held that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. This judgment referred to observations made in Naresh Shridhar Mirajkar and others vs. State of Maharashtra and another (1966) 3 SCR 744 (a nine judges bench decision) and Rupa Ashok Hurra vs Ashok Hurra 2002 (4) SCC 388 (five judges bench decision) on the scope of writ of certiorari.
In Radhey Shyam, the Supreme Court also considered the power of High Court. It said that under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. “Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and courts within the bounds of their authority. Under Article 227, orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law.”, it was observed.
Before Radhey Shyam, the Supreme Court in Shalini Shyam Shetty Vs. Rajendra Shankar Patil (2010) 8 SCC 329 had criticized the tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions.
This simply means that, in view of this decision, a writ petition under Article 226 cannot be entertained if the impugned order/proceedings challenged is a judicial order of a civil court. It is also clear that a petition under Article 227 can be filed. But that cannot be styled as a Writ Petition.
What is the jurisdiction of the Court while dealing with a petition filed under Articles 226 and 227 of the Constitution of India? This issue was dealt by another three judges bench in Himalayan Coop. Group Housing Society v. Balwan Singh (2015) 7 SCC 373 and it was held thus : Even if the said petition(s) were styled as a petition under Article 226, the content and the prayers thereunder being ones requiring exercise of supervisory jurisdiction only, could be treated as petitions filed under Article 227 of the Constitution only.
In Mahendra Kumar Jain vs Appellate Rent Tribunal [2021 (3) WLC (Raj) 299], the Rajasthan High Court (full bench), following the decision in Radhey Shyam, held that the judicial orders passed by the Rent Tribunal and the Appellate Rent Tribunal are not amenable to writ jurisdiction under Article 226 of the Constitution and the legality of said judicial orders can only be questioned by invoking power of superintendence of this Court under Article 227 of the Constitution and thus, no intra-Court appeal would be maintainable against the orders passed by the Single Judge of this Court in such proceedings.
On this issue, the Allahabad High Court (single bench), had observed thus: A Writ Petition under Article 227 of the Constitution, is something unknown to the Constitution of India. A Writ Petition is referable to the power of this Court under Article 226 of the Constitution of India, and, not to the power under Article 227, that has nothing to do with the Court’s Writ Jurisdiction. The aforesaid difference as to the distinct and separate constitutional jurisdictions of this Court, that cannot be intermingled and invoked through a petition for a rolled up relief. (see Shiv Baba Industry Lalpur vs. State of U.P., 2018 (9) ADJ 81). Observing thus, the Court proceeded to treat the ‘writ petition’ as a petition under Article 227 of the Constitution.